WLR Print

TheWisconsin Law Reviewis a student-run journal of legal analysis and commentary that is used by professors, judges, practitioners, and others researching contemporary legal topics. TheWisconsin Law Review, which is published six times each year, includes professional and student articles, with content spanning local, state, national, and international topics.

Adjudicating De Facto Parentage by Stephanie L. Tang; Behind the Bench: Unmasking the Judicial Role in North America’s Prolonged Access to Justice Crisis by Brajesh Ranjan; Abuse Victims Are Not Sleeping Away Their Day in Court: Claim Preclusion and Wisconsin Abuse Injunctions by Irene L. Evans; Get Sober or Go to Jail: Rethinking Sobriety Restrictions for Pretrial Release by Greer C. Gentges; Your Kid, Your Crime: Wisconsin Laws Can Place Parents on Trial for Their Child’s Mass School Shooting by Casey H. Needham; Out with the Old and In with the New: A Review of the Latest Revisions of the Seventh Circuit’s Accomplice Liability Jury Instructions by Stephanie Simon; “Eyes-Open” Textualism: Wisconsin’s Latest Interpretive Paradigm by Benjamin S. Willstein; United States v. Brewbaker: Just How Per Se Is the Per Se Rule in Criminal Antitrust Enforcement? by Emma Dzwierzynski; News of the School 2025

Foreword by Miriam Seifter, Robert Yablon & Bree Grossi Wilde; The Next Chapter in Health Care Federalism: Expanding Medicaid from the Ground Up by Michelle Wilde Anderson & Lina Volin; Local Government Standing as State Standing by Katharine Cooney & Katherine Mims Crocker; State Constitutions and the Right to Gender Autonomy by Katie Eyer; Problems of Compliance in Election Law by Lisa Manheim; History and Tradition in Constitutional Interpretation: Resistance in the States by Serena Mayeri; Lockstepping Structure by Darrell A. H. Miller; Tort Logics for State Constitutional Injuries by Sarah L. Swan

How Not to Democratize Algorithms by Ngozi Okidegbe; Missing Children Discrimination by Itay Ravid & Tanisha Brown; Justifications for Fair Uses by Pamela Samuelson; Section Three of the Fourteenth Amendment from the Perspective of Section Two of the Fourteenth Amendment by Mark A. Graber; Securities & Exchange Commission v. Jarkesy and the Demise of the Public Rights Doctrine by Jacob J. Kruchten; An Unrealized Opportunity: What Moore v. United States Means for the Existence of a Constitutional Realization Requirement for Income Taxation by Shane McAllister Conley

Tax Sheltering Death Care by Victoria J. Haneman; Menstrual Justice After Dobbs by Margaret E. Johnson; Scrutinizing Succession by Carrie Stanton; The Neutral Criteria Myth by James Piltch; and Wisconsin’s Ideal Affirmative Defense Standard for Human Sex Trafficking Survivors by Courtney S. Steffens.

Residual State Power to Regulate Presidential Qualifications in The Wake Of Trump v. Anderson and Moore v. Harper by Vikram David Amar; History, Tradition, and Voter Registration by Joshua A. Douglas; “The Real Preference Of Voters”: Madison’s Idea of a Top Three Election and the Present Necessity of Reform by Edward B. Foley; Voter Harassment and the Limits of State and Federal Power by Ellen D. Katz; Coups and Punishment in the Constitutional Order by Anthony Michael Kreis; Comments By a Cantankerous Crank On “Constitutional Theory,” the Supreme Court, and the Legal Academy by Sanford Levinson; The Regulation of Presidential Elections by Lori A. Ringhand; "Quite Literally, Our Job": Moore v. Harper and the Fragility of Judicial Federalism by Jane S. Schacter; Ranked-List Proportional Representation by Nicholas O. Stephanopoulos; and State Executive Branches Under Moore v. Harper by Quinn Yeargain

Due Care in a Conservative Court by Hila Keren; Interpreting Congress by Joshua Ulan Galperin; Venue Diversion by Rosa Hayes; AI and Probabilistic Dispute Resolution by Zachary Henderson; and Failure to Supervise as Municipal Custom by Nancy Leong & Allyson Harris

Table of Contents Articles The New Glass Ceiling Andrea Kupfer Schneider, Abigail R. Bogli & Hannah L. Chin In every sector of the workforce, there is evidence of gender discrimination, inequality, and bias. Not surprisingly, …

The Role of State Justices in Advancing State Constitutional Law: Some Thoughts from Colorado by Jake Mazeitis & Hon. Melissa Hart; Constitutional and Administrative Innovation Through State Labor Law by Kate Andrias; Single-Subject Rules and the Nature of State Judicial Power by Chad M. Oldfather; Maximizing Disability: The Road to Extractive Federalism by Karen M. Tani; Critical Family Regulation Scholarship by S. Lisa Washington; Chevron’s 51 Imperfect Solutions by Christopher J. Walker & Neena Menon; The State Statutes Project by Neel Guha & Diego A. Zambrano; and Purcell Principles for State Courts by Robert Yablon & Derek Clinger.

Getting Help by Kathryne M. Young; New Brandeis's New Battleground by Jared M. Stehle; Algorithmic Judicial Ethics by Keith Swisher; Recognizing Partial AI Authorship: Toward a More Permissive Copyright Regime by Ryan E. Gooding; The Stars Are (Re)Aligning: Extending Title IX to NCAA Conference Realignment in the NIL Era by Nathan Loayza; Tortious Standard, Torturous Results: Improving the Approach Toward Contributory Conduct Under Wisconsin’s Crime Victim Compensation Statute by Emmerson A. Mirus.

Hamilton’s Copyright and the Election of 1800 by Tejas N. Narechania; The Submerged Administrative State by Gabriel Scheffler & Daniel E. Walters; Killing Stays by Madalyn K. Wasilczuk; “With Intent to Destroy, in Whole or in Part”: Genocide, Ethnic Cleansing, and a Lost History by Alexander K.A. Greenawalt; Hot Apps: Recalibrating IP to Address Online Software by David Stein; Off-Label Preemption by David A. Simon.

Stategraft vs. Corruption: A Survey Experiment by Bernadette Atuahene & Janice Nadler; Immigraft by Jayesh Rathod & Anne Schaufele; Stategraft in Public Assistance Programs by Spencer Headworth; White-on-Black Crime: Revisiting the Convict Leasing Narrative by Ion Meyn; The Commodification of Children and the Poor, and the Theory of Stategraft by Daniel L. Hatcher; Tax Enforcement at the Intersection of Social Welfare and Vulnerable Populations by Michelle Lyon Drumbl; Centering the State in Stategraft: Reforming Abusive Local Governments Requires State Law Reform by Michelle Wilde Anderson; Exacting Assessments: Sheetz and the Problem of Stategraft by Christopher Serkin; Automated Stategraft:  Electronic Enforcement Technology and the Economic Predation of Black Communities by Sonia M. Gipson Rankin, Melanie Moses & Kathy L. Powers; Are Municipal Fines and Fees Tools of Stategraft? by Dick M. Carpenter II, Jamie Cavanaugh & Sam Gedge.

Standing Between Private Parties by Thomas P. Schmidt; Cake-and-Eat-It-Too Clauses by Tanya J. Monestier; Preserving Sacred Sites and Property Law by Troy A. Rule; Rethinking Federal Inducement of Pretext Stops by Farhang Heydari; Property as National Security by Matthew S. Erie; More Rights, More Responsibilities: A Post-Bruen Proposal for Concealed Carry Compromise by Tyler S. Smotherman; Supplement to Volume 2024: News of the School; Call for Solidarity: The Wisconsin Law Review Joins Coalition of Law Journals in Call for Compensation.

Reining in Recusals, by Justin C. Van Orsdol; Unconstitutional Police Pretexts, by Nadia Banteka; Can’t Get It out of My Head: Trade Secrets Liability for Remembered Information, by Timothy Murphy; Imperfect Precedent: Applying the Proper Perspective to Copyright, by James M. Twieg; Disrupting the Jail-to-Deportation Pipeline in Wisconsin, by Ben Levey; If It Walks Like a Duck: Revisiting the National Labor Relations Board’s Political Subdivision Test, by John Chick; Cleaning up the Opioid Crisis: Emerging Public Nuisance Liability in Opioid Litigation, by Stephen Goettsche

Special Issue: Public Law in the States. Foreword, by Allie Boldt, Miriam Seifter & Robert Yablon; Is Limiting Abortion a Pretext for Oligarchy? Abortion and the Quest to Limit Citizen-Initiated Ballot Rights in Ohio, by Jennifer Brunner; Public Law Litigation and Electoral Time, by Zachary D. Clopton & Katherine Shaw; Family Court as Problem Solving?, by Tonya L. Brito & Daanika Gordon; Dobbs, Democracy, and Dysfunction, by David Landau & Rosalind Dixon; From Rights Arguments to Structure Arguments: The Next Stage of the New Judicial Federalism, by Robert F. Williams; States of Emergency: COVID-19 and Separation of Powers in the States, by Richard Briffault; The (Local) Prosecutor, by Carissa Byrne Hessick & Rick Su; Constitutional Accountability through State Tort Law, by Nancy Leong; Home Rulings, by Nestor M. Davidson; Election Administration as a Licensed Profession, by Ganesh Sitaraman & Kevin M. Stack; Our Federalism and Our National Democracy: Complements or Foes?, by Aziz Z. Huq

Freedom Not to See a Doctor: The Path Toward Over-the-Counter Abortion Pills, by Lewis A. Grossman; Immigration Law and Slavery: Rethinking the Migration or Importation Clause, by Geoffrey Heeren; Laundering Police Lies, by Adam M. Gershowitz & Caroline E. Lewis; A Revolution without a Cause: The Digital Markets Act and Neo-Brandeisian Antitrust, by Yunsieg P. Kim; International Tax Policy’s Harm to Manufacturing and National Interests, by James R. Repetti; The Puck Stops Here: A Legal Argument for the Establishment of a Domestic Violence Policy in the National Hockey League, by Sarah E. Cannon; Begging the Question: Judicial Review of Ballot Questions for Referred State Constitutional Amendments in Wisconsin, by Taylor A. Hatridge; Breaking the Green Washing Wave: The Need for ESG-Friendly Securities Fraud Class Action Standards Post-Goldman Sachs Group, Inc. v. Arkansas Teacher Retirement System, by Jessica Biggott

Regulating Plain Language, by Michael A. Blasie; Regulating Excessive Credit, by Abigail Faust; A(woke) Workplaces, by Michael Z. Green; Remote Work and the State Taxation of Nonresident Employees, by Bradley W. Joondeph; Equalizing Remediation, by Chinonso Anozie; How Much Do Investors Care About Social Responsibility?, by Scott Hirst, Kobi Kastiel & Tamar Kricheli-Katz

Foreword I: Controlling the Supreme Court — Is There a Future for American Law?, by Bruce Ledewitz; Foreword II: To Reform the Court, We Have to Recognize It Isn't One, by Eric J. Segall; Religious Liberty For All? A Religious Right to Abortion, by Caroline Mala Corbin; What It Takes to Curb the Court, by Barry Friedman; The Court and the Constitution, by Lori A. Ringhand; The Case for Expanding the Anticanon of the Constitution, by Ilya Somin; Supreme Myth Busting: How the Supreme Court Has Busted its Own Myths, by Michael J. Gerhardt; Fixing the Confirmation Process, Or Fiddling While Rome Burns, by Caroline Fredrickson; The October 2021 Term and the Challenge to Progressive Constitutional Theory, by J. Joel Alicea; A Normal Supreme Court, by Eugene Volokh

Geography as Due Process in Immigration Court, by Valeria Gomez; A Copyright Restored: Mark Twain, Mary Ann Cord, and How to Right a Longstanding Wrong, by Timothy J. McFarlin; Defining Unfair Competition in the Federal Trade Commission Act, by Samuel Evan Milner, P.h. D., J.D.; Is Corporate Law Nonpartisan? by Ofer Eldar & Gabriel Rauterberg; The Benefit of the Bargain, by Mark A. Lemley; Does Mens Rea Matter? by Matthew L. Mizel, Michael Serota, Jonathan Cantor, & Joshua Russell-Fritch; Let Them Play Ball: Seeking Solutions to the Recent Spate of Trans Sports Bans, by Sophia R. Pfander; Protecting All Parties in Compensated Gestational Surrogacy Agreements: Adopting the New York State (of Mind) Approach, by Kiara Butler

Table of Contents Articles Enabling ESG Accountability: Focusing on the Corporate Enterprise by Rachel Brewster This Article examines how a governance aspect of ESG—corporate enterprise law—creates social and environmental concerns through three lenses: (1) limited …

Foreword by Allie Boldt, Miriam Seifter, & Robert Yablon, State Shadow Dockets by Rebecca Frank Dallet & Matt Woleske, Modified Textualism in Wisconsin: A Case Study by Anuj C. Desai, The Textual Canons in Contracts Cases: A Preliminary Study by Ethan J. Lieb, Improving (and Avoiding) Interstate Interpretive Encounters by Aaron-Andrew P. Bruhl, Use of Convention History in State Constitutional Law by Maureen E. Brady, Preemption, Commandeering, and the Indian Child Welfare Act by Matthew L.M. Fletcher & Randall F. Khalil, Textualism, Judicial Supremacy, and the Independent State Legislature Theory by Leah M. Litman & Katherine Shaw, Interpreting Initiatives Sociologically by Glen Staszewski, Polarization, Nationalization, and the Constitutional Politics of Recent State Supreme Court Elections by Jane S. Schacter, Countering the New Election Subversion: The Democracy Principle and the Role of State Courts by Jessica Bulman-Pozen & Miriam Seifter

Articles: Selective Prosecution, Selective Enforcement, and Remedial Vagueness by Guy Rubenstein, Mission Critical: Caremark, Blue Bell, and Director Responsibility for Cybersecurity Governance, by H. Justin Pace & Lawrence J. Trautman, The Emerging Airspace Economy: A Framework for Airspace Rights in the Age of Drones by Lavi M. Ben Dor & Jonathan M. Hoffman Comments: Stop Telephonin' Me: The Problematically Narrow Conception of Telemarketing Abuse under the TCPA by Niall T. Martin, The ABCs of Gaming: Activision, Biden, and COVID-19 Set the Stage for Labor Unionization in the Video Game Industry by Laura C.S. Newberry

Feature: Foreword: Willard Hurst’s Unpublished Manuscript on Law, Technology, and Regulation by BJ Ard & William J. Novak, Chapter Eight—Technology and the Law: The Automobile by James Willard Hurst Articles: Plea Bargaining in the Shadow of a Retrial: Bargaining Away Innocence by Keith A. Findley, Maria Camila Angulo Amaya, Gibson Hatch, & John P. Smith, Bloody Lucre: Carceral Labor and Prison Profit by Laura I Appleman, Neither Carrots nor Sticks: DOJ’s Unfulfilled Commitment to Corporate Health Care Compliance by Jacob T. Elberg, The Constitutionalization of Medical Malpractice in the Seventh Circuit by Brad Taylor, The Return of the Jury: Conduct-Based Sentencing for Recidivism by Jennifer Lee Barrow

Restatement as Aadizookaan, by Matthew L.M. Fletcher; Indian Sovereignty in Context, by Diane P. Wood; Right-of-Way Sovereignty, by Brian L. Pierson; Who, What, Where, and How: The Fundamental Elements for Contracts Implicating Tribal Sovereign Immunity, by Lorenzo E. Gudino; Facilitating Tribal Co-Management of Federal Public Lands, by Kevin K. Washburn; Five Restatements: Charting the History of the Law on State Taxation of Non-Tribal Members in Indian Country, by Dale T. White; Opportunities for On-Reservation Sustainable Development, by John Clancy; Protection and Implementation of Indian Reserved Water Rights as a Necessary Condition for Tribal Economic Development, by Reid Peyton Chambers; Toward Tribal Health Sovereignty, by Aila Hoss

Articles: Invisible Victims by Mihailis E. Diamantis; Overstepping: U.S. Immigration Judges and the Power to Develop the Record by Jayanth K. Krishnan; A Queer Analysis of Intellectual Property by Eden Sarid; The Legal Struggle for Rights of Nature in the United States by Alexandra HuneeusEssay: When the Soapbox Talks: Platforms as Public Utilities by Patrick A. WardNews of the School Addendum: Order of the Coif

Articles: De-Coding Free Speech: A First Amendment Theory for the Digital Age by Xiangnong Wang; Rebellious Lawyers for Fair Housing: The Lost Scientific Model of the Early NAACP by John BlissEssay: Judicial Campaign Finance and Election Timing by Michael S. Kang & Joanna ShepherdComments: Ignoring the Cries of Black Mamas: Looking Beyond Tort Law to Ensure that Black Mothers Are Heard During Childbirth by Elise Ashley; Trojan Unicorn: Exploiting Religious Exemptions to Advance LGBTQIA+ Law by Riley Palmer; Anderson-Burdick, Democracy, and Tradition in the Republic of Palau by Ketib Oldiais

Foreword by Allie Boldt, Miriam Seifter, & Robert Yablon; State-Local Litigation Conflicts by Margaret H. Lemos; Enhanced State Constitutional Rights: Interpreting Two or More Provisions Together by Robert F. Williams; Federalism and Federal Rights Minimalism: Overlooked Effects on State Court Education Litigation in Wisconsin by Helen Hershkoff & Nathan D. Yaffe; Zombie State Constitutional Provisions by Maureen E. Brady; Federalism and the Limits of Subnational Political Heterogeneity by James A. Gardner; Measuring State Capture by Pamela J. Clouser McCann, Douglas M. Spencer, & Abby K. Wood; Tournament Elections with Round-Robin Primaries: A Sports Analogy for Electoral Reform by Edward B. Foley; Legislative Administration by Maria Ponomarenko; Federalism in the States: What States Can Teach About Commandeering by Fred O. Smith, Jr.; Localism All the Way Up: Federalism, State-City Conflict, and the Urban-Rural Divide by Richard C. Schragger; Exclusionary Zoning’s Confused Defenders by David Schleicher

Articles: Spillover Tax Precedent by Susannah Camic Tahk; Virtual Access: A New Framework for Disability and Human Flourishing in an Online World by Johanna Smith & John Inazu; Assessing the NCAA as a Compliance Organization by Nathaniel Grow & Todd HaughComments: The Nondelegation Schism: Originalism Versus Conservatism by Jamey Anderson; But Instead Expose Them: Public Access to Criminal Trials in U.S. Law and Canon Law by Paul M. MatenaerNote: Avoiding a Litigation Free-for-All: Clarifying LLC Members’ Standing to Sue After Marx v. Morris by Josi Wergin

Table of Contents Articles Missing Immigrants in the Rhetoric of Sanctuary by Ava Ayers The idea of sanctuary for undocumented immigrants started among activists and was soon adopted by governments. In this process, the idea …

Table of Contents Articles The Wisconsin Law Review: One Hundred Years of Creativity, Continuity, and Change by The Honorable Hiram E. Puig-Lugo This issue explores the intellectual history and traditions of the University of Wisconsin …

Table of Contents Articles Appellate Courts and Civil Juries by Adam N. Steinman In federal civil litigation, decision-making power is shared by juries, trial courts, and appellate courts. This Article examines an unresolved tension in …

Articles: The State of Restorative Justice in American Criminal Law by Thalia González, Targets of Opportunity? The History, Law and Practice of Affirmative Action in University Faculty Hiring by Jason YackeeComment: One Step Forward: Compassionate Release under the First Step Act by Michael DoeringNote: Closing the Door on Anti-Cohabitation Policies: Martial Status Protections for Unmarried Couples by Connor CleggNews of the School

Articles: A Short Treatise on Sports Gambling and the Law: How America Regulates its Most Lucrative Vice by John T. Holden & Marc Edelman, Merger Breakups by Menesh S. PatelEssay: In Too-Big-To-Fail We Trust: Ethics and Banking in the Era of COVID-19 by Nizan Geslevich PackinComments: A Willful Choice: The Ineffective and Incompassionate Application of Wisconsin’s Criminal Laws in Combating the Opioid Crisis by Emily O’Brien, Optimized for Addiction: Extending Product Liability Concepts to Defectively Designed Social Media Algorithms and Overcoming the Communications Decency Act by Allison Zakon

Articles: The Non-Adversarial Fiction of Immigration Adjudication by Beth K. Zilberman, Offers You Can’t Refuse: Post-Hire Noncompete Agreement Insertions and Procedural Unconscionability Doctrine by N. Brock EngerEssay: Conscience Shocking in the Age of Trump by Lee FarnsworthComments: The Cheese Stands Alone: Wisconsin’s “Quirky” Partial Veto In Its New Constitutional Era by Alyssa LeRoy, Taking Artificial Intelligence Beyond the Turing Test by Patric M. Reinbold

Essays: The New Realism in Business Law and Economics: Introduction by Claire A. Hill, Frequent Filer Shareholder Suits in the Wake of Trulia: An Empirical Study by Sean J. Griffith, Bias, Identity and M&