Law Commons^™

Covid-19 And The Caregiving Crisis: The Rights Of Our Nation's Social Safety Net And A Doorway To Reform, Leanne Fuith, Susan Trombley

Faculty Scholarship

In March 2020, the United States declared a pandemic due to the global Covid-19 virus. Across the nation and within a matter of days, workplaces, schools, childcare, and eldercare facilities shuttered. People retreated to their homes to shelter-in-place and slow the spread of the virus for what would become a much longer time than most initially anticipated. Now, more than a year into the pandemic, many professional and personal lives have been upended and become inextricably intertwined. Work is now home, and home is now work. Work is completed at all times of day and well into the night. Children …

The Means And Ends Of Wellness Programs, Laura D. Hermer

Faculty Scholarship

How far should we go in assigning individuals causal responsibility for their own health status and what should the implications of any such assignment be?

Few would deny that most adults have a major role in achieving and maintaining their own health. However, it is not at all clear where one should draw the line between what is freely chosen and what is determined by forces outside a person’s control. Medical care plays only a small role in most people’s overall health, and often social, environmental, and personal factors are far more important. Incentivizing an individual to take better care …

Skirting The Law: Medicaid Block Grants And Per-Capita Caps In A Pandemic, Laura D. Hermer

Faculty Scholarship

To what extent can an administration abridge Medicaid’s entitlement status by administrative fiat? In the final year of the Trump administration, just before the COVID-19 pandemic, the Centers for Medicare and Medicaid Services (CMS) sought to push the outer bounds of this question by announcing the Healthy Adult Opportunity (HAO) initiative. It invited states to submit § 1115 demonstration applications to cover individuals not eligible for Medicaid benefits under the state’ s Medicaid plan—meaning, in many cases, the Affordable Care Act’s (ACA’s) Medicaid expansion population. Spending on those populations would be capped, not by purporting to waive federal law regarding …

Mediation: Embedded Assumptions Of Whiteness?, Sharon Press, Ellen E. Deason

Faculty Scholarship

This article attempts to uncover some of the systemic ways in which white supremacy is expressed in the practice of mediation in the United States with the goal of inspiring additional conversations and deeper attention to these issues by scholars and practitioners in the field of dispute resolution. Our methodology is to apply the themes in Layla F. Saad’s book, Me and White Supremacy: Combat Racism, Change the World, and Become a Good Ancestor (2020). We use the lenses of tone policing, color-blindness, racial stereotyping, anti-blackness, white silence, and white supremacy to reflect on the following aspects of mediation: communication …

And What Of The “Black” In Black Letter Law?: A Blaqueer Reflection, T. Anansi Wilson

Faculty Scholarship

This is a reflective, analytical essay remarking on the role that Blackness has and continues to play in the construction, understanding and application of "black letter law." This essay is written from a Black and BlaQueer perspective and displays how a shift in standpoint--moving from the invisible, standard white "reasonable person"--underscores and illuminates the current legal and sociopolitical crisis we find ourselves in. It is continuation of the discussion began in my earlier articles "Furtive Blackness: On Blackness & Being," "The Strict Scrutiny of Black and BlaQueer Life" and the working paper "Sexual Profiling & BlaQueer Furtivity: BlaQueers On The …

Time To Mail It In? A Survey Of 2020 Voting Rights Issues In Arkansas And Recommendations For More Inclusive Elections, Kim Vu-Dinh

Faculty Scholarship

The highly contagious COVID-19 pandemic, combined with over fifty lawsuits brought by former President Donald Trump, made the general election of 2020 one of the most controversial in the history of the United States. Accusations of voter disenfranchisement proliferated across the nation and were initiated by members of both sides of the political spectrum, even before Election Day. Arkansas was no exception to this rule. In 2020, multiple Arkansas lawsuits highlighted the weaknesses of the state’s voter infrastructure, particularly with regard to the absentee ballot process. Voting-by-mail was particularly important in the pandemic year when long lines became a public …

Black Livelihoods Matter: Capitalist Myths Of Economic Efficiency In Racist Lending Policies (A Prologue And A Plea), Kim Vu-Dinh

Faculty Scholarship

No abstract provided.

Designing A State Court Small Claims Odr System: Hitting A Moving Target In New York During A Pandemic, David Allen Larson

Faculty Scholarship

When I began helping the New York State Unified Court System design a pilot online dispute resolution (“ODR”) system back in October 2016, I never imagined more than four years would pass before a system was implemented. One reason our journey was so long is because our target kept moving. After completing a detailed credit card debt collection ODR platform, we had to change direction before implementation and focus instead on small claims cases. Then like the rest of the world, we suddenly had to deal with the COVID-19 pandemic. Although it took longer than anticipated, we achieved our goal …

The Trade Secrecy Standard For Patent Prior Art, Sharon Sandeen, Camilla A. Hrdy

Faculty Scholarship

A fundamental criterion of patentability is that an invention must be new as compared to the prior art—the corpus of preexisting knowledge and technology already available to the public. If an invention is in the prior art, or rendered obvious by it, it cannot be patented.

The U.S. Patent Act has traditionally envisioned a categorical approach for deciding what counts as prior art. Under this approach, courts are supposed to decide whether a particular disclosure about the invention (a reference) falls within one of the categories listed in Section 102 of the Patent Act, such as “described in a printed …

Mitchell Hamline School Of Law Summer 2020 Covid-19 Legal Response Clinic, Natalie Netzel, Ana Pottratz Acosta, Joanna Woolman, Kate Kruse, Jon Geffen

Faculty Scholarship

This essay is a reflection on lawyering in a time of crisis. It details the Mitchell Hamline School of Law Clinical Faculty’s response to the community needs resulting from the COVID-19 pandemic by creating the COVID-19 Legal Response Clinic. It also recounts the impact of the murder of George Floyd and the long overdue national reckoning with systemic racism, sparked in our city. Additionally, against this backdrop, it examines the trauma-informed approach taken in clinical work and the classroom to help students process their own trauma and apply this approach in their work with clients.

Amid these concurrent crises in …

Minority Oppression And The Llc: Manere V. Collins, The Uniform Act, And Comment 701, Daniel S. Kleinberger

Faculty Scholarship

For many decades, the law of closely-held businesses was the law of closely-held corporations. For entrepreneurs and attorneys, the corporate liability shield was the key desideratum, and before the advent of limited liability companies the corporation was essentially the only game in town. Unfortunately, for many decades the liability shield came with a potentially dangerous price for minority owners. The traditional corporate norms of majority rule, coupled with the minority shareholders’ inability to exit the enterprise, empowered majority shareholders to “oppress” minority shareholders or defeat such shareholders’ “reasonable expectations.” The “lock-in” phenomenon compounds the minority’s vulnerability; it is …