Law Commons^™

Anonymously Provided Sperm And The Constitution, Mary P. Byrn, Rebecca Ireland

Faculty Scholarship

Obtaining sperm to use in Assisted Reproductive Technology (ART) is relatively simple. Hospitals, clinics, and sperm banks throughout the United States are in the business of selling sperm from literally thousands of men. Once a man is approved to provide sperm, he contracts with the sperm bank to supply sperm for a specified period of time and designates himself as either an anonymous or open-identity sperm provider. When a man chooses to provide his sperm anonymously, both the sperm provider and intended parents agree to complete anonymity – that is, the sperm provider can never know the parents or any …

Thinking Locally: Law, Aging And Municipal Government: Findings From A National Survey, A. Kimberley Dayton, Israel (Issi) Doron

Faculty Scholarship

Municipal law, which has been largely ignored in the body of elder-rights scholarship, often plays a far more important role in the everyday lives of older persons than the principally aspirational concepts of international law. Accordingly, this article examines how well modern cities have fulfilled their potential role in assuring the civil and human rights of older persons. The author concludes, based on the results of a national study, that local law is not currently fulfilling its potential as a means to expand the rights of older citizens. Few cities across the country appear to have taken more than minor …

Finding A Voice Of Challenge: The State Responds To Religious Women And Their Communities, Marie Failinger

Faculty Scholarship

The appropriate response of Western nation-states to the situation of religious women who are caught between democratic norms of gender equality and the demands of their religious community has been a source of tension in many Western nations, including the U.S. This article attempts to give voice to the complex nature of women’s religious conduct as tied to their identities, and to propose alternative ways that the state might further its norms of gender equality besides intrusive regulation of religious communities.

International Sale Of Goods 2011, Gregory M. Duhl

Faculty Scholarship

In 2011, U.S. courts analyzed the scope, formation, and remedies provisions of the United Nations Convention on Contracts for the International Sale of Goods (“CISG”). Although the number of cases arising under the CISG is relatively small compared with those under the Uniform Commercial Code (U.C.C.), the cases discussed in this survey remind us that U.S. courts are comfortable in applying the CISG. A comprehensive survey setting forth legal developments in the United States during the past nine years involving the CISG follows the Uniform Commercial Code Survey in this issue of The Business Lawyer. That survey illustrates that the …

Physicians And Safe Harbor Legal Immunity, Thaddeus Pope

Faculty Scholarship

Professor Sandra Johnson has identified what she calls physician’s “bad law” claims. In some circumstances, physicians perceive that there is significant legal risk in doing what they think is clinically appropriate. In response, physicians sometimes take a medically inappropriate course of action, because it appears safer. For example, physicians might feel intimidated by aggressively enforced drug control laws. In response, they may under-treat patients’ pain to avoid perceived (and real) threats of investigation, discipline, or criminal prosecution. In short, well-meaning laws sometimes have the unintended side-effect of incentivizing physicians to do “bad” things.

Johnson identifies three responses to physicians’ “bad …

Talking Chalk: Defacing The First Amendment In The Public Forum, Marie Failinger

Faculty Scholarship

This article examines the surprising outcomes of cases challenging arrests of protesters for chalking sidewalks in public forums, and argues that courts have been careless in analyzing these blanket prohibitions under the time, place and manner doctrine.

The Status Of Clinical Faculty In The Legal Academy: Report Of The Task Force On The Status Of Clinicians And The Legal Academy, Kate Kruse, Bryan L. Adamson, Brad Colbert, Kathy Hessler

Faculty Scholarship

In the midst of ongoing debates within the legal academy and the American Bar Association on the need for "practice-ready" law school graduates through enhanced attention to law clinics and externships and on the status of faculty teaching in those courses, this report identifies and evaluates the most appropriate modes for clinical faculty appointments. Drawing on data collected through a survey of clinical program directors and faculty, the report analyzes the five most identifiable clinical faculty models: unitary tenure track; clinical tenure track; long-term contract; short-term contract; and clinical fellowships. It determines that, despite great strides in the growth of …

The Evolution Of Law And Policy For Cia Targeted Killing, Afsheen John Radsan

Faculty Scholarship

Many critiques of the Central Intelligence Agency’s alleged use of killer drones depend on law that does not bind the United States or on contestable applications of uncertain facts to vague law. While acknowledging a blurry line between law and policy, we continue to develop a due process for targeted killing. In the real world, intelligence is sometimes faulty, mistakes occur, and peaceful civilians are at risk. International humanitarian law, which applies during armed conflicts, demands very little in the way of process beyond the admonition to take feasible precautions. Even so, the intelligence-driven nature of targeted killing, and the …

Wedlocked, Mary P. Byrn, Morgan L. Holcomb

Faculty Scholarship

For as long as marriage has existed in the United States, divorce has been its necessary opposite. So strong is the need for divorce that the Supreme Court has suggested it is a fundamental right, and every state in the country allows access to no-fault divorce. For opposite-sex couples, legally ending their marriage is possible as a matter of right. For married same-sex couples, however, state DoMAs (Defense of Marriage Acts) have been a stumbling block – preventing access to divorce in some states. Same-sex couples in numerous states are being told by attorneys and judges that they cannot terminate …

Delaware Dissolves The Glue Of Capitalism: Exonerating From Claims Of Incompetence Those Who Manage Other People's Money, Daniel S. Kleinberger

Faculty Scholarship

Delaware law is the leading source of non-federal law governing U.S. business organizations. Over the past 25 years that law has tilted further and further toward insulating individuals who manage business firms from any liability to the firms’ owners based on claims of misconduct. These developments have occurred both in corporate law and the law of unincorporated organizations.

Although often described as consistent with market principles, these developments actually undercut the proper functioning of a market system. Effective competition among firms does not require a “dog eat dog” mentality within firms. Managerial responsibility is a prerequisite to healthy firms, which …

Equipping Our Lawyers: Mitchell's Outcomes-Based Approach To Legal Education, Gregory M. Duhl

Faculty Scholarship

It is timely that the William Mitchell Law Review has decided to dedicate an issue to outcomes in legal education. As a long-time innovator in pedagogy, professional skills education, and experiential learning, William Mitchell has once again emerged as a leader in its outcomes-based approach to course and curricular design. Amid the current climate of uncertainty in legal education and the legal profession, and as a relative newcomer to Mitchell’s history, I believe in Mitchell’s future – tied to the past, but innovative and distinct. In this essay, I share our vision for increasing emphasis on outcomes, expanding experiential learning …

Usefulness Varies By Country: The Utility Requirement Of Patent Law In The United States, Europe And Canada, Jay Erstling, Amy M. Salmela, Justin N. Woo

Faculty Scholarship

The requirement that an invention have utility is one of the most fundamental of the patent laws. In the United States, for example, the concept of utility is rooted in the Constitution: Article 1, Section 8, gives Congress the power to grant exclusive rights to inventors in order “[t]o promote the progress of Science and useful Arts.” Other jurisdictions recognize utility in the form of inventions that have “industrial applicability” or are “capable of exploitation in industry,” with all of these terms and phrases generally viewed as being synonymous.

Historically, nearly every jurisdiction has excluded some type of invention from …

Islam In The Mind Of American Courts, Marie Failinger

Faculty Scholarship

This article surveys references to Islam and Muslims in American court opinions from 1800 to 1960. It argues that American judges as a group portray an ambivalent attitude toward Muslims, some treating Islam disparagingly or as an exotic and fanciful religion, and others emphasizing the religious equality that Muslims deserve

Municipal Elder Law: A Minnesota Perspective, A. Kimberley Dayton, Israel (Issi) Doron

Faculty Scholarship

The field of elder law has developed dramatically over the past several decades and is primarily regarded as a creature of state and federal law. This area of law will be of paramount importance in the coming years as the elderly population continues to increase dramatically. Indeed, nearly every community in the United States will undoubtedly be impacted in some way by the influx of older residents. Notably, however, the effect of an aging society will impact each local community differently. For these reasons, Professors Kimberly Dayton and Israel (Issi) Doron sought to examine the role that municipal elder law …

Garden Of Truth, Sarah Deer

Faculty Scholarship

On Oct. 27, 2011, a report entitled “Garden of Truth: The Prostitution and Trafficking of Native Women in Minnesota” was released in St. Paul, Minn. The report was the culmination of a three-year research project conducted in Minnesota by two nonprofit organizations: the Minnesota Indian Women’s Sexual Assault Coalition, a grassroots organization of Native American women that is based in St. Paul and focuses on outreach and awareness for survivors of sexual assault, and Prostitution Research and Education, a nonprofit organization based in San Francisco. This unique collaboration between advocates of Native American women and social scientists has produced a …

The Promise Of Client-Centered Professional Norms, Kate Kruse

Faculty Scholarship

In this year’s Saltman Lecture, Jennifer Gerarda Brown and Liana G.T. Wolf argue that restorative justice models have much to offer a broken attorney disciplinary system. While their specific proposals are problematic for reasons discussed more fully in this article, there is considerable merit to the authors’ larger point that the lawyer disciplinary system could benefit from incorporating a greater level of client participation. The authors point to a number of the benefits of a more client-participatory attorney disciplinary system, including the opportunity for lawyers to better appreciate the consequences of their misconduct, the opportunity to focus on repairing the …

A Case Against Acta, Kenneth L. Port

Faculty Scholarship

The Anti-counterfeiting Trade Agreement (ACTA) is being considered by the Obama Administration as an Executive Order. If signed, this Order will greatly enhance controls placed at the borders of 36 countries to attempt to stop the international flow of so-called counterfeit goods. To remove the social, political and emotional sensitivity, I adopt the value neutral term of “imitative commodity” to describe what some call counterfeits, knockoffs, pirates, etc. This article uses just three manufacturers of luxury status goods to consider whether the ACTA will have positive or negative consequences. It concludes that the data supporting the need for the ACTA …

Is The Delaware Court Of Chancery Going “Objective” On Us? Or Policemen’S Annuity And Benefit Fund Of Chicago V. Dv Realty Advisors Llc: More Delaware Permutations On Good Faith, Daniel S. Kleinberger

Faculty Scholarship

The Chancery Court’s opinion in Policemen’s Annuity and Benefit Fund of Chicago v. DV Realty Advisors LLC, C.A. No. 7204-VCN, 2012 WL 3548206 (Del. Ch. Aug. 16, 2012) is thought provoking for at least two reasons. The first is somewhat technical and concerns the relationship between a partnership agreement’s reference to “good faith” and the implied covenant of good faith. The second concerns what appears to be yet another Delaware permutation on the meaning of “good faith.”

Due to the opinion’s treatment of the covenant, it seems possible (though hardly desirable) for two different standards of good faith to apply …

Look Before You Leap: Court System Triage Of Family Law Cases Involving Intimate Partner Violence, Nancy Ver Steegh

Faculty Scholarship

Family courts are increasingly interested in matching parties with appropriate dispute resolution processes and related services. For many parties, especially those who are self-represented, triage of cases could be helpful and efficient. Nevertheless, implementation of triage in complex cases may bring unintended repercussions, and in the spirit of averting these, this Article identifies and discusses challenging issues that become apparent when triage systems are viewed through the lens of intimate partner violence.

Some questions about triage in the context of intimate partner violence were raised at the Wingspread Conference on Domestic Violence and Family Courts and explored more fully by …

Standards For Health Care Decision-Making: Legal And Practical Considerations, A. Kimberley Dayton

Faculty Scholarship

This Article explores the guardian’s role in making, or assisting the ward to make, health care decisions, and provides an overview of existing standards and tools that offer guidance in this area. Part II outlines briefly the legal decisions and statutory developments assuring patient autonomy in medical treatment, and shows how these legal texts apply to and structure the guardian’s role as health care decision-maker. Part III examines the range of legal and practical approaches to such matters as decision-making standards, determining the ward’s likely treatment preferences, and resolving conflicts between guardians and health care agents appointed by the ward. …

The Assault On Bad Food: Tobacco-Style Litigation As An Element Of The Comprehensive Scheme To Fight Obesity, Jada Fehn

Faculty Scholarship

This article provides a summary of the obesity epidemic - the economic costs and importantly, some causes. The need for a comprehensive scheme will be explained by examining the shortfalls of current regulatory mechanisms. Next, this article will explain the three waves of tobacco litigation, the strategy involved in each, and why the third wave left an impact. Then, the current status of food litigation will be explained. Next, applying the tobacco model to big food, this article will make it clear that discovery is crucial in several respects. Lastly, an explicit call to action and a battle plan will …

Valuing Small Firm And Solo Law Practice: Models For Expanding Service To Middle-Income Clients, Ann Juergens

Faculty Scholarship

While the profession focuses on ways to meet the critical legal needs of low-income citizens, the needs of the middle group are largely left for the market to fill. The painful fact is that the market has failed to distribute lawyer services to a majority of Americans with legal needs. Ironically, the legal needs of middle-income Americans have risen with the economic crisis even as unemployment among new lawyers has increased. A large supply of trained lawyers without work theoretically should translate into lower costs and more legal needs being met. Yet the cost of legal services has continued to …

Federal/State Tensions In Fulfilling Medicaid’S Purpose, Laura Hermer

Faculty Scholarship

Medicaid has been subject to reconsiderations of the proper role of government in providing for the health and welfare of populations over recent decades. Over the last decade in particular, a number of states have transferred many functions that they once performed to private entities, including, in a number of cases, express policymaking functions. The Patient Protection and Affordable Care Act (ACA) takes some crucial steps towards readjusting the equilibrium of Medicaid. Rather than further prioritizing the market in its reforms, it gives the federal government stronger charge of Medicaid policy, refocusing the program more directly on expanding eligibility and …

Foreword: Shape Shifting In The Law, Daniel S. Kleinberger

Faculty Scholarship

As this issue of the William Mitchell Law Review reflects, a significant dislocation is occurring in the law of business organizations. Something far more fundamental than a legal definition or any similarly specific concept is in flux. The legal and philosophical question is not whether a business organization should be able to engage instrumentally in non-profit activities but rather whether a business organization's purpose may include something in addition to (and likely prejudicial to) the purely pecuniary interests of the organization's owners.

Aba Business Law Section, On Behalf Of Its Committees On Llcs And Nonprofit Organizations, Opposes Legislation For Low Profit Limited Liability Companies (L3cs), Daniel S. Kleinberger

Faculty Scholarship

This document comprises a letter and attachment “submitted by the ABA Business Law Section on behalf of its Committee on Limited Liability Companies, Partnerships, and Unincorporated Entities and its Committee on Nonprofit Organizations … and states our views on … a bill ‘relating to limited liability companies [and] providing for the creation and operation of low-profit limited liability companies.’” The letter and attachment “have not been approved by the House of Delegates or the Board of Governors of the American Bar Association and should not be construed as representing the policy of the ABA.”

Supported by detailed analysis of both …

Deals And Dispute Resolution: Teaching Research Skills In A Short-Term Simulation Class, Karen Westwood

Faculty Scholarship

My colleague, Reference Librarian Jean Boos, and I were invited to participate in planning a Deals and Dispute Resolution class atWilliam Mitchell College of Law in St. Paul, Minnesota, and we were told that the instructors wanted to require the students to research their issues. Our challenge was to come up with a meaningful research experience that wouldn’t devolve into a treasure hunt for the students.

In a situation where the timeframe and setup of a course don’t lend themselves to in-depth research skills instruction, librarians can still fully participate and add value for students. In our experience, this course …