Volume 2014, No. 1

Thomas E. Fairchild Lecture:

PDF link The War on Drugs

By The Honorable William J. Bauer

I was addicted to one drug and it was nicotine. From the time I was fourteen until I was fifty-something, I smoked the damn things. Now, I was under no illusion that I was doing my health any good. They used to call them “coffin nails” even then, but I quit—being a good fellow. And eighteen months—yeah, but hang on there’s more—eighteen months after I quit, they discovered I had cancer of the larynx, which is almost always the result of smoking. When I finished my thirty-three radiation treatments, the oncologist said, “You can go back to drinking now, but put water in it.”

PDF link Patent Law Federalism

By Paul R. Gugliuzza

Most lawsuits arising under federal law can be filed in either state or federal court. Patent suits, however, may be filed only in federal court. Why do patent cases receive exceptional treatment? The usual answer is that federal courts, unlike state courts, provide uniformity and expertise in patent matters. This Article analyzes whether exclusive jurisdiction actually serves those policy aims and concludes that the uniformity-expertise rationale is overstated. If exclusive federal patent jurisdiction is to be justified, attention must also be given to pragmatic considerations, such as the respective quality of state and federal trial courts, the courts’ ability to manage complex civil litigation, and the preclusive effects of state court judgments. By reconstructing the theoretical framework for exclusive federal patent jurisdiction, this Article yields normative insights for institutional policy more broadly. Most importantly, it suggests that legislative repeals of exclusive jurisdiction—in any field of law—will be ineffective because litigants, even if given a choice, will prefer the federal courts over inexperienced and unfamiliar state courts.

PDF link School Surveillance and the Fourth Amendment

By Jason P. Nance

In the aftermath of several highly publicized incidents of school violence, public school officials have increasingly turned to intense surveillance methods to promote school safety. The current jurisprudence interpreting the Fourth Amendment generally permits school officials to employ a variety of strict measures, separately or in conjunction, even when their use creates a prison-like environment for students. Yet, not all schools rely on such strict measures. Recent empirical evidence suggests that low-income and minority students are much more likely to experience intense security conditions in their schools than other students, even after taking into account factors such as neighborhood crime, school crime, and school disorder. These empirical findings are problematic on two related fronts. First, research suggests that students subjected to these intense surveillance conditions are deprived of quality educational experiences that other students enjoy. Second, the use of these measures perpetuates social inequalities and exacerbates the school-to-prison pipeline.

Under the current legal doctrine, students have almost no legal recourse to address conditions creating prison-like environments in schools. This Article offers a reformulated legal framework under the Fourth Amendment that is rooted in the foundational Supreme Court cases evaluating students’ rights under the First, Fourth, and Fourteenth Amendments. The historical justification courts invoke to abridge students’ constitutional rights in schools, including their Fourth Amendment rights, is to promote the educational interests of the students. This justification no longer holds true when a school creates a prison-like environment that deteriorates the learning environment and harms students’ educational interests. This Article maintains that in these circumstances, students’ Fourth Amendment rights should not be abridged but strengthened.


PDF link David Versus Two Goliaths: Why the Wisconsin State Legislature Needs to Update the Wisconsin Consumer Act by Placing Restrictions on Mandatory Arbitration

By Kelsey J. Dolven

Mandatory arbitration agreements have been on the rise in the past thirty years, specifically in consumer contracts. From computers to vacation rentals, it is becoming increasingly likely that a consumer will encounter one of these agreements. What was once viewed with contempt in the United States has now become the norm. Despite this increase, consumers are often unaware of the presence of mandatory arbitration agreements in their contracts and are uninformed about their habitually negative implications.

Despite this rise in mandatory arbitration, as well as the potential disadvantages for consumers, Wisconsin consumer laws remain unchanged. In fact, the Wisconsin Consumer Act, which governs most consumer transactions in Wisconsin, is silent on mandatory arbitration. As such, the Consumer Act is currently failing to fulfill its stated purpose of both modernizing the law surrounding consumer transactions and protecting consumers from unfair business practices.

The realities of today’s marketplace require that the Wisconsin Legislature act swiftly, reinvigorating the once effective and influential Consumer Act. To ensure that the purpose of the Consumer Act is again achieved, this Comment argues that the legislature needs to codify a standard of unconscionability, placing both procedural and substantive restrictions on mandatory arbitration agreements. In doing so, the legislature will ensure that consumers are knowingly and voluntarily waiving their rights, establish a fair and neutral arbitration process, and encourage efficiency and uniformity in the court system. These new restrictions will also help to eradicate unscrupulous business practices from Wisconsin, while providing legitimate companies with certainty as to what may be placed in their arbitration agreements. Finally, by codifying unconscionability through these restrictions, the legislature will be aligning Wisconsin law with federal policy and case law.


PDF link Disarming Knowledge or Revealing the Concealed: Balancing Democratic Accountability and Personal Privacy for Wisconsin’s Concealed Carry Permit Registry

By Andrew W. Lang

This Comment argues that Wisconsin law currently does not provide sufficient transparency for assessing whether the state’s concealed carry permitting process is operating correctly and keeping concealed weapons in law-abiding hands. By placing stringent restrictions on law enforcement and public access to concealed carry permit records, the Wisconsin Legislature undervalued the interest in government accountability in favor of overbroad privacy protections. Critics of Wisconsin’s concealed carry law have identified possible loopholes in the permitting process—while evidence from other states suggests that—despite restrictions and criminal background checks, criminals have been able to obtain concealed carry permits.

The difficulty lies in striking an appropriate balance between the interests of government accountability and individual privacy. Other states have approached this problem by adopting creative combinations of accountability mechanisms that seek to inform policy through a more open exchange of information. The three most common accountability mechanisms are statistical reports, broad law enforcement access, and public records designation. While not all of these measures would be palatable to Wisconsin legislators, this Comment proposes relatively minor changes to the current policy-such as expanding the content included in the statistical reports, broadening the scope of law enforcement access, or opening the records to the public under limited circumstances—that would promote greater government transparency and still afford privacy protection to individual permit holders.