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2016

Marquette University Law School

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Full-Text Articles in Law

Coercive Insurance And The Soul Of Tort Law, Alexander Lemann Nov 2016

Coercive Insurance And The Soul Of Tort Law, Alexander Lemann

Faculty Publications

Scholars have long accepted the idea that there are alternatives to the tort system, particularly insurance, that are better at compensating victims than tort law. Tort law remains necessary, it has been assumed, because insurance lacks the ability to deter conduct that causes harm, and indeed it sometimes creates a moral hazard that increases incentives to engage in risky conduct. Scholars of insurance law, however, have observed that insurance has at its disposal a variety of tools that can help deter risky conduct. Recent technological developments lend dramatic support to this account. New telematics devices being used in automobiles can …


Resolving Conflicts Over Scarce Resources: Private Versus Shared Ownership, W.C. Bunting Mar 2016

Resolving Conflicts Over Scarce Resources: Private Versus Shared Ownership, W.C. Bunting

Marquette Law Review

This Article models private ownership as a conflict resolution mechanism and contends that for the Coase Theorem, as narrowly defined in this Article, to be consistent, private ownership must yield the Pareto- optimal use of scarce resources among all feasible conflict resolution mechanisms. Conflict over a scarce resource may be better resolved, however, by eliminating the possibility of private ownership and “forcing” disputing parties to share ownership of the contested resource. A corollary to the Coase Theorem is introduced which states: In the absence of transaction costs, the distribution of private and shared ownership is efficient. Further, assuming transaction costs …


Binding Authority: Unamendability In The United States Constitution—A Textual And Historical Analysis, George Mader Mar 2016

Binding Authority: Unamendability In The United States Constitution—A Textual And Historical Analysis, George Mader

Marquette Law Review

We think of constitutional provisions as having contingent permanence—they are effective today and, barring amendment, tomorrow and the day after and so on until superseded by amendment. Once superseded, a provision is void. But are there exceptions to this default state of contingent permanence? Are there any provisions in the current United States Constitution that cannot be superseded by amendment—that are unamendable? And could a future amendment make itself or some portion of the existing Constitution unamendable?

Commentators investigating limits on constitutional amendment frequently focus on limits imposed by natural law, the democratic underpinnings of our nation, or some other …


Conservation Easements As A Way To Preserve Wisconsin’S Farmland: Why Wisconsin Should Adopt A Transferable Tax Credit Program, Jennifer E. Krueger Mar 2016

Conservation Easements As A Way To Preserve Wisconsin’S Farmland: Why Wisconsin Should Adopt A Transferable Tax Credit Program, Jennifer E. Krueger

Marquette Law Review

Conservation easements are a tool landowners can use to protect their land and preserve it for generations to come. Given the new emphasis society places on preserving the environment, many states have enacted some form of a conservation easement program where landowners who encumber their property with a conservation easement can receive a benefit for doing so. Wisconsin and Virginia are two states with this type of program. Wisconsin’s conservation easement program allows a landowner to donate his land and the state pays him the difference in the market value. Virginia’s program, on the other hand, allows a landowner to …


Imprisonment Inertia And Public Attitudes Toward "Truth In Sentencing", Michael M. O'Hear, Darren Wheelock Jan 2016

Imprisonment Inertia And Public Attitudes Toward "Truth In Sentencing", Michael M. O'Hear, Darren Wheelock

Faculty Publications

In the space of a few short years in the 1990s, forty-two states adopted truth in sentencing (“TIS”) laws, which eliminated or greatly curtailed opportunities for criminal defendants to obtain parole release from prison. In the following decade, the pendulum seemingly swung in the opposite direction, with thirty-six states adopting new early release opportunities for prisoners. However, few of these initiatives had much impact, and prison populations continued to rise. The TIS ideal remained strong. In the hope of developing a better understanding of these trends and of the prospects for more robust early release reforms in the future, the …


Prior Inconsistent Statements: The Simple Virtues Of The Original Federal Rule, Daniel D. Blinka Jan 2016

Prior Inconsistent Statements: The Simple Virtues Of The Original Federal Rule, Daniel D. Blinka

Faculty Publications

How well do hearsay rules function under the current Federal Rules of Evidence? One issue, dormant yet pulsating beneath the surface for decades, involves the admissibility of prior inconsistent statements by witnesses. The long-standing “orthodox” rule admitted the prior statement only to impeach the witness’s trial testimony; it could not be used as substantive evidence of the facts asserted. In 1972, the Advisory Committee on the Federal Rules of Evidence (“the Advisory Committee” or “the Committee”) proposed an innovative rule permitting all prior inconsistent statements to be used both for impeachment and as substantive evidence—a sea change in practice. Congress, …


Public Attitudes Toward Punishment, Rehabilitation, And Reform: Lessons From The Marquette Law School Poll, Michael M. O'Hear, Darren Wheelock Jan 2016

Public Attitudes Toward Punishment, Rehabilitation, And Reform: Lessons From The Marquette Law School Poll, Michael M. O'Hear, Darren Wheelock

Faculty Publications

Since the late 1990s, many opinion surveys have suggested that the American public may be growing somewhat less punitive and more open to reforms that emphasize rehabilitation over incarceration. In order to assess current attitudes toward punishment, rehabilitation, and the criminal justice system, we collected survey data of 804 registered voters in Wisconsin. Among other notable results, we found strong support for rehabilitation and for the early release of prisoners who no longer pose a threat to public safety. However, we also found significant divisions in public opinion. For instance, while black and white respondents largely shared the same priorities …


Finding Customary International Law, Ryan M. Scoville Jan 2016

Finding Customary International Law, Ryan M. Scoville

Faculty Publications

Established doctrine holds that customary international law (“CIL”) arises from general and consistent state practice that is backed by a sense of legal obligation. Contemporary litigation requires federal courts to apply this doctrine to identify the contours of CIL in a diverse collection of cases ranging from civil actions under the Alien Tort Statute to criminal prosecutions under the Maritime Drug Law Enforcement Act. This Article provides an in-depth look at how federal judges carry out this task. Conducting a citation analysis of opinions published since the U.S. Supreme Court’s 2004 decision in Sosa v. Alvarez-Machain, this Article analyzes …


Justice Reinvestment And The State Of State Sentencing Reform, Michael M. O'Hear Jan 2016

Justice Reinvestment And The State Of State Sentencing Reform, Michael M. O'Hear

Faculty Publications

The national Justice Reinvestment Initiative has arguably been the most important development in American sentencing policy in the past decade. This essay introduces an issue of the Federal Sentencing Reporter that focuses on the JRI. The essay highlights both strengths and weaknesses of the JRI, particularly from the standpoint of reducing mass incarceration in the United States.


The Communistic Inclinations Of Sir Thomas More, David Ray Papke Jan 2016

The Communistic Inclinations Of Sir Thomas More, David Ray Papke

Faculty Publications

No abstract provided.


Persuading With Precedent: Understanding And Improving Analogies In Legal Argument, Jacob M. Carpenter Jan 2016

Persuading With Precedent: Understanding And Improving Analogies In Legal Argument, Jacob M. Carpenter

Faculty Publications

When writing persuasive briefs, attorneys use comparisons — metaphors or case-based analogies — to help explain their analyses and support their positions. But attorneys use the two types of comparisons for very different purposes. Several legal scholars have explored how attorneys use metaphors in their legal writing. While the existing scholarship on legal metaphors is excellent, it is not sufficient to properly understand how to best draft case-based analogies. Unfortunately, case-based analogies have been surprisingly understudied despite their critical role in persuasive legal briefs. Not surprisingly, many attorneys are unaware of how far short their analogies fall from reaching their …


High Prices In The U.S. For Life-Saving Drugs: Collective Bargaining Through Tort Law?, Paul J. Zwier Jan 2016

High Prices In The U.S. For Life-Saving Drugs: Collective Bargaining Through Tort Law?, Paul J. Zwier

Marquette Benefits and Social Welfare Law Review

Sudden exorbitant price hikes to patients who have long taken life-saving drugs are more and more common in today’s pharmaceutical market. The anxiety caused to patients who have been prescribed these drugs by their doctors is predictable and severe. Even when initially covered by insurance or through government programs, patients and their families can soon be made destitute by the high copays or caps on payments. This Essay argues that those who buy up life-saving drugs and decide to raise their prices, despite their knowledge of the consequences to patients, are committing the torts of intentional infliction of emotional distress …


Essay: Understanding Employment Discrimination Litigation In China Through The Notion Of "Rights Apathy", Sheera Chan, Mimi Zou Jan 2016

Essay: Understanding Employment Discrimination Litigation In China Through The Notion Of "Rights Apathy", Sheera Chan, Mimi Zou

Marquette Benefits and Social Welfare Law Review

The psycho-legal concept of “rights apathy” is developed in

this Essay as an underlying factor of the very low rate of

incidence of workplace discrimination lawsuits filed in China,

despite an increasingly elaborate legal framework “on paper”

and workers’ rising awareness of their legal rights under

anti-discrimination laws. “Rights apathy” is underpinned by the

notions of “frustration” and “learned helplessness,” depicting the

indifference of workers in exercising their legal rights before a

tribunal or court. A number of institutional problems, namely

defects in existing anti-discrimination provisions, judicial

practices, and contradictions in other laws, policies, and

practices, can contribute to the …


Protective Plan Provisions For Employer-Sponsored Employee Benefit Plans, Kathryn J. Kennedy Jan 2016

Protective Plan Provisions For Employer-Sponsored Employee Benefit Plans, Kathryn J. Kennedy

Marquette Benefits and Social Welfare Law Review

Federal case law has provided plan sponsors of the

Employee Retirement Income Security Act of 1974 (ERISA)

covered plans with the ability to insert plan provisions that are

more favorable to the plan sponsor rather than the plan

participant or beneficiary (so-called “protective plan provisions”).

This Article first examines what is the “plan document” for

purposes of ERISA and what protective plan provisions should

be considered for insertion into the plan document and its

related “instruments.”


Neither Employees Nor Indentured Servants: A New Amateurism For A New Millennium In College Sports, Brian L. Porto Jan 2016

Neither Employees Nor Indentured Servants: A New Amateurism For A New Millennium In College Sports, Brian L. Porto

Marquette Sports Law Review

None


Institutional Racism In The Ncaa And The Racial Implications Of The "2.3 Or Take A Knee" Legislation, Akuoma C. Nwadike, Ashley R. Baker, Velina B. Brackebusch, Billy J. Hawkins Jan 2016

Institutional Racism In The Ncaa And The Racial Implications Of The "2.3 Or Take A Knee" Legislation, Akuoma C. Nwadike, Ashley R. Baker, Velina B. Brackebusch, Billy J. Hawkins

Marquette Sports Law Review

None


Athletic Directors, Martin J. Greenberg, Alexander W. Evrard Jan 2016

Athletic Directors, Martin J. Greenberg, Alexander W. Evrard

Marquette Sports Law Review

None


A Sporting Chance: Biediger V. Quinnipiac University And What Constitutes A Sport For Purposes Of Title Ix, James J. Hefferan, Jr. Jan 2016

A Sporting Chance: Biediger V. Quinnipiac University And What Constitutes A Sport For Purposes Of Title Ix, James J. Hefferan, Jr.

Marquette Sports Law Review

None


Index: Sports Law In Law Reviews And Journals, Sean P. Mccarthy, Emily K. Hartsinck Jan 2016

Index: Sports Law In Law Reviews And Journals, Sean P. Mccarthy, Emily K. Hartsinck

Marquette Sports Law Review

None


All's Fair In Copyright And Costumes: Fair Use Defense To Copyright Infringement In Cosplay, Molly Rose Madonia Jan 2016

All's Fair In Copyright And Costumes: Fair Use Defense To Copyright Infringement In Cosplay, Molly Rose Madonia

Marquette Intellectual Property Law Review

None


Collegiate Athletes And The Right To Their Marks, Joseph E. Clemente Jan 2016

Collegiate Athletes And The Right To Their Marks, Joseph E. Clemente

Marquette Intellectual Property Law Review

None


Under Seal But Not Under Law: In Re City Of Houston's Effect On Municipal Insignias, Tyler M. Helsel Jan 2016

Under Seal But Not Under Law: In Re City Of Houston's Effect On Municipal Insignias, Tyler M. Helsel

Marquette Intellectual Property Law Review

None


In Pursuit Of Patent Quality (And Reflection Of Reification), Kenneth L. Port, Lucas M. Hjelle, Molly Littman Jan 2016

In Pursuit Of Patent Quality (And Reflection Of Reification), Kenneth L. Port, Lucas M. Hjelle, Molly Littman

Marquette Intellectual Property Law Review

None


Eu Directive Proposal: Trade Secret, Natalja Sosnova Jan 2016

Eu Directive Proposal: Trade Secret, Natalja Sosnova

Marquette Intellectual Property Law Review

None


Iheartgeo-Fencing?: The Section 114 Exemption That Illustrates Why Full Sound Recording Rights Are The Sine Qua Non For A Vibrant Music Industry, Bradley Ryba Jan 2016

Iheartgeo-Fencing?: The Section 114 Exemption That Illustrates Why Full Sound Recording Rights Are The Sine Qua Non For A Vibrant Music Industry, Bradley Ryba

Marquette Intellectual Property Law Review

None


Punitive Damage And Attorney Fee Awards In Trade Secret Cases, Richard F. Dole Jr. Jan 2016

Punitive Damage And Attorney Fee Awards In Trade Secret Cases, Richard F. Dole Jr.

Marquette Intellectual Property Law Review

None


Table Of Contents Jan 2016

Table Of Contents

Marquette Intellectual Property Law Review

none


Myriad: A Look Into The Future Of Genetic Patentable Subject Matter, Nathan Edward Cromer Jan 2016

Myriad: A Look Into The Future Of Genetic Patentable Subject Matter, Nathan Edward Cromer

Marquette Intellectual Property Law Review

None


The Commercial Felony Streaming Act: The Call For Expansion Of Criminal Copyright Infringement, Jeff Yostanto Jan 2016

The Commercial Felony Streaming Act: The Call For Expansion Of Criminal Copyright Infringement, Jeff Yostanto

Marquette Intellectual Property Law Review

None


Skating On Thin Ice: The Intellectual Property Ramifications Of A Figure Skater's Public Performance, Vanessa E. Richmond Jan 2016

Skating On Thin Ice: The Intellectual Property Ramifications Of A Figure Skater's Public Performance, Vanessa E. Richmond

Marquette Intellectual Property Law Review

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