Law Commons^™

Toward Racially Equitable And Accountable Tech, Andrea Giampetro-Meyer, Janae James, Sydney Brooke

Marquette Law Review

This Article examines three distinct areas to consider how we might move

toward racially equitable and accountable tech. The three distinct areas are:

(1) fair housing, (2) surveillance, and (3) social media. Fair housing raises

questions about where today’s racially biased algorithms fit within the context

of historical, racist government housing policy. Surveillance raises questions

about how some tech tools render Black faces invisible, while others render

Black faces dangerously conspicuous. Social media highlights the clash

between civil rights and civil liberties, especially when racial justice conflicts

with freedom of speech. Our analysis leads us to consider the extent to …

Revenge Of The Sixth: The Constitutional Reckoning Of Pandemic Justice, Brandon Marc Draper

Marquette Law Review

The Sixth Amendment’s criminal jury right is integral to the United States

criminal justice system. While this right is also implicated by the Due Process

Clause, Equal Protection Clause, and several federal and state statutes,

criminal jury trial rates have been declining for decades, down from

approximately 20% to 2% between 1988 to 2018. This dramatic drop in the

rate of criminal jury trials is an effective measure of the decreased access to

fair and constitutional criminal jury trials.

Necessary Coverage For Authentic Identity: How Bostock Made Title Vii The Strongest Protection Against Employer-Sponsored Health Insurance Denial Of Gender-Affirming Medical Care., Jennifer A. Knackert

Marquette Law Review

In June 2020, the United States Supreme Court held that Title VII

protection from discrimination on the basis of sex extended to LGBTQ+

employees. The Bostock v. Clayton County, Georgia decision dealt with three

separate cases where LGBTQ+ employees had been fired from their jobs based

on either their sexual orientation or gender identity. While the shared issue in

these cases had to do with employee termination, the textualist argument

presented by the Court leads many legal scholars to believe that the holding

would be applicable to other areas of employment discrimination covered by

Title VII such as employer-sponsored healthcare …

Swearing In The Phoenix: Toward A More Sensible System For Seating Members Of The House Of Representatives At Organization, Brian C. Kalt

Marquette Law Review

Under U.S. House precedent, any member-elect can challenge the right of

any other member-elect to take the oath of office at the beginning of a new term.

The uncontested members-elect then swear in and decide the fate of those who

were forced to stand aside. If the House is closely divided and there are

disputed elections at the margins, a minority party could exploit this procedure

to try to seize control of the House.

Workplace Transparency Beyond Disclosure: What's Blocking The View?, Lisa J. Bernt

Marquette Law Review

Recent developments have exacerbated informational asymmetry between

employers and workers. Employers increasingly use “black box” automateddecision

systems, such as machine learning processes where algorithms are

used in recruitment and hiring. They have technological tools that enable

intense monitoring of workers. Contemporary work relationships have

changed, with trends toward remote and scattered worksites. Employees are

more frequently bound by nondisclosure agreements, non-disparagement

provisions, and mandatory arbitration agreements. These developments have

made it more difficult for workers to communicate with each other and to act

collectively.

Making Preconception Tort Theory Crisper, Mark Strasser

Marquette Law Review

More and more individuals seeking to expand their families make use of

someone else’s gametes to help create a child. Unsurprisingly, those

considering the use of donated or purchased gametes often seek reassurance

that the use of those gametes will not create an increased risk that a child

thereby produced will have a severe disease. Sometimes, because of negligence

or recklessness, gametes are used that result in children having severe disease

where that outcome would have been avoided though the use of reasonable

care. Regrettably, courts addressing whether liability may be imposed in such

cases have sometimes misunderstood and misapplied …

The Burdens Of All: Progressive Origins Of Accident Cost Socialization In Tort Law, 1870-1920, Joseph A. Ranney

Marquette Law Review

Scholars who have studied the Progressive Movement’s contributions to

American law have paid little attention to its impact on tort law. This Article

helps fill the gap by examining the ways in which Progressivism shaped the rise

of employer liability law, workers compensation, and comparative negligence

during the late-nineteenth and early-twentieth centuries. The Article places

these reforms within the broader social history of American tort law—a

gradual, often tortuous transition from free-labor beliefs that the law should

encourage personal responsibility and economic growth above all else to a

realization that injuries are an unavoidable cost of economic modernization,

accompanied by …

Is The Legal Profession Too Independent?, Limor Zer-Gutman, Eli Wald

Marquette Law Review

Faced with mounting pressure to permit national law practice and increase

access to legal services for those who cannot afford to pay for them and

critiques about growing inequality and its failure to lead the battles for greater

gender and racial justice, the legal profession’s response has been to resist

reform proposals by invoking its independence. Lawyers and lawyers alone,

asserts the profession, ought to determine the pace and details of nationalizing

law practice, set the conditions under which nonlawyers and artificial

intelligence can offer legal services, and respond to growing inequality among

lawyers and concerns about the role lawyers …

Alleviating The Harms Of Substandard Housing To Wisconsin Tenants: Correlating Rent With Assessed Property Value, Ellen Matheson

Marquette Law Review

Like other cities across the nation, Milwaukee utilizes a mix of regulatory,

statutory, and common law tools to address the problem of substandard rental

housing. This Comment examines the efficacy of those legal tools, in the

process demonstrating that existing remedies offer insufficient protections to

tenants in need of habitable housing. This Comment then proposes a novel

legal strategy that is designed to ameliorate the problem of low-quality,

overpriced rental housing: amending Wis. Stat. § 66.1015 to permit

implementation of a “rent-value correlation rate”—giving municipalities the

option to cap monthly contract rent as a percentage of the assessed property

value. …

Emerging From Davy Jones’ Locker: The Revival Of Counterclaims Against Government In Civil Forfeiture Actions, Jack B. Harrison, Brendan Sullivan

Marquette Law Review

The thesis of this Article is that a claimant in a civil forfeiture proceeding can assert a counterclaim against the United States government. This assertion is based upon the scope of the Supplemental Rules and in rem jurisdiction.

How Circuits Can Fix Their Splits, Wyatt G. Sassman

Marquette Law Review

The desire to avoid conflicts between the regional circuits of the federal courts of appeals, commonly known as “circuit splits,” has had an immense influence on the structure and operation of the federal appellate courts for roughly a century. Over time, the Supreme Court has been assigned responsibility for resolving these conflicts. Yet as overall federal caseloads have increased, this reliance on the Supreme Court has imposed serious and well-recognized burdens on the operation of the federal courts. For decades scholars have debated bold proposals to address these problems, such as creating a new national court dedicated to resolving conflicts …

Corporate Governance And The Omnipresent Specter Of Political Bias, Stefan J. Padfield

Marquette Law Review

Subject to important qualifications, corporate decision-makers are dutybound to maximize shareholder value. However, there is reason to believe corporate decision-makers are allowing their political biases to corrupt their decision-making. This Essay posits two related fact patterns that should concern advocates of good corporate governance. The first occurs when decision-makers expressly disavow any duty to maximize shareholder value, such as when Apple CEO, Tim Cook, told shareholders, “When we work on making our devices accessible by the blind, I don’t consider the bloody ROI [return on investment],” or when Ed Stack, the chairman and chief executive of Dick’s Sporting Goods, decided …

Property Rights In Celestial Bodies: A Question Of Pressing Concern To All Mankind, Megan Alexa Mackay

Marquette Law Review

Commercial interest in outer space is increasing, thanks in part to technological developments and private sector investment. Major spacefaring nations—including the United States, China, and Russia—are suddenly having to grapple with issues of space law that have not been so hotly debated since the Cold War. Unfortunately, the foundational document governing the use of outer space and its resources is the Outer Space Treaty from 1967. Written from the perspective of an earlier era and intentionally nonspecific in much of its phrasing, this agreement has stymied the economic development of space resources by its ambiguously worded prohibition on the appropriation …

Fully Funded Pensions, Jonathan Barry Forman

Marquette Law Review

At retirement, workers want to have enough income to support themselves throughout their retirement years. In that regard, financial planners often suggest that retiring workers should aim to replace 70 to 80% of their annual preretirement earnings. Social Security benefits typically replace around 35% of the typical worker’s preretirement earnings, and the purpose of this Article is to show how pensions could and should be designed to replace, say, 40% of the typical worker’s preretirement earnings throughout her retirement years. In particular, because so many public and private pension plans are underfunded, this Article focuses on how to fully fund …

Is The Constitution’S Convention For Proposing Amendments A “Mystery”? Overlooked Evidence In The Narrative Of Uncertainty, Robert G. Natelson

Marquette Law Review

Since the 1960s, leading academics and other commentators have claimed that the composition and protocols of the Constitution’s “Convention for proposing Amendments” are unknowable, subject to congressional control, or both. Today those claims are on a collision course with growing public sentiment for an amendments convention to address federal dysfunction.

Climate Change, Sustainability, And The Failure Of Modern Property Theory, Jill M. Fraley

Marquette Law Review

Property rights are, I argue, the single largest legal limitation on our ability to respond effectively to the climate change crisis. This is because our understanding of the scope of property rights shapes and limits legal concepts such as regulatory takings, land use law, common law tort and property claims, and statutory environmental regulation. Property sets our cultural norms about how much the government can or should control the uses of land. The goals of this Article are to (1) historically demonstrate the failures of socially oriented property theory as they are represented in the analytical framework of doctrines such …

Presidential Administration, The Appearance Of Corruption, And The Rule Of Law: Can Courts Rein In Unlawful Executive Orders?, Emily Morgan, Michael R. Barsa

Marquette Law Review

Many of President Trump’s executive orders aimed to “deconstruct” the administrative state by exercising unprecedented control over agency action. While presidents have exercised directive authority over executive agencies for several decades, these recent directives are particularly troubling because many of them direct agencies to act contrary to congressionally mandated procedures designed to ensure that agencies engage in predictable, transparent, and justified decision-making. This phenomenon poses a threat not only to agency rulemaking but also to corresponding rule of law principles—all at a time when public confidence in government officials has steadily declined and more and more Americans perceive their officials …

The Online Defamation Dilemma: Adapting An Age-Old Doctrine To The Reality, Elizabeth Elving

Marquette Law Review

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Ice Detention Contracts, Third-Party Beneficiary Suits, And Private Contracts In Immigrant Detention, Patrick Kennedy

Marquette Law Review

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A Theory Of Factfinding: The Logic For Processing Evidence, Kevin M. Clermont

Marquette Law Review

Academics have never agreed on a theory of proof. The darkest corner of anyone’s theory has concerned how legal decisionmakers logically should find facts. This Article pries open that cognitive black box. It does so by employing multivalent logic, which enables it to overcome the traditional probability problems that impeded all prior attempts. The result is the first-ever exposure of the proper logic for finding a fact or a case’s facts.

Safe Money, John Crawford

Marquette Law Review

This Article provides the first comprehensive survey and evaluation of proposed approaches to the central financial reform issue of our era: making all money held in account form “safe,” or non-defaultable, in the same way a dollar bill cannot default. Financial crises are at core a problem of defaultable money; preventing such crises requires making money safe. The goal is eminently achievable; indeed, a number of plausible proposals have been advanced. The project has two aspects: providing better safe money options and eliminating unsafe money. This Article analyzes safe money approaches and concludes that expanding “base” money—that is, direct claims …

Growing Up Behind Bars: Pathways To Desistance For Juvenile Lifers, Laura S. Abrams, Kaylyn Canlione, D. Michael Applegarth

Marquette Law Review

In the wake of the landmark Supreme Court decision Miller vs. Alabama, a variety of state laws have paved the way for the resentencing and potential release of “juvenile lifers.” Desistance theories pertaining to youth with histories of violent offending suggest that a blend of maturation, internal motivation and identity shifts, and opportunities to adopt and fulfill adult roles will lead to cessation of criminal behavior. Yet, these theories may not apply to young people serving life sentences, as they have limited opportunity to adopt adult responsibilities while imprisoned, less motivation to desist if freedom is not viewed as attainable …

The Impact Of Incarceration On The Risk Of Violent Recidivism, Jennifer E. Copp

Marquette Law Review

Whether incarceration heightens an individual’s likelihood of recidivating is at the center of prison policy discussions. Yet rigorous empirical studies on the nature of the incarceration—recidivism link are limited. As a whole, existing research suggests that the effect of imprisonment, relative to noncustodial sanctions, is either null or slightly criminogenic. These findings call into question the ability of prisons to exert a specific deterrent effect. They also suggest that prisons are failing to address the underlying causes of recidivism among inmate populations. An important consideration, however, is the extent to which the effects of imprisonment are heterogeneous. The current discussion …

Violence Risk Assessment: Current Status And Contemporary Issues, Sarah L. Desmarais, Samantha A. Zottola

Marquette Law Review

Despite the increased use of violence risk assessment instruments in the criminal justice system, they remain the topic of continued discussion and debate. This Article will discuss the state of science and practice as it relates to assessing risk for violent recidivism, highlighting current issues of concern and empirical investigation. We first provide an overview of violence risk assessment and describe the role of violence risk assessments instruments in this process. We then discuss their current status in science and practice, including the accuracy with which violence risk assessment instruments forecast violent recidivism, their impact on criminal justice decisions, and …

Preventing Sexual Violence: Alternatives To Worrying About Recidivism, Eric S. Janus

Marquette Law Review

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Violent Crime And Media Coverage In One City: A Statistical Snapshot, Michael O'Hear

Marquette Law Review

Many commentators have argued that high levels of public fear and anger regarding violent crime result, at least in part, from distorted coverage of crime in the news media. Among other distortions, it is said that the news media devote greatly disproportionate coverage to the most outrageous instances of violent crime, and that the media fail to provide information that would helpfully contextualize the offenses or humanize the perpetrators. In order to test these latter claims, crime stories from a daily newspaper and an Internet news site in one mid-sized city were collected for one year. As expected, in comparison …

Cannabis Legalization In State Legislatures: Public Health Opportunity And Risk, Daniel G. Orenstein, Stanton A. Glantz

Marquette Law Review

Cannabis is widely used in the United States and internationally despite its illicit status, but that illicit status is changing. In the United States, thirty-three states and the District of Columbia have legalized medical cannabis, and eleven states and D.C. have legalized adult use cannabis. A majority of state medical cannabis laws and all but two state adult use laws are the result of citizen ballot initiatives, but state legislatures are beginning to seriously consider adult use legislation. From a public health perspective, cannabis legalization presents a mix of potential risks and benefits, but a legislative approach offers an opportunity …

When Food Is A Weapon: Parental Liability For Food Allergy Bullying, D'Andra Millsap Shu

Marquette Law Review

Food allergies in children are rising at an alarming pace. Increasingly, these children face an added threat: bullies targeting them because of their allergies. This bullying can take a life-threatening turn when the bully exposes the victim to the allergen. This Article is the first major legal analysis of food allergy bullying. It explores the legal system’s failure to adequately address the problem of food allergy bullying and makes the case for focusing on the potential tort liability of the bully’s parents. Parents who become aware of their child’s bullying behavior and fail to take adequate steps to stop it …

Balancing Sorna And The Sixth Amendment: The Case For A "Restricted Circumstance-Specific Approach", John F. Howard

Marquette Law Review

The Sex Offender Registration and Notification Act (SORNA) is in place to protect the public, children especially, from sex offenders. Under SORNA, anyone and everyone convicted of what the law defines as a “sex offense” is required to register as a “sex offender,” providing accurate and up-to-date information on where they live, work, and go to school. Failure to do so constitutes a federal crime punishable by up to ten years imprisonment. But how do federal courts determine whether a particular state-level criminal offense constitutes a “sex offense” under SORNA? Oftentimes when doing comparisons between state and federal law for …

Women's Spaces, Women's Rights: Feminism And The Transgender Rights Movement, Christen Price

Marquette Law Review

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