Law Commons^™

On Nontraditional Trademarks, Kenneth L. Port

Faculty Scholarship

This piece regards nontraditional trademarks like sound, color, scent or even the vertical opening motion of a Lamborghini car door. The protection of trademarks has, historically, walked a fine balance. Naturally, as a society, we want to protect trademarks so that transaction costs are lowered as purchasers make a quick and easy purchasing decision. You see Tide, you know Tide, you buy Tide. However, the protection of nontraditional trademarks upsets this fine balance. If we go too far in the protection we grant unwarranted monopolies to companies to stifle the precise competition the law was meant to encourage. Sometimes, we …

Getting Real About Legal Realism, New Legal Realism And Clinical Legal Education, Kate Kruse

Faculty Scholarship

Jerome Frank’s call for a “clinical lawyer-school” is cited so frequently in clinical scholarship that it borders on the canonical. Like many calls for reform in legal education, Frank’s plea for clinical lawyer-schools was based on a critique of the appellate case method of legal instruction. However, unlike most critiques, the legal realist critique was embedded within a jurisprudential challenge to the meaning of law itself, arising from American Legal Realism. Running through legal realist jurisprudence was a distinction between the “law in books” and the “law in action,” with the idea that law is not found primarily in statutes …

The Promise Of The Minnesota Human Rights Act Denied: Krueger V. Zeman Construction Company, Leslie Lienemann, Justin Cummins

Journal of Law and Practice

No abstract provided.

Women's Rights In Islam Regarding Marriage And Divorce, Imani Jaafar-Mohammad, Charlie Lehmann

Journal of Law and Practice

No abstract provided.

Cargill V. Ace American Ins. Co.: The Minnesota Supreme Court Reminds Us Of The Value Of Every 2-Year-Old's Favorite Question, Chad Snyder

Journal of Law and Practice

No abstract provided.

Swanson V. Brewster: Are The Minnesota Courts Reforming The Tort System?, Stephen P. Laitinen, Hilary J. Loynes

Journal of Law and Practice

No abstract provided.

Responses To The Ten Questions, Shane Harris

William Mitchell Law Review

No abstract provided.

Responses To The Ten Questions, James M. Rosenbaum

William Mitchell Law Review

No abstract provided.

Responses To The Ten Questions, Tung Yin

William Mitchell Law Review

No abstract provided.

Responses To The Ten Questions, Aziz Rana

William Mitchell Law Review

No abstract provided.

Responses To The Ten Questions, Robert D. Sloane

William Mitchell Law Review

No abstract provided.

Responses To The Ten Questions, John Cary Sims

William Mitchell Law Review

No abstract provided.

Responses To The Ten Questions, Amos N. Guiora

William Mitchell Law Review

No abstract provided.

Interview With Edward B. Macmahon, Jr., Edward B. Macmahon Jr.

William Mitchell Law Review

No abstract provided.

The Unfortunate Advantage Of The Holyland People, Tomer Benito

William Mitchell Law Review

No abstract provided.

Policing Al Qaeda's Army Of Rhetorical Terrorists, Jarret Brachman

William Mitchell Law Review

No abstract provided.

Outside The Wire: American Exceptionalism And Counterinsurgency, David P. Fidler

William Mitchell Law Review

No abstract provided.

Law In The Time Of Cholera: Teaching Disaster Law As A Research Course, Neal R. Axton

Faculty Scholarship

Disaster law is fun to teach but it has a serious purpose. Emergencies will inevitably arise but how society responds to them will determine whether or not they become full-blown disasters. Training law students to adapt to dynamic situations will give them the skills they need in a world facing global warming, resource depletion, and a burgeoning population. By creating a more robust legal system, we can create a more resilient society.

Originally published in the May 2011 issue of AALL Spectrum.

Forum, Federalism, And Free Markets: An Empirical Study Of Judicial Behavior Under The Dormant Commerce Clause Doctrine, Mehmet K. Konar-Steenberg, Anne F. Peterson

Faculty Scholarship

This study examines judicial behavior under the dormant Commerce Clause doctrine by drawing on an original database of 459 state and Federal appellate cases decided between 1970 and 2009. The authors use logit regression to show that state judges are more likely to uphold state and local laws against dormant Commerce Clause attack than their Federal judicial counterparts, a result that is consistent with the interstate rivalry issues animating the doctrine. The study also finds that Republican-dominated judicial panels at the state level are more likely to side with tax challengers invoking the dormant Commerce Clause doctrine than are Democratic …

Open Letter To Director David Kappos Of The United States Patent And Trademark Office, Kenneth L. Port

Faculty Scholarship

I appreciate the opportunity to respond to the Request for Comments on the extent to which small businesses may be harmed by litigation tactics by corporations‟ attempts to enforce trademark rights beyond a reasonable interpretation of the scope of the rights granted to the trademark owner; the best use of Government services to protect trademarks and prevent counterfeiting; and appropriate policy recommendations.

The PTO should be commended for considering whether the use of trademark litigation as a form of “bullying” is a problem for the U.S. trademark system. While some consider trademark litigation as a justifiable effort to police marks …

Court-Connected Mediation And Minorities: A Report Card, Sharon Press

Faculty Scholarship

Critical race theorists have raised important concerns about alternative dispute resolution in general and mediation specifically. Many of the critiques were written prior to the ascendency of court-connected mediation. To set the context, Part II of this article begins with a brief history of the court-connected mediation movement in the United States. In Part III, the critiques of mediation, specifically focusing on those related to minorities, are summarized. Part IV identifies some of the flaws in the critiques as related to court-connected mediation. Part V includes actions that court programs can undertake to address the issues raised by the critiques …

Donahue's Fils Aîné: Reflections On Wilkes And The Legitimate Rights Of Selfish Ownership, Daniel S. Kleinberger

Faculty Scholarship

This Article asserts that Wilkes v. Springside Nursing Home, Inc. should be at least as memorable as Donahue v. Rodd Electrotype Co., and is, in a practical sense, substantially more important. The assertion rests on two propositions: first, that Donahue announces admirable sentiments but provides little practical guidance; second, that Wilkes provides the best practical rule for adjudicating “oppression” claims when the alleged victim is also a miscreant or for some other reason the dispute is grey rather than black and white. In particular, this Article asserts that Wilkes’s multistep, burden-shifting rule is a nuanced and effective method for accommodating …

Plausible Answers And Affirmative Defenses, Eric S. Janus, Thomas Tinkham

Faculty Scholarship

Our federal courts have introduced a degree of uncertainty in the law of pleading that ought to be resolved with a clear decision about the scope of Twombly and Iqbal. We write to set forth what we believe are the overwhelming arguments in support of the developing majority view: pleading standards should not distinguish between plaintiffs and defendants, or between pleadings asserting and pleadings defending against a claim. Proponents of the minority view make policy arguments grounded in the asserted realities of litigation, leveraging small textual differences between Federal Rule of Civil Procedure Rule 8(a) and 8(c). But the …

Mortgage Foreclosure Mediation In Florida - Implementation Challenges For An Institutionalized Program,, Sharon Press

Faculty Scholarship

This Symposium is filled with examples from around the country of states grappling with how to respond to the economic crisis in general and the overwhelming number of mortgage foreclosure cases in particular. In Part II of this article, the author identifies the key impacts institutionalization had on implementation efforts. Part III describes the various approaches pursued to address the obstacles. In this part, the author examines in detail the development of a rule to define “appearance” at mediation because of its implications for the practice of mediation as a whole beyond merely the foreclosure context. Part IV provides the …

Engaged Client-Centered Representation And The Moral Foundations Of The Lawyer-Client Relationship, Kate Kruse

Faculty Scholarship

The field of legal ethics, as we know it today, has grown out of thoughtful, systematic grounding of lawyers’ duties in a comprehensive understanding of lawyers’ roles and the situating of lawyers’ roles in underlying theories of law, morality and justice. Unfortunately, the field of theoretical legal ethics has mostly lost track of the thing at the heart of a lawyers’ role: the integrity of the lawyer-client relationship. The field of theoretical legal ethics has developed in ways that are deeply lawyer-centered rather than fundamentally client-centered. This paper, which was delivered at Hofstra Law School as the Lichtenstein Distinguished Professor …

The Jurisprudential Turn In Legal Ethics, Kate Kruse

Faculty Scholarship

When legal ethics developed as an academic discipline in the mid-1970s, its theoretical roots were in moral philosophy. The early theorists in legal ethics were moral philosophers by training, and they explored legal ethics as a branch of moral philosophy. From the vantage point of moral philosophy, lawyers’ professional duties comprised a system of moral duties that governed lawyers in their professional lives, a “role-morality” for lawyers that competed with ordinary moral duties. In defining this “role-morality,” the moral philosophers accepted the premise that “good lawyers” are professionally obligated to pursue the interests of their clients all the way to …

"Brother, Can You Spare A Dime?" Technology Can Reduce Dispute Resolution Costs When Times Are Tough And Improve Outcomes, David Allen Larson

Faculty Scholarship

Cost reduction is one of the desirable results frequently attributed to Alternative Dispute Resolution (ADR) processes. Although it is reasonable to assume that businesses always are interested in saving money, this goal takes on added importance when the economy is struggling. The cost savings inherent in ADR, which already are significant, can be increased substantially through the strategic adoption of technology. Although I generally do not urge caution when it comes to expanding the ways in which we use technology, we nonetheless must recognize not only technology’s potential benefits but also its possible pitfalls. It is relatively easy to identify …

School Children And Parolees: Not So Special Anymore, Edwin Butterfoss

Faculty Scholarship

The Fourth Amendment special needs exception may be one of the Court’s most puzzling doctrines. Since its origin, the Court has struggled to define its limits and its place in the Court’s suspicionless search and seizure jurisprudence. At times the Court has suggested that the exception is the only route to upholding a search or seizure in the absence of individualized suspicion, while at other times it has stated that it is just one of a limited number of exceptions to the requirement of individualized suspicion. Historically, while the application of the special needs exception has been unpredictable, one thing …

Governance In The Public Corporation Of The Future: The Battle For Control Of Corporate Governance, Z. Jill Barclift

Faculty Scholarship

Eight years after passage of the Sarbanes-Oxley Act, Congress has again passed sweeping legislation in response to a corporate crisis. In addition to changes in the regulatory environment for Wall Street financial firms and banks, the Dodd-Frank Act (D-F Act) also proposes reforms to corporate governance.

In this article, the author examines the latest governance mandates under the D-F Act. In particular, this article focuses on the disclosure requirements on the CEO and chairman positions, and argues that disclosures of whether the CEO is also the chairman benefit shareholders' governance rights under state law. The new provisions under D-F Act …

Patent Law And The Duty Of Candor: Rethinking The Limits Of Disclosure, Jay Erstling

Faculty Scholarship

No abstract provided.