Table of Contents
Articles
Adjudicating De Facto Parentage
Stephanie L. Tang
State recognition of de facto parentage has significantly increased over the past twenty years. Today, nearly two-thirds of states recognize some form of functional parent, either through common law doctrines, equitable doctrines, or statutes. Such recognition tracks the evolving structure of the American family and allows courts to confer standing and extend parental rights and responsibilities to functional parents who form a parental relationship with a child. Acknowledging this shift, the 2024 inaugural Restatement of the Law: Children and the Law defined de facto parents as distinct from third parties, following in the footsteps of the 2002 American Law Institute Principles of the Law of Family Dissolution, the 2017 Uniform Parentage Act, and the 2018 Uniform Nonparent Custody and Visitation Act. When state courts analyze de facto parentage claims, they face two primary questions: (1) What procedural steps should courts follow?; and (2) How do deviations in procedural requirements impact whether individuals will be successful in establishing de facto parentage? This Article makes two novel contributions to scholarship in this area by being the first to examine de facto parentage through a procedural lens.
Behind the Bench: Unmasking the Judicial Role in North America’s Prolonged Access to Justice Crisis
Brajesh Ranjan
Delays in access to justice remain a persistent global challenge. Over the past fifty years, Canada and the United States have introduced sweeping reforms to address mounting court delays, shifting from litigant-driven adversarial models to the unorthodox approach of judge-controlled, case-managed litigation. Prioritizing judicial economy over substantive adjudication underpinned these reforms, yet delays continue to escalate. This Article argues that by positioning judges as the solution, reforms concentrated excessive managerial power in judges’ hands without adequate oversight. This shift has fostered a judicial culture of complacency, where enhanced discretionary powers paradoxically prolong delays rather than resolve them. Efficiency reforms have thus altered the dynamics of delays, creating a new problem rather than solving existing ones. Drawing on decades of Canadian and American literature, this Article reveals that judicial complacency is not isolated, but rather a systemic problem deeply embedded in practice. Heightened judicial power that lacks robust accountability has become as much a part of the problem as it was intended to be the solution. By challenging prevailing silence on the judicial role in the access to justice crisis, this Article seeks to initiate a necessary conversation about how judicial conduct perpetuates delays and why rethinking accountability structures is essential for meaningful reform.
Comments
Abuse Victims Are Not Sleeping Away Their Day in Court: Claim Preclusion and Wisconsin Abuse Injunctions
Irene L. Evans
A quirk of the Wisconsin rules of civil procedure currently deprives victims of domestic abuse access to protective injunctions in certain circumstances. The issue arises because of a confluence of doctrines, statutory definitions, and common practices. Abuse victims who petition for a domestic abuse or harassment injunction—colloquially known as a restraining order—but do not appear for their hearings routinely have their petitions dismissed for “failure to prosecute.” This dismissal is defined by statute as a judgment on the merits. A judgment on the merits in turn bars the victim from refiling for the injunction under the doctrine of claim preclusion, also known as res judicata. The preclusive effect of such a prior dismissal deprives abuse victims of the legal protections that the legislature intended to provide by creating the injunction statutes. This erodes Wisconsin public policy, which clearly favors the protection of crime victims and recognizes their unique concerns. The mechanical application of claim preclusion in this context does not account for the distinct legal position of injunction petitioners and is unnecessary to fulfill the traditional purposes of claim preclusion, as injunction petitions are rarely “vexatious” or “needless.”
To remedy this problem, the legislature should amend the law to presumptively except protective injunctions from the operation of claim preclusion. Alternatively, and without a change in the law, judges hearing injunction petitions should exercise their discretion to dismiss injunctions without prejudice when the petitioner fails to appear for an injunction hearing, and attorneys and advocates working with clients should ensure petitioners are aware of the effect of a missed hearing. These solutions would allow victims of domestic abuse to, at the very least, have their petitions for injunctions heard on the merits.
Get Sober or Go to Jail: Rethinking Sobriety Restrictions for Pretrial Release
Greer C. Gentges
Wisconsin judges impose bond conditions on defendants who are released from custody pending trial, and have the power to impose any reasonable condition of release. Because judges have broad discretion when setting bail, bond conditions vary drastically between jurisdictions, judges, defendants, and the types of charges. The problem with this expansive discretion is illustrated by the use of absolute sobriety restrictions. A defendant released from custody with an absolute sobriety restriction may not consume any alcohol or illegal substance during the pendency of their case. For any defendant over the age of twenty-one, this restriction criminalizes a behavior that would otherwise be legal: consuming alcohol. For defendants struggling with addiction, absolute sobriety restrictions can be detrimental to the outcome of their case.
The penalty for violating a bond condition is an additional criminal charge, known as “bail jumping.” Bail jumping is one of the most charged crimes in Wisconsin, but also the most likely to be dismissed. Bail jumping charges can significantly harm a defendant’s case, particularly at sentencing. Therefore, the rising number of bail jumping charges throughout the state is cause for concern. This Comment argues that the use of absolute sobriety restrictions is antithetical to the purpose of the bail jumping statute: to prevent defendants from violating their bond conditions and committing additional crimes while out of custody. This Comment highlights how expansive judicial discretion leads to over-conditioning, a practice that harms many defendants. Finally, this Comment proposes practical solutions to address this problem, all of which can be implemented without changing the existing bail statutes.
Your Kid, Your Crime: Wisconsin Laws Can Place Parents on Trial for Their Child’s Mass School Shooting
Casey H. Needham
The rise in school shootings across the United States has prompted prosecutors to explore new avenues of accountability. In 2024, Michigan prosecutors made history by successfully convicting the parents of a school shooter with involuntary manslaughter, marking the first such convictions in United States history. This precedent has already influenced other states, with Georgia prosecutors pursuing similar charges under their own involuntary manslaughter statutes. However, Wisconsin lacks an involuntary manslaughter statute, raising questions about how its legal framework could support parental liability in similar cases in the state.
This Comment argues that Wisconsin prosecutors can still hold parents accountable using its existing statutes, including second-degree reckless homicide and homicide by negligent handling of a dangerous weapon. By examining Michigan’s successful conviction and the developing case in Georgia, this Comment provides a roadmap for Wisconsin prosecutors seeking to navigate parental liability for school shootings.
Additionally, as Michigan’s landmark case has already influenced legislative action on safe gun storage, Georgia is finding itself at a legislative standstill with what to do. Wisconsin may similarly find itself at this crossroad in the face of its own recent mass school shooting, making it critical for prosecutors and legislatures to focus on two important factors when taking legal action: whether a parent provides their child with an unsecured firearm and whether the parent is aware of their child’s mental health challenges. Finally, Wisconsin law offers alternative statutory mechanisms with lesser penalties, such as contributing to the delinquency of a child and two firearm-related offenses. The successful application of these laws would reinforce the expectation that parents must secure firearms in their homes or face legal consequences.
Out with the Old and In with the New: A Review of the Latest Revisions of the Seventh Circuit’s Accomplice Liability Jury Instructions
Stephanie Simon
Somewhere in a United States district court courtroom, a panel of jurors was recently instructed on the law to apply in deciding the fate of a criminal defendant. In some cases, the wording of a single instruction may dictate the jury’s ultimate verdict. The instructions the jury is given are likely the first and only time the jurors learn the law on which their decision—whether to convict or acquit—will be based. If the law presented in the jury instructions is inaccurate, inaccessible, or unclear to even one juror, there is a chance that a defendant will be found guilty or innocent when they might not have been otherwise.
In 2023, the Seventh Circuit published the most recent version of its pattern jury instructions. The Committee on Federal Criminal Jury Instructions of the Seventh Circuit added two new accomplice liability instructions, intended to be revisions of the prior version, instruction 5.06. The new instructions, 5.06(A) and 5.06(B), are a welcome revision of the instructions contained in 5.06(a) and (b) because they summarize the law more accurately, respond to changes within Seventh Circuit case law, and more closely align the Seventh Circuit with the other circuits’ tested accomplice liability instructions. While these changes are necessary corrections of flaws within the 5.06 instructions, the Committee failed to remove the older erroneous version despite indications that 5.06 caused confusion and proved problematic. This oversight jeopardizes the efficacy of the revisions. Furthermore, while the revisions present the law more accurately, the Committee failed to supply a workable definition of the ambiguous legal term, “willfully”—a word that is central to the new instruction. In the next version of the Seventh Circuit’s pattern jury instructions, it is imperative that the Committee supply a standard definition of this term.
“Eyes-Open” Textualism: Wisconsin’s Latest Interpretive Paradigm
Benjamin S. Willstein
The Wisconsin Supreme Court adopted textualism in State ex rel. Kalal v. Circuit Court of Dane County and, in doing so, promised an objective, text-focused approach to statutory interpretation. Yet, under this framework, the court has remained deeply divided, frequently splitting 4–3 along ideological lines—even as justices claim fidelity to textualist principles. This Comment examines how the court’s reliance on malleable canons of construction, such as expressio unius and the surplusage canon, has enabled policy-driven outcomes under the guise of textualist analysis through a decontextualization process.
However, since the court’s ideological shift to a liberal majority in 2023, the justices have adopted an “eyes-open” approach to textualism, restraining the decontextualizing canons and prioritizing textual coherence over selective canon application. Through an analysis of key cases, including James v. Heinrich and Sojenhomer LLC v. Village of Egg Harbor, this Comment argues that the liberal majority’s refined textualism mitigates the risk of judicial activism by requiring clearer triggers and stoppers for contested canons. The new majority has gone so far as to hint that Kalal may be on its last legs, though still adhering to a predominantly text-centered methodology.
Ultimately, the Comment proposes legislative and judicial reforms to codify guardrails around interpretive canons in order to ensure that textualism in Wisconsin fulfills its promise of objectivity, rather than serving as a vehicle for ideological outcomes. With Kalal under threat, this Comment suggests frameworks for refining Wisconsin’s textualist approach. The recent 2025 election, which cemented the liberal majority, presents a critical juncture: Wisconsin’s courts can embrace a more disciplined textualist methodology or revert to the fractured, policy-laden interpretations of the past.
Note
United States v. Brewbaker: Just How Per Se Is the Per Se Rule in Criminal Antitrust Enforcement?
Emma Dzwierzynski
The Fourth Circuit recently held in United States v. Brewbaker that a bid-rigging agreement between horizontal competitors who also interacted with each other vertically as manufacturer and distributor must be analyzed under the Sherman Act using the rule of reason, not the per se rule. This holding is incorrect. The general rule is that bid-rigging agreements are analyzed using the per se rule, and the vertical interaction between the Brewbaker parties outside the scope of their bid-rigging agreement should not have altered this general rule. By looking at the entire relationship between the parties to ascertain whether the per se rule or the rule of reason applied, rather than just the relationship between the parties within the allegedly anticompetitive agreement, the court ignored decades’ worth of analogous precedent from other circuits and the United States Supreme Court. Further, the court ignored the fact that any procompetitive effects from the vertical interaction between the parties did not mitigate the anticompetitive effects from the horizontal bid-rigging agreement between the parties. The government typically only criminally prosecutes per se illegal schemes, so, in practice, the Brewbaker decision will lead to lower prosecution rates within the Fourth Circuit. This, in turn, will harm consumers and taxpayers who often bear the financial burden of increased costs resulting from bid rigging. Considering the country’s recent antagonism towards the per se rule more broadly, there is a plausible chance that this holding will be adopted by other circuits, leading to a reckoning for the government’s criminal antitrust enforcement.