Publisher: Marquette University   (Total: 3 journals)   [Sort by number of followers]

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Marquette Intellectual Property Law Review     Open Access   (Followers: 13)
Marquette Law Review     Full-text available via subscription   (Followers: 3)
Marquette Sports Law Review     Open Access   (Followers: 1)
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Marquette Law Review
Number of Followers: 3  
 
  Full-text available via subscription Subscription journal
ISSN (Print) 0025-3987
Published by Marquette University Homepage  [3 journals]
  • A Survey of Civil Procedure: Technology to COVID-19 Within State Courts

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      Authors: Joshua H. Hernandez
      Abstract: The COVID-19 pandemic catalyzed the implementation of technological innovation within the legal field. Specifically, state courts used technology to adjust their civil procedures while maintaining accurate results, limiting costs, and providing meaningful participation nature of these adjustments, there is a lack of knowledge regarding what actions were taken in the early months of the pandemic. Thus, this Comment conducts a survey focusing on how the states adjusted their judicial civil procedures to respond to COVID-19's impact. This Comment then argues that the most liberal implementation of technological adjustments may not be best for states to fulfill the historical purpose of civil procedure. Rather, states that implemented statewide orders, for a short period of time, allowing their lower courts to implement a full range of technological adjustments, best balanced the need for accuracy with the costs of implementation to maintain the highest degree of meaningful participation.
      PubDate: Thu, 16 Jun 2022 19:44:34 PDT
       
  • Does Public Health Start Within Jails' A New Incentive for Reform of
           Wisconsin's Bail System

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      Authors: Mahmood N. Abdellatif
      Abstract: Wisconsin’s Milwaukee and Dane Counties are among many jurisdictions in the country employing modern bail reforms, specifically the Public Safety Assessment (PSA). Most of these jurisdictions adopted the PSA before the advent of the COVID-19 pandemic in the United States, but are increasingly relevant as the virus continues to derail public health measures. Through the intersection of detainees, correctional officers, judicial officials, attorneys, and visitors, millions of Americans filter in and out of correctional facilities on an annual basis. These facilities serve as a microcosm of society and breeding ground for mass infection. The COVID-19 pandemic amplified an existing need for reform of correctional facilities to better protect the rights and health of pretrial detainees. This Comment examines the efficacy of the PSA and other currently employed bail reform measures and concludes with how the State of Wisconsin can adopt stronger measures to effectively assess risk while maintaining the liberties of pretrial detainees.
      PubDate: Thu, 16 Jun 2022 19:44:34 PDT
       
  • Some Observations on Separation of Powers and the Wisconsin Constitution

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      Authors: Chad M. Oldfather
      Abstract: In recent years the Wisconsin Supreme Court has decided several high- profile cases concerning the separation of powers under the state constitution. In the abstract, questions concerning the separation of powers do not seem inherently partisan, largely because the partisan balance of government will shift over time. Yet, as has been the case with many of its recent decisions, the justices’ votes have broken along what most observers regard as partisan lines, and the opinions have featured heated prose including accusations of result orientation and methodological illegitimacy.
      PubDate: Thu, 16 Jun 2022 19:44:33 PDT
       
  • Presuit Lawyer Information Duties Relevant to Civil Litigation

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      Authors: Jeffrey A. Parness
      Abstract: In both federal and state courts in the United States, there are significant civil procedure, professional responsibility, and substantive laws addressing presuit lawyer duties on creating, preserving, producing, and protecting information relevant to later civil litigation. These laws speak to lawyer conduct both in personally handling information and in overseeing the information acts of others. To date, the challenges these laws pose to lawyers have not been well examined, or even largely perceived. And, to date, lawyers have been left unaccountable for their personal violations of these duties.
      PubDate: Thu, 16 Jun 2022 19:44:33 PDT
       
  • A Legal Map of New Local Parkland

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      Authors: Daniel B. Rosenbaum
      Abstract: Public parks play consequential roles in local communities. Parks can raise property values, encourage or inhibit sprawl, and promote health, safety, and social cohesion. The decision to create a park affects development in the surrounding area and dictates which residents can easily access the property’s new amenities—and which residents cannot.Yet, public stakeholders are given few signposts in making and monitoring public park acquisitions. Data on new parkland is scarce; moreover, the legal framework undergirding the process is poorly understood and rarely explored, particularly at the local government level. Although local governments are America’s leading stewards and gatekeepers of public park property, the actions of a parks department when acquiring new land receive bare direction from the formal legal regime and little attention from legal scholars. Instead, state law and judicial precedent grants almost unconstrained local discretion when acquiring parkland, a framework that delegates lawmaking to the lowest level of governance: to the local and sublocal institutions whose internal policies and unwritten practices determine what parkland is acquired, how potential land acquisitions are reviewed, and which stakeholders and priorities carry most weight in the process. Viewed as a whole, these policies and practices constitute an informal, heterogeneous legal regime of local parkland acquisition.
      PubDate: Thu, 16 Jun 2022 19:44:32 PDT
       
  • Partisan Gerrymander Review After Rucho: Proof is in the Procedure

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      Authors: Kevin Morris
      Abstract: In Rucho v. Common Cause, the U.S. Supreme Court purported to end over three decades of partisan gerrymander review by the federal courts. I believe the Court’ s decision is problematic. Partisan gerrymandering distorts democratic governance through effects that have been increasingly documented, and it seems likely that those effects will compound and continue largely unabated absent the availability of federal judicial review. But my intent is not to argue against Rucho, rather to work within its parameters and overcome it. That means understanding the nature of the problem that the Court wrestled with, recognizing the Court’s structural concerns, and then tracing the limits of its reasoning. All of which, I believe, points to the procedural guarantee of the Due Process Clause as a plausible constitutional basis for reinvigorated federal judicial review of partisan gerrymandering challenges. By targeting identifiable groups for vote dilution, partisan gerrymandering functions more like adjudicatory acts rather than traditional legislative acts, and therefore may require additional procedural safeguards in connection with their adoption than the lawmaking process itself provides. Moreover, review of redistricting procedures and the formulation of corresponding safeguards, in contrast to substantive review of redistricting maps as has been done in the past, draws on the special competence of judges. Finally, procedural review does not shift the locus of redistricting authority but instead de-weaponizes it; it does not attempt to wrest control but only to formalize it. A judicial focus on redistricting procedures can thus limit and discipline review so as to prevent judicial overreach, a concern which has long troubled the Court, while at the same time checking the worst partisan redistricting abuses.
      PubDate: Thu, 16 Jun 2022 19:44:32 PDT
       
  • Informational Regulation, the Environment, and the Public

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      Authors: Katrina Fischer Kuh
      Abstract: Informational Regulation, the Environment, and the Public generates a typology to analyze how public disclosure functions in informational regulation. In the environmental context, informational regulation compels the public disclosure of environmental information without mandating substantive environmental outcomes in the expectation that disclosure itself will prompt beneficial change in the environmental context. Application of the Article’s typology reveals that the emperor has no clothes: Communication of environmental information to the public is considered central to policies employing informational regulation, but the information produced pursuant to these measures largely fails to reach or be understood by lay individuals. For example, empirical data shows that corporations required to publicly report releases under the Toxic Release Inventory (TRI) do change their conduct to reduce those releases despite being under no legal obligation to do so. Most people, however, are wholly unaware of the information disclosed under the TRI and, even if made aware of it, unable to comprehend its significance. This insight calls into question oft-cited normative bases for environmental information regulation, including that it supports individual autonomy (by informing choice about exposure to risk) and enriches civic perspective (by enhancing participation in administrative process and other civic behaviors). Critical examination of how informational regulation works and the effects it produces is timely and important. Environmental law increasingly embraces policies that employ informational regulation—it is, for example, central to current proposals to require greater disclosure of climate change risk under securities laws and constitutes a core element of many Environmental, Social, and Governance (ESG) protocols. Yet, close analysis suggests that the success of public disclosure at prompting upstream effects (changing the behavior of regulated entities) masks its general failure to speak to the lay public. Improving informational regulation requires a clear-eyed assessment of its limitations and a recognition that information cannot simply be pumped into the public domain and expected to enlighten individuals.
      PubDate: Thu, 16 Jun 2022 19:44:25 PDT
       
  • Republication Liability on the Web

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      Authors: Jeffrey Standen
      Abstract: The tort of defamation evolved in an era where defamatory speech was published in books, magazines, newspapers, or other printed documents. The doctrines that are antecedent to the tort, such as publication, fault, defamation per se, presumed damages, and republication liability, similarly presumed that most defamation would appear in written form in a published work. Similarly, the significant limitations on defamation liability that were produced by a succession of Supreme Court constitutional precedent, including restrictions on prior restraint, heightened fault standards, expanded “public” classes, the “fact/opinion” dichotomy, and the “truth/substantial truth” burden shifting, also were based on a publishing world in which defamatory statements would most likely appear in traditional printed form.
      PubDate: Thu, 16 Jun 2022 19:44:25 PDT
       
  • Quiescent Sovereignty of U.S. Territories

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      Authors: Michael J. Kelly
      Abstract: Under modern democratic theory, the font of sovereignty springs from the people; however, traces of its past as a power emanating from the Crown continue to haunt the domestic and international status of sub-sovereign legal entities such as U.S. Territories. Quiescent sovereignty describes that which is possessed by the people of the Territories; a sovereignty that is theirs, but that is wielded on their behalf by the federal government. Although fiduciary responsibilities attach to this arrangement, cycles of attention/neglect are the modus vivendi. Bilateral relationships between the Territories and the federal government are varied, but such differences should not impact their voices in Congress. Institutional adjustments to provide more impetus to Territorial issues are readily possible. Just as the European Union came to realize the importance of sub-national input at the federal level by creating the European Union’s Committee of the Regions, so too should the U.S. House of Representatives create a Permanent Select Committee on Territorial Affairs chaired by a Territorial Delegate.
      PubDate: Thu, 16 Jun 2022 19:44:24 PDT
       
  • A New Metaphor: How Artificial Intelligence Links Legal Reasoning and
           Mathematical Thinking

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      Authors: Melissa E. Love Koenig et al.
      Abstract: Artificial intelligence’s (AI’s) impact on the legal community expands exponentially each year. As AI advances, lawyers have more powerful tools to enhance their ability to research and analyze the law, as well as to draft contracts and other legal documents. Lawyers are already using tools powered by AI and are learning to shift their methodologies to take advantage of these enhancements. To continue to grow into their shifting role, lawyers should understand the relationship between AI, mathematics, and legal reasoning.
      PubDate: Thu, 16 Jun 2022 19:44:24 PDT
       
  • Alleviating the Harms of Substandard Housing to Wisconsin Tenants:
           Correlating Rent with Assessed Property Value

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      Authors: Ellen Matheson
      Abstract: Like other cities across the nation, Milwaukee utilizes a mix of regulatory,statutory, and common law tools to address the problem of substandard rentalhousing. This Comment examines the efficacy of those legal tools, in theprocess demonstrating that existing remedies offer insufficient protections totenants in need of habitable housing. This Comment then proposes a novellegal strategy that is designed to ameliorate the problem of low-quality,overpriced rental housing: amending Wis. Stat. § 66.1015 to permitimplementation of a “rent-value correlation rate”—giving municipalities theoption to cap monthly contract rent as a percentage of the assessed propertyvalue. Tenants could use the rent-value correlation rate as an affirmativedefense to eviction. And because tenants would finally owe a financialobligation commensurate with the substandard quality of contracted housing,landlords might be motivated to maintain or improve the quality of the premisesin order to restore or increase profit margins.
      PubDate: Fri, 08 Apr 2022 15:40:02 PDT
       
  • Is the Legal Profession Too Independent'

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      Authors: Limor Zer-Gutman et al.
      Abstract: Faced with mounting pressure to permit national law practice and increaseaccess to legal services for those who cannot afford to pay for them andcritiques about growing inequality and its failure to lead the battles for greatergender and racial justice, the legal profession’s response has been to resistreform proposals by invoking its independence. Lawyers and lawyers alone,asserts the profession, ought to determine the pace and details of nationalizinglaw practice, set the conditions under which nonlawyers and artificialintelligence can offer legal services, and respond to growing inequality amonglawyers and concerns about the role lawyers play, and fail to play, in the questfor a more just society. Any outside interference, cautions the profession, wouldundermine lawyers’ independence and our commitment to the Rule of Law.Asserting the independence of the bar has proven to be an effective rhetoricalploy, successfully disarming criticisms and weakening calls for reform—because who can argue against the Rule of Law'
      PubDate: Fri, 08 Apr 2022 15:40:01 PDT
       
  • The Burdens of All: Progressive Origins of Accident Cost Socialization in
           Tort Law, 1870-1920

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      Authors: Joseph A. Ranney
      Abstract: Scholars who have studied the Progressive Movement’s contributions toAmerican law have paid little attention to its impact on tort law. This Articlehelps fill the gap by examining the ways in which Progressivism shaped the riseof employer liability law, workers compensation, and comparative negligenceduring the late-nineteenth and early-twentieth centuries. The Article placesthese reforms within the broader social history of American tort law—agradual, often tortuous transition from free-labor beliefs that the law shouldencourage personal responsibility and economic growth above all else to arealization that injuries are an unavoidable cost of economic modernization,accompanied by a long-running debate over the extent to which the costs ofaccidents should be socialized.
      PubDate: Fri, 08 Apr 2022 15:40:01 PDT
       
  • Making Preconception Tort Theory Crisper

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      Authors: Mark Strasser
      Abstract: More and more individuals seeking to expand their families make use ofsomeone else’s gametes to help create a child. Unsurprisingly, thoseconsidering the use of donated or purchased gametes often seek reassurancethat the use of those gametes will not create an increased risk that a childthereby produced will have a severe disease. Sometimes, because of negligenceor recklessness, gametes are used that result in children having severe diseasewhere that outcome would have been avoided though the use of reasonablecare. Regrettably, courts addressing whether liability may be imposed in suchcases have sometimes misunderstood and misapplied the prevailingreproductive torts jurisprudence and denied recovery, thereby promoting thevery practices that public policy should discourage. This Article offers courtsan approach that is more likely to promote both individual interests and goodpublic policy.
      PubDate: Fri, 08 Apr 2022 15:40:00 PDT
       
  • Toward Racially Equitable and Accountable Tech

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      Authors: Andrea Giampetro-Meyer et al.
      Abstract: This Article examines three distinct areas to consider how we might movetoward racially equitable and accountable tech. The three distinct areas are:(1) fair housing, (2) surveillance, and (3) social media. Fair housing raisesquestions about where today’s racially biased algorithms fit within the contextof historical, racist government housing policy. Surveillance raises questionsabout how some tech tools render Black faces invisible, while others renderBlack faces dangerously conspicuous. Social media highlights the clashbetween civil rights and civil liberties, especially when racial justice conflictswith freedom of speech. Our analysis leads us to consider the extent to whichlegal and non-legal remedies can promote a racially equitable and accountabletech industry. Moreover, in the context of a Biden administration, we considerthe promise of the federal government to lead us in the fight to promote change.Ultimately, the Article suggests that legislators, lawyers, journalists, activists,artists, designers, developers, and community organizers must work together,using all available tools, to dismantle structural racism in tech.
      PubDate: Fri, 08 Apr 2022 15:39:59 PDT
       
  • Revenge of the Sixth: The Constitutional Reckoning of Pandemic Justice

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      Authors: Brandon Marc Draper
      Abstract: The Sixth Amendment’s criminal jury right is integral to the United Statescriminal justice system. While this right is also implicated by the Due ProcessClause, Equal Protection Clause, and several federal and state statutes,criminal jury trial rates have been declining for decades, down fromapproximately 20% to 2% between 1988 to 2018. This dramatic drop in therate of criminal jury trials is an effective measure of the decreased access tofair and constitutional criminal jury trials.
      PubDate: Fri, 08 Apr 2022 15:39:58 PDT
       
 
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