WLR Forward

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.

Recent Articles

2022 Articles

  • Willard Hurst, Technological Change, and the Transformation of American Public Law

    The University of Wisconsin’s James Willard Hurst was arguably the most significant legal historian in the United States. Hurst not only launched the so-called “new” legal history as an alternative to traditional constitutional narrative, but he also founded the interdisciplinary field of “law and society” more generally. And Hurst is most famous for some of his more general observations about the relationship between economic development and the growth of American law. As Lawrence Friedman put it, “[O]n the general question of the relationship between law and the economy, the pioneer work of J. Willard Hurst is still a fundamental starting point. . . .” Much of that work concerned the nineteenth century and law’s role in what Hurst talked about as “the release of creative energy.”

  • Demystifying Mindreading for the Law

    A few summers ago, I was playing in the yard with my kids. I noticed my 3-year-old son pinching the tops off the red lilies we had planted, which were just starting to bloom. I told him to stop. He immediately froze and blurted out “it was an accident!” I surveyed the scene. There were eight decapitated lilies in a row. Eight. I pressed him. “So, you are saying it was an accident, eight times?” He looked down, and then off into the horizon. The jig was up. He furrowed his brow—wondering how I could possibly know it had been intentional. I told him that we generally do not repeat the same movement, accidentally, eight times. He was mystified that I could have known his private thoughts. I told him that he was already developing the ability to read other people’s minds, and it would improve as he got older. He looked at me in awe, as if I had some superpower. But it’s one of the most basic things we humans do. This sort of mindreading—where we look beyond the actual words spoken, to discern someone’s true thoughts through their eye gaze, affect, expressions, character, demeanor, and any other cues—is an essential part of our social lives. By aggregating lots of information about other people’s mental states, past behavior, character (and unfair stereotypes), we decide whether they should be praised, condemned, or forgiven.

  • Parking Meters: A Roadblock In Chicago’s Ability To Transform Its Streets

    The public safety need for social distancing during the COVID-19 pandemic spurred the City of Chicago to begin reimagining its public right of way. One program of particular success was the City’s “Make Way for Dining” program initiated in the summer of 2020. This program created temporary outdoor “Café Streets” and pedestrianized roadways for dining and shopping to support a reeling restaurant industry due to forced closures and prohibitions on indoor dining. The City’s plan to help revive the local economy did come at a cost, however, as the City’s Transportation Commissioner, Gia Biagi, acknowledged that “street closings might require the [C]ity to compensate the consortium that leases Chicago parking meters for any taken out of service.”

2021 Articles

  • 2021 Thomas Fairchild Lecture

    "My name is Dan Tokaji. I'm the Dean of the University of Wisconsin Law School, and I'm delighted to welcome you to the first Thomas Fairchild Lecture of my deanship and our first virtual Fairchild Lecture... We have an extraordinary speaker for this evening, David Maraniss... David is an acclaimed Pulitzer Prize winning journalist and best-selling author who has in his various books chronicled American life through the lens of sports figures, U.S. Presidents, and everyday heroes. He's an associate editor at The Washington Post and a distinguished visiting professor at Vanderbilt. He's won two Pulitzer Prizes for journalism and was a finalist three other times."

  • The Seventh Circuit Fires a Warning Shot: “Rights and Benefits” Includes Paid Military Leave When Employers Offer Pay for “Comparable Absences”

    As a matter of first impression in the federal appellate courts, a three-judge Seventh Circuit panel broadly interpreted the Uniformed Services Employment and Reemployment Act (“USERRA”), to require private employers under some circumstances to provide paid leave to employees absent from work due to military service. White held that an employer’s failure to provide paid military leave, while on the other hand offering paid leave for other comparable leaves of absence, impermissibly violates USERRA’s equal-treatment rule for reservists and National Guardsmen. The net effect of this holding is clear: service members and employers must understand the Seventh Circuit’s reasoning and its future impact on employment policies and practices.

  • Changing Demographics and the Future of Religious Exercise

    Post-Enlightenment Western religion, and legal frameworks responding to it, place special emphasis on individuality and personal conscience. But as the racial and ethnic makeup of the nation evolves, an increasing portion of the nation’s population follows religious traditions that emphasize communal practices. Thus, as demographics change, the appearance of religious exercise will change too. Recent scholarly critique, which questions robust protections for religious free exercise, should consider how certain protections may be particularly valuable for minority, but growing, religious perspectives. Specifically, protections for institutional free exercise and religious land use, with the proper limitations, should be seriously considered as desirable safeguards of minority rights. Such approaches to religious liberty law would respect the communal and embodied nature of religious life which looks to expand in years to come.

  • Development is Not a Dinner Party: A Hurstian Perspective on Law and Growth in China

    Much has been written, and remains to be written, about the many roles law has played in China’s economic development since 1978. Without minimizing the value of what has been written so far, this essay seeks to broaden the discussion by applying to China’s recent history certain ideas of the great historian of nineteenth century American law and economic development, James Willard Hurst. The essay proceeds by providing a brief introduction to Hurst and his work on law and economic growth in the United States, then explores how those ideas might be applied to assist our understanding of what has happened in China.

  • The Political Significance of the Wisconsin School of Contracts

    The Wisconsin school of contracts is one of the most important scholarly contributions to the understanding of contracting practices and contract law from the second half of the twentieth century to the present. As part of the broader law and society movement in which Wisconsin scholars played a major part, it shifted focus from law-in-books to law-in-action and brought to light the importance of relationships and the limits of law as central elements of contract in society. As summarized by Stewart Macaulay and William Whitford: To us, as we use it in connection with contract law, it expresses a widespread interest of how in fact, as opposed to in theory, statutory law and case precedent come into being; how people and businesses use contracts to manage their lives; how disputes in the performance of contracts arise and are settled; and how the resolution of disputes affects the parties to the disputes and influences future parties to contracts.

2020 Articles

  • The State of Restorative Justice in American Criminal Law: Appendix

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  • Vaccines in the Time of COVID-19: How Government and Businesses Can Help Us Reach Herd Immunity

    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.

  • 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.

  • College Football in the Time of COVID-19

    Thomas A. Baker III, Marc Edelman, & John T. Holden

    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.

  • In Too-Big-To-Fail We Trust: Ethics and Banking in the Era of COVID-19

    Nizan Geslevich Packin

    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.