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Articles 1 - 30 of 30
Full-Text Articles in Law
The Jurisprudence Of Justice Esther Tomljanovich: Balancing The Scales Of Justice, Ann L. Iijima
The Jurisprudence Of Justice Esther Tomljanovich: Balancing The Scales Of Justice, Ann L. Iijima
William Mitchell Law Review
No abstract provided.
Foreword: The State Of America’S Health Care System, Tommy G. Thompson
Foreword: The State Of America’S Health Care System, Tommy G. Thompson
William Mitchell Law Review
Thanks to technology, innovation, and creative entrepreneurs, Americans in the twenty-first century enjoy a wide variety of products and services that would astonish previous generations. Many of these innovations allow them to prevent, treat, cure, and recover from serious injuries and diseases that were once fatal. While medical knowledge and technology have surged ahead, some parts of the health care industry are still struggling to catch up. These include the ability to keep patient records up to date, prevent medical errors, and compensate patients promptly and fairly when errors do occur. The U.S. Department of Health and Human Services continues …
Minnesota: Leading The Way On Canadian Prescription Medicine Importation, Kevin Goodno, Karen Janisch
Minnesota: Leading The Way On Canadian Prescription Medicine Importation, Kevin Goodno, Karen Janisch
William Mitchell Law Review
In the United States, about $160 billion is spent on prescription medicines each year, with Minnesotans spending about $3 billion. The costs of prescription medicines receive so much attention in large part because, although prescription medicine costs constitute only 10.5% of total health care spending, they account for 23% of the total out-of-pocket costs that people incur when purchasing health care. Minnesota has been a leader in controlling prescription medicine costs. It has aggressively used purchasing pools when possible, and encouraged the use of lower cost, generic prescription medicines when appropriate. Even with these efforts to control costs, prescription medicines …
Aetna V. Davila/Cigna V. Calad: A Missed Opportunity, Leonard A. Nelson
Aetna V. Davila/Cigna V. Calad: A Missed Opportunity, Leonard A. Nelson
William Mitchell Law Review
On June 21, 2004, the United States Supreme Court decided the health law “case of the year” in the two consolidated cases of Aetna Health, Inc. v. Davila and CIGNA HealthCare of Texas, Inc. v. Calad. The Court held that section 502(a) of the Employee Retirement Income Security Act of 1974 (ERISA) “completely preempt[s]” and thus invalidates the tort liability provisions of the Texas Health Care Liability Act (THCLA). The case could potentially affect the rights of millions of Americans in a matter of vital concern—whether they will receive the health insurance coverage promised them if they become unable to …
Crawford V. Washington: A Small Advantage For Criminal Defense In Cases Where Prosecution Seeks To Introduce Hearsay Evidence, Jason W. Eldridge
Crawford V. Washington: A Small Advantage For Criminal Defense In Cases Where Prosecution Seeks To Introduce Hearsay Evidence, Jason W. Eldridge
William Mitchell Law Review
This article will examine the Crawford holding and its effects on hearsay law in criminal trials in Minnesota. First, it will attempt to explain the Crawford holding and the Supreme Court’s analysis. Next, it will examine Crawford’s general effect on the Minnesota Rules of Evidence concerning hearsay. Then, this article will consider Crawford’s effect upon criminal cases and some of the arguments it presents for criminal defense attorneys and prosecutors. Finally, this article will conclude that the Crawford decision is a small boon for criminal defense attorneys.
State V. Askerooth: Re-Applying The Terry Principle Of Reasonableness To Traffic Stops Under The Minnesota Constitution, Jodie Carlson
State V. Askerooth: Re-Applying The Terry Principle Of Reasonableness To Traffic Stops Under The Minnesota Constitution, Jodie Carlson
William Mitchell Law Review
This note first discusses the Minnesota Supreme Court’s use of the Minnesota Constitution to provide broader protections for its citizens in the area of Fourth Amendment search and seizure law. This note then explains the rationale for the Minnesota Supreme Court’s decision in Askerooth. Finally, this note discusses the Atwater decision and whether it was necessary for the Minnesota Supreme Court to decide Askerooth under the state constitution.
Chained To The Past: An Overview Of Criminal Expungement Law In Minnesota —State V. Schultz , Jon Geffen, Stefanie Letze
Chained To The Past: An Overview Of Criminal Expungement Law In Minnesota —State V. Schultz , Jon Geffen, Stefanie Letze
William Mitchell Law Review
This article explains Minnesota’s expungement law and analyzes a recent Minnesota Court of Appeals decision that limits the expungement remedy. Specifically, this article begins by examining the effects of a criminal record and the purposes of expungement.8 An expungement’s main purpose is to seal an individual’s criminal record from public view, thereby allowing the individual to fully reintegrate into society. This article then provides an overview of current expungement law and its history. This article also explains different types of criminal records and the different mechanisms used to seal each type of record. The focus of this article is on …
The Moussaoui Case: The Mess From Minnesota, Afsheen John Radsan
The Moussaoui Case: The Mess From Minnesota, Afsheen John Radsan
William Mitchell Law Review
This article, after giving a brief history of the Moussaoui case, identifies the main paradoxes or problems of continuing to deal with him in the criminal system. By no stretch of the imagination does this article provide an exhaustive or comprehensive treatment of the Moussaoui case. Each problem, by itself, could be the subject of a separate law review article. This article suggests that Moussaoui, rather than Yaser Esam Hamdi, or Jose Padilla, or the detainees in Guantanamo Bay, could have served as the true test for determining the minimum process that the American Constitutional system owes to an individual …
Note: Capping Noneconomic Damages In Medical Malpractice Suits Is Not The Panacea Of The “Medical Liability Crisis”, Melissa C. Gregory
Note: Capping Noneconomic Damages In Medical Malpractice Suits Is Not The Panacea Of The “Medical Liability Crisis”, Melissa C. Gregory
William Mitchell Law Review
This note explores the history behind the rising costs of medical malpractice insurance rates and the responsive state legislative proposals to limit noneconomic damages. The current state of health care liability and the recent federal proposals that include caps on noneconomic damages are then discussed. This note analyzes the reasons why the federal government should not cap noneconomic damages, primarily because: (1) states are better able to regulate health care, (2) noneconomic damages are not the determinate cause of rising medical malpractice insurance rates, and (3) caps infringe on equal protection guarantees by limiting compensation of medical malpractice victims. This …
Federal Court Special Masters: A Vital Resource In The Era Of Complex Litigation, Mark A. Fellows, Roger S. Haydock
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
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
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.
The Chorus Of Liars: Opsahl V. State Of Minnesota, David T. Schultz
The Chorus Of Liars: Opsahl V. State Of Minnesota, David T. Schultz
William Mitchell Law Review
A recanting witness is a liar. Either he lied at trial or he is lying now. When the recanting witness’s new story is joined by others, so that his solo is now a chorus, the judicial system must find the delicate balance between fairness to society and protection of the individual defendant’s rights. When the case is old and the recanting witnesses many, the difficulty of finding that balance is even greater. Such were the circumstances facing the Minnesota Supreme Court when, in 2004, it heard the case of Darby Opsahl, a man convicted in 1992 of a murder that …
Revoke First, Ask Questions Later: Challenging Minnesota’S Unconstitutional Pre-Hearing Revocation Scheme, Jeffrey S. Sheridan, Erika Burkhart Booth
Revoke First, Ask Questions Later: Challenging Minnesota’S Unconstitutional Pre-Hearing Revocation Scheme, Jeffrey S. Sheridan, Erika Burkhart Booth
William Mitchell Law Review
This analysis of the constitutionality of Minnesota’s prehearing revocation scheme begins by explaining the mechanics of Minnesota’s implied consent statute. Because the United States Supreme Court has established minimum procedural due process protections that must be afforded drivers, this backdrop is examined. After considering the federal standards for procedural due process, the numerous changes to Minnesota’s implied consent statute will be addressed. Next, the current challenge will be discussed, including the factual basis for the challenge, the arguments for the statute’s unconstitutionality, and the district court’s decision. Finally, this note will conclude that, given the dramatic increase in the private …
Note: Minnesota’S Proposed Same-Sex Marriage Amendment: A Flamingly Unconstitutional Violation Of Full Faith And Credit, Due Process, And Equal Protection, Jolynn M. Schlichting
Note: Minnesota’S Proposed Same-Sex Marriage Amendment: A Flamingly Unconstitutional Violation Of Full Faith And Credit, Due Process, And Equal Protection, Jolynn M. Schlichting
William Mitchell Law Review
This note examines the constitutionality of Minnesota’s proposed marriage amendment. The note begins with a description of the recent national events leading up to the amendment’s proposal, followed by a discussion of the history of marriage in Minnesota, including passage of the Defense of Marriage Act in May 1997. Next, the note examines the language of Minnesota’s proposed marriage amendment and briefly addresses the process of amending state constitutional provisions. It then analyzes the proposed amendment’s constitutionality under the Full Faith and Credit Clause, the Due Process Clause, and the Equal Protection Clause of the United States Constitution. Finally, the …
Note: The Earthquake That Will Move Sentencing Discretion Back To The Judiciary? Blakely V. Washington And Sentencing Guidelines In Minnesota, Matthew R. Kuhn
Note: The Earthquake That Will Move Sentencing Discretion Back To The Judiciary? Blakely V. Washington And Sentencing Guidelines In Minnesota, Matthew R. Kuhn
William Mitchell Law Review
This Note begins by briefly laying out the evolution of criminal sentencing over the past century. It then surveys judicial interpretation of defendants’ Constitutional rights as they relate to sentencing procedure, focusing on the Court’s recent invalidation of Washington state’s sentencing guidelines in Blakely v. Washington. The note will then examine possible reforms to Minnesota’s sentencing guidelines pursuant to the Court’s decision. It will conclude by advocating that, despite the recent spotlight on Kansas’s sentencing guidelines, Minnesota’s best response to Blakely is to return some sentencing discretion to the judiciary by implementing a system of voluntary guidelines.
Note: The Legislature Should Clean Up Its Act—The Minnesota Citizens’ Personal Protection Act, A Dnr Technical Bill, And The Single-Subject And Title Clause Of The Minnesota Constitution, Melissa M. Milbert
William Mitchell Law Review
This note explores the Ramsey County District Court’s decision in Unity Church v. Minnesota recently affirmed by the Minnesota Court of Appeals. This note does not, however, debate the merits of Minnesota’s conceal-and-carry law. Part II traces the legislative path taken by both the natural resource and conceal-and-carry bills. Part II surveys the history of the single-subject and title clause of the Minnesota Constitution and the evolution of the Minnesota Supreme Court’s interpretation of the clause since its enactment. Part III summarizes the factual and procedural posture of the Unity Church decision. Part IV then contends that the legislature’s enactment …
Off-Label Use And The Medical Negligence Standard Under Minnesota Law, Cynthia A. Moyer
Off-Label Use And The Medical Negligence Standard Under Minnesota Law, Cynthia A. Moyer
William Mitchell Law Review
Who decides whether a drug can be used off-label and under what circumstances? If a physician decides to prescribe a drug off-label, what legal issues, if any, should the physician be aware of? With the increased practice of prescribing drugs for off-label use, coupled with a somewhat dated and incomplete medical negligence standard in Minnesota, the intersection of the off-label use doctrine with Minnesota’s medical negligence standard is ripe for review. This article examines the off-label use doctrine and the medical negligence standard under Minnesota law. First, the article examines what the phrase “off-label use” means. Next, the article explores …
Conflicts Credentialing: Hospitals And The Use Of Financial Considerations To Make Medical Staffing Decisions, James W. Marks, Jayme R. Matchinski
Conflicts Credentialing: Hospitals And The Use Of Financial Considerations To Make Medical Staffing Decisions, James W. Marks, Jayme R. Matchinski
William Mitchell Law Review
The emerging practice of conflicts credentialing represents a significant change in the economic and professional interests of physicians and in the relationship between medical staffs and hospitals. In this article, the authors explain the interrelationship between the authority of hospitals and medical staffs to manage their respective affairs and the legal developments that have led toward conflicts credentialing. The authors next discuss the medical community’s reaction to conflicts credentialing and the legal challenges facing the use of economic factors in physician credentialing.
Note: Exclusive Licensing Of Dna Diagnostics: Is There A Negative Effect On Quantity And Quality Of Healthcare Delivery That Compels Nih Rulemaking?, Edward Weck
William Mitchell Law Review
This comment surveys the costs of deoxyribonucleic acid (DNA) diagnostic tests and argues in favor of non-exclusive licensing as a means to provide broad access to affordable DNA diagnostic testing. Part II provides background information on genetic testing, patenting genes as applied to genetic testing, the Bayh-Dole Act, and technology transfer. In addition, Part II summarizes academic commentary regarding the implications of exclusive licensing for biotechnology. Scholars propose a number of solutions, including expanding the experimental use exception. Part III details proposed rulemaking for DNA diagnostics. Part IV reviews anecdotal examples of genetic testing for breast cancer, hereditary hemochromatosis, and …
For The Well-Being Of Minnesota’S Foster Children: What Federal Legislation Requires, Gail Chang Bohr
For The Well-Being Of Minnesota’S Foster Children: What Federal Legislation Requires, Gail Chang Bohr
William Mitchell Law Review
This article will discuss the federal legislation and regulations—ASFA and CFSR—that hold the states accountable for the health and well-being of children and adolescents in foster care. This article will also discuss how the Early Periodic Screening Diagnosis and Treatment (EPSDT) program, the comprehensive health care services that states are required to provide through Medicaid, is used to address the health and wellbeing of children and adolescents in foster care. Critical to a discussion on the well-being of foster youth is the Chafee Foster Care Independence Act of 1999 that emphasized the states’ responsibility to ensure that youth in foster …
Case Note: Procuring A Different Cause: The Return Of The Procuring Cause Doctrine As Applied To Minnesota Real Estate Commission Disputes In Rosenberg V. Heritage Renovations, Llc, Robert Schug
William Mitchell Law Review
This note first examines some useful history and terminology regarding real estate commission disputes, the procuring cause doctrine, and Minnesota Statutes section 82.21.4 It follows with a summary of the facts of the Rosenberg decision and the Minnesota Court of Appeals’ and Minnesota Supreme Court’s analysis of the case. This note then analyzes the supreme court’s decision to apply the procuring cause doctrine in Rosenberg, and concludes with a plea to the Minnesota legislature to clarify that the effect of the statute is to abrogate that doctrine.
Note: A Painful Catch-22: Why Tort Liability For Inadequate Pain Management Will Make For Bad Medicine, James R. Blaufuss
Note: A Painful Catch-22: Why Tort Liability For Inadequate Pain Management Will Make For Bad Medicine, James R. Blaufuss
William Mitchell Law Review
Part I of this note reviews current issues relating to pain treatment. Part II examines theoretical justifications of proposed tort liability for inadequate pain management. Part III examines how pain mismanagement does not fit within traditional notions of medical malpractice. Part IV studies the issues relating to a physician’s role as “gate-keeper” for opioids and suggests why tort liability could compromise this legislatively imposed role. Part V examines the issue of pain management in the context of end-of-life care. Part VI discusses current shifts in pain management philosophies and explains how these movements will effectuate the changes suggested by advocates …
Note: Poison In Our Own Backyards: What Minnesota Legislators Are Doing To Warn Property Purchasers Of The Dangers Of Former Clandestine Methamphetamine Labs, Signe Land Levine
Note: Poison In Our Own Backyards: What Minnesota Legislators Are Doing To Warn Property Purchasers Of The Dangers Of Former Clandestine Methamphetamine Labs, Signe Land Levine
William Mitchell Law Review
The article begins with an overview of the problems of meth abuse and manufacture in Minnesota, as well as the toxins that are left behind after physical evidence of meth labs has been removed. A discussion of current statutory seller disclosure provisions in Minnesota and in other states then follows. The article next analyzes proposed Minnesota legislation that has attempted to address the problem. A survey follows of six statutory models that provide guidance for drafting legislation to encompass disclosure, buyers’ remedies, filing forms in county land records, and requiring state-wide standards for proper cleanup. Finally, a comprehensive workable solution …
Defective Products And Product Warranty Claims In Minnesota, J. David Prince
Defective Products And Product Warranty Claims In Minnesota, J. David Prince
William Mitchell Law Review
Warranty law is an important supplement to tort law principles governing liability for defective products. Warranties arise from promises or assertions associated with either the sale of a product or some other transfer of a product for value. Such promises or assertions about a product may be express, made in the form of the seller’s statements about the qualities or attributes of the product, or they may simply be implied as a matter of policy. Although warranty law is generally regarded today as part of the body of contract law, the origins of warranty lie in tort. Important developments in …
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
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 …
Preserving And Promoting Minnesota’S Recreational Trails: State V. Hess, Robin M. Wolpert
Preserving And Promoting Minnesota’S Recreational Trails: State V. Hess, Robin M. Wolpert
William Mitchell Law Review
This article assesses the significance of Hess for Minnesota’s recreational trail system and the conversion of rails to trails. Part II describes the legal context within which Hess was decided, with particular emphasis on the methodology of constructing ancient deeds to railroads and the public policy underlying the MTA. Part III sets forth the facts giving rise to the Hess decision and details the approach adopted by the court of appeals—an approach which, if affirmed by the supreme court, would have facilitated a parcel by parcel attack on the state’s ownership of its recreational trails and potentially limited the application …
Raich, Health Care, And The Commerce Clause, Alex Kreit, Aaron Marcus
Raich, Health Care, And The Commerce Clause, Alex Kreit, Aaron Marcus
William Mitchell Law Review
This article considers to what extent health care may be viewed as a traditional area of state concern in the context of the Supreme Court’s revival of federalism principles, in particular limits on Congress’ Commerce Clause power, and what effect Raich v. Ashcroft, heard by the Court in the fall 2004 term, might have on these issues. Addressing these questions will necessarily involve exploration of medical marijuana policy as well as the role of the “traditional state interest” principle within the Commerce Clause. However, the central focus of this article is not what impact Raich may have on the Commerce …
Comment: Mental Health Treatment And Mistreatment In Prisons, Joyce Kosak
Comment: Mental Health Treatment And Mistreatment In Prisons, Joyce Kosak
William Mitchell Law Review
No abstract provided.
Voluntary Admission And Treatment Of Incompetent Persons With A Mental Illness, Karna Halverson
Voluntary Admission And Treatment Of Incompetent Persons With A Mental Illness, Karna Halverson
William Mitchell Law Review
No abstract provided.