News & Pubs Archive

The Fifth Circuit Court of Appeals recently determined the Indian Child Welfare Act to be overall constitutional, although it struck down certain provisions. Bailey Holt provides an overview of the act, and discusses the case and its implications.

Although there may seem to be no neutral position when discussing recent U.S. troop withdrawal from Afghanistan, Ngosong Fonkem discusses an approach based on public international law principles.

OSHA recently updated its guidance for COVID-19 prevention plans in the workplace. Janelle Schlosser discusses the new guidance and outlines six of its recommendations.

A woman predicted that her husband might try to kill her. Then, she died by poisoning. The husband was charged with the killing. Could the wife’s accusation “from beyond the grave” be used against him at trial? Michael O’Hear discusses the case that required the Wisconsin Supreme Court to make sense of a messy line of U.S. Supreme Court decisions on the Confrontation Clause.

Property can change hands multiple times soon after a sale. Ryan M. Billings discusses a recent court of appeals decision that clarifies the circumstances under which a subsequent owner can sue the original seller for fraud.

While family law attorneys have access to discovery tools like basic interrogatories and requests for documents that are commonly used by civil litigators, there are other tools out there that can bolster a case. Jeff Raymond outlines the pros and cons ofthree tools typically underemployed in family law litigation.

While an errata sheet can be used to correct transcription errors, an errata sheet is not a panacea for a poorly given deposition. Erik Monson discusses case law and challenges surrounding use of errata sheets in making substantive changes to a depositiontranscript.

Is now the time to sell or gift a business before the end of the year? Maureen O’Leary discusses potential changes to gift, estate, and income tax laws, and why business owners might want to complete business transactions before the end of 2021.

In a recent Notice of Proposed Rulemaking, the U.S. Department of Labor proposed further changes to for tip regulations, an area that has been in flux for years. Justin Brewer provides an update on what’s going on with the 2020 Final Tip Rule.

To combat a shortage in certified private practice attorneys available to help Wisconsin’s youth, the State Public Defender Office (SPD) is offering training in juvenile justice practice. Diane Rondini discusses the SPD’s new project, Juvenile Rural Access to Training and Expertise (J-RATE).

With Wisconsin’s adoption of the Uniform Adult Guardianship and Protective Proceedings Act in 2018, transferring a guardianship to or from another state can be more efficient. Amy Greske discusses important factors in navigating the statute and successfully transferring a guardianship.

COVID-19 has brought many changes to the way mediations are conducted. Brent Smith discusses what mediation might look like, post-pandemic.

What happens when the State removes access to your clients’ property? That property’s value and use can be drastically and negatively impacted by the removal of access. Ryan Simatic discusses the remedy, inverse condemnation, and how it can be used to compensate property owners.

The State Public Defenders Office’s (SPD) goal to ensure that all clients are provided zealous and effective representation, regardless of the clients’ means, is a challenging one, especially in light of recent developments, like COVID-19. Katie York discusses the need for more attorneys willing to take SPD cases and ways that the SPD is using to close the gap.

In this article from the Marquette University Law School Faculty Blog, David Strifling, discusses an “unprecedented makeover in longstanding principles of state-level administrative law” that “shift[ed] power away from agencies and toward courts, the legislature, and the governor.”

Although pen-and-paper contracts are hardly extinct, the pandemic has accelerated the evolution toward electronic-only business transactions. Jennifer Budzien outlines the laws, requirements, and challenges of electronic records and signatures.

The Wisconsin Department of Children and Families recently promoted a new child welfare initiative that focuses on prevention and keeping families together. Azucena C. Guizar discusses the need to reach out to immigrant families in particular.

Recent surges in material prices have caused many construction industry participants to question their rights and remedies under their contracts as well as change their future contracts to address substantial price increases. Brian Zimmerman discusses the recent price increases and the contract clauses implicated thereby.

Mediations and arbitrations using a virtual platform became necessary during the pandemic. Unexpectedly, they proved to be more than that. David E. Jones discusses the pros and cons of using a virtual platform for mediation and arbitration.

Although pen-and-paper contracts are hardly extinct, the pandemic has accelerated the evolution toward electronic-only business transactions. Jennifer Budzien outlines the laws, requirements, and challenges.

Mediations and arbitrations using a virtual platform became necessary during the pandemic. Unexpectedly, they proved to be more than that. David E. Jones discusses the pros and cons of using a virtual platform for mediation and arbitration.

Recent surges in material prices have caused many construction industry participants to question their rights and remedies under their contracts as well as change their future contracts to address substantial price increases. Brian Zimmerman discusses the recent price increases and the contract clauses implicated thereby.

Bias is just as much about people judging you, as it is about you judging others, writes Michael Yang. This insight can be the key to understanding why anti-bias training is critical to all lawyers.

The Wisconsin Department of Children and Families recently promoted a new child welfare initiative that focuses on prevention and keeping families together. Azucena C. Guizar discusses the need to reach out to immigrant families in particular.

A series of digital data discoveries implicated Steven Burch in a murder case. Recently, the Wisconsin Supreme Court rejected Burch’s claim that police obtained the digital data in violation of his Fourth Amendment rights.

When oil and gas prices plummeted during the COVID-19 pandemic as countries went into lockdown, companies began invoking force majeure clauses to change obligations under their contracts. Katherine Plachta discusses the debate surrounding COVID-19 as a force majeure event.

Is it time to reassess the Adoption and Safe Families Act requirement for termination of parental rights once a child has reached a total of 15 months in foster care? Lisa-Marie Line discusses the time limit and reasons why it may not be long enough to allow family reunification.

Claims for ERISA disability insurance benefits due to COVID-19-related disabilities are heavily scrutinized by plan administrators and insurance companies, often resulting in their denial. Jessa Victor discusses how to best navigate claims for such benefits, including those based on an employee’s inability to work due to the pandemic.

The Wisconsin Supreme Court recently held (4-2) that the state’s Department of Natural Resources (DNR) erroneously interpreted the law in concluding that it had no authority to consider the environmental impacts of high-capacity wells.

Divisive mergers have been available in some states since 2006. Jim Phillips discusses how divisive mergers provide a unique way to separate operations into discreet business entities by operation of law, rather than using bills of sale, deeds, and assignments.

Although the nature of legal practice during the pandemic proved to be challenging for all, Timothy Verhoff reflects on some systemic changes implemented that could have a positive, lasting impact.

The family cabin is often one of the family’s most cherished assets, and protecting it from devastating long-term care costs requires advance planning. Corinna Martell discusses the benefits of using a family LLC to protect family property.

What does a good romantic comedy have in common with running a small business? Stephanie Melnick talks about the lessons learned in the movie "You’ve Got Mail."

Companies are increasingly implementing Environmental, Social, and Governance (ESG) programs. Nadelle Grossman discusses the rise of these programs, the reasons to implement them, and ESG program legal requirements.

Attorneys practicing public interest law may frequently hear this question from a client. Kate Cook discusses ways to respond – and how that response can build a more trusting relationship with your client.

The Wisconsin Supreme Court has unanimously ruled that statements made during a post-polygraph interview with a suspect were admissible as evidence, concluding the defendant voluntarily made the statements without police coercion.

In another pandemic-related decision, the Wisconsin Supreme Court (4-3) recently ruled that the Dane County Health Department exceeded its authority when it ordered all schools, including private schools, to cease in-person instruction.

To create safer workplaces, some employers are offering cash bonuses to employees who get the COVID-19 vaccine. Yingtao Ho discusses whether such bonuses may increase the employee’s liability for overtime pay.

While governed by uniform guidelines, the practice of child welfare law varies from county to county across Wisconsin. Michael Puerner discusses the role of Judicial Engagement Teams: to bring together teams of community stakeholders to identify best practices and implement positive changes in child welfare cases.

Laws and policies can do double duty to lessen climate change and also help communities prepare for natural disasters. Betsy Lawton discusses two climate mitigation opportunities to provide public health co-benefits: use of sun and shade.

Taking the exam to become a Certified Elder Law Attorney (CELA) is a rigorous process. Greg Banchy discusses his experience becoming a CELA – and whether it is worth the time and effort.

When parties change their mind about going through with a pending divorce or legal separation, they must file a voluntary dismissal. David Karp talks about the two different ways that a family law action may be dismissed.

As workplaces open up after pandemic closures, COVID-19 long-haulers re-entering the workforce face new challenges. Summer Murshid discusses the challenges for employees as well as those faced by their employers.

Eighteen states and the District of Columbia have now legalized cannabis, and Gov. Evers has proposed that Wisconsin do likewise. Alexander (Sandie) Pendleton discusses the issue and its potential impact on rural communities in the state.

A Milwaukee man challenged a property tax assessment, arguing the assessed value should be zero since contamination rendered the property unmarketable. Recently, the Wisconsin Supreme Court (4-3) disagreed.

The Office of the Inspector General’s first Special Fraud Alert in six years highlights a growing concern about sponsored speaker programs and the potential implications for fraud and abuse actions under the anti-kickback statute. Leah Ruedinger discussesthe implications of this Special Fraud Alert.

The decision to put a child in adult criminal court should require a deliberate decision on the part of the judge, writes Alaina Fahley, who discusses the current reverse waiver proceeding to return youth to the juvenile justice system.

Legislation to reorganize Wis. Admin. Code ch. DCF 150 and eliminate new family support orders will become effective this year. Jill Mueller explains the changes to DCF 150 that make the shared placement calculation the primary method of calculating support.

The Wisconsin Supreme Court recently issued pandemic-related orders, including one that “no longer requires that personal masking, social distancing, and sanitizing court facilities be part of any plan for circuit court and municipal court proceedings.”

Rollbacks in 2020 of federal protection of waterways and wetlands under the Clean Water Act left millions of wetland acres in Wisconsin vulnerable to development. Michael Cain discusses a collaboration by Wisconsin’s Green Fire and The Nature Conservancy

The Wisconsin Supreme Court has ruled that an employee who attempted suicide cannot file a tort action for negligence against his employer’s insurer because the state worker’s compensation law provides the exclusive remedy.

A man who was patronizing the Saukville tavern where he worked does not have immunity from liability after he physically ejected a drunk patron and caused severe injuries, the Wisconsin Supreme Court has held.

Wisconsin's Public Trust Doctrine offers unique protections for Wisconsin's waterways. Andrew Morgan discusses the application of Wisconsin's Public Trust Doctrine to the state's surface waters.

In complicated cases, neutral evaluations may be a better method of dispute resolution. Roy Wagner discusses when and how to use this close cousin of mediation.

What’s the best method to calculate an equitable adjustment when a contractor encounters a differing site condition? Brian R. Smigelski outlines the hierarchy of methodologies utilized in Wisconsin.

The Wisconsin Supreme Court has concluded that proposed procedures for anticipated redistricting litigation ”are unlikely to materially aid this court’s consideration of an as yet undefined future redistricting challenge.”

Carbon farming ideas and infrastructure are cropping up at the state and federal level. Jane Landretti discusses how policies and private interests are sowing seeds for infrastructure that could transform how we think about incentives for agricultural practices that promote cover crops and healthy soils.

The Wisconsin Supreme Court recently upheld a conviction for operating or going armed with a firearm while intoxicated despite the defendant’s argument that the statute was unconstitutionally applied to him.

A recent ruling provides a hard lesson for contractors about partial lien waivers. James Thiel discusses the case and the ruling, and the lesson learned.

In the Hmong community, clan leaders participate in the mediation of divorce cases. Chue Xiong discusses the importance of clan mediation, and why it is important that attorneys participate.

Employers using a tip credit or tip pool under the Fair Labor Standards Act (FLSA) are now subject to new regulations. Jordan Rohlfing discusses recent changes to the regulations and offers recommendations for employers.

The Wisconsin Court of Appeals also rules that “equitable indemnification” not an appropriate remedy for spoliation under decades of Wisconsin case law.

Because of its tax-free forgiveness, Public Service Loan Forgiveness (PSLF) borrowers can lower their monthly payment by maximizing their retirement contributions. Bradley Yanke discusses this way to lower PSLF monthly payments.

The City of Madison’s bird-safe glass ordinance may fly in the face of the state of Wisconsin’s Uniform Commercial Building Code (Uniform Code). John Schulze discusses the ordinance and its challengers.

The Wisconsin Supreme Court has unanimously approved Rule Petition 20-07, introducing a comprehensive system of electronic filing for the Wisconsin Court of Appeals and Wisconsin Supreme Court.

The Wisconsin Supreme Court (7-0) ruled that the circuit court did not err when it set an exercise price that was higher than an expert's appraised value.

What’s it like to argue a case before the Seventh Circuit – via Zoom? In October 2020, Milwaukee attorney Nick Zales did just that, and discusses just what it was like to embrace the appellate Zoom experience.

In determining whether to order third-party visitation, a court must analyze the visitation request based upon the child’s best interest, giving special deference to a fit parent’s determinations as to what visitation is appropriate.Wisconsin Legislative Council Information Memorandum.

The recent 2021 National Trade Estimate Report on Foreign Trade Barriers reveals important insights regarding U.S. trade policy focus under the Biden Administration. Ngosong Fonkem discusses the report and why U.S. companies with footprints in China should be on alert.

Abigail Hean discusses the “child welfare to juvenile justice to adult prison pipeline” – the failure of these systems to adequately address the needs of the youth they serve, ultimately causing more harm than good.

Legal language creates barriers to understanding. Mary L. Ferwerda discusses how incorporating concepts of “plain language” into dispute resolution documents, such as agreements to mediate and the resolution agreements, can improve parties’ understanding and compliance with the stated terms.

The intersection of Wisconsin workers' compensation and third-party liability is more common than you may think. Matthew Lein discusses background on third-party negligence claims and how third-party awards are split.

Wisconsin’s unemployment hearing backlog seems overwhelming, and the low win rate could mean financial catastrophe for claimants, says Victor Forberger. Lawyers are needed to help them –here is where and how to get involved.

Ruling on a moot issue that will only guide future action, the Wisconsin Supreme Court has confirmed, once again, that a statewide emergency order limiting capacity at restaurants, bars, and other indoor facilities was invalid and unenforceable.

This month, the 21st Century Cures Act Information Blocking Rule took effect. Jonathan Klock provides a brief overview of the rule, key exceptions and tips for compliance, and helpful resources for more information.

Reporters from the MacIver Institute for Public Policy sued Wisconsin Gov. Tony Evers, alleging they were denied access to a press event because of their organization’s viewpoint. Recently, a federal appeals court rejected that claim.

Events of the past few years in the U.S. bear a disturbing resemblance to events of the Roman Empire before its fall, says Myron LaRowe, including polarized politics and civil unrest. What are the lessons to learn from the past?

The state election laws require municipal clerks or municipal election commissions to change the registration status of electors who may have moved, not the Wisconsin Election Commission (WEC), the Wisconsin Supreme Court has ruled (5-2).

Disabled individuals rely on public benefits that are often determined by a computer program rather than a person. Julia Veenendaal discusses computer-automated decision-making and a case study involving due process challenges to Medicaid benefits software.

Elisabeth Stockbridge discusses efforts to address racial disparities and incarceration among emerging adults in Wisconsin.

How would a human rights-centered foreign policy impact U.S. businesses engaged in international trade? Ngosong Fonkem discusses compliance challenges and how companies can protect themselves from the inevitable increased trade measures that would ensue ensue from the policy shift.

Boilerplate objections in response to written discovery requests in civil cases cause undue delay, excessive costs, and needless consumption of time, say Ralph Tease and David Blinka. Wisconsin courts should not hesitate to sanction those who use boilerplate objections to evade discovery obligations.

The Wisconsin Supreme Court today, in a 4-3 decision, concluded that Gov. Tony Evers exceeded his authority when declaring a public health emergency due to COVID-19, extending previous orders, without the legislature’s consent.

The U.S. Court of Appeals for the Seventh Circuit has ruled that city of Madison and U.W. police officers are entitled to qualified immunity for excessive force claims brought by a man arrested after a U.W.-Madison Badger Football game.

The new trend of virtual mediation has been around for a while now. Michael D. Rust discusses lessons learned from 150 mediation referrals during the pandemic, and how the use of online dispute resolution is translating to the users of the services.

The Wisconsin Supreme Court ruled that a previous decision established the “law of the case” and the wife's pre-death statements were inadmissible under the Sixth Amendment’s Confrontation Clause.

The CDC’s eviction moratorium ends March 31, 2021. In this Tip of the Month, Elizabeth Groeschel details Wisconsin programs that offer rental assistance to clients who need it.

The ABA House of Delegates in February 2020 passed a resolution urging voter preregistration for 16- to 18-year-olds. James Casey talks about the resolution – and how it reinforces the importance of civics education in U.S. schools. This importance is even more critical given the November 2020 U.S. election and the January 6, 2021, insurrection at the Capitol in Washington, he says.

Privacy Laws are fast changing, requiring companies to frequently adapt their web presence and online security schemes. Eric A. Johnson discusses how to help business clients keep their customer data safe.

The Wisconsin Supreme Court has ruled (4-3) that a defendant may seek discovery of Wisconsin-specific data in a Wisconsin Department of Corrections (DOC) database to challenge his status as a sexually violent person.

Wisconsin’s energy market is shifting toward renewable energy – are renewable energy third-party financing arrangements the new third rail? Nathan Jurowski discusses the legislative and regulatory changes that could stimulate private investment in Wisconsin’s commercial and residential renewable energy and provide opportunities for local contractors.

Little used before COVID-19, the Public Readiness and Emergency Preparedness (PREP) Act aimed to shield drug makers from liability when bringing vaccines to market during a public health emergency. Stephen Veit gives an overview of the Act and discusses recent cases involving health care providers in the COVID-19 era.

Finding mentors is a critical part of starting a new attorney’s career. Tiara Oates offers tips on how to locate mentors and on nurturing the mentor/mentee relationship.

The Seventh Circuit recently indicated an interest in addressing the standard of causation for disparate treatment claims under the ADA. Storm Larson discusses Seventh Circuit precedent and variations among other circuits on the issue.

The agricultural industry can expect big changes from the Biden Administration, says Christina Puhnaty. President Biden made direct promises to the agricultural industry to improve the lives of farmers and rural U.S. in general, and promised to partner with the agricultural industry to combat climate change.

Famous for dairy and agriculture, Wisconsin also hosts strong business leaders in a variety of areas attractive to foreign investors. Bethany Wilson offers a quick guide to foreign direct investment in Wisconsin.

Residential construction contracts pose unique challenges for contract drafters in Wisconsin. Andrea Murdock offers advice on what to include in your residential construction contracts to avoid disputes and unnecessary costs.

The North woods getaway called “Bibs Resort” and its red “bibs” logo was the subject of a recent 4-3 decision by the state supreme court, which ruled that ownership of the tradename and trademark in dispute transferred to a new owner upon sale of the resort.

With a new federal administration and much speculation about tax law changes, attorneys can expect their farm clients to ask many questions about how Biden’s proposed tax plan will impact them. Christine Rasmussen examines some of the various tax proposals under the Biden administration.

As public interest attorneys, we should approach our client representation in a holistic way, says Elizabeth Stinebaugh. In this Tip of the Month, Stinebaugh discusses a helpful resource – the Crime Victims Compensation program, which assists those who ha