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Mitchell Hamline School of Law

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Articles 451 - 480 of 496

Full-Text Articles in Law

Penalties In Settlements Of Citizen Suit Enforcement Actions Under The Clean Water Act, Marcia R. Gelpe Jan 1990

Penalties In Settlements Of Citizen Suit Enforcement Actions Under The Clean Water Act, Marcia R. Gelpe

Faculty Scholarship

This article critiques the feminist view Ute Gerhard offers in “Debating Women's Equality: Toward a Feminist Theory of Law from a European Perspective”. Throughout Debating Women's Equality, Gerhard appears to have three ambitious objectives in mind: (1) to decry the paucity of research into women's legal history while beginning to do the needed work, focusing primarily on Germany but also broadly exploring European trends, (2) to demonstrate that German/European women's legal history ultimately vindicates reliance on “equal rights” as a political strategy for women, and (3) to develop an understanding of legal equality that can serve as a meaningful tool …

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Fourth Amendment Applicability, John O. Sonsteng Jan 1990

Fourth Amendment Applicability, John O. Sonsteng

Faculty Scholarship

A large percentage of fourth amendment litigation involves the issues of applicability to place, waiver/consent, and the reasonable expectation of privacy. Not one of these issues, however, has the remotest thing to do with the ultimate substance of the fourth amendment protection itself. They deal exclusively with the threshold question of whether the fourth amendment is even involved. Only if it is, do the actual requirements of the fourth amendment become material. This article examines the applicability of the fourth amendment prohibition against unreasonable search and seizures with respect to these common issues.

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Working Backwards: The Covenant Of Good Faith And Fair Dealing In Employment Law, Deborah A. Schmedemann Jan 1990

Working Backwards: The Covenant Of Good Faith And Fair Dealing In Employment Law, Deborah A. Schmedemann

Faculty Scholarship

This article examines the covenant of good faith and fair dealing with respect to employment law. This doctrine is at an interesting stage in its development (or decline) in Minnesota and elsewhere. The article begins with the standard exposition of the current state of the law; part I describes the limited scope of the covenant and its limited force in Minnesota employment law. Part II contains my assessment of the courts' handling of the covenant and the promise this theory holds for Minnesota employees and employers. My theses are: First, the courts have thus far failed to develop a sound …

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Comparable Worth In Arbitration, Christine D. Ver Ploeg Jan 1990

Comparable Worth In Arbitration, Christine D. Ver Ploeg

Faculty Scholarship

In 1992 Minnesota became a pioneer in the arena of equal pay for equal work by enacting the Minnesota Local Government Pay Equity Act/Comparable Worth Law (“CWL”), which allocated nearly $22 million to remedy wage disparities between female dominated and male dominated classes at the state level. Each local government had to determine a new pay level for public employees taking into account whether it was a male or female dominated field. Many of these determinations were challenged by unions basing their challenges on two primary themes: (1) the methodologies used were flawed; (2) the determinations were invalid because the …

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Why Not Good Faith?-The Foibles Of Fairness In Closely Held Corporations, Daniel S. Kleinberger Jan 1990

Why Not Good Faith?-The Foibles Of Fairness In Closely Held Corporations, Daniel S. Kleinberger

Faculty Scholarship

This essay describes the contours of the shareholder’s duty to be fair and explores some of the problems caused by the law’s imprecision in defining the duty of fairness. Because this duty is best understood as a rejection of old norms, part one of this essay describes the traditional doctrines of intra-corporate responsibility. Part two describes the special characteristics of a close corporation and outlines how those characteristics pushed close corporation law to new concepts of fairness and shareholder duties. Part three attempts to delineate those duties of fairness and also to highlight some of the dangers that arise when …

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Ethos And Conscience—A Rejoinder, Daniel S. Kleinberger Jan 1989

Ethos And Conscience—A Rejoinder, Daniel S. Kleinberger

Faculty Scholarship

In “Wanted: An Ethos of Personal Responsibility,” Professor Kleinberger sought to prompt debate about the moral preconceptions of the legal profession. Professor Morawetz responded in his essay, “Layers and Conscience.” This article responds, commenting on Morawetz’s arguments that (1) excessive pessimism about lawyer morality is unfounded and counterproductive; (2) the public’s antipathy toward lawyers is inevitable given the role lawyers play in our society; (3) codes of ethics can and do have an uplifting influence on the morals of lawyers; and (4) law schools can and do train moral judgment.

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Wanted: An Ethos Of Personal Responsibility—Why Codes Of Ethics And Schools Of Law Don't Make For Ethical Lawyers, Daniel S. Kleinberger Jan 1989

Wanted: An Ethos Of Personal Responsibility—Why Codes Of Ethics And Schools Of Law Don't Make For Ethical Lawyers, Daniel S. Kleinberger

Faculty Scholarship

This article: (1) argues that neither codes of professional ethics nor traditional modes of law school teaching do much to produce ethical lawyers; (2) asserts that ethics codes and the presuppositions of the adversary system work to alienate lawyers from a sense of individual responsibility; (3) critiques the conceptual connection between the adversary system and codes of lawyer ethics; (4) critiques the conventional approach to teaching legal ethics in law schools; (5) invokes the approach to ethical analysis championed by the German sociologist and social theorist Max Weber; and (6) explains how that approach, coupled with traditional tools of legal …

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Feeding The Permanently Unconscious And Terminally Ill Or Dying Is Not Always Compassion, Phebe Saunders Haugen Jan 1989

Feeding The Permanently Unconscious And Terminally Ill Or Dying Is Not Always Compassion, Phebe Saunders Haugen

Faculty Scholarship

A surrogate decision maker may conclude that efforts to mechanically provide liquid nourishment would cause considerable suffering in return for little gain. But such a decision is unquestionably one that can produce great conflict for families and for medical caregivers. Assessment must be made of each patient's situation and of the benefits and burdens that will result if tube feeding is withheld or withdrawn. It may well be, however, that in some cases, the most humane and compassionate treatment for a patient is the withdrawal of all technological interventions, including those that supply nourishment.

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Joint And Several Liability Minnesota Style, Michael K. Steenson Jan 1989

Joint And Several Liability Minnesota Style, Michael K. Steenson

Faculty Scholarship

This article examines the rule of joint and several liability as it was adopted, modified, and applied in Minnesota circa 1989. The article first examines the judicial origins and applications of the rule in Minnesota. It then analyzes the impact of the comparative negligence and fault legislation on the rule of joint and several liability, including the limitations imposed on the rule in 1978, 1986, and 1988. Finally, it makes some suggestions for interpreting joint and several liability legislation that are consistent with the legislative history of the legislation as well as with Minnesota Supreme Court decisions concerning aggregation under …

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The Semiconductor Chip Protection Act And Its Impact On The International Protection Of Chip Designs, Jay Erstling Jan 1989

The Semiconductor Chip Protection Act And Its Impact On The International Protection Of Chip Designs, Jay Erstling

Faculty Scholarship

The United States Semiconductor Chip Protection Act of 1984 (“SCPA”') has already had a profound impact on the creation of foreign legal systems of chip protection. The allure of reciprocity under the SCPA has motivated a host of nations, including Japan, the Member States of the European Communities (“EC”'), Sweden, Finland, Canada, Australia, and Switzerland, to adopt or consider adopting chip protection legislation. The SCPA has also been the impetus for multilateral discussions within the World Intellectual Property Organization (“WIPO”') and the General Agreement on Tariffs and Trade (“GATT”') to establish an international standard of chip protection. The result has …

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Wisconsin Sentence Modification: A View From The Trial Court, Kate Kruse, Kim E. Patterson Jan 1989

Wisconsin Sentence Modification: A View From The Trial Court, Kate Kruse, Kim E. Patterson

Faculty Scholarship

In Wisconsin, trial courts have discretion to modify a defendant's criminal sentence if the defendant introduces a "new factor." Published Wisconsin case law gives little guidance on what constitutes a new factor. The Wisconsin Supreme Court has declined to find a new factor present in every case it has published since defining "new factor" in 1978. Because of ambiguous and conflicting rulings, the standards for both prongs of the new factor definition remain unclear. This Comment attempts to shed light on the new factor requirement for sentence modification by examining Wisconsin trial court decisions on a limited sample of sentence …

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Environmental Quality: Three Ways To Decide How Much To Spend, Marcia R. Gelpe Jan 1989

Environmental Quality: Three Ways To Decide How Much To Spend, Marcia R. Gelpe

Faculty Scholarship

Federal and state laws limiting environmental emissions reflect three approaches to deciding how much money to spend on improving environmental quality. The balancing approach estimates the benefits of limiting emissions and the costs of meeting various limits, then sets limits at levels where benefits justify costs. The cost ignoring approach sets emissions limits at levels necessary to prevent environmental harm, without considering the costs of meeting those limits. Technology-based standards limit emissions to levels attainable using the best pollution control technology, as long as no significant environmental effects are known to occur at those levels. In this article, the author …

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Products Liability Law In Minnesota: Design Defect And Failure To Warn Claims, Michael K. Steenson Jan 1988

Products Liability Law In Minnesota: Design Defect And Failure To Warn Claims, Michael K. Steenson

Faculty Scholarship

The Minnesota law of products liability underwent significant changes in the 1980s. The courts filled in gaps left open since the Minnesota Supreme Court initially adopted strict liability in McCormack v. Hankscraft Co.' in 1967, but they also raised new issues and left other issues open. This Article analyzes these developments in Minnesota products liability law. The broad focus is on standards in design and warning cases. In the course of the analysis, the Article focuses on the issues that had been left unsettled in Minnesota law in those areas. The Article first addresses the elements of a strict liability …

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Forward To Drug Testing Symposium, Christine D. Ver Ploeg Jan 1988

Forward To Drug Testing Symposium, Christine D. Ver Ploeg

Faculty Scholarship

This forward to the William Mitchell Law Review provides an overview on the six articles on various important drug testing topics included therein. These articles will be welcomed by anyone who is struggling to write a drug testing policy, trying to identify employees' rights to challenge a test or test results, or by anyone who seeks to gain a general understanding of this complex and controversial topic.

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Unions And Urinalysis, Deborah A. Schmedemann Jan 1988

Unions And Urinalysis, Deborah A. Schmedemann

Faculty Scholarship

Many private employers seem to be busy deciding whether and how to test employees for drug use. Presumably most of these decisions are made by management acting alone. However, in unionized workplaces—one out of five private sector employees are represented by unions—federal labor law prescribes a different method. That method features collective bargaining by unions and management to set the rules, the use of a private third-party neutral to resolve disputes which arise under those rules (arbitration), and relatively little involvement by the government (the National Labor Relations Board, legislatures, and the courts). This system that labor law prescribes for …

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Bright Line Seizures: The Need For Clarity In Determining When Fourth Amendment Activity Begins, Edwin J. Butterfoss Jan 1988

Bright Line Seizures: The Need For Clarity In Determining When Fourth Amendment Activity Begins, Edwin J. Butterfoss

Faculty Scholarship

This Article proposes that the Mendenhall-Royer standard, as presently interpreted, should be discarded because it is unworkable and fails to strike the appropriate balance between the liberty interests of citizens and the interest of the state in combatting crime. The test is unworkable because the outcomes of cases turn on subtle factual distinctions unrelated to an individual's actual freedom to end an encounter with a police officer, making it difficult for police officers to apply the standard in the field and adjust their conduct accordingly. Moreover, the standard provides insufficient protection for an individual's rights by failing to consider the …

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Mental Impairments And The Rehabilitation Act Of 1973, David Allen Larson Jan 1988

Mental Impairments And The Rehabilitation Act Of 1973, David Allen Larson

Faculty Scholarship

This article examines the question of whether an asserted mental disorder should be regarded as a statutory impairment. The article begins by outlining the Rehabilitation Act and by discussing the diagnostic difficulties that exist in the mental health field. It then surveys specific cases arising under the Rehabilitation Act. Selected cases reviewing state statutory language are also examined. The article provides a broad discussion of the questions and concerns that must be considered when formulating a nondiscrimination policy protecting mentally impaired persons. It concludes by suggesting an approach for handling cases alleging discrimination due to a mental impairment.

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Rethinking Harmless Constitutional Error, A. Kimberley Dayton Jan 1988

Rethinking Harmless Constitutional Error, A. Kimberley Dayton

Faculty Scholarship

This article examines the increasing role of the Chapman Rule and its effect on the harmless error doctrine and outlines a coherent doctrine of constitutional error responsive to the purposes of the various constitutional protections afforded criminal defendants. Part I evaluates the Court's existing harmless error jurisprudence. Part II proposes a harmless error doctrine that, unlike the Court's approach, responds to constitutional values unrelated to truth determination. The last two parts of the Article address two problems precipitated by the use of outcome-oriented rules to define and remedy constitutional error. Part III discusses when such a rule should be used …

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Aids And The Law: Setting And Evaluating Threshold Standards For Coercive Public Health Intervention, Eric S. Janus Jan 1988

Aids And The Law: Setting And Evaluating Threshold Standards For Coercive Public Health Intervention, Eric S. Janus

Faculty Scholarship

This article examines in detail an example of legislation that redefines the scope of permissible public health intervention and provides procedural protections compatible with modern precedent—the Minnesota Health Threat Procedures Act. This Act is an appropriate subject for close study because it is intended to be responsive to the general concerns raised by the commentators: the narrowing redefinition of the scope of coercive public health intervention and the addition of suitable procedural protections. Coercive public health legislation merits close attention because it inevitably invokes a clash of three important values. The purpose of the legislation is the protection of the …

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Copyright Protection Of Fictional Characters In Japan, Kenneth L. Port Jan 1988

Copyright Protection Of Fictional Characters In Japan, Kenneth L. Port

Faculty Scholarship

There is a renewed interest in the United States in Japanese Copyright law. Specifically, new attention has been focused on the protection of computer software under the Japanese Copyright Act, but only a cursory attempt has been given in English language literature to the issue of whether fictional characters can be protected using copyright law in Japan independent of the original work. The objective of this Comment is to fill this void. First the Comment presents the fundamental concepts of American copyright law needed as background knowledge to understand the issue. The Comment then explores the existing satiation in Japan …

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Reconciling Differences: The Theory And Law Of Mediating Labor Grievances, Deborah A. Schmedemann Jan 1987

Reconciling Differences: The Theory And Law Of Mediating Labor Grievances, Deborah A. Schmedemann

Faculty Scholarship

While grievance arbitration is the most common method of resolution of disputes arising under collective bargaining agreements, the author proposes that there is also a place for grievance mediation. The author compares mediation to arbitration and negotiation, and describes the strengths and weaknesses of mediation. She explains how mediation clauses in labor agreements could be enforced under section 301 of the LMRA, to protect rights created by those agreements, and proposes that mediation clauses be a basis for injunctions against strikes during the term of an agreement in certain situations. However, the author suggests that courts and the National Labor …

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The Fault Concept In Personal Injury Cases In Minnesota: Implications For Tort Reform, Michael K. Steenson Jan 1987

The Fault Concept In Personal Injury Cases In Minnesota: Implications For Tort Reform, Michael K. Steenson

Faculty Scholarship

Legislative tort reform proposals have attempted to restore what is perceived to be an imbalance in the tort-litigation system by limiting tort recoveries. One of the motivating factors behind tort reform proposals is a concern that tort law has deviated from a fault-based system of liability. It is this concern over the structure of the fault system in Minnesota that is the subject of this Article. This Article examines Minnesota Supreme Court opinions of the 20th Century to determine whether the court's decisions deviated from a fault-based system of liability. The focus is on change, accepted and rejected. The purpose …

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Bandwagon Is Rolling: Adr Demands And Thrives On Lawyers Creative Thinking, Christine D. Ver Ploeg Jan 1987

Bandwagon Is Rolling: Adr Demands And Thrives On Lawyers Creative Thinking, Christine D. Ver Ploeg

Faculty Scholarship

The ADR (alternative dispute resolution) bandwagon is rolling. Clients are becoming disenchanted with traditional litigation, and they're hearing about ADR. ADR has three broad categories: mediation, the mini-trial, and arbitration. Attorneys can provide a real service to clients by being familiar with and developing skills in ADR.

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Personal Jurisdiction And The Stream Of Commerce, A. Kimberley Dayton Jan 1987

Personal Jurisdiction And The Stream Of Commerce, A. Kimberley Dayton

Faculty Scholarship

This article evaluates the stream of commerce theory of personaljurisdiction in light of existing precedent and the constitutionalimperative of due process. Part II briefly describes the factualbackground of Asahi and the various opinions rendered in the case.Part m outlines the development of jurisdictional doctrine since International Shoe, emphasizing the meaning of "purposeful availment" and its fluid role in the due process equation governing statecourt jurisdiction. Part IV then traces the evolution of the stream of commerce theory since International Shoe. Part V examines and rejects criticisms of the stream of commerce theory, and concludes that under any reasonabre interpretation of …

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No Risk Allocation Need Apply: The Twisted Minnesota Law Of Indemnification, Daniel S. Kleinberger Jan 1987

No Risk Allocation Need Apply: The Twisted Minnesota Law Of Indemnification, Daniel S. Kleinberger

Faculty Scholarship

Minnesota's law on indemnification agreements is the most restrictive in the country. To provide a basis for understanding the law's restrictions, this Article begins with an analysis of the rationale and functions of indemnification agreements. The Article then reviews the hostility of both the common and statutory law to indemnification agreements and argues that opponents of indemnification have acted without convincing reasons or supporting evidence in substituting government rules for private decision-making.

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The Fault With Comparative Fault: The Problem Of Individual Comparisons In A Modified Comparative Fault Jurisdiction, Michael K. Steenson Jan 1986

The Fault With Comparative Fault: The Problem Of Individual Comparisons In A Modified Comparative Fault Jurisdiction, Michael K. Steenson

Faculty Scholarship

Minnesota courts have interpreted the Minnesota Comparative Fault statute as requiring comparison of a plaintiff's negligence with the individual negligence of each defendant. Exceptions to this rule involve joint venture cases. This Article examines the individual comparison rule and explores an alternative rule which provides for a comparison of the plaintiff's negligence with the aggregate negligence of the defendants.

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An Offer She Can’T Refuse: When Fundamental Rights And Conditions On Government Benefits Collide, Marie Failinger Jan 1986

An Offer She Can’T Refuse: When Fundamental Rights And Conditions On Government Benefits Collide, Marie Failinger

Faculty Scholarship

This article criticizes the Maher/Harris conditions doctrine on two levels. At the first level, it suggests that the Maher/Harris doctrine cannot justify the Court’s decisions to uphold government withdrawals of funding from rights-exercises. At the second level, after exposing and contrasting the definitional presuppositions of the Court in Maher and Harris with previous cases, the article suggests that the Maher/Harris doctrine is a failure because it uses utterly inadequate rights theory to resolve emerging issues of conflicting human need and conscience, issues which are mediated by government action. The author creates a space for a discussion of a new framework …

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Legislative Oversight Of Administrative Agencies In Minnesota, J. David Prince Jan 1986

Legislative Oversight Of Administrative Agencies In Minnesota, J. David Prince

Faculty Scholarship

Due to the expanding role of agencies within the Executive branch at both the state and federal level, legislatures are struggling to fulfill their obligation to hold agencies accountable and to modify legislative mandates when necessary. In order for the legislature to fulfill this obligation, it must have the capability to exercise policy formation and oversight goals. This Article will first examine the need for legislative oversight and the legislative oversight mechanism in Minnesota. Next, the Article discusses the legislative controls currently being used at the federal and state level. Executive control mechanisms and their possible use by a legislature …

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The Interpretation Of Means Expressions During Prosecution, R. Carl Moy Jan 1986

The Interpretation Of Means Expressions During Prosecution, R. Carl Moy

Faculty Scholarship

This article briefly explains how the scope of a claim including a means expression is determined both under the PTO view and a strict application of the statutory language. The lack of consensus and current state of the law in the area are illustrated through an analysis of several recent decisions of the Federal Circuit. The policies underlying the PTO and statutory methods of interpreting means expressions during prosecution are examined in an effort to demonstrate that the statutory method more effectively furthers the policies underlying the patent system.

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What Disabilities Are Protected Under The Rehabilitation Act Of 1973?, David Larson Jan 1986

What Disabilities Are Protected Under The Rehabilitation Act Of 1973?, David Larson

Faculty Scholarship

It can be difficult for an employer or a recipient of federal funds to determine exactly what types of disabilities are protected by the Rehabilitation Act of 1973. Relevant literature has not given a great deal of attention to this specific question. Recent cases, however, provide additional information that can assist in determining which disabilities are protected. The question of what is protected handicap differs from the question of whether a handicapped person is also “qualified.” This article focuses on the threshold question of determining whether a handicap actually exists, concentrating on the Rehabilitation Act of 1973. The definition of …

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