Law Commons^™

Social Justice And The Supreme Court: Lessons From The Past, Vicki Lens

Mitchell Hamline Law Journal of Public Policy and Practice

This article revisits over sixty years of Supreme Court decisions that have affected the poor and racial minorities, using a novel approach that considers the synergistic relationship between different doctrinal areas rather than focusing on one area. Specifically, I appraise the Supreme Court’s doctrinal contributions from 1953 to the present across three foundational elements of social justice on behalf of the poor and people of color: the school integration cases under the Equal Protection Clause, a series of cases under the Fourth Amendment which sanctioned the police tactic of stop-and-frisk, and attempts to secure economic security for the poor through …

Affirming A Pragmatic Development Of Tribal Jurisprudential Principles, Todd R. Matha

Mitchell Hamline Law Review

No abstract provided.

Transgressions Of A Timid Judiciary: Our Highest Court's Refusal To Overturn Abood V. Board Of Education—Harris V. Quinn, Joe E. Ling

Mitchell Hamline Law Review

No abstract provided.

Nonmoral Theoretical Disagreement In Law, Alani Golanski

Mitchell Hamline Law Review

No abstract provided.

The Rule Of Unanimity's Circuit Splitting Effect: The Problem With Consent—Griffioen V. Cedar Rapids & Iowa City Railway Co., Aaron P. Meland

Mitchell Hamline Law Review

No abstract provided.

The Alignment Of Law And Norms: Of Mirrors, Bulwarks, And Pressure Valves, Mark A. Edwards

Faculty Scholarship

Why does law mirror norms sometimes, but other times not? This article examines two types of intervening factors that sometimes cause a persistent misalignment between law and norms: pressure valves and bulwarks.

Pressure valves are mechanisms that relieve the pressure placed on the law to change despite a gap with social norms. Pressure valves are found in two distinct social phenomena.

First, pressure on law to change to reflect social norms is relieved when law is not enforced against behavior that is illegal, but socially acceptable. Formally deviant acts that are socially acceptable often do not generate an enforcement response. …

Eighth Circuit Trademark Opinions, Kenneth L. Port

Faculty Scholarship

The Eighth Circuit Court of Appeals’ trademark jurisprudence has been truly fair and balanced since the 1946 passage of the Lanham Act. The court has created this fair and balanced jurisprudence by creating firm standards and sticking to them. Although not the most popular circuit in which to find a trademark case, the Eighth Circuit has kept a constant vigil to assure that trademark plaintiffs do not dominate over trademark defendants. This balanced approach to trademark law is consistent with the Minnesota Supreme Court, which recently held that “advertising injury” included trademark infringement, and therefore the defendant’s insurance carrier had …

Foreword: Poverty Law Issue, Ann Juergens

Faculty Scholarship

This Poverty Law Issue provides testimony as to why and how the legal profession, the government, and society can better provide justice for people of small means. Overall, this Poverty Law Issue contributes to understanding how we may ensure that the difficulty of poverty borne by our fellow citizens does not become compounded by injustice. For when justice is compromised for one group, its integrity as a whole may rightly be questioned.

The Human Dignity Of Clients, Kate Kruse

Faculty Scholarship

This essay reviews David Luban's forthcoming book, Legal Ethics and Human Dignity. At the heart of this new book is an argument that interactions between lawyers and clients ought to be at the center of jurisprudential inquiry. Pointing out that most cases do not go to trial and that much transactional work occurs outside the litigation context, he argues that law's defining moments occur when a "client sketches out a problem and a lawyer tenders advice," rather than when a judge decides a litigant's case. This review essay examines how Luban might elaborate a new "jurisprudence of lawyering" by examining …

Minnesota's Distortion Of Rule 609, Ted Sampsell-Jones

Faculty Scholarship

Rule of Evidence 609, which governs the admission of prior convictions of a witness for purposes of impeachment, occupies an important place in the day to day operation of American criminal trials. The rule is a compromise that reflects these competing values. It admits some prior convictions but not all. Crimen falsi offenses such as perjury and fraud are automatically admissible under 609(a)(2). All other felonies are analyzed under the balancing test of 609(a)(1), which allows the admission of a defendant-witness's crimes if the “probative value of admitting this evidence outweighs its prejudicial effect to the accused.” The rule seeks …

The Jurisprudence Of Justice Esther Tomljanovich: Balancing The Scales Of Justice, Ann L. Iijima

William Mitchell Law Review

No abstract provided.

Federal Court Special Masters: A Vital Resource In The Era Of Complex Litigation, Mark A. Fellows, Roger S. Haydock

William Mitchell Law Review

This article is dedicated to all those who have served as special masters in federal court. After serving as a judicial master, it is easy to believe in the importance of the role in our grand system of justice. After reading this article, we hope it will be clear how vital masters are to everyone receiving fair, just, and expedient civil justice.

Special Masters In State Court Complex Litigation: An Available And Underused Case Management Tool, Lynn Jokela, David F. Herr

William Mitchell Law Review

This article examines the role masters have played in litigation and explores the benefits that might be obtained from the greater use of masters in the future. The FJC survey of federal judges appointing special masters concluded that special masters were “extremely or very effective.” The FJC study is an empirical survey of the effectiveness of special masters, and it includes commentary from judges regarding their experience after appointing special masters. These benefits include better, faster, and fairer resolution of litigation in the cases in which masters are used, as well as an easing of the burdens these cases place …

2004 Special Masters Conference: Transcript Of Proceedings, Various Special Masters

William Mitchell Law Review

A historic gathering of special masters occurred on October 15th and 16th, 2004 in Saint Paul, Minnesota. Federal and state court-appointed masters from around the country met for the first time to share their experiences as special masters and to form a national association of court appointed masters. This issue of the William Mitchell Law Review contains articles presented at the conference and the transcript of faculty presentations. Throughout the transcript of faculty presentations, the word “speaker” denotes a conference attendee.

Molloy V. Meier Extends Genetic Counseling Duty Of Care To Biological Mcclain Parents And Establishes That Legal Damages Must Occur Before A Wrongful Conception Action Accrues For Statute Of Limitations Purposes, Mark Hallberg, Teresa Fariss

William Mitchell Law Review

Inherited genetic disorders are a well-known cause of developmental delays in children. It is, therefore, “foreseeable” to physicians treating developmentally delayed children that parents of these children will rely on the physicians’ opinions of whether a genetic cause exists. Accordingly in 1992, when Dr. Diane Meier, a pediatrician, discovered developmental delays in S.F., the three-year-old daughter of Kimberly Flomer (now Molloy) and Robert Flomer, “accepted standards of pediatric practice” required Dr. Meier to order genetic testing, including testing for Fragile X Syndrome, one of the most common causes of inherited mental retardation. The foreseeable consequences of Dr. Meier’s alleged failure …

Foreword, Helen Meyer

William Mitchell Law Review

The William Mitchell Law Review has decided once again to dedicate one issue of this annual volume to Recent Decisions of the Minnesota Supreme Court. This issue reviews some of the court’s more important decisions from the 2003-04 term. If tradition is honored, the articles and notes you find in these pages will be thorough, well-written, and thoughtful in their analysis of each decision. This annual review is a tradition that gives our legal community a wonderful opportunity to publicly comment on the work of the court. This public testing of the court’s work is a healthy part of the …

Windfall Justice: Sentences At The Mercy Of Hypertechnicality, Jack Nordby

William Mitchell Law Review

Once upon a time (a time not so remote as to be beyond the memories of many of us who still toil in the vineyards of justice), the severity of a criminal sentence was determined largely at the whim of the trial judge, who was guided only by vague considerations of suitability. Non-premeditated murder, for example, might be punished by anything from probation to forty years in prison. A parole board exercised a similarly subjective power to temper the term with early release. Then, about a quarter century ago, the legislature created a commission to establish sentencing “guidelines,” said to …

Unsung Hero: The Life Of A Foot Soldier For Justice, Valerie M. Jensen

William Mitchell Law Review

Review of Frederick L. McGhee: A Life on the Color Line, 1861-1912. By Paul D. Nelson. Minnesota Historical Society Press, 2002. 234 pages. $29.95

Brown’S Legacy: Looking Back, Moving Forward, Wilhelmina M. Wright

William Mitchell Law Review

This keynote speech was delivered at the Lena O. Smith Luncheon on May 7, 2004. Lena O. Smith was the first African-American woman to practice law in Minnesota. In 1921, she graduated from Northwestern College of Law, a predecessor of William Mitchell College of Law. See generally Ann Juergens, Lena Olive Smith: A Minnesota Civil Rights Pioneer, 28 Wm. Mitchell L. Rev. 397 (2001).

Foreword, Sam Hanson

William Mitchell Law Review

Introduction to issue of Recent Decisions of the Minnesota Supreme Court (from 2002-03 term).

Philosophy And Opinions, Warren Ortland

William Mitchell Law Review

Review of Law, Pragmatism, and Democracy. By Richard A. Posner. Harvard University Press, 2003. 398 Pages. $35.00.

The Creativity Of The Common-Law Judge: The Jurisprudence Of William Mitchell, Charles J. Reid Jr.

William Mitchell Law Review

Mitchell's presence graced the Minnesota Supreme Court for nearly nineteen years, from 1881 to 1900. His output was prodigious. He produced nearly 1600 judicial opinions. It has been estimated “that excluding Sundays, and allowing a month in each year for vacation, Judge Mitchell wrote one opinion in every three days for nineteen years.” Indeed, “[i]n point of numbers, his opinions exceed those of any other justice of the Supreme Court of his state, or the nation.” It is one aspect, perhaps the central aspect, the unifying theme of this prolific body of work, that is the focus of this essay: …

Five Modern Notions In Search Of An Author: The Ideology Of The Intimate Society In Constitutional Speech Law, Marie Failinger

Faculty Scholarship

In this article, drawing heavily on the work of sociologist Richard Sennett, the author argues that the Court’s jurisprudence lends credence to, and exacerbates, five damaging “common sense” notions about American public social life: that public space and time are naked or empty, and can be imagined as no more than transportation tunnels or even the binoculars of a voyeur, as illustrated by the public forum doctrine; that massed acts of public communication, or “speech crowds” are dangerous and must be controlled by force, as the public forum and “clear and present danger” doctrines suggest; that “shadow” space for deviant …

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 …

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 …

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.

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 …