Marquette Law Review

Democratic Values in a Digitized World: Regulating Internet Speech in Schools to Further the Educational Mission

Maureen Sullivan — Wed, 20 Mar 2013 17:47:27 PDT

The Internet is a remarkable tool—so remarkable that using the word “tool” to describe it is painfully inadequate. With a click of a mouse, a few strokes on a keyboard, or a swipe on a screen, the Internet allows instant communication and transaction at any time by anyone in the world. Young people, especially, have embraced the Internet as a means of communicating with peers and interacting with the world around them. In fact, the Internet may be thought of as a social context—similar to school, church, or home—where young people’s identities are influenced and shaped. As a result, what takes place online may have implications in the off-line world.

One of those offline places implicated by Internet expression is the public school system. Public elementary and high schools are unique institutions. They have long been recognized as playing a dominant role in maintaining our democratic society by inculcating in students certain values such as respect, honesty, citizenship, responsibility, and integrity. And, because public students enjoy less constitutional protections on school grounds and during school hours, public schools have been permitted to discourage expression and behavior that conflicts with those values. But there is a disagreement over whether public schools may discourage Internet expression that conflicts with those values. This Comment seeks to explain why permitting schools to limit certain Internet expression—regardless where or when the Internet expression occurred— promotes the educational mission of public schools.

Life After Act 10?: Is There a Future for Collective Representation of Wisconsin Public Employees?

Martin H. Malin — Wed, 20 Mar 2013 17:47:26 PDT

In 2011, Wisconsin largely gutted the collective bargaining rights of most public employees in the state. Wisconsin Act 10 largely replaced collective employee voice with unilateral employer control over employees’ wages, hours, and terms and conditions of employment. This article addresses the future of collective employee representation in Wisconsin in the wake of Act 10. It urges employers to continue to engage with their employees through the employees’ unions, demonstrating why such an approach better provides for the public interest than unilateral employer control. It looks to examples from other jurisdictions and presents a range of alternatives for Wisconsin public employers and unions to provide for meaningful employee voice.

Justification for Creating an Ombudsman Privilege in Today's Society

Ryan Spanheimer — Wed, 20 Mar 2013 17:47:26 PDT

Due to ever-increasing court congestion and contemporary policy favoring the resolution of disputes outside the courtroom, now more than ever a privilege for communications with an ombudsman is needed. Although statistics demonstrate that an ombudsman can quickly and effectively resolve disputes, courts have been inconsistent in recognizing such a privilege. This failure to consistently recognize a privilege for communications with an ombudsman places practicing ombudsmen in a catch-22. Ombudsmen are left to decide between disregarding standards of practice they have sworn to follow, most notably that ombudsmen keep communications in confidence, on the one hand, or of violating a court order requiring disclosure of the communications made to the ombudsman, on the other. Recognizing an ombudsman privilege will eliminate this dilemma without unduly impeding access to evidence, as an ombudsman privilege is merely a different embodiment of privileges and rules of evidence already in effect.

Examining an Underdeveloped Constitutional Standard: Trial In Absentia and the Relinquishment of a Criminal Defendant's Right to be Present

Eugene L. Shapiro — Wed, 20 Mar 2013 17:47:25 PDT

The right of a criminal defendant to be present at trial has been characterized by the Supreme Court as “one of the most basic rights” guaranteed by the Constitution, and yet the Court has only intermittently discussed the constitutional standard for assessing its relinquishment. Both federal and state courts now perceive that the constitutional standard only requires a voluntary, knowing and intelligent waiver, and they frequently focus upon the issue of the voluntariness of a defendant’s absence. A large number of the federal circuits have supplemented this constitutional standard with a non-constitutional, supervisory requirement that a trial court balance the individual and governmental interests involved before proceeding with trial in absentia. This approach has not commended itself to a majority of the state courts which have considered it.

This article discusses the evolution of relinquishment analysis in the Supreme Court and the development in the federal courts of this non- constitutional, prudential methodology. It then concludes that there is a need to refine the constitutional standard for assessing a potential relinquishment of the right to be present, so that both the individual and societal interests involved are more adequately accommodated.

Atypical Actors and Tort Law's Expressive Function

Eli K. Best — Wed, 20 Mar 2013 17:47:24 PDT

The longstanding rule that tort law ignores a person’s cognitive disability in determining whether the person’s conduct was negligent has been consistently criticized as unfair and illogical. This Article challenges those common criticisms. Focusing on the law’s expressive function and the goals of the disability rights movement, the Article argues that the current rule is potentially more progressive than the alternative. However, the rule’s articulated justifications may inadvertently perpetuate stereotypes about cognitive disability. Thus, the Article suggests ways in which courts can retain the current rule without causing expressive harm.

Expanding the Federal Common Law?: From Nomos & Physis and Beyond

Sam Kalen — Wed, 20 Mar 2013 17:47:24 PDT

The Supreme Court’s decision in AEP v. Connecticut, as well as litigation involving the threat posed by Asian Carp, reflect an emerging trend of testing the federal judiciary’s willingness to expand the federal common law to include claims for interstate environmental threats. There is an assumption, including by the Supreme Court, that a federal common law for public nuisance exists, and that the pressing question is whether to expand that common law. This article challenges that assumption. The article illustrates that the widely shared view about the persistence of a federal common law for interstate pollution overlooks the Supreme Court’s formulation of its original jurisdiction. The article briefly explores the evolution of the jurisprudential basis for the common law, how the common law and custom became inextricably tied to eighteenth and nineteenth century enlightenment principles, and how those ideas shaped the growth of and demise of a general federal common law. The Article then examines how and why the interstate pollution cases reflect the Court’s struggle with the scope of its constitutionally assigned original jurisdiction to decide disputes between states on the basis of law and equity, not on the basis of any federal common law theory. The final part of the Article explores considerations animating any meaningful dialogue about whether to employ a federal common law for harms such as interstate pollution.

Lifting the Veil on Rigorous Rational Basis Scrutiny

Miranda Oshige McGowan — Wed, 20 Mar 2013 17:47:23 PDT

In many different cases, the Supreme Court and lower courts have used a rigorous form of rational basis scrutiny very different from the ordinary, deferential rational basis scrutiny taught in constitutional law courses. When invoked, this more rigorous form of rational basis scrutiny has proven fatal to statutes and regulations. Many scholars and courts have described how courts apply it and have defended particular cases in which it has been used. No one, however, has explained just why and when courts will or ought to apply it. This gap is troublesome and pressing. Rigorous rational basis scrutiny is an important part of the constitutional toolkit, and courts have increasingly applied it to a wide variety of circumstances—including same-sex marriage, adoption by gay men and lesbians, and intimate sexual relations. This term, the Supreme Court will be hearing argument on—and presumably deciding—two same-sex marriage cases. Which level of scrutiny the Court applies to the laws challenged in these lawsuits will likely determine whether same sex marriage will be legal in California and whether the federal Defense of Marriage Act’s definition of marriage is constitutional. The issue of same-sex marriage is one of the most important civil rights issues today, and these cases should be decided by principle, not by a judge’s personal preferences. This article traces the history of rigorous rational basis scrutiny and shows that courts use it to protect groups from majority overreaching but do not want to invoke intermediate or strict scrutiny. That courts apply it to protect groups raises the question of what makes a group a group, not merely a collection of people who share a common interest or characteristic. This article explains the conditions necessary and sufficient to distinguish groups. Drawing on behavioral economics and psychology, it also explains why rigorous rational basis scrutiny is the right tool for protecting such groups from majority overreaching. Indeed, rigorous rational basis scrutiny may be a more effective tool than intermediate or strict scrutiny for protecting group interests in the long term. Unlike strict scrutiny, it does not effectively forbid majorities from regulating groups. Instead, it gives group members a seat at the political table, which forces majorities to take groups and their members into account when making decisions and providing reasons for those decisions. Rigorous rational basis scrutiny therefore reinforces democratic political processes by ensuring that minority group members are taken into account as members both of their group and of the polity, without depriving majorities of the right to govern the polity as a whole.

Volume 96, Winter 2012 Table of Contents

Marquette University Law Review — Wed, 20 Mar 2013 17:47:22 PDT

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Volume 96, Winter 2012 Masthead

Marquette University Law Review — Wed, 20 Mar 2013 17:47:20 PDT

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Quis Custodiet Ipsos Custodes? Limits on Widespread Surveillance and Intelligence Gathering By Local Law Enforcement After 9/11

Craig Roush — Sun, 30 Dec 2012 14:33:23 PST

In the decade since the terrorist attacks of September 11, 2001, local law enforcement has become the front line in the nation’s counterterrorism strategy. This involvement has not come without controversy. As part of these counterterrorism efforts, police departments have begun to establish widespread surveillance and intelligence-gathering networks to monitor Muslim and other ethnic neighborhoods in the hopes of stopping the next terrorist attack at its source. Such surveillance does not necessarily run afoul of the Constitution, and both our political environment—in which voters demand that the government stop terrorism at all costs—as well as unprecedented levels of federal funding to fight terrorism have made these surveillance programs an attractive option for local law enforcement. But the same programs risk compromising citizens’ civil liberties and damaging police relationships with ethnic communities. This Comment analyzes whether and how a balance might be struck between national security and individual civil liberties interests, and offers a model statutory solution drawn from police surveillance in a non-terrorism- related context as one possible way forward.

The Wisconsin Consumer Act: When is a Transaction a Consumer Credit Transaction?

Ralph C. Anzivino — Sun, 30 Dec 2012 14:33:22 PST

The Wisconsin Consumer Act applies to all consumer credit transactions. A consumer credit transaction is a defined term under the Wisconsin Consumer Act. It has six essential elements that have been carefully interpreted by Wisconsin courts. First, the transaction must be a consumer transaction that can be a cash or credit transaction. Second, the transaction must involve a consumer that is contracting for property, services, or credit for personal, family, or household purposes. Third, the transaction must be between a customer and a merchant. The Wisconsin Consumer Act definition of a merchant is significantly different than the UCC definition of a merchant. Fourth, the subject matter of the transaction must be real or personal property, services, or money. The definitions and interpretations of personal property and services subject to the Wisconsin Consumer Act are so broad as to be nearly limitless. Fifth, the transaction must involve a grant of credit by the merchant to the customer. Significant litigation has evolved over the meaning of that phrase. Sixth, the contract between the merchant and the customer must either permit the customer to pay in installments or permit the merchant to charge a finance charge. There are a number of factors that courts consider in determining whether the parties’ contract permits the customer to pay in installments. Although “finance charge” is a defined term, the courts have struggled when distinguishing a finance charge from an additional charge or a late payment fee.

Fitting An Old Tiger with New Teeth: Protecting Public Employee Funds Investing in Complex Financial Instruments

Richard E. Mendales — Sun, 30 Dec 2012 14:33:22 PST

State employee benefit funds invested heavily in complex financial instruments before the crash of 2008. These investments were tempting to the funds because the instruments carried higher yields than those offered by traditional securities in the low interest climate created largely by Federal Reserve policies after the turn of the century. The risks of the unconventional securities were concealed by investment-grade ratings issued by credit rating agencies and by deceptive marketing practices. With the crash, funds incurred major losses, which, unlike losses by private funds, are not insured by the federal Pension Benefit Guaranty Corporation.

This Article deals both with enforcing claims based on deceptive practices, and protecting funds against future investments of this kind. Enforcement is an issue because the SEC has limited resources, though it faces fewer procedural burdens than the states, and is the only party with standing to bring actions under statutes such as the Investment Advisers Act of 1940. Enforcement by states acting alone is problematic because most states have limited experience in securities litigation, and because they may proceed under state law, risking divergent outcomes that could undermine the consistency in dealing with securities fraud intended by the federal securities laws.

This Article proposes that the SEC create within itself an Office of State Coordination to help train state legal personnel in securities fraud actions, and to enable the SEC to coordinate enforcement with stateagencies in order to maximize the effectiveness of limited enforcement resources. Next, it discusses protecting benefit funds in future investments and analyzes the provisions of the new Dodd-Frank Act intended to improve the securities rating process, finding them to be largely ineffective. It therefore recommends largely bypassing Dodd-Frank, and giving earlier securities laws new teeth through regulatory changes restricting the sale of unregistered securities to larger, more sophisticated funds. It also recommends extending the SEC’s “Plain English” disclosure rules—now applicable only to registered securities—to all securities offerings. These rules require issuers to disclose the risks of the instruments they offer in plain English and in order of the magnitude of the risks they pose. Thus, these rules would provide better guides to risk than the rating system, even as modified by Dodd-Frank, and will aid states both in regulating investments by their funds and in enforcement actions against deceptive practices.

Separate But Equal: Miranda's Right to Silence and Counsel

Steven P. Grossman — Sun, 30 Dec 2012 14:33:21 PST

Three decades ago, the Supreme Court created a dubious distinction between the rights accorded to suspects in custody who invoke their right to silence and who invoke their right to counsel. This distinction significantly disadvantages those who do not have the good sense or good fortune to specify they want an attorney when they invoke their right to remain silent. This article argues that this distinction was flawed at its genesis and that it has led to judicial decisions that are inconsistent, make little sense, and permit police behavior that substantially diminishes the right to silence as described in Miranda v. Arizona. The article does so by demonstrating that the distinction is unsupportable either theoretically or pragmatically. It then shows that two recent holdings of the Court have paved the way for abolishing the distinction and developing an approach that both reflects the reality of custodial interrogation and is consistent with the principles behind the Fifth Amendment and the holding in Miranda.

Hallows Lecture: Barnette, Frankfurter, and Judicial Review

Jeffrey S. Sutton — Sun, 30 Dec 2012 14:33:20 PST

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Volume 96, Fall 2012 Table of Contents

Marquette University Law Review — Sun, 30 Dec 2012 14:33:19 PST

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Assessing the Impact of the Ultimate Penal Sanction on Homicide Survivors: A Two State Comparison

Marilyn Peterson Armour et al. — Sun, 30 Dec 2012 14:33:19 PST

Numerous studies have examined the psychological sequelae that result from the murder of a loved one. Except for the death penalty, however, sparse attention has been paid to the impact of the murderer’s sentence on homicide survivors’ well-being. Given the steadfastness of the public’s opinion that the death penalty brings satisfaction and closure to survivors, it is surprising that there has been no systematic inquiry directly with survivors about whether obtaining the ultimate punishment affects their healing. This Study used in-person interviews with a randomly selected sample of survivors from four time periods to examine the totality of the ultimate penal sanction (UPS) process and its longitudinal impact on their lives. Moreover, it assessed the differential effect of two types of UPS by comparing survivors’ experiences in Texas, a death penalty state, and Minnesota, a life without the possibility of parole (LWOP) state. Comparing states highlights differences primarily during the postconviction stage, specifically with respect to the appeals process and in regard to survivor well-being. In Minnesota, survivors of adjudicated cases show higher levels of physical, psychological, and behavioral health. This Study’s findings have implications for trial strategy and policy development.

Volume 96, Fall 2012 Masthead

Marquette University Law Review — Sun, 30 Dec 2012 14:33:18 PST

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Visit of Justice Elena Kagan

Marquette University Law School — Sat, 21 Jul 2012 17:38:07 PDT

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Marquette University Law School Hooding Ceremony

Diane S. Sykes — Sat, 21 Jul 2012 17:38:07 PDT

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Codifying the Flores Settlement Agreement: Seeking to Protect Immigrant Children in U.S. Custody

Rebeca M. López — Sat, 21 Jul 2012 17:38:06 PDT

The increase in enforcement actions undertaken by the federal government over the last thirty years has resulted in a broad net of enforcement that has captured vulnerable populations not previously subjected to detention, such as non-criminal immigrant children and their families. The detained children have been subjected to inhumane conditions and abuse by federal authorities and contractors. Unfortunately, few procedural safeguards exist to protect these children. For this reason, the United States government’s treatment of non-criminal immigrant children who are in detention and removal proceedings is of paramount concern.

Since 1997, the treatment of children in federal custody has been governed by the Flores v. Reno Settlement Agreement (FSA). As the INS often did not comply with the requirements, Congress twice passed legislation to reform the immigration system as it applied to unaccompanied children. Later, the Department of Homeland Security began detaining children and their families in violation of the standards set forth in the FSA. Another settlement was reached to address the treatment of those children.

This Comment reviews the history of the detention of unaccompanied minors, the legislation passed by Congress that implemented a system to protect unaccompanied minors in immigration custody, and finally, the recent history of detaining accompanied children and their families. Arguably, the current system does not ensure adequate protection for all children. Moreover, the DHS continues to have broad discretion to again open family detention facilities in the future. Therefore, congressional action is needed to ensure that all children are protected and have access to necessary services. Congress should pass legislation that codifies the settlement agreements into federal law, thereby establishing a clear national policy for the treatment of immigrant children in federal immigration custody.