Law Commons^™

A Letter From Appalachia, Deborah A. Schmedemann

Faculty Scholarship

The author describes a sabbatical spent working with the Appalachian Research and Defense Fund of Kentucky and volunteering as an adult literacy tutor. She describes the difficulties that face many people in that area who are in need of legal action and representation, and notes the importance of funding for legal aid for the poor.

Protections For Erisa Self-Insured Employee Welfare Benefit Plan Participants: New Possibilities For State Action In The Event Of Plan Failure, Mark A. Edwards

Faculty Scholarship

Employees who receive health benefits through ERISA self-insured plans need protection when self-insured plans fail. Because of the breadth of ERISA preemption, states have been unable to assess ERISA self-insured plans for contribution to state insurance guaranty funds, and thus have been unable to include those employees in the protection of those funds. Further, attempts at federal reform to protect these employees have failed to garner support. However, under the recent Travelers, United Wire, and Safeco decisions, it may be possible for states to assess ERISA self-insured funds and their participants through a combination of hospital use surcharges and taxes …

Terminal Decisions: Landmark Cases In The Path Toward Ethical End-Of-Life Care, Phebe Saunders Haugen

Faculty Scholarship

This brief article discusses the history of end-of-life care from a legal perspective. The article highlights important cases in Minnesota.

Institutionalization: Savior Or Saboteur Of Mediation?,, Sharon Press

Faculty Scholarship

This article is a reflection on the history and spread of the field of alternative dispute resolution (ADR). The author focuses on the increased institutionalization of ADR – particularly in relation to mediation within the court system, with examples drawn from Florida’s experience.

The Use Of Social Science And Medicine In Sex Offender Commitment, Eric S. Janus

Faculty Scholarship

Sex offender commitment statutes are a controversial and recurring response to the threat of sexual violence. These statutes, claiming exemption from the strict constitutional limitations of the criminal law, use civil-commitment-like procedures to detain sex offenders in secure "treatment centers." Litigation testing these statutes has sought to locate the border between legitimate exercise of the state's mental health power, and illegitimate preventative detention. This article examines the central roles that medicine and behavioral science play in the operation of sex offender commitment statutes and the litigation testing their constitutional validity. The thesis of this article is that the presence of …

The Underfederalization Of Crime, A. Kimberley Dayton

Faculty Scholarship

This article contends that judicial and academic complaints about the overfederalization of crime largely have matters backwards. The image of a runaway national government increasingly taking away the enforcement of the criminal law from the States is essentially false. The available evidence indicates that the national government's share in the enforcement of criminal law has been actually diminishing for more than the last half century. The national government does have concurrent authority over a greater range of criminal activity now, including much violent street crime. But, contrary to Lopez and the conventional wisdom it embraces, this expanded authority does not …

Toward A Conceptual Framework For Assessing Police Power Commitment Legislation, Eric S. Janus

Faculty Scholarship

Recent litigation and scholarship have begun to focus on the substantive limits of the state's power to use civil commitment as a social control tool. Courts and commentators describe civil commitment as grounded on two powers of the state: the parens patriae interest and the police power. This Article seeks an analytical framework for defining the boundaries of police power commitments in which justification rests on the interests of the public rather than on the interests of the committed individual.

Guilty Knowledge, Daniel S. Kleinberger

Faculty Scholarship

Agency law's attribution rules impose most of the risk of agent misconduct on the party who selects the agent and benefits from the agent's endeavors, i.e., the principal. The rules thus help establish and maintain a proper balance of risk between principals and third parties. Unfortunately, a recent unpublished decision of the Minnesota Court of Appeals, Engen v. Mitch's Bar & Grill, threatens to upset that balance and release principals from responsibility for an important type of information possessed by their agents. Engen is dangerous, despite its unpublished status. This Case Note seeks to eliminate any influence the case might …

Fired Employees And/Or Frozen-Out Shareholders (An Essay), Deborah A. Schmedemann

Faculty Scholarship

The thesis of this essay can be stated as follows: Shareholder-employees should be able to recover for loss of employment, within the cause of action provided by corporate law, where the termination violates public law, breaches the agreement among the shareholders, or is unsupported by legitimate business purposes. In Part II, this essay presents the employment model, including the paradigm of employment that the law builds on, the starting premise of employment law, the roles of private and public law, and the remedies afforded for violations of an employee's rights. In Part III, this essay develops the corporate model, discussing …

U.N. Women's Event Unleashed Powerful Ideas, Ann Juergens

Faculty Scholarship

Juergens describes her experience at the Non-Governmental Organizations Forum of the United Nations' Fourth World Conference on Women, where a "Platform for Action", the U.N. action plan for women and girls was created.

A Decade Of Developments In Performance-Based Legal Education, Deborah A. Schmedemann, Christina L. Kunz

Faculty Scholarship

This tribute summarizes some of the accomplishments of William Mitchell college of Law in performance-based learning in legal education between 1986 and 1996. It first chronicles developments in the first-and second-year performance-based courses and then turns to upper-level curricular developments. At each point, it touches on course development and scholarship--the parallel tracks pursued by faculty focusing on performance-based legal education. As a result of these developments, the college is well positioned to contribute to the growth of performance-based learning in legal education nationally.

Direct Vs. Derivative, Or "What's A Lawsuit Between Friends In An 'Incorporated Partnership'?", Daniel S. Kleinberger

Faculty Scholarship

In any context the distinction between direct and derivative claims carries significant consequences. The procedural requirements are different, as are the available remedies. In addition, the remedies benefit different parties. A successful derivative claim typically enriches the corporate treasury, while a successful direct claim typically puts money directly in the hands of the shareholder claimant. Moreover, derivative defendants can shelter behind several powerful bulwarks-including special litigation committees and the business judgment rule-that are unavailable to direct defendants.

Under the 'internal affairs' doctrine, Minnesota law governs the direct/derivative issue for all Minnesota corporations. Current Minnesota law provides inadequate guidance when the …

Law Teachers And The Educational Continuum, Michael K. Jordan

Faculty Scholarship

There are many difficulties in teaching the law. These problems are often referred to generically as the difficulty in training students to "think like lawyers." The primary focus of the literature discussing these concerns has, therefore, been on how law schools should assist students in developing this ability. Underlying much of this literature is the assumption that what is needed is some tinkering with the law school curriculum. Students are believed to enter law with a set of abilities and potentialities that are honed by the law school curriculum to produce something called a lawyer or the skill denominated as …

'Trespassers, Beware': Lyda Burton Conley And The Battle For The Huron Place Cemetery, A. Kimberley Dayton

Faculty Scholarship

Lyda Burton Conley, Kansas attorney and direct descendant of the great Wyandot Chief Tarhe, appeared before the Supreme Court in January, 1910 to appeal a dismissal of a lawsuit she had filed against Secretary of the Interior James Garfield in 1907. She was seeking a permanent injunction to prevent the sale of a parcel of land in which her ancestors were buried, by the federal government to private developers. This case appears to be the first on record in which a plaintiff argued that the burying grounds and cemeteries of Native American peoples are entitled to federal protection. This lawsuit …

Getting Out Of Business: Tax Costs And Opportunities In Exiting A Closely Held Business, Denise D. J. Roy

Faculty Scholarship

The primary purpose of this article is to encourage closely held business owners and their lawyers to consider exit costs, opportunities and strategies when making the initial choice-of-entity decision. A secondary purpose is to provide information about tax consequences and exit strategies useful to owners of businesses that are already up and running, whether in drafting a buy-sell agreement or planning for a specific transaction. Therefore, the article begins by comparing the major tax consequences of exiting the alternative entity types available to closely held businesses for tax purposes--C corporations, S corporations and partnerships. Part II of this article provides …

With The Legislature's Permission And The Supreme Court"S Consent, Common Law Social Host Liability Returns To Minnesota, Michael K. Steenson

Faculty Scholarship

In 1990, the Minnesota Legislature amended the Civil Damage Act to allow for common law tort claims against persons 21 years old or older who knowingly provide alcohol to a person under 21 years of age. The 1990 amendment is unique because the legislature in effect appears to be releasing its stranglehold on liquor liability law, permitting the courts to apply common law negligence principles under the defined circumstances, but without providing any guidelines as to how the common law remedy should be formulated. The interpretive problems the amendment creates will eventually have to be resolved by the courts. The …

A Tribute To Anne Simonett, Edward Toussaint

Faculty Scholarship

Tribute to Judge Anne Simonett, from Judge Edward Toussaint, Chief Judge of the Minnesota Court of Appeals.

Same-Sex Sexual Harassment: Subverting The Heterosexist Paradigm Of The Title Vii, Carolyn Grose

Faculty Scholarship

This article argues that the proper starting point is to provide protection for gay men and lesbians against discrimination and harassment. Until there is such protection, any attempt to use Title VII to regulate same-sex sexual harassment will intensify the privileging of one kind of same-sex interaction over another: straight subordinates will be protected from gay supervisors, while gay subordinates will not be protected from straight supervisors. The result will be increased tolerance not for expressions of gay and lesbian sexuality, but for expressions of heterosexism and homophobia in the workplace. Part I of this article examines the development of …

Rosalie Wahl: Her Extraordinary Contributions To Legal Education, James F. Hogg

Faculty Scholarship

Justice Rosalie Wahl is well-known as the first woman to be appointed to the Minnesota Supreme Court, but she has made a lesser known, yet critical, contribution to the quality and effectiveness of legal education in this country. As chair of the American Bar Association's Section on Legal Education and Admissions to the Bar, Wahl created the MacCrate Commission. The MacCrate Report charts the way for improvement in law school teaching and learning, and the discussion following the report lead to the creation of an ABA Commission to take testimony and review the ABA Accreditation Standards. Wahl also chaired this …

Planned Constitution Never Got Written, But Israel Still Got Constitutional Law, Marcia R. Gelpe

Faculty Scholarship

Israel's development of constitutional law without a written constitution presents a fascinating picture of how a system, unable to develop a constitution in the usual manner, has developed one in another manner. It shows how innovative lawmaking can be - and sometimes must be - to maintain a democratic political system.

Learning By Doing - Preparing Law Students For The Practice Of Law: The Legal Practicum, John O. Sonsteng, Roger S. Haydock

Faculty Scholarship

The MacCrate Report outlined ten skills that are essential for every practicing attorney and should ideally be taught in every law school. The Association of American Law Schools (AALS) concluded that these ten skills cannot be effectively obtained through every law school curriculum because of each school's individual, economic limitations. This article demonstrates how one law school—William Mitchell College of Law, in St. Paul, Minnesota—has , since 1984, incorporated a cost effective Legal Practicum course into its curriculum to help meet the MacCrate Report goal of providing the law student with the opportunity to learn and apply fundamental lawyering skills. …

Our Perspective On Irac, Christina L. Kunz, Deborah A. Schmedemann

Faculty Scholarship

In this brief article, the authors present their view of IRAC, an acronym for Issue, Relevant law, Application to facts, and Conclusion. The authors conclude that IRAC can be taught so that students understand not only why it is useful as a thinking and writing tool, but also that proper use of it requires judgment and creativity. When IRAC is presented this way, the authors assert, it can serve first-year students well as they study legal writing. And they will operate accordingly, even without being aware of its influence, during their years as practicing lawyers.

Commentary: Authority Of The Commissioner Over The Board Of Patent Appeals And Interferences, R. Carl Moy

Faculty Scholarship

On August 3, 1992, the United States Patent and Trademark Office published a notice in the Federal Register requesting public comments on the PTO's appeal procedures. Taken in context, then, the notice can be fairly said to raise the issue whether, under the existing statute, the Board is subservient to the Commissioner. It also raises the broader question of whether such a subservient arrangement is desirable or, alternatively, whether the statute should be modified if necessary to give the Board decisional independence from the Commissioner. This Commentary is directed primarily to this latter point. In summary, it concludes that the …

Hate Crimes, Homosexuals, And The Constitution, Anthony S. Winer

Faculty Scholarship

This Article begins with an analysis of certain features of the Equal Protection Clause of the Fourteenth Amendment and demonstrates that this clause establishes a fundamental right to the equal benefit of laws protecting personal security. Laws protecting personal security must be applied evenhandedly. Any discriminatory application of such laws is presumptively invalid under the Equal Protection Clause. This Article next shows that gay men and lesbians are among the most common victims of hate crime, that hate crimes against gays and lesbians are significant, persistent and widespread, and that gays and lesbians have a substantial stake in the manner …

What Happens When Mediation Is Institutionalized?: To The Parties, Practitioners And Host Institutions, Sharon Press

Faculty Scholarship

The Alternative Dispute Resolution Section of the Association of American Law Schools presented a program, at the 1994 AALS Conference, on the institutionalization of mediation – through court-connected programs and otherwise. The topic is an important one, because this phenomenon has become increasingly common. Moreover, the topic seemed especially appropriate for the 1994 program, since Florida – the host state for the conference – was one of the first states to adopt a comprehensive statute providing for court-ordered mediation (at the trial judge’s option) in civil disputes of all kinds. The move toward institutionalizing mediation has raised many questions, and …

Fundamental Rights In The "Gray" Area: The Right Of Privacy Under The Minnesota Constitution, Michael K. Steenson

Faculty Scholarship

This Article explores the constitutional aspects of Minnesota privacy law. Part II briefly explains federal privacy law to provide a baseline for consideration of privacy law in Minnesota. Part III examines the right of privacy as it has evolved in the Minnesota common law. Part IV evaluates the Minnesota Supreme Court's application of federal privacy standards and then examines the court's decisions that outline the right of privacy under the Minnesota Constitution. Part V concludes by raising questions concerning the potential application of the court's concept of privacy under the Minnesota Constitution as applied to two areas: same-sex marriages and …

The Unnatural Expansion Of Trademark Rights: Is A Federal Dilution Statute Necessary?, Kenneth L. Port

Faculty Scholarship

This article is a systematic review of proposed section 43(c ). Proposed section 43(c ) would create a federal cause of action for trademark dilution and would grossly expand trademark rights. The article reviews both the practical implications and theoretical underpinnings of the dilution concept. Part II describes the basic origins and history of the dilution debate. Part IV(A) presents the practical problems that proposed section 43(c ) raises. Part IV(B) critiques some of the more popular theoretical justifications that are typically used to support granting intellectual property rights and concludes that no satisfactory theoretical justification exists to warrant an …

Using The Maccrate Report To Strengthen Live-Client Clinics, Ann Juergens

Faculty Scholarship

Clinical teachers can use the "MacCrate Report"—the Report of the ABA Task Force on Law Schools and the Profession: Narrowing the Gap and its Statement of Skills and Values—in a variety of ways to help live-client clinics. This paper assumes that the reader has basic background knowledge of the MacCrate Report. It also makes a fundamental judgment about the value and role of live-client clinics: it assumes that strengthening live-client clinics is important for the future of legal education. Strategies for negotiation for educational change, of course, must be tailored to each negotiation's context. Each law school has its own …

Keeping The Pierringer Promise: Fair Settlements And Fair Trials, Peter B. Knapp

Faculty Scholarship

This article explores why Perringer releases have failed to promise fairness to the nonsettling defendant. For over thirty years, Pierringer releases have been part of the ebb and flow of civil litigation. In 1978, the Minnesota Supreme Court officially approved the use of Pierringer releases in Minnesota. When first adopted, the release seemed to promise something for everyone. The Pierringer release even offered a promise of fairness to the nonsettling defendant: Be assured that, no matter what the outcome of trial, you will pay no more than your “fair share” of the verdict. Unfortunately, however, largely because of the impact …

Extending The Guiding Lefthand Of Counsel: The Minnesota Supreme Court Provides Protection Against Uncounseled Waivers Of The Right To Counsel During Interrogations, Edwin J. Butterfoss, Lisa J. Burkett

Faculty Scholarship

It is the thesis of this Article that the cases on which the Minnesota Supreme Court in Lefthand relied and the policy concerns that motivated the court suggest that the rule of Lefthand should apply to any suspect who has asserted her right to counsel, regardless of whether that suspect is in custody, formally charged, or formally represented by counsel. If the court's ruling in Lefthand is carried to its logical scope, law enforcement officers and prosecutors in Minnesota may find that very early in the criminal justice process they are precluded from obtaining waivers of the right to counsel …