Volume 2013, No. 6



PDF link Stewart Macaulay: A Few Personal Reflections

By Elizabeth Warren

Stewart Macaulay has influenced legions of scholars. I count myself among their fortunate ranks.

Book Review

PDF link On the Empirical and the Lyrical: Review of Revisiting the Contracts Scholarship of Stewart Macaulay (Edited by Jean Braucher, John Kidwell & William C. Whitford)

By Richard R.W. Brooks

On the occasion of Stewart Macaulay’s official retirement from the University of Wisconsin Law School, where he has taught since 1957, his friends and colleagues organized a conference to revisit his early scholarship. Macaulay has been a prolific writer throughout his long career and, notwithstanding the fact of his retirement, he continues to write and teach at Wisconsin. More than a half-century of excellent scholarship is a lot from which to choose.

The conference organizers’ decision to focus on his early work was an excellent choice, allowing a degree of reflection and a tracing of Macaulay’s influence that only time could allow. “Sixteen well-known contracts scholars from the UK and the USA were invited to present papers and all responded affirmatively.”1 All but one of those papers were collected, along with three of Macaulay’s previously published articles, in a volume aptly titled Revisiting the Contracts Scholarship of Stewart Macaulay: On the Empirical and the Lyrical. The result is a collection of breadth and depth, a splendid achievement for the conference organizers and volume editors Jean Braucher, John Kidwell, and William C. Whitford.

PDF link Preferences are Public Rights

By Brook Gotberg

In the wake of the Supreme Court’s decision in Stern v. Marshall, there is widespread uncertainty as to what other proceedings may constitutionally fall within a bankruptcy court’s core jurisdiction. Supreme Court jurisprudence has been cryptic regarding the constitutional limitations of non-Article III courts, but the Court has identified a “public rights exception” to the general rule that the judicial power must be exercised only by judges with life tenure and salary protection. This public rights exception has not yet been explicitly extended to a bankruptcy proceeding, but the reasoning of the Court strongly suggests that a trustee’s motion to avoid preferences would fall under the public rights exception, as a proceeding stemming exclusively from bankruptcy law and necessary to resolve claims against the estate. Accordingly, and contrary to what most scholars have suggested, preference proceedings fit comfortably within the jurisdiction of bankruptcy courts, even after the Supreme Court’s ruling in Stern.

PDF link The Right to Inter-Sovereign Disclosure in Criminal Cases

By Anna VanCleave

Courts across the country have found that criminal defendants have no right to the disclosure of exculpatory material across state-federal sovereign boundaries. In other words, state defendants have no right to federally held exculpatory evidence, and federal defendants have no right to material held by state governments.

These rulings contravene the principles of the Supreme Court’s seminal decision Brady v. Maryland, which held that the suppression of favorable, material evidence by the prosecution violated due process. Brady marked a shift in due process doctrine and reflected an emerging theory of American criminal justice that emphasized the truth-seeking function of criminal trials. Brady’s theoretical framework appeared to support a right to inter-sovereign disclosure, and some early jurisprudence suggested that such a due process right exists. But over the last several decades, most courts addressing the issue have found that the due process obligation to disclose exculpatory material does not cross sovereign boundaries. For state defendants, these rulings have particularly harsh effects because state courts are unable to compel the federal government to disclose evidence under alternative legal theories, like the Compulsory Process Clause or statutory subpoena power. In state proceedings, therefore, the federal government effectively enjoys a blanket privilege against disclosure, no matter how plainly exculpatory the information may be.

This Article is the first to analyze the reasoning behind these decisions and the first to argue that the rationales offered by the state courts are doctrinally unsound. More broadly, this Article concludes that the larger framework of modern constitutional criminal procedure, and its application to a dual sovereign system of government, directly supports a due process right to inter-sovereign disclosure of exculpatory evidence.


PDF link Ambiguous Regulation and Questionable Patentability: A Toxic Future for In Vitro Companion Diagnostic Devices and Personalized Medicine?

By Alison M. Hill

Adverse drug reactions are the fourth leading cause of death in the United States. Personalized medicine, specifically in vitro companion diagnostic devices, has the potential to drastically improve patients’ reactions to treatment by providing information that is essential for the safe and effective use of a corresponding therapeutic product. Despite the great promise of these devices, pharmaceutical and diagnostics manufacturers are reluctant to invest the millions of dollars necessary to create and develop these products because a guarantee of reimbursement on investment does not exist. After the FDA approves a diagnostic device, manufacturers do not enjoy market exclusivity that would bar others from piggybacking off of their inventions. For this reason, investors depend on patents to gain market exclusivity.

Meanwhile, a recent United States Supreme Court decision threatens to eliminate the promise of patents on diagnostic devices, thereby eliminating the requisite incentive to invest in research and development. A change in the regulations surrounding diagnostic devices that would grant market exclusivity to inventors of diagnostic devices could solve the problem; however, the industry does not anticipate such changes anytime soon. To save the future of the personalized medicine industry, the judicial branch must interpret the recent Supreme Court decision so as not to invalidate future diagnostic device patents.

PDF link Reaching Safe Harbor: A Path for Sex-Trafficking Victims in Wisconsin

By Lisa Holl Chang

The Wisconsin legislature is considering providing minor sex-trafficking victims specialized, residential services through Child Protective Services. This is an excellent proposal; sex-trafficking victims deserve no less. This Comment speaks to the legislative debate by proposing how victims can obtain access to necessary services. As the legislation recognizes, the juvenile delinquency system is an inappropriate place for minor sex-trafficking victims. Wisconsin’s child welfare system is better able to provide a compassionate and nonjudgmental response to these children.

Child Protective Services currently provides services to abused and neglected children through the children in need of protection or services (CHIPS) process. Counties, however, have discretion in investigating reports of non-caregiver abuse. Many minor sex-trafficking victims thus fall outside of counties’ mandates. Additionally, the CHIPS process can be an awkward fit for situations where the parent is not the primary abuser because it focuses as much on correcting parents’ harmful behavior as providing the children with services.

This Comment makes three recommendations. First, the Wisconsin legislature should create a presumption that any child who commits prostitution is a child in need of protection or services. This will steer many sex-trafficking victims into Child Protective Services. Second, the legislature should add a separate ground for child trafficking victims in the Children’s Code’s jurisdiction and custody sections and mandate that counties investigate such reports. Third, the legislature should create an alternative to the current CHIPS process that focuses more on the child’s needs than the parent’s behavior. A model for this alternate process can be found in the Mental Health Act, which provides a way in which a minor can enter inpatient therapy upon her own or the parent’s petition.