Law Commons^™

Testing Applicants With Disabilities, Gregory M. Duhl, Stuart Duhl

Faculty Scholarship

All jurisdictions provide reasonableaccommodations for applicants with disabilities who are otherwise qualified to sit for the bar examination. The provision of accommodations is primarily a result of the comprehensive federal law known as the Americans with Disabilities Act (“the ADA”), passed by Congress in 1990 to prohibit discrimination against persons with disabilities. The ADA protects both applicants with physical disabilities and those with mental disabilities, and accommodations include not only additional testing time, longer and more frequent breaks between testing sessions, and private testing rooms, but also other auxiliary aids and services designed to enable effective communication to and from …

Learning From Practice: What Adr Needs From A Theory Of Justice, Kate Kruse

Faculty Scholarship

Adding to the impressive body of work that has made her a leading voice in the fields of both alternative dispute resolution and professional responsibility, Carrie Menkel-Meadow's Saltman Lecture connects the theoretical exploration currently occurring on two parallel tracks: (1) theories of justice that investigate the ideal of a deliberative democracy; and (2) theories of alternative dispute resolution arising from its reflective practice. As she notes, theorists on both tracks are grappling with similar questions about the processes or conditions that will best bring together parties with widely divergent viewpoints to consensus-building dialogue around contested issues.

While Menkel-Meadow focuses on …

Virtuous Judges And Electoral Politics: A Contradiction?, Marie Failinger

Faculty Scholarship

Judge Thomas J. Spargo serves as a fascinating poster-child in the debate on what’s wrong (or right) with judicial elections. Judge Spargo, campaigning for re-election as Justice of the Berne Town Court in upstate New York, was accused of “failing to observe the high standards of conduct” expected as a judge because he handed out doughnuts to voters. Judge Spargo’s case and others illustrate that popular debates about the merits of judicial elections versus judicial selection commissions have probably been mis-focused on two “second-order questions rather than concentrating on “first-order” concerns in judicial selection. This article discusses these questions and …

How A Drug Becomes ‘Ethnic’: Law, Commerce, And The Production Of Racial Categories In Medicine, Jonathan Kahn

Faculty Scholarship

A drug called BiDil is poised to become the first drug ever approved by the Food and Drug Administration (FDA) to treat heart failure in African Americans - and only African Americans. This article explores the story of BiDil and considers some of its broader implications for the use of racial categories in law, medicine, and science. It argues that BiDil is an ethnic drug today as much, if not more because of the interventions of law and commerce as because of any biomedical considerations. The article is, first, a retrospective analysis of how law, commerce, science, and medicine interacted …

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

William Mitchell Law Review

No abstract provided.

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

William Mitchell Law Review

No abstract provided.

Defenders Of Small Business?: A Perspective On The Supreme Court's Recent Trademark Jurisprudence, Sharon K. Sandeen

William Mitchell Law Review

No abstract provided.

Through The Years:The Supreme Court And The Copyright Clause, Ruth L. Okediji

William Mitchell Law Review

No abstract provided.

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.

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.

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, the …

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 …

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 …

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 …

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 …

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. Finally, the …

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

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 today, the …

Sexually Violent Predator Laws: Psychiatry In Service To A Morally Dubious Enterprise, Eric S. Janus

Faculty Scholarship

This article discusses the role of psychiatrists in determining the treatment of sexually violent predators (SVP). Instead of being released at the end of their prison sentences, sex offenders in the USA who are judged mentally disordered and dangerous are being confined in secure "treatment facilities" for indeterminate terms. This novel and aggressive legislative tactic—embodied in US sexually violent predator laws—commandeers the traditional power of state mental health systems and puts it in service to a core function of the criminal justice system: the control of sexual violence. This transposition of "civil commitment" has forced psychiatry to legitimate and arbitrate …

Pilgrimage Or Exodus?: Responding To Faculty Faith Diversity At Religious Law Schools, Marie Failinger

Faculty Scholarship

Religiously affiliated law schools have, for the most part, given little thought to the integration of faculty members who are from faith communities other than their own. The article will consider the question of how religiously affiliated law schools truly include faculty members of all religious faiths in the development of mission and community in such law schools, using the lens of the religious metaphors of pilgrimage and Exodus. After presenting this typology for critiquing law school practices, the author deconstructs the very premises of the question through the metaphors of pilgrimage and Exodus. The author argues that a proper …

Counting The Dragon's Teeth And Claws: The Definition Of Hard Paternalism, Thaddeus Mason Pope

Faculty Scholarship

n his classic 1897 essay, The Path of the Law, Oliver Wendell Holmes Jr. warned against blind imitation of the past and called for "enlightened skepticism" toward the law. He described the first step of this critical examination as getting "the dragon out of his cave and on to the plain and in the daylight" so that "you can count his teeth and claws and see just what is his strength." Over the past thirty years, disagreements over the appropriate definition of "paternalism" have often masked further disputes over the circumstances under which the restriction of substantially autonomous self-regarding conduct …

The Reporter's Rejoinder, Daniel S. Kleinberger

Faculty Scholarship

The word "rejoinder" connotes a reply to criticism, and that connotation sets the scope of this short essay. This Rejoinder will leave aside (albeit with thanks) the articles that explain the background to, the context for, or particular aspects of the Uniform Limited Partnership Act (2001). Instead, this Rejoinder will focus on the three articles that purport to find a blemish (Professor Bishop), a general theoretical deficiency (Mr. Callison and Dean Vestal), or a fundamental misconception (Professor Ribstein) in the new Act.

A User's Guide To The New Uniform Limited Partnership Act, Daniel S. Kleinberger

Faculty Scholarship

The shelf life on uniform entity acts seems to be decreasing. The original Uniform Partnership Act (UPA) lasted eight decades, and the original Uniform Limited Partnership Act (ULPA (1916)) lasted six. In contrast, the 1976 Revised Uniform Limited Partnership Act (RULPA (1976)) warranted major revisions after just nine years (RULPA (1985)), and only sixteen years later NCCUSL recommended to the states that they adopt ULPA (2001) to replace RULPA in toto. NCCUSL's Revised Uniform [General] Partnership Act - RUPA - was first approved in 1992 and went through five official versions in its first five years of existence. NCCUSL's Uniform …

Joint And Several Liability In Minnesota: The 2003 Model, Michael K. Steenson

Faculty Scholarship

The 2003 amendment to Minnesota’s Comparative Act can be assessed in various ways. Whether it will have the economic impact its proponents suggest it will have is a question that is not susceptible of a ready answer now, or perhaps in the immediate future. From a fairness standpoint, any assessment of the amendment has to take into consideration the full reach of the Comparative Fault Act. It is important to understand that on balance the Act works to the disadvantage of the plaintiff in a variety of ways. The plaintiff cannot recover if the plaintiff’s fault is greater than the …

Toward An Indigenous Jurisprudence Of Rape, Sarah Deer

Faculty Scholarship

This article sets forth some preliminary issues and perspectives for the development of indigenous models of rape jurisprudence. Part I examines the reasons for and importance of developing an indigenous jurisprudence of rape. Part II addresses tribal jurisdiction issues, particularly the current limitations on tribal authority. Part III provides a historical context for the issue, including examples of the role of colonization in the responses to sexual violence. Part IV shares some visions for the development of a contemporary jurisprudence of rape for indigenous nations.

Old Lyrics, Knock-Off Videos, And Copycat Comic Books: The Fourth Fair Use Factor In U.S. Copyright Law, Gregory M. Duhl

Faculty Scholarship

This article examines the fourth fair use factor in copyright law in cases in which the unlicensed use benefits, or has no effect on, the copyright holder's market. It proposes a two-part framework for these cases. If the unlicensed use is transformative or public, and the use does not harm the copyright holder's market, the copyright holder's economic expectancy is protected, and the user should not have to pay damages, analogous to the law of eminent domain. In cases in which the unlicensed use is private, the court should protect the rights of the copyright holder with damages, even if …

The Legal Foundation–Defining The Legislative Format, William W. Huss, Sharon Press, J. Michael Mcwilliams

Faculty Scholarship

Current and pending mediation legislative programs in the United States, Canada, and other countries were examined by speakers and panelists who are living under these new systems or were authors of their design. Topics included court annexed programs, mandatory programs, voluntary programs, private institutional programs, the Uniform Mediation Act, state and federal initiatives, and the impact each has, or will have, on the mediation practice.

Access To Health Care In Texas: A Patient-Centered Perspective, Laura Hermer, William J. Winslade

Faculty Scholarship

Access to health coverage in Texas is, and continues to be, an urgent policy issue. This article provides an overview and evaluation of the primary state- or local-based and private financial means through which Texans gain access to health care, and offers suggestions to the Texas Legislature to help improve coverage access.

Diversity Jurisdiction For Llcs? Basically, Forget About It, Daniel S. Kleinberger, Carter G. Bishop

Faculty Scholarship

No abstract provided.