Law Commons^™

A Myth Deconstructed: “The Emperor’S New Clothes” On The Low-Profit Limited Liability Company, Daniel S. Kleinberger

Faculty Scholarship

This article carefully debunks each major tenet of the L3C “movement” and reveals the legal and practical realities under “the Emperor’s New Clothes.” Using foundation funds to offer market-rate returns to “tranched” investors is, at best, a complicated device; not appropriate for “branding” and simplistic appeals to social conscience. When a foundation contemplates making a program-related investment, the matter requires careful, individualized, professional assessment, not reliance on a branded template. In this context, the L#C is but a snare and a delusion.

When Your Body Is Your Business, Mary P. Byrn, Morgan L. Holcomb

Faculty Scholarship

Surrogacy in the United States is a multi-million dollar industry in which well paid professionals seek out highly specialized women to fulfill the difficult job of being a surrogate. Surrogates enter lengthy contracts in which they agree, in intricate detail, to provide a service for significant compensation - surrogates are paid well over $22 million dollars a year. This article argues that surrogates are also professionals in this for-profit industry and are required to report surrogacy compensation as income. As a corollary, surrogates may deduct most of their surrogacy related expenses as business deductions. Being a surrogate is a highly …

Medicaid, Low Income Pools, And The Goals Of Privatization, Laura Hermer

Faculty Scholarship

This article examines the Bush Administration's attempts to transform certain supplemental payments, most notably Medicaid’s Disproportionate Share Hospital (DSH) program, into a means of subsidizing private health coverage for Medicaid expansion populations. Greater private market involvement in the state disbursement of supplemental payments such as DSH makes it more difficult to fulfill Medicaid’s original goals. It reduces the overall funds available specifically for care, provides beneficiaries with leaner benefit plans than those offered by the public system, and hinders beneficiaries from obtaining and retaining care. As such, it increases waste and inefficiency, rather than reducing them. At the same time, …

Preventive Detention, Character Evidence, And The New Criminal Law, Ted Sampsell-Jones

Faculty Scholarship

A new criminal law has emerged in the last quarter century. The dominant goal of the new criminal law is preventive detention-incarceration to incapacitate dangerous persons. The emergence of the new criminal law has remade both sentencing law and definitions of crimes themselves. The new criminal law has also begun to remake the law of evidence. As incapacitation has become an accepted goal of criminal punishment, the rationale of the character rule has become less compelling, and the rule itself has begun to wane in criminal practice. These changes have been subtle, but they have also been both radical and …

The Fatal Design Defects Of L3cs, Daniel S. Kleinberger

Faculty Scholarship

This article argues that the L3C is an unnecessary and unwise contrivance, and it's very existence is inherently misleading. The notion that an L3C should have privileged status under the Internal Revenue Code (known as the Code) for access to tax-exempt foundation resources is inescapably at odds with the key policies that underpin the relevant Code sections, and L3Cs are not on track-let alone on a fast track-to receive special status under the Code. An ordinary limited liability company (LLC) can perform precisely the same functions proclaimed of L3Cs. In addition, because of technical flaws, the L3C legislation adopted to …

The Uses And Misuses Of Statistical Proof In Age Discrimination Claims, Thomas Tinkham

Faculty Scholarship

When it comes to statistics, age discrimination is different than other forms of discrimination. In most discrimination cases we can take the protected population and make appropriate adjustments for necessary characteristics like education and compare the results to the other employee groups.

With age discrimination this method does not work. It doesn’t work because the normal patterns of aging and promotion or wage increase distort the statistical result. Employees typically are promoted more quickly and receive the highest percentage wage increases in early years. However, they generally retain those benefits for life. Employees reach a high point in their careers …

Relocation Revisited: Sex Trafficking Of Native Women In The United States, Sarah Deer

Faculty Scholarship

The Trafficking Victim Protection Act of 2000 (TVPA) signaled a comprehensive campaign by the United States (US) government to address the scourge of human trafficking in the US and abroad. The US rhetoric about sex trafficking suggests that the problem originates in foreign countries and/or is recent problem. Neither claim is correct. This article details the historical and legal context of sex trafficking from its origin among the colonial predecessors of the US and documents the commercial trafficking of Native women over several centuries. Native women have experienced generations of enslavement, exploitation, exportation, and relocation. Human trafficking is not just …

Which Came First The Parent Or The Child?, Mary P. Byrn, Jenni Vainik Ives

Faculty Scholarship

From the moment a child is born, she is a juridical person endowed with constitutional rights. A child’s parents, however, do not become legal parents until a state statute grants them the fundamental right to raise one’s child. The state, therefore, exercises considerable power and discretion when it drafts the parentage statutes that determine who becomes a legal parent. This article asserts that the state, through its parens patriae power, has a duty to act as an agent for children when it drafts its parentage statutes. In particular, the state must adopt parentage statutes that satisfy children’s fundamental right to …

Surrogate Selection: An Increasingly Viable, But Limited, Solution To Intractable Futility Disputes, Thaddeus Mason Pope

Faculty Scholarship

This article reviews the strengths and weaknesses of “surrogate selection” as a solution to intractable medical futility disputes. It concludes that while surrogate selection is an increasingly viable solution, it remains only a partial solution because it is often difficult or impossible to demonstrate that a surrogate demanding non-recommended end-of-life medical treatment is acting outside the scope of her authority.

Over the past twelve years, many states have been developing new legislative solutions to intractable medical futility disputes. The most widely-discussed solution empowers healthcare providers to unilaterally refuse patient- or surrogate-requested treatment that the provider deems inappropriate. In Texas, for …

Remodeling The Classified Information Procedures Act (Cipa), Afsheen John Radsan

Faculty Scholarship

The intelligence community and the law enforcement sector are supposed to be working closely to keep us all safe from terrorists and other dangers. The benefits of this cooperation should not be frittered away by unnecessary burdens in trying suspected terrorists in civilian courts. If the executive branch is to be kept away from the dark side of counterterrorism, the courts, Congress, or a combination of the two should modernize their approach to alignment, to Section 6 of Classified Information Procedures Act, and to closed portions of trials.

First, a prosecutor’s discovery obligations should apply to the intelligence community only …

Annual Survey Of Periodical Literature, Nancy Ver Steegh

Faculty Scholarship

The Annual Review of Periodical Literature provides a sampling of law review articles published between November 1, 2008, and October 31, 2009. The survey highlights the variety and depth of family law scholarship produced during the year and calls attention to currently debated "hot topics." Readers are encouraged to read articles of interest in their entirety because the summaries included in the survey are necessarily abbreviated.

Levinas, Law Schools And The Poor: They Stand Over Us, Marie Failinger

Faculty Scholarship

In the style of philosopher Emmanuel Levinas, who has written about the ethics of the Face, this essay challenges the complacency of most American law schools in response to the plight of the poor and proposes ways in which the law school curriculum, space and programs can be re-configured to bring the poor into community with legal educators and students.

The Case For Stewart Over Harlan On 24/7 Physical Surveillance, Afsheen John Radsan

Faculty Scholarship

This Article explains why the government’s physical surveillance can reach a point in terms of duration and intensity that it becomes a “search” under the Fourth Amendment. As references, Katz v. United States and Kyllo v. United States stand out from the canon. Katz, decided in 1967, swept away a prior emphasis on property rights and trespass laws to hold that the electronic monitoring of a phone booth was a search. Since then, the two-part test from Justice Harlan’s concurring opinion has received as much attention as the totality-of-the-circumstances test in Justice Stewart’s majority opinion. Kyllo, decided just months before …

Keep Hope Alive: Updating The Prudent Investment Standard For Allocating Nuclear Plant Cancellation Costs, Jonathan Kahn

Faculty Scholarship

As the United States is poised to enter a new era of nuclear power plant construction, it behooves us to revisit some of the controversies of the past and consider how best to deal with some of the major problems that arose once before and may confront us once again as we go down this path. A flurry of costly, protected, and complex disputes concerning the allocation of plant cancellation cost followed upon the collapse of the first boom in nuclear power plant construction during the 1970s and 1980s. These cases led to highly divergent results depending of the jurisdiction …

An Smllc Conundrum: Disregarded For Federal Tax Purposes But Not In Federal Court, Carter G. Bishop, Daniel S. Kleinberger

Faculty Scholarship

In Federal Court, the only member of a SMLLC may not represent the SMLLC unless that owner is also a lawyer. To do so exposes the SMLLC to dismissal as well as the owner to the unauthorized practice of law. The article explores the implications of these rules to small closely held LLCs.

On Silence: A Reply To Professors Cribari And Judges, Ted Sampsell-Jones

Faculty Scholarship

In 2009, the author wrote an article on the Self-Incrimination Clause. In response to this article, Professors Cribari and Judges wrote a Response suggesting that the author was an abolitionist of the Self-Incrimination Clause. This article is intended to clarify the author's position on the Self-Incrimination Clause and on Griffin v. California. The article begins by explaining the purposes of the Self-Incrimination Clause and highlighting the differences between the right to testify and the right to remain silent. It then analyzes the "test the prosecution" reasoning for the Griffin rule, pointing out its shortcomings and lack of Constitutional basis. The …

Collaborative Lawyering: A Process For Interest-Based Negotiation, Jim Hilbert

Faculty Scholarship

This article discusses the growing popularity of interest-based negotiation among attorneys and outlines an approach for implementing interest-based negotiating more effectively. The article begins with an overview of interest-based negotiation and its evolution in legal practice. The article addresses the barriers that often stand between lawyers and the practice of interest-based negotiation and how clients, too, may contribute their own limitations to the mix. The article then discusses particular aspects of interest-based approaches and outlines a step-by-step process for implementing interest-based negotiating.

Acceptable Deviance And Property Rights, Mark A. Edwards

Faculty Scholarship

Compliance with - or deviance from - law is often dependent upon the law’s convergence with - or divergence from - normative sensibilities. Where the legality and social acceptability of behavior diverge, some deviance is socially acceptable. Property rights evolve in response to changes in normative sensibilities. Constructing a model of acceptable deviance and applying it to property rights, we can predict and actually observe the evolution of property rights in response to changes in normative sensibilities in areas as diverse as file-sharing, foreclosures, the use of public space, and fishing rights. We can also predict and observe stresses in …

Navigating The Murky Waters Of Untruth In Negotiation: Lessons For Ethical Lawyers, Deborah A. Schmedemann

Faculty Scholarship

This article answers the following questions: What does the law-both general principles applicable to truthfulness in negotiation and professional responsibility rules- say about this dilemma? What do we know about the practice of truthfulness in lawyer negotiations? What have social scientists learned about deception in negotiations over the last few decades? Finally, what lessons can be drawn for lawyers seeking to behave ethically, as well as for those interested in assisting lawyers navigate the “murky waters of untruth?

The Accidental Elder Law Professor, A. Kimberley Dayton

Faculty Scholarship

This Article discusses my somewhat unusual and erratic path to becoming an Elder Law professor. My story, told more or less in chronological order, is a first-person narrative of one woman’s journey to achieve, if not academic renown, then at least personal satisfaction in the realm of the legal academy. It does not aspire to convey ponderous wisdom about the best way to teach Elder Law or the importance of scholarly productivity as a measure of one’s legitimacy. On the contrary, I hope the Article will illustrate that, in the same way the field of Elder Law has grown and …

The Expansion Trajectory: Trademark Jurisprudence In The Modern Age, Kenneth L. Port

Faculty Scholarship

American trademark law is expanding. The expansion began with the adoption of

the Lanham Act in 1947. At that time and ever since, commentators and law makers

alike referred to the Lanham Act as a codification of the existing common law. In fact,

this codification was a selection and expansion of the common law. The United States

has continued to expand trademark jurisprudence: from incontestability, to cybersquatting,

to dilution - the notion of what it means to protect a trademark has

continued to expand. During this time, the Commerce Clause on which American

federal trademark protection is based has not …

One Lantern In The Darkest Night - The Cia's Inspector General, Afsheen John Radsan

Faculty Scholarship

Whether related to attempted assassinations, unauthorized interrogations, or other intelligence failures, the Inspector General at the Central Intelligence Agency is supposed to conduct audits and internal investigations into potential wrongdoing at an organization that operates in the shadows. From 1947 until 1990, the IG served at the discretion of the Director of the CIA. Congress, after uncovering the CIA’s improper role in Iran-contra, created a statutory IG. A new IG, appointed by the President and confirmed by the Senate, was granted the power to initiate investigations on his own and was required to make reports to the oversight committees on …

International Sale Of Goods 2009, Gregory M. Duhl

Faculty Scholarship

This is a survey of key cases decided by U.S. courts in 2009 interpreting the United Nations Convention on Contracts for the International Sale of Goods ("CISG"). Courts interpreted the scope, formation, warranty, avoidance, and remedies provisions of the CISG.

Where Is Emily Litella When You Need Her?: The Unsuccessful Effort To Craft A General Theory Of Obligation Of Promise For Benefit Received, Edwin J. Butterfoss, Henry Allen Blair

Faculty Scholarship

No abstract provided.

Beyond Cardboard Clients In Legal Ethics, Kate Kruse

Faculty Scholarship

This Article argues that the construction of cardboard clients in legal ethics has disserved legal ethics by obscuring what is arguably a more central problem of legal professionalism: the problem of legal objectification. The problem of legal objectification is the tendency of lawyers to "issue-spot" their clients as they would the facts on a blue-book exam, overemphasizing the clients' legal interests and minimizing or ignoring the other cares, commitments, relationships, reputations and values that constitute the objectives clients bring to legal representation. This Article proposes an alternative ideal of legal professionalism for "three-dimensional clients" based on helping clients articulate and …

Lawyers In Character And Lawyers In Role, Kate Kruse

Faculty Scholarship

Legal ethicists have long been fascinated by the relationships between lawyers’ roles in an adversary system of justice and the character, attitudes, or dispositions that best suit the practice of law. Leonard Riskin’s scholarship has explored how lawyers’ practice of mindfulness can improve their legal practice, and his claim in this body of work – that the practice of mindfulness helps to develop the internalized trait of mindfulness – ties his scholarship to the work of legal ethicists who have endeavored to develop character-based theories of legal ethics. Riskin’s analysis of how lawyers might incorporate mindfulness into law practice also …

Artificial Intelligence: Robots, Avatars And The Demise Of The Human Mediator, David Allen Larson

Faculty Scholarship

As technology has advanced, many have wondered whether (or simply when) artificial intelligent devices will replace the humans who perform complex, interactive, interpersonal tasks such as dispute resolution. Has science now progressed to the point that artificial intelligence devices can replace human mediators, arbitrators, dispute resolvers and problem solvers? Can humanoid robots, attractive avatars and other relational agents create the requisite level of trust and elicit the truthful, perhaps intimate or painful, disclosures often necessary to resolve a dispute or solve a problem? This article will explore these questions. Regardless of whether the reader is convinced that the demise of …

The Evolution Of Trade Secret Law And Why Courts Commit Error When They Do Not Follow The Uniform Trade Secrets Act, Sharon Sandeen

Faculty Scholarship

In the spring of 2010, the Hamline Law Review hosted a symposium to mark the thirtieth anniversary of the adoption of the Uniform Trade Secrets Act. This article was written for the symposium and provides an exhaustive and detailed account of the historical context and drafting history of the Uniform Trade Secrets Act (the UTSA).

Among other stories that it tells, the article explains that the UTSA was prompted by the “Erie/Sears/Compco squeeze.” Because of the Supreme Court’s famous decision in Erie R.R. Co. v. Tompkins in 1938, it was understood by business interests and their attorneys that the common …

To Be Or Not To Be Both Ceo And Board Chair, Thuy-Nga T. Vo

Faculty Scholarship

Part I of this article discusses the management and monitoring responsibilities of the board of directors. Part II explores the duality governance structure and its prevalence in corporate America. In Part III, the article examines and weighs the theoretical arguments for and against duality. Based on these arguments, this part assesses the impact of combined or separate CEO and Chair positions on the board’s performance of its management and monitoring responsibilities. Part IV turns to the empirical data on the effect of combined, rather than separate, CEO-Chair roles on corporate performance. Part V explains the views of corporate stakeholders on …

Cultural And Economic Self-Determination For Tribal Peoples In The United States Supported By The Un Declaration On The Rights Of Indigenous Peoples, Angelique Eaglewoman

Faculty Scholarship

No abstract provided.