Constitutional Interpretation – Page 34 – Marquette University Law School Faculty Blog

Best of the Blogs

Post author:Jessica E. Slavin
Post published:July 29, 2010
Post category:Constitutional Interpretation Federal Law & Legal System Immigration Law Marquette Law School Political Processes & Rhetoric

The first item that caught my eye this week was a little blog our student Priya Barnes is writing as she visits Germany, attending the Summer Session in Giessen, Germany, that Professor Fallone blogged about on Monday. So far, she’s only offered one entry, about her travels, but I intend to watch for more….

Mark Tushnet (who gave a terrific presentation at Marquette last week, co-sponsored by the student American Constitution Society organization and the local lawyer’s chapter of ACS) raises some interesting questions about Republican-sponsored legislation that would require congressional review of proposed “major regulations.” The idea is that agency rules would be transformed into agency proposals, to be okayed by Congress. For “non-major” proposals, Congressional silence would equal assent, while majority votes of both chambers would be required for adoption of new “major regulations.”

“Past Formalities” and “Present Realities”: Why Wendy Isn’t a Parent at All

Post author:Taylor Barnes
Post published:July 19, 2010
Post category:Constitutional Interpretation Family Law Federal Law & Legal System U.S. Supreme Court Wisconsin Civil Litigation Wisconsin Court System Wisconsin Law & Legal System

On June 24^th, the Wisconsin Court of Appeals ruled against a woman seeking legal recognition of her parental rights for the two children she adopted with her ex-partner. The two women adopted their children in 2002 and 2004 from Guatemala. The woman appealing, known in the record as Wendy, stayed at home with the children, while her partner, recorded as Liz, worked as an attorney. Liz was the legal adoptive parent so that the children could be on her healthcare plan. When the couple split up, the two women agreed to an informal custodial arrangement, but Wendy has no legal rights over or to her children. When Liz stopped allowing Wendy to see the children, Wendy lacked any legal recourse.

Wisconsin law does not permit same-sex couples adoptive rights; only one parent is the “legal parent.” The court justified its decision on the basis that Wisconsin law defines a “parent” as only the biological or adoptive parent. Wendy is neither of these and thus, at least under the law, not a parent at all.

This leads to questions that are more cultural than legal (though still legal, yes). How do we define parent? How do we define family? The Supreme Court has spoken to these questions, though not in the terms at issue here.

How Toxic is Thomas?

Post author:Richard M. Esenberg
Post published:July 15, 2010
Post category:Constitutional Interpretation Eastern District of Wisconsin Wisconsin Civil Litigation Wisconsin Supreme Court

Pat McIlheran has an interesting find in today’s Journal Sentinel, commenting on Judge Randa’s underreported decision in Gibson v. American Cyanamid. Judge Randa held that application of the Wisconsin Supreme Court’s Thomas decision (which applied something called risk contribution theory to hold lead paint pigment manufacturers collectively responsible for all harm from that product) would violate the federal due process rights of a defendant who had not itself manufactured lead paint pigment, but had assumed the liabilities of a manufacturer who had.

I spoke briefly with Pat yesterday on the potential fallout from the case and he quoted part of what I said. (The tyranny of 800 words is best understood by those who must submit to it.)

Here’s a more expanded version.