Wisconsin Law Review Forward is an online only publication intended to move conversations in legal academia forward by providing a forum for the quick publication of topical and timely pieces that would otherwise be delayed by our production schedule for print issues. Many of our online pieces are short response pieces to larger pieces published in our print edition and all are shorter works commenting on larger topics in legal academia.
Download PDFJanuary 14, 2021
The COVID-19 pandemic continues to wreak havoc on American society. Public health experts agree that the best way to end it is with the development and implementation of a safe and effective vaccine program, and government, private industry and not for profit organizations have already committed billions of dollars towards this end. This Essay will examine three possible approaches that government and businesses can take to increase the likelihood that enough Americans are immunized against the SARS-CoV-2 coronavirus to achieve herd immunity.November 15, 2020
Wisconsin’s Law of Negligence is Inherently Incompatible with the Restatement— So Why Does the Court Regularly Adopt Restatement Provisions?
This essay proposes that Wisconsin’s formulations of duty and causation are unique and fundamentally incompatible with the Restatement (Second) of Torts. Part I offers a theory of Wisconsin negligence. It tracks the historical roots of Wisconsin’s negligence framework and distinguishes Wisconsin’s approach from jurisdictions that follow the Restatement by examining two famous cases, The Wagon Mound and the “exploding lamp” case.1 Part II considers two recent Wisconsin Supreme Court decisions and argues that in each case, the Court applied sections of the Restatement that were incompatible with Wisconsin law. These cases are microcosms of a larger debate among the justices questioning whether duty should be handled differently in cases of negligent omissions as opposed to negligent acts. This essay proposes that nearly a century of settled law resolves this debate, and that Wisconsin’s unique negligence analysis is strong enough to answer any difficult questions that come before it. When the Wisconsin Supreme Court resolves complicated cases by adopting unnecessary sections of the Restatement, it places the doctrinal integrity of Wisconsin’s negligence framework at risk. Judges would be wise to avoid the Restatement (Second) of Torts altogether.October 13, 2020
Thomas A. Baker III, Marc Edelman, & John T. HoldenJuly 28, 2020
The COVID-19 health crisis and resulting “stay at home” orders have led to newfound challenges for commercial sports leagues concerning how to safely and ethically conduct games during such uncertain times. For professional sports leagues, including Major League Baseball, the National Basketball Association, the National Football League, and the National Hockey League, many of the decisions about how to return to sport have entailed collectively-bargained negotiations between league owners and players’ unions. However, in collegiate sports, where the players are not unionized, these decisions are made unilaterally by colleges on either the individual school, conference, or national level—all without any meaningful player input. This article explores some of the legal and ethical challenges for college sports in the time of COVID-19, and it explains why it would be entirely inappropriate for colleges that are not planning to offer live classes this fall to have student-athletes return to campus this summer to prepare for a college football season.
Nizan Geslevich PackinJuly 5, 2020
The COVID-19 economic crisis has brought to light something very broken in the American banking system—banks prioritize their own profits over the interests of those they serve and interests of social justice. And they are permitted to do so because they do not owe a fiduciary duty to their customers and are not social welfare maximizing entities.
Wills Formalities in the Twenty-First Century—Promoting Testamentary Intention in the Face of Societal Change and Advancements in Technology: An Australian Response to Professor Crawford by Kelly Purser and Tina Cockburn
The law of wills is steeped in tradition, including what is required for the valid execution of a document purporting to contain a testator’s intention for the distribution of her or his estate upon her or his death. This is reflected in the need to comply with certain formalities for a will to be valid. Although these formal requirements differ in extent and form throughout the world, their purposes, in common law jurisdictions such as Australia and the United States of America, are fourfold: they serve evidentiary, cautionary or ritual, protective, and channeling functions.November 22, 2019
The Wisconsin Supreme Court Quietly Rewrote the Legal Standard Governing Stays Pending Appeal, Leaving Circuit Courts Effectively Powerless to Enjoin Unconstitutional Statutes By Jeffrey A. Mandell
When a Wisconsin court deems a state statute unconstitutional, it enjoins the government from enforcing the statute. Even if the court makes that determination in the form of a temporary injunction, before full consideration of the merits or issuance of a final judgment, the government has an immediate right to appellate review. In such cases, the government frequently asks that the injunction be stayed—that is, prevented from taking effect—pending resolution of the appeal.October 17, 2019
Sexual Misconduct, Employment References, and Hiring in Higher Education: Is it Time for the Duty of Care to Evolve? By Neal Schlavensky
In March 2016, the University of South Florida (USF) received striking news. A current professor, Samuel Bradley, was under investigation for allegations of sexual misconduct2 with former students at the university where he had previously worked. Bradley had resigned during the investigation and USF failed to discover any of this information during the hiring process. When USF became aware of the allegations, which had been disclosed by news media, the university placed Bradley on administrative review and eventually terminated him.August 30, 2019
Closer To The People Is Better: A Response To Professor Miriam Seifter’s Article Further From The People
University of Wisconsin Law Professor Miriam Seifter believes “state agencies are, on the whole, less transparent than their federal counterparts, less closely followed by watchdog groups, and less tracked by the shrinking state-level media.” This adds up to her conclusion that “[s]tate bureaucracy does not operate in a fishbowl,” which combined with its tremendous and growing power makes it “a largely unguarded giant.” I believe there are serious counterexamples to her claims. In fact, my experience after six years working in senior roles in a governor’s office convinces me that state-level administrations, though not perfect, vindicate the framers’ vision that the states “do a lion’s share of governance affecting people’s day-to-day lives.”June 21, 2019