New Issue of Marquette Law Review

The Summer 2009 issue of the Marquette Law Review (vol. 92, no. 4) is now available on-line.  Congratulations to the editors of Volume 92 for a job well done.  Here are the contents of the new issue, with individual links to each article:

BARROCK LECTURE

THE LEGITIMACY OF POLICE AMONG YOUNG AFRICAN-AMERICAN MEN
Tracey Meares

HALLOWS LECTURE

BEYOND DECISIONAL TEMPLATES: THE ROLE OF IMAGINATIVE JUSTICE IN THE TRIAL COURT
The Honorable Sarah Evans Barker

ARTICLES

DRAINING THE MORASS: ENDING THE JURISPRUDENTIALLY UNSOUND UNPUBLICATION SYSTEM
David R. Cleveland

THE DISAPPOINTED EXPECTATIONS TEST AND THE ECONOMIC LOSS DOCTRINE
Ralph C. Anzivino

INFORMATIONAL BLACKMAIL: SURVIVED BY TECHNICALITY?
Chen Yehudai

COMMENT

“SLICING A SHADOW”: THE DEBATE OVER COMBINED REPORTING AND ITS EFFECT ON WISCONSIN’S BUSINESS CLIMATE
Staci Flinchbaugh

NOTE

JAMIE S. V. MILWAUKEE PUBLIC SCHOOLS: URBAN CHALLENGES CAUSE SYSTEMIC VIOLATIONS OF THE IDEA
Amy L. MacArdy

SPEECH

LAW REVIEW ANNUAL BANQUET: THE JOY OF LAW
The Honorable William C. Griesbach

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Explaining Sentences in Wisconsin and Federal Court

I have a new paper on SSRN entitled “Appellate Review of Sentence Explanations: Learning from the Wisconsin and Federal Experiences.”  As I observed in a recent post, I’ve become very interested in the way that sentences are explained to defendants, and how appellate review of explanations can potentially contribute both to procedural justice goals and to substantively better sentences.  My forthcoming article in the Florida State Law Review focuses on “explanation review” in the federal system.  The new paper focuses on the contrasting experience in Wisconsin and proposes a general framework for explanation review that blends the best features of the Wisconsin and federal systems. 

As I see it, the basic flaw of the federal system is to permit sentencing judges to avoid any explicit engagement with the purposes of punishment if they impose a sentence within the recommended guidelines range.  In a sense, the basic flaw of the Wisconsin system is the reverse: the Wisconsin Supreme Court permits sentencing judges to avoid any explicit engagement with the state sentencing guidelines (or any other objective benchmark); little more is required than an explanation that expressly invokes the purposes of punishment and references a few case-specific facts.  My proposal seeks to promote engagement with both guidelines and purposes.

I presented the paper earlier this month at the Marquette Criminal Appeals Conference.  It will appear in a symposium issue of the Marquette Law Review this winter.  The abstract appears after the jump. 

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Anzivino on the Disappointed Expectations Test

Ralph Anzivino has a new paper on SSRN entitled “The Disappointed Expectations Test and the Economic Loss Doctrine.”  This makes a trilogy of recent articles by Ralph on different aspects of the economic loss doctrine.  (The first two are here and here.)  The abstract for this most recent entry is as follows:

The economic loss doctrine is a judicially created rule that determines whether contract or tort law applies when a defective product causes damage. The doctrine’s starting premise is that contract law governs if the defective product causes economic loss and tort law governs when the defective product causes property damage. A common refrain is that the doctrine was created to prevent contract law from drowning in a sea of tort. However, as the rule has developed, courts have continued to expand contract coverage at the expense of tort coverage. First, when the defective product damages only itself, the courts concluded that such property damage should be resolved under contract law, not tort law. Next, when the defective product damages the system of which it was a component part, the courts concluded that such property damage should also be resolved under contract law, not tort law. Recently, another rule has begun to receive judicial acceptance that further expands the coverage of contract law at the expense of tort law. The rule is called the “disappointed expectations” test or the “reasonably foreseeable” rule. It provides that property damage that was reasonably foreseeable at the time of contracting is recoverable only under contract law, not tort law. The purpose of this Article is to examine the disappointed expectations rule and determine whether it is a positive addition to the legal landscape of the economic loss doctrine.

After surveying the development of the disappointed expectations test, which has been adopted by the Wisconsin Supreme Court, Ralph identifies several reasons why the test should be rejected.  He pointedly concludes, “The rule is the most recent progression of tort law drowning in a sea of contract law.”

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