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Mitchell Hamline School of Law

Journal

2004

Articles 1 - 30 of 32

Full-Text Articles in Law

Decoupling Tax Exemption For Charitable Organizations, Charles A. Borek Jan 2004

Decoupling Tax Exemption For Charitable Organizations, Charles A. Borek

William Mitchell Law Review

[T]his article proposes a new approach to defining the term “charitable” for tax purposes that both respects the essence of tax-exempt eleemosynary activity and injects an element of clarity that has eluded the use of the term in modern tax parlance. Part I traces the evolution of the legal concept of charity, with emphasis on the shift in focus from poverty relief to social action facilitated through the device of trust law. I argue that it is in this shift of emphasis that the concept of charity became entangled in property concepts and thereby transformed into something wholly unrelated ...


Copyright, Containers, And The Court: A Reply To Professor Leaffer, Niels B. Schaumann Jan 2004

Copyright, Containers, And The Court: A Reply To Professor Leaffer, Niels B. Schaumann

William Mitchell Law Review

No abstract provided.


Contrived Conflicts: The Supreme Court Versus The Basics Of Intellectual Property Law, F. Scott Kieff Jan 2004

Contrived Conflicts: The Supreme Court Versus The Basics Of Intellectual Property Law, F. Scott Kieff

William Mitchell Law Review

No abstract provided.


Life After Eldred: The Supreme Court And The Future Of Copyright, Marshall Leaffer Jan 2004

Life After Eldred: The Supreme Court And The Future Of Copyright, Marshall Leaffer

William Mitchell Law Review

No abstract provided.


For Of All Sad Words Of Tongue Or Pen, The Saddest Are “It Might Have Been”—Free Culture: How Big Media Uses Technology And The Law To Lock Down Culture And Control Creativity, Katherine Kelly Jan 2004

For Of All Sad Words Of Tongue Or Pen, The Saddest Are “It Might Have Been”—Free Culture: How Big Media Uses Technology And The Law To Lock Down Culture And Control Creativity, Katherine Kelly

William Mitchell Law Review

Review of Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. By Lawrence Lessig. Penguin Press, 2004. 348 pages, $24.95


A Crash At The Crossroads: Tax And Campaign Finance Laws Collide In Regulation Of Political Activities Of Tax-Exempt Organizations, Elizabeth Kingsley, John Pomeranz Jan 2004

A Crash At The Crossroads: Tax And Campaign Finance Laws Collide In Regulation Of Political Activities Of Tax-Exempt Organizations, Elizabeth Kingsley, John Pomeranz

William Mitchell Law Review

[T]his article will look at the tax law's definitions of “political” activity by § 501(c)(3)s, other § 501(c)s, and § 527s, identifying the many points of congruence and the occasional important differences. We further attempt to explain why the FEC's detour onto the slippery pavement of tax law led to this crash, and why attempts to follow the tax law's definitions of political activity will inevitably lead regulatory efforts astray. The legal roads of tax and election law begin from different policy rationales, intersect in seemingly similar concepts, but then proceed to wildly different ...


The Changing Accountability Climate And Resulting Demands For Improved Fiduciary Capacity Affecting The World Of Public Charities, Ellen W. Mcveigh, Eve R. Borenstein Jan 2004

The Changing Accountability Climate And Resulting Demands For Improved Fiduciary Capacity Affecting The World Of Public Charities, Ellen W. Mcveigh, Eve R. Borenstein

William Mitchell Law Review

In the wake of the scandals at major corporations such as Enron and WorldCom, attorneys general of several states are proposing additional legislative reforms to ensure financial accountability of nonprofit organizations, and both the Senate Finance Committee and House Ways and Means Committee have recently held hearings on proposed reforms for exempt organizations. These increasing demands for accountability have, in turn, amplified the pressure on boards of directors of all nonprofit organizations to govern effectively. But what is effective governance in this new climate of accountability, particularly for organizations holding exalted status under I.R.C. § 501(c)(3) and ...


Charitable State Registration And The Dormant Commerce Clause, Charles Nave Jan 2004

Charitable State Registration And The Dormant Commerce Clause, Charles Nave

William Mitchell Law Review

Charitable solicitation in the U.S. is regulated by “the several States.” For most of the nation's history, charities tended to be local endeavors, raising money and providing relief in their immediate vicinities. In the latter half of the twentieth century, charities increasingly grew beyond these local origins as new technologies enabled even the smallest charities to develop a national reach with direct mail and telemarketing campaigns. Nevertheless, primary authority for regulating charitable solicitations remained with the states.


Minnesota’S New Residential Purchase Agreement Cancellation Statute, Larry M. Wertheim Jan 2004

Minnesota’S New Residential Purchase Agreement Cancellation Statute, Larry M. Wertheim

William Mitchell Law Review

For the first time in almost twenty years, the Minnesota legislature has altered the statutory procedures for canceling residential purchase agreements. The 2004 legislature instituted two new procedures for cancellation of residential purchase agreements, both of which will significantly change current practices. … The new legislation for cancellation of residential purchase agreements represents an effort to provide an expedited method of allowing sellers and buyers to resolve standoffs between the parties with the broker in the middle holding the earnest money. It has the advantages over section 559.21 of speed, a remedy for the buyer, and a means of confirming ...


Quest For Cash: Exempt Organizations, Joint Ventures, Taxable Subsidiaries, And Unrelated Business Income, J. Patrick Plunkett, Heidi Neff Christianson Jan 2004

Quest For Cash: Exempt Organizations, Joint Ventures, Taxable Subsidiaries, And Unrelated Business Income, J. Patrick Plunkett, Heidi Neff Christianson

William Mitchell Law Review

Most “for-profit” or “business” activities of exempt organizations take one of three forms: (A) The exempt organization may undertake to perform the business activities within the existing structure of the exempt organization. (B) The exempt organization may form a “taxable” subsidiary or affiliate which will perform the business activities. (C) The exempt organization may “partner” with other individuals and entities (both nonprofit and for-profit) to form a corporation, limited liability company (LLC), partnership, joint venture, strategic alliance, or other collaborative effort which will perform the “for-profit” activities. Depending in part upon which of these forms is chosen, any business activities ...


Drawing The Lines More Brightly: The Minnesota Supreme Court Clarifies Past Insurance Coverage Precedent, Robert P. Thavis Jan 2004

Drawing The Lines More Brightly: The Minnesota Supreme Court Clarifies Past Insurance Coverage Precedent, Robert P. Thavis

William Mitchell Law Review

This article reports on two cases decided by the Minnesota Supreme Court during its 2003-04 term. The first is a major insurance coverage “trigger-and-allocation” case; the second is a tax case with implications for insurance coverage of electronic property.


Case Note: Property Law—Outdoor Advertising Control Acts Slice City Funds Into The Bunker—In Re Denial Of Eller Media Company’S Applications For Outdoor Advertising Device Permits In The City Of Mounds View, Sarah M. Stensland Jan 2004

Case Note: Property Law—Outdoor Advertising Control Acts Slice City Funds Into The Bunker—In Re Denial Of Eller Media Company’S Applications For Outdoor Advertising Device Permits In The City Of Mounds View, Sarah M. Stensland

William Mitchell Law Review

This note first examines a brief history of the municipal development of the comprehensive plan and outdoor advertising control legislation, the federal government’s promulgation of the Highway Beautification Act, and the Minnesota Outdoor Advertising Control Act. Upon review of the background of the Eller Media case, this note highlights the opinion rendered by the Minnesota Supreme Court. An analysis of the supreme court’s interpretation in light of the outdoor advertising control acts and regulations follows, including an examination of the policies that underlie the pertinent statutes. This note concludes that based on the state of the golf course ...


Case Note: Criminal Law—Dangerous, Not Deadly: Possession Of A Firearm Distinguished From Use Under The Felony-Murder Rule—State V. Anderson, Michael C. Gregerson Jan 2004

Case Note: Criminal Law—Dangerous, Not Deadly: Possession Of A Firearm Distinguished From Use Under The Felony-Murder Rule—State V. Anderson, Michael C. Gregerson

William Mitchell Law Review

This Note first briefly examines the history of the felony-murder doctrine both generally and in Minnesota. Second, this Note describes the decision and analysis in State v. Anderson, the latest case in Minnesota to deal with the felony-murder doctrine. Third, this Note concludes that in an effort to reach the right result, the court misapplied its previous precedent and left the lower courts with no clear standard for guidance in the future. Finally, this Note suggests that a workable standard might be found in limiting the application of the rule to deaths that occur in furtherance of the felony.


Windfall Justice: Sentences At The Mercy Of Hypertechnicality, Jack Nordby Jan 2004

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 ...


Case Note: Civil Procedure—The Forest For The Trees: The Minnesota Supreme Court Considers The Collateral Estoppel Effect Of Criminal Convictions In Illinois Farmers Insurance Co. V. Reed, Charles Delbridge Jan 2004

Case Note: Civil Procedure—The Forest For The Trees: The Minnesota Supreme Court Considers The Collateral Estoppel Effect Of Criminal Convictions In Illinois Farmers Insurance Co. V. Reed, Charles Delbridge

William Mitchell Law Review

This Note first examines the goals and history of the doctrine of collateral estoppel, including the great changes the doctrine has undergone of late. It then examines the facts of the Reed case, details the procedural history of the case, and outlines the analysis of the courts in deciding the case. This Note then analyzes both the successes and the failures of the Minnesota Supreme Court in the Reed opinion. Finally, this Note concludes that the Reed decision is correct in its privity and due process analyses, but falls short by failing to clarify what collateral estoppel effect a criminal ...


Brown’S Legacy: Looking Back, Moving Forward, Wilhelmina M. Wright Jan 2004

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).


Terminating Public School Teachers For Cause Under Minnesota Law, Christine D. Ver Ploeg Jan 2004

Terminating Public School Teachers For Cause Under Minnesota Law, Christine D. Ver Ploeg

William Mitchell Law Review

It is important to understand the realities that surround the discharge of a teacher, for embarking upon this path promises to be painful for everyone involved. Teachers who challenge allegations that they are personally or professionally unworthy of continuing to teach in their districts--or perhaps to continue to teach at all--understandably experience extraordinary trauma and anxiety. By the same token, districts that ultimately fail to prove the case for discharge can face significant financial liability and may even be forced to reinstate teachers who have been found to be deficient. Finally, these efforts often divide schools and communities because teachers ...


Note: Get The Balance Right: Finding An Equilibrium Between Charitable Solicitation, Fraud, And The First Amendment In Illinois Ex Rel. Madigan V. Telemarketing Associates, Inc., 538 U.S. 600 (2003), Christopher R. Sullivan Jan 2004

Note: Get The Balance Right: Finding An Equilibrium Between Charitable Solicitation, Fraud, And The First Amendment In Illinois Ex Rel. Madigan V. Telemarketing Associates, Inc., 538 U.S. 600 (2003), Christopher R. Sullivan

William Mitchell Law Review

This Note first examines the history of the relevant law in the areas of fraud, charitable solicitation, and prior restraints. Specifically, it examines the three leading cases on regulation of charitable fundraising speech: Schaumburg, Munson, and Riley. Next, the Note discusses the history and holding of Illinois ex rel. Madigan v. Telemarketing Associates, Inc. Next, this Note will explore the holding in Telemarketing Associates in light of Schaumburg and its progeny. This analysis includes a survey of recent and pending fraud litigation against charities and their fundraisers, and a review of the Federal Trade Commission's “Operation Phoney Philanthropy.” Finally ...


Opining On The 501(C)(3) Tax-Free Bond Transaction: Avoiding Common Borrower's Counsel Misconceptions, Gina M. Torielli Jan 2004

Opining On The 501(C)(3) Tax-Free Bond Transaction: Avoiding Common Borrower's Counsel Misconceptions, Gina M. Torielli

William Mitchell Law Review

There are two areas where borrowers’ counsel can easily misstep when representing a charitable organization in a tax-exempt bond deal. The first is failing to recognize that “private business use” under § 145 can (and does) result in situations that would not constitute an “unrelated trade or business” of the borrower. The second occurs when borrowers’ counsel conflate the test for “unrelated business taxable income” under § 512 with the use of “unrelated trades or businesses” in the definition of a qualified 501(c)(3) bond under § 145. A mistake in either of these areas could lead to an erroneous opinion that ...


The Supreme Court And Trademark Law In The New Millennium, David S. Welkowitz Jan 2004

The Supreme Court And Trademark Law In The New Millennium, David S. Welkowitz

William Mitchell Law Review

No abstract provided.


Tax-Exempt Organizations And Internet Commerce: The Application Of The Royalty And Volunteer Exceptions To Unrelated Business Taxable Income, Leeanna Izuel, Leslie Y. Park Jan 2004

Tax-Exempt Organizations And Internet Commerce: The Application Of The Royalty And Volunteer Exceptions To Unrelated Business Taxable Income, Leeanna Izuel, Leslie Y. Park

William Mitchell Law Review

The Internet has created new opportunities for both large and small tax-exempt organizations (EOs) to raise funds through relationships with online vendors and “charity malls.” EOs provide hyperlinks to online vendors' websites through affiliate arrangements. In return, EOs receive payments based on a percentage of sales made at the vendor websites attributable to the EOs' hyperlinks. EOs also enter into payment arrangements with charity malls. Charity malls are commercial websites that provide hyperlinks to online vendors and attract consumers by pledging to donate a percentage of any purchases made through the malls to charity. There is no express authority stating ...


Sin, Salvation, And The Law Of Charities, Corwin R. Kruse Jan 2004

Sin, Salvation, And The Law Of Charities, Corwin R. Kruse

William Mitchell Law Review

Review of Governing Nonprofit Corporations: Federal and State Law and Regulation. By Marion R. Fremont-Smith. Belknap Press, 2004. 570 pages, $95.


A Legacy Of Public Law 280: Comparing And Contrasting Minnesota’S New Rule For The Recognition Of Tribal Court Judgments With The Recent Arizona Rule, Kevin K. Washburn, Chloe Thompson Jan 2004

A Legacy Of Public Law 280: Comparing And Contrasting Minnesota’S New Rule For The Recognition Of Tribal Court Judgments With The Recent Arizona Rule, Kevin K. Washburn, Chloe Thompson

William Mitchell Law Review

Tribal court dockets across the country have been growing steadily, and tribal courts are becoming an important part of the judicial fabric of the United States. To acknowledge this reality, state courts and legislatures across the United States have begun to address the important issues of how and whether to recognize tribal court judgments in state courts. The Minnesota Supreme Court adopted a rule that took effect in January of 2004 that provides guidelines for the recognition and enforcement of tribal court orders and judgments. The Minnesota Supreme Court Rule on the Recognition and Enforcement of Tribal Court Orders and ...


Case Note: Contracts—Into The Void: Minnesota Limits Application Of The Prima Paint Doctrine—Onvoy, Inc. V. Shal, Llc, Mikel D. Johnson Jan 2004

Case Note: Contracts—Into The Void: Minnesota Limits Application Of The Prima Paint Doctrine—Onvoy, Inc. V. Shal, Llc, Mikel D. Johnson

William Mitchell Law Review

This note first gives a brief overview of arbitration use in the United States. It then discusses the Onvoy decision and provides an analysis of the Minnesota Supreme Court’s ruling. Finally, the note concludes that the court’s holding properly weighs Minnesota’s strong presumption in favor of arbitration against the need to allow access to the courts.


Case Note: Tort Law—Shades Of Gray: The Sophisticated Intermediary Defense Is Now Available For Minnesota Industrial Failure To Warn Actions—Gray V. Badger Mining Corp., Kerri Nelson Jan 2004

Case Note: Tort Law—Shades Of Gray: The Sophisticated Intermediary Defense Is Now Available For Minnesota Industrial Failure To Warn Actions—Gray V. Badger Mining Corp., Kerri Nelson

William Mitchell Law Review

This Note briefly examines the context of Minnesota failure to warn claims against industrial suppliers. It describes the various defenses Gray has made available, particularly the sophisticated intermediary and bulk supplier doctrines. The Note also reviews the various jurisdictional incarnations of the sophisticated intermediary defense, and analyzes the doctrine’s application in Gray. Additionally, the Note attempts to predict Gray’s future, recommending that the sophisticated intermediary defense not be expanded beyond the employment context, and suggesting that the Gray defenses, viewed as a cohesive whole, will quickly get rid of weaker claims while permitting valid claims to go forward ...


Unsung Hero: The Life Of A Foot Soldier For Justice, Valerie M. Jensen Jan 2004

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


The Limits Of Business Limited Liability: Entity Veil Piercing And Successor Liability Doctrines, John H. Matheson Jan 2004

The Limits Of Business Limited Liability: Entity Veil Piercing And Successor Liability Doctrines, John H. Matheson

William Mitchell Law Review

The quest for limited liability in business enterprises and transactions has been a driving force in the development of business organization law for centuries. The historical development of corporations and limited partnerships evidences this primary goal. The recent development of the modern forms of limited liability partnerships and limited liability companies proves that this quest continues unabated. In addition, parties to significant business transfer transactions have long sought by construct and contract to apportion and limit their respective legal responsibilities and liabilities. Counterbalancing this inexorable trend toward limited liability has been the penchant of common law jurisprudence to define its ...


State V. Colosimo: Minnesota Anglers’ Freedom From Unreasonable Searches And Seizures Becomes “The One That Got Away”, Edwin J. Butterfoss, Joseph L. Daly Jan 2004

State V. Colosimo: Minnesota Anglers’ Freedom From Unreasonable Searches And Seizures Becomes “The One That Got Away”, Edwin J. Butterfoss, Joseph L. Daly

William Mitchell Law Review

This article examines the various opinions in the Colosimo case, including the opinion of the Minnesota Court of Appeals (which was reversed by the supreme court), as well as the majority, concurring, and dissenting opinions of the supreme court. The article provides a brief background of how the issue of stops and inspections by conservation officers has been dealt with in other jurisdictions before turning to a critique of the Minnesota Supreme Court's decision in Colosimo, which the authors consider far too expansive. The decision in Colosimo undermines the right of citizens of Minnesota to be free from invasions ...


Foreword, Helen Meyer Jan 2004

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 ...


Recent Developments In Minnesota Corporate Law, Mark S. Weitz, Jeffrey L. Cotter, David J. Seno Jan 2004

Recent Developments In Minnesota Corporate Law, Mark S. Weitz, Jeffrey L. Cotter, David J. Seno

William Mitchell Law Review

This article summarizes a number of select cases and statutory amendments involving various topics in Minnesota corporate law. Sections I and II address 2003 statutory changes and cases decided in 2003, respectively. Sections III and IV address 2004 statutory changes and cases decided in the first half of 2004, respectively. The purpose of this article is to provide the practitioner with an overview of recent developments in Minnesota corporate law.