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Articles 421 - 450 of 496
Full-Text Articles in Law
The History Of The Patent Harmonization Treaty: Economic Self-Interest As An Influence, R. Carl Moy
The History Of The Patent Harmonization Treaty: Economic Self-Interest As An Influence, R. Carl Moy
Faculty Scholarship
How shall the United States decide whether to adopt the Patent Harmonization Treaty? What questions shall we ask? Whose answers shall we trust? What sources of information can provide us with the background needed for these inquiries? This article offers a framework in which to ask, and begin to answer, these questions. It focuses on the international community's past efforts to harmonize the law of patents. It asserts not only that history provides context, but also, that the same history yields lessons directly applicable to many of the treaty's basic issues. Section I discusses the immediate history of WIPO's efforts …
The Anatomy Of Emotional Distress Claims In Minnesota, Michael K. Steenson
The Anatomy Of Emotional Distress Claims In Minnesota, Michael K. Steenson
Faculty Scholarship
This Article examines the right to recover damages for emotional distress in Minnesota, with emphasis on claims for negligent and intentional infliction of emotional distress. The recovery of damages for emotional distress is subject to varying and perhaps seemingly inconsistent standards. After a brief history of emotional distress law, the Article will discuss claims for emotional distress based on negligence, intentional torts, and statutory violations. These areas are examined in detail to determine the standards for the recovery of emotional harm in Minnesota and to evaluate whether the standards are applied consistently. The Article also examines the right to recover …
Judicial Vacancies And Delay In The Federal Courts: An Empirical Evaluation, In Symposium, The Civil Justice Reform Act, A. Kimberley Dayton
Judicial Vacancies And Delay In The Federal Courts: An Empirical Evaluation, In Symposium, The Civil Justice Reform Act, A. Kimberley Dayton
Faculty Scholarship
This Article examines the relationship between federal district court judicial vacancies --whether caused by the executive branch's failure to timely nominate judges, Congress's failure to confirm presidential nominees, or some other reason -- and delays in processing the civil caseload. The hypotheses tested are several configurations of the hypothesis “judicial vacancies cause delay.” The statistical method of analysis of covariance is used to test this hypothesis and thereby evaluate the degree to which delays, defined by reference to certain case management statistics, are correlated to vacancy rates in individual federal district courts, and within the federal system as a whole. …
The Illegitimacy Of Trademark Incontestability, Kenneth L. Port
The Illegitimacy Of Trademark Incontestability, Kenneth L. Port
Faculty Scholarship
The concept of incontestability in American trademark law has caused great confusion ever since its adoption as part of United States trademark law in 1946. This Article is first a study of the rational basis for incontestability in American trademark law. The role of incontestability in the larger regime of American trademark law is established in order to understand incontestability as it fits within the history of the common law of trademarks. This is fundamental in order to understand the significance of the thesis that incontestability is illegitimate. Next, acquisition of incontestability is presented in order to show how simple …
Building And Maintaining A Statewide Mediation Program: A View From The Field, Sharon Press
Building And Maintaining A Statewide Mediation Program: A View From The Field, Sharon Press
Faculty Scholarship
Written in 1992, this article attempts to provide guidance to states seeking to improve the judicial system through increased use of alternative dispute resolution (“ADR”) mechanisms. The format most often selected is the establishment of statewide mediation offices. Part I of this article identifies the issues that should be addressed by any group wishing to establish a statewide court-connected mediation program. Part II presents an analysis of Florida’s experience in establishing a statewide court mediation program as an example of how these issues were resolved in practice by a state that has implemented a court-connected mediation program. This article concludes …
Teach Your Students Well: Valuing Clients In The Law School Clinic., Ann Juergens
Teach Your Students Well: Valuing Clients In The Law School Clinic., Ann Juergens
Faculty Scholarship
Law schools, teaching primarily by the casebook method, generally avoid the thorny issues that real clients pose.' Recently, however, law review articles and the ""regular classroom"" have referred more frequently to real client stories. Law school clinics are a primary source of client stories. Despite increased attention to clinical programs, client interests are frequently subordinated to the goals of students, clinical law teachers and law schools. This article urges clinicians to constantly evaluate whether and how well they and their students take their clients' interests and perspectives on clinical education into account. It argues that clinic teachers must learn to …
"Skilling" Time, Peter B. Knapp
"Skilling" Time, Peter B. Knapp
Faculty Scholarship
This article describes disagreements about the "MacCrate Report" on skills education for law students, as well as the connections between the Report's recommendations and legal education at William Mitchell College of Law. The final commentary focuses on what William Mitchell can do to further ensure that teaching prepares students for the learning they will have to do when they begin working as lawyers.
From The Constitutionality Of Juvenile Curfew Ordinances To A Children's Agenda For The 1990s: Is It Really A Simple Matter Of Supporting Family Values And Recognizing Fundamental Rights?, Michael K. Jordan
Faculty Scholarship
The analysis of the constitutionality of curfew ordinances provides a window into a process that obfuscates rather than clarifies the nature of the constitutional problem. By defining the issue as one governed by rights, we limit our ability to comprehend the larger issue of how the Supreme Court has defined the relationship between minors, the family and society. The issue of the rights of minors as they relate to curfew ordinances offers a measure of solace by reducing the number of disturbing questions which concern cultural change and public policy decisions relating to the family. An understanding of this process …
Case Management In The Eastern District Of Virginia, In Symposium, Civil Litigation In The 1990'S, Part Ii, A. Kimberley Dayton
Case Management In The Eastern District Of Virginia, In Symposium, Civil Litigation In The 1990'S, Part Ii, A. Kimberley Dayton
Faculty Scholarship
Part I of this Article describes the administrative structure of the Eastern District of Virginia and its case management practices. Part II demonstrates that, despite the Eastern District of Virginia's status as one of the busiest federal district courts, it has consistently been one of the most efficient and effective federal courts in the nation. As a result, in Part III, this Article concludes that the experience of the Eastern District of Virginia raises many questions about the premises underlying the Civil Justice Reform Act, the proposed amendments to the Federal Rules, and the means by which Congress and the …
The Effect Of New Rule 56 On The Law Of Inequitable Conduct, R. Carl Moy
The Effect Of New Rule 56 On The Law Of Inequitable Conduct, R. Carl Moy
Faculty Scholarship
This article discusses Rule 56 of the Patent and Trademark Office. Part II discusses changes from the old to the new Rule 56, and examines the former’s relationship to the law of inequitable conduct. Part III elaborates on the current status of the PTO’s rulemaking efforts, and Part IV is focused on the new Rule under the APA. Parts V and VI are about new Rule 56 as a hortatory statement and common-law jurisprudential limitations, respectively. The author ultimately concludes that the PTO could have chosen to approach the Federal Circuit as an amicus without a prior rulemaking proceeding. That …
Patriarchy, Paternalism, And The Masks Of Fetal Protection., A. Kimberley Dayton
Patriarchy, Paternalism, And The Masks Of Fetal Protection., A. Kimberley Dayton
Faculty Scholarship
This essay is a response to John Kennedy's defense of Johnson Controls, Inc.'s fetal protection policy which was struck down last year in International Union, UAW v. Johnson Controls, Inc. A unanimous Supreme Court held in the case that the policy, which excluded women from a "fetotoxic" workplace, violated the federal employment discrimination laws. The Court's decision was issued only a day before Kennedy was scheduled to debate the issue of whether Title VII bars fetal protection policies with Professor Elinor Schroeder at the Kansas Journal's first symposium on March 21-22. 1991. The Court's decision rendered the technical statutory issues …
Patent Harmonization, Protectionism And Legislation, R. Carl Moy
Patent Harmonization, Protectionism And Legislation, R. Carl Moy
Faculty Scholarship
This essay raises questions about the Patent Harmonization Treaty. addressing the overall direction of harmonization in this country and the processes that are being applied to the harmonization effort. Section I of the essay compares the underlying goals of patent harmonization with those of the current United States patent system. The article contends that the legal rules relating to patents in this country evidence a specific intent to promote domestic industry. The aims of harmonization, in contrast, are fundamentally different. To be valid, then, patent harmonization may require a basic shift in the social consensus in this country concerning the …
Civil Actions For Emotional Distress And R.A.V. V. City Of St. Paul, Michael K. Steenson
Civil Actions For Emotional Distress And R.A.V. V. City Of St. Paul, Michael K. Steenson
Faculty Scholarship
The law of emotional distress is characterized by judicial reluctance to create and expand remedies for emotional injuries. The issue here is whether the Court's decision in R.A.V. v. City of St. Paul will impose further limitations on the right to recover civil damages for the intentional infliction of emotional injury, particular emotional injuries resulting from hate speech. This symposium first examines the applicability of the tort to redress claims based on abusive epithets based on the victim's race, gender, or sexual orientation. The symposium then argues that using this tort in cases involving hate speech should not create constitutional …
Judicial Deference To The Pto's Interpretations Of The Patent Law, R. Carl Moy
Judicial Deference To The Pto's Interpretations Of The Patent Law, R. Carl Moy
Faculty Scholarship
This article attempts to provide a basis upon which to preserve the Federal Circuit's current lawmaking primacy. Given the large body of preexisting literature on Chevron, USA, Inc v. Natural Resources Defense Council, it does not address whether Chevron allocates power between agencies and the courts optimally. Rather, the article examines how the PTO's statutory interpretations should be reviewed under Chevron. In Section I, the article places the examination in context by describing the Chevron decision and its general implications. Section II of the article examines how Chevron should be applied specifically in the context of reviewing statutory interpretations of …
What Can You Say, Where Can You Say It, And To Whom?: A Guide To Understanding And Preventing Unlawful Sexual Harassment, David Allen Larson
What Can You Say, Where Can You Say It, And To Whom?: A Guide To Understanding And Preventing Unlawful Sexual Harassment, David Allen Larson
Faculty Scholarship
After an increase in visibility for sexual harassment cases in 1991, employers have had to treat allegations of sexual misconduct more seriously now that juries have the authority to award both compensatory and punitive damages. Many employers and employees remain confused, however, as to what conduct is considered unlawful sexual harassment. This article explains how courts have analyzed allegations of unlawful sexual harassment under Title VII of the Civil Rights Act of 1964 by discussing what a court must find before it will impose liability. In response to the very real and immediate demand for a straightforward discussion of the …
Long Overdue: The Single Guaranteed Minimum Income Program, David Allen Larson
Long Overdue: The Single Guaranteed Minimum Income Program, David Allen Larson
Faculty Scholarship
This article provides an overview of income support programs in the United States. The article first examines proposals for a guaranteed income. This initial examination consists of four separate sections. It begins with a summary of negative income tax plans. Second, it discusses legislation introduced in the United States Congress. Third, current guaranteed income proposals are examined. Finally, it concludes with a brief examination of social experiments conducted in several communities. Because no proposal for a comprehensive guaranteed income program has been adopted, this article next discusses the income maintenance programs including a short description and selected statistical information.
Skills For Diversity: Description, Evaluation And Recommendations, Eric S. Janus
Skills For Diversity: Description, Evaluation And Recommendations, Eric S. Janus
Faculty Scholarship
In May 1991, the William Mitchell College of Law Faculty voted to offer to all first year students the following fall a program to assist students "in learning how to work effectively with diverse others in professional situations." The faculty directed that the program be supervised by a member of the full time faculty, and that reaction to the program be evaluated by the Curriculum Committee. During the Summer 1991, the dean appointed me to supervise the program, and I asked Assistant Dean Joan Bibelhausen to assist me. The two of us worked closely with an informal group called the …
Title Vii Compensation Issues Affecting Bilingual Hispanic Employees, David Allen Larson
Title Vii Compensation Issues Affecting Bilingual Hispanic Employees, David Allen Larson
Faculty Scholarship
This article deals the workers who are bilingual and their accompanying compensation on the job. The article covers compensation, classification, Bilingual Hispanic employees required to speak both Spanish and English on the job may, in certain circumstances, be entitled to greater compensation under Title VII of the Civil Rights Act of 1964 than employees who do the same job exclusively in English. It is unlikely, however, that a court will conclude that bilingual Hispanic employees required to speak both Spanish and English are for that reason alone entitled to increased compensation. Yet bilingual Hispanic employees required to use both languages …
A Memorial To Bernie Becker, Eric S. Janus
A Memorial To Bernie Becker, Eric S. Janus
Faculty Scholarship
A tribute to Bernie Becker, lawyer and proponent for the Legal Aid society.
The Japanese International Law 'Revolution': International Human Rights Law And Its Impact In Japan, Kenneth L. Port
The Japanese International Law 'Revolution': International Human Rights Law And Its Impact In Japan, Kenneth L. Port
Faculty Scholarship
Some observers have argued that because of a lack of enforcement powers, international law has relatively little impact on the conduct of nations and, in fact, may not be "law" at all. Others have inquired whether legal norms which underlie international human rights law have any influence on the domestic law of signatory nations. This article argues that international law can profoundly influence the development of the domestic laws of nations regardless of the lack of coercive enforcement powers. This point becomes clear through a consideration of Japan's experience in adopting and internalizing international law norms.
A Tribute To Peter S. Popovich, James F. Hogg
A Tribute To Peter S. Popovich, James F. Hogg
Faculty Scholarship
A tribute to Peter S. Popovich, Chief Justice of the Minnesota Supreme Court 1989-1990 and William Mitchell College of Law alumni.
Feminist Jurisprudence: Why Law Must Consider Women's Perspectives, Ann Juergens
Feminist Jurisprudence: Why Law Must Consider Women's Perspectives, Ann Juergens
Faculty Scholarship
A growing number of scholars are asking how the law would be different if it took women's points of view and experiences into account. Feminist Jurisprudence argues that we must look at the norms embedded in our legal system and rethink the law. It is about being inclusive of women, and of all people who differ from the norms of the law as it is today. The endeavor will necessarily shake up established relations between family, the workplace and the state. Lawyers, judges, and legislators should get ready for the changes.
Who Owns Christmas Trees? The Disposition Of Property Used By A Partnership, Daniel S. Kleinberger, Barbara A. Wrigley
Who Owns Christmas Trees? The Disposition Of Property Used By A Partnership, Daniel S. Kleinberger, Barbara A. Wrigley
Faculty Scholarship
Two partners form an enterprise. One (the K partner) supplies the assets used by the enterprise. The other partner (the L partner) supplies only labor. When the enterprise ends, the partners disagree about how to divide the property used in the partnership business. The K partner wants his or her property returned. The L partner wants his or her share of the business assets. If some of the property has appreciated while in partnership use, the dispute will be especially complicated. How do the partners divide the value of the property as originally brought into the business? Who benefits from …
Frontispiece On Good Faith: A Functional Approach Within The Ucc, Christina L. Kunz
Frontispiece On Good Faith: A Functional Approach Within The Ucc, Christina L. Kunz
Faculty Scholarship
This article examines areas of the law with thin jurisprudences on good faith, and how the Uniform Commercial Code’s (UCC’s) express statutory rules have become an active laboratory of experiments on good faith. Part I discusses the general obligation of good faith under the UCC. Part II lays out and discusses how the specific UCC provisions on good faith serve one or more of the following functions: restrict the exercise of one-sided power in a contract, in order to avoid unfair or unexpected results; restrict the range of possible responses to defective performance or to an unexpected event, in order …
State Control Of Great Lakes Water Diversion, J. David Prince
State Control Of Great Lakes Water Diversion, J. David Prince
Faculty Scholarship
This article focuses on the law relevant to the issue of interbasin diversion of Great Lakes water, the policies reflected in that law, and the limitations of the law on such diversions and on the ability of the Great Lakes states to control proposed diversions. It concludes with an argument for regional as opposed to national or state-by-state decision making on the issue of diversions and a suggested mechanism for facilitating such regional decision making.
Clinics And "Contextual Integration": Helping Law Students Put The Pieces Back Together Again, Eric S. Janus
Clinics And "Contextual Integration": Helping Law Students Put The Pieces Back Together Again, Eric S. Janus
Faculty Scholarship
In legal education, as in all education aimed at practice, the relationship between theory and practice is an uneasy one. William Mitchell College of Law, one of the nation’s few free-standing law schools, has traditionally placed itself squarely on the practice side of the theory/practice axis. It has aimed to produce law graduates who could walk into a law office and begin practicing law—not lawyers who would spend additional years learning the profession at someone’s elbow. In recent years, William Mitchell has begun to embrace a more academic approach to legal education. This paper suggests that the College need not, …
Constitutional Constraints On Proving "Whodunnit?", John O. Sonsteng
Constitutional Constraints On Proving "Whodunnit?", John O. Sonsteng
Faculty Scholarship
American system places these constraints on the age old criminal law question: “WHODUNIT?” This article explores these issues.
Organizing Themes Of Environmental Law, Marcia R. Gelpe
Organizing Themes Of Environmental Law, Marcia R. Gelpe
Faculty Scholarship
This article is designed to assist students and lawyers in their work in the field of Environmental Law; specifically, in the area of preventing and mitigating the effects of pollution. The article begins with the origins of modern environmental law. It briefly summarizes the reasons we have environmental problems and describes the inadequacies of the common law responses. This is key to understanding modern environmental statutes, which are designed to remedy the shortcomings of the common law. The main part of the article sets out the various approaches to remedying those shortcomings and gives examples of environmental statutes which take …
The Privilege Against Compelled Self-Incrimination, John O. Sonsteng
The Privilege Against Compelled Self-Incrimination, John O. Sonsteng
Faculty Scholarship
This article examines the fifth amendment right against compelled self-incrimination, as compared to principles in confession law. These two areas of law are not the same. In 1966, however, the Supreme Court decision of Miranda v. Arizona announced that many of the principles involved in confession law also implicated the fifth amendment privilege against compelled self-incrimination. The popular impact of Miranda has resulted in the equating of confession law with the fifth amendment privilege. This article examines the history of the fifth amendment privilege, its application, and how it can be distinguished from other, related areas of law.
Solving The Pretext Puzzle: The Importance Of Ulterior Motives And Fabrications In The Supreme Court's Fourth Amendment Pretext Doctrine, Edwin J. Butterfoss
Solving The Pretext Puzzle: The Importance Of Ulterior Motives And Fabrications In The Supreme Court's Fourth Amendment Pretext Doctrine, Edwin J. Butterfoss
Faculty Scholarship
This Article first analyzes the debate between Professors John M. Burkoff and James B. Haddad over the current state of Supreme Court jurisprudence on the pretext issue. It shows that the Supreme Court's definition of pretext is broader than the definition of pretext used by these commentators. The Supreme Court's definition includes both "legal" and fabricated pretexts. In a "legal" pretext, the government offers a justification that is not the true reason for the police activity, but that, if the motivation of the officer is not considered, legally justifies the activity. In a fabricated pretext, the government offers a justification …