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2003

Mitchell Hamline School of Law

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Articles 31 - 50 of 50

Full-Text Articles in Law

Clinical Teaching At William Mitchell College Of Law: Values, Pedagogy, And Perspective, Eric S. Janus Jan 2003

Clinical Teaching At William Mitchell College Of Law: Values, Pedagogy, And Perspective, Eric S. Janus

Faculty Scholarship

A retrospective celebrating thirty years of clinical education at William Mitchell College of Law. These courses are nurtured by the key principles that have shaped clinical education at William Mitchell. They embrace the profession of law, but insist on a critical stance. They recognize that values define the practice of law, and that only through intentional choice of pedagogy and perspective can values education be effective and respectful of the autonomy of our students as they work to define the sort of lawyers they wish to become.

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The Role Of Primary Assumption Of Risk In Civil Litigation In Minnesota, Michael K. Steenson Jan 2003

The Role Of Primary Assumption Of Risk In Civil Litigation In Minnesota, Michael K. Steenson

Faculty Scholarship

Assumption of risk has presented courts with considerable difficulty in defining its theoretical justification and its relationship to tort duty limitations and to the defense of contributory negligence. In Minnesota and elsewhere, assumption of risk has been applied inconsistently. Sometimes it seems to relate to the duty issue and sometimes it is linked to the defense of contributory negligence, but without a clear differentiation of which issue is involved. In Minnesota specifically, the Minnesota Supreme Court has acknowledged that inconsistency and the difficulty in applying the concept in cases spanning several decades. This article focuses on primary assumption of risk, …

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Essay: Pledging Allegiance, Michael K. Steenson Jan 2003

Essay: Pledging Allegiance, Michael K. Steenson

Faculty Scholarship

This Essay focuses on the Pledge of Allegiance requirement and its place in public schools. It begins with an analysis of a typical, but certainly not isolated, approach of the Minnesota Legislature, following September 11, in passing a bill that required recitation of the Pledge. This Essay then moves to a discussion of the events surrounding the 1943 United States Supreme Court decision in West Virginia State Board of Education v. Barnette and how Barnette has subsequently been interpreted. Finally, this Essay discusses the probable impact of the Minnesota Constitution on the Pledge Bill, should it pass in this legislative …

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Clinical Reflections: Looking Ahead Toward The Past, Roger S. Haydock Jan 2003

Clinical Reflections: Looking Ahead Toward The Past, Roger S. Haydock

William Mitchell Law Review

What were we planning? What were we thinking? What were we daring to do? Oh, so many questions and answers for everything, or so we surmised. Are we any wiser three decades after we thought we knew what we were doing? And, another question, who were the “we”? The real hope in looking back is to help illuminate, a bit, the future for legal education. Recreating time past--and training students to recreate time past for clients in court and hearing rooms--is what helped propel many of us into legal academia. Predicting the future--and helping law professors predict the future--is what …

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The Healing Presence Of Clients In Law School, Angela Mccaffrey Jan 2003

The Healing Presence Of Clients In Law School, Angela Mccaffrey

William Mitchell Law Review

William Mitchell College of Law is celebrating the thirtieth anniversary of the Law Clinic. As a beneficiary of clinical legal education at William Mitchell, I write this essay to reflect on the value of clinical legal education to law students, to the clients served, and to the community at large. In my view, clinical legal education is timeless--as valuable to law students today as it was thirty years ago when William Mitchell started its first clinic. Although many things combine to make clinical education valuable, three aspects are particularly noteworthy. First, clinics give law students the chance to represent clients …

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Aiding The Iraq Debate?, Jeffrey D. Gram Jan 2003

Aiding The Iraq Debate?, Jeffrey D. Gram

William Mitchell Law Review

Review of The War Over Iraq: Saddam's Tyranny and America's Mission. By Lawrence F. Kaplan and William Kristol. Encounter Books, 2003. 125 pages. $25.95.

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Out Of The Frying Pan, Into The Fire: The Feasibility Of Post-Dispute Employment Arbitration Agreements, Lewis L. Maltby Jan 2003

Out Of The Frying Pan, Into The Fire: The Feasibility Of Post-Dispute Employment Arbitration Agreements, Lewis L. Maltby

William Mitchell Law Review

Changing the law to enforce only post-dispute agreements to arbitrate will not solve the problems of arbitration as a condition of employment. This change would leave the majority of employees who need arbitration in order to obtain justice empty handed, which is a situation far worse than the one employees face today. Rather than change from one unacceptable option to another, models for voluntary pre-dispute arbitration agreements need to be further developed.

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Unlawful Discrimination Or A Necessity For A Fair Trial?: Exclusion Of A Law Clerk With A Disability From The Courtroom During Jury Trial Of A Personal Injury Case, Luther A. Granquist Jan 2003

Unlawful Discrimination Or A Necessity For A Fair Trial?: Exclusion Of A Law Clerk With A Disability From The Courtroom During Jury Trial Of A Personal Injury Case, Luther A. Granquist

William Mitchell Law Review

Today, the judicial system, broadly viewed to include bench and bar, jurors, and court personnel, includes more persons of color and more women than ever before. Issues of discrimination on the basis of race and gender continue, but progress has been made. However, few persons with evident disabilities practice law or sit on the bench. Perhaps that is why the very presence of a man with serious disabilities prompts concerns about the effect that he will have, just being there, on the outcome of a case. When more persons with evident disabilities, more persons who use wheelchairs or have personal …

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Juvenile Law Developments—“One Last Chance”: Applying Adult Standards To Extended Jurisdiction Juvenile Proceedings—State V. B.Y., Kathryn A. Santelmann, Kara Rafferty Jan 2003

Juvenile Law Developments—“One Last Chance”: Applying Adult Standards To Extended Jurisdiction Juvenile Proceedings—State V. B.Y., Kathryn A. Santelmann, Kara Rafferty

William Mitchell Law Review

In 1995, Minnesota created a blended sentencing option for serious, violent juvenile offenders. Under this new option, Extended Juvenile Jurisdiction (“EJJ”), the juvenile court retains jurisdiction over the offender until age 21. In EJJ cases the court also imposes an adult sentence, which is stayed on the condition that the offender complies with the conditions of probation. Since the passage of the EJJ statute, the Minnesota Supreme Court has issued a limited number of opinions reviewing EJJ cases. State v. B.Y., issued April 24, 2003, involves an issue of first impression. The B.Y. opinion addresses standards to be applied in …

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Illegitimate Children’S Rights In Probate Proceedings—In Re Estate Of James A. Palmer, Deceased, Robert A. Mcleod Jan 2003

Illegitimate Children’S Rights In Probate Proceedings—In Re Estate Of James A. Palmer, Deceased, Robert A. Mcleod

William Mitchell Law Review

The transfer of a person's assets after death has been an important element in the law beginning with the Magna Carta, and is firmly rooted in American jurisprudence. Defining children and heirs for probate purposes remains a difficult issue. In particular, the determination of children and heirs in an age when the birth of “illegitimate” children is common makes the proper and just determination of heirship a recurring and timely topic. The Minnesota Probate Code defines the term “child” and provides: “a person is the child of the person's parents regardless of the marital status of the parents and the …

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Contracts—Beating Them At Their Own Game: The Business Risk Doctrine And The Broadening Coverage Of Commercial General Liability Insurance—Thommes V. Milwaukee Insurance Co., Katherine J. Solon Jan 2003

Contracts—Beating Them At Their Own Game: The Business Risk Doctrine And The Broadening Coverage Of Commercial General Liability Insurance—Thommes V. Milwaukee Insurance Co., Katherine J. Solon

William Mitchell Law Review

This note first examines the theory behind the business risk doctrine in analyzing CGL insurance. It then details the supreme court's holding in Thommes, followed by an analysis of that decision. Finally, the note concludes that, whatever problems may exist, the court has devised a manageable approach to CGL insurance coverage.

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In Support Of A Unitary Tenure System For Law Faculty: An Essay, Nina W. Tarr Jan 2003

In Support Of A Unitary Tenure System For Law Faculty: An Essay, Nina W. Tarr

William Mitchell Law Review

[L]aw faculties are made up of diverse groups of people who contribute to the academic mission in a variety of ways. Given this, there is no reason to isolate one subset--those who teach in the clinic--and treat them differently when it comes to influence, power, autonomy, access to resources, security, or remuneration. In short, to give them a different “status” has become a historical anachronism.

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Property Law—Minnesota’S Lake Shore Property Owners Without Road Access Find Themselves Up A Creek Without A Paddle—In Re Daniel For The Establishment Of A Cartway, Kirstin Kanski Jan 2003

Property Law—Minnesota’S Lake Shore Property Owners Without Road Access Find Themselves Up A Creek Without A Paddle—In Re Daniel For The Establishment Of A Cartway, Kirstin Kanski

William Mitchell Law Review

Minnesotans have always taken pride in the vast rivers and lakes intricately woven throughout the state. This land-water mosaic has always been integral to state development. Yet regardless of how vital Minnesota's lakes are considered to be, the law must keep apace with the dynamic and innovative society it serves. Today, the typical Minnesotan thinks in terms of driving to work, not rowing. The Daniel decision thus renders Minnesota's cartway statute obsolete due to modern modes of transportation. In examining the Daniel decision, this case note begins with the historical development of Minnesota's cartway legislation and an overview of the …

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Criminal Law—The Restraint Of Common Sense, Not Violent Abusers: The Minnesota Supreme Court’S Misguided Analysis In State V. Colvin, Marc M. Schifalacqua Jan 2003

Criminal Law—The Restraint Of Common Sense, Not Violent Abusers: The Minnesota Supreme Court’S Misguided Analysis In State V. Colvin, Marc M. Schifalacqua

William Mitchell Law Review

This case note explores the history of protective orders both around the country and in Minnesota. It analyzes the law of burglary and its recent interaction with OFP violations in Minnesota, and then summarizes the Colvin case's facts, procedural history, and Minnesota Supreme Court decision. Subsequently, this note criticizes the court's decision amid its apparent misapplication of the trial court record and relevant law. Finally, the note analyzes Colorado's approach to the issue of whether an OFP violation can satisfy the predicate crime requirement of burglary.

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The Law School Clinic As A Model Ethical Law Office, Peter A. Joy Jan 2003

The Law School Clinic As A Model Ethical Law Office, Peter A. Joy

William Mitchell Law Review

In this essay, I contend that all clinical teachers should explicitly acknowledge that they are legal ethics and professional responsibility teachers and role models of the “good lawyer” in everything they do. I argue that every in-house clinical teacher should strive to make her clinic a model ethical law office.

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Risks And Rewards Of Law Student Volunteer Service: A Supervisor’S Perspective, Julie E. Bennett, Sharon H. Fischlowitz Jan 2003

Risks And Rewards Of Law Student Volunteer Service: A Supervisor’S Perspective, Julie E. Bennett, Sharon H. Fischlowitz

William Mitchell Law Review

During the 2002 academic year, law students in Minnesota contributed 16,078 pro bono service hours. This level of student pro bono activity is possible only because licensed attorneys take the time to supervise and guide students. Volunteer supervision, a task separate from the practice of law, requires time, patience, and teaching skills, and has no guaranteed outcome. One might conclude that the necessary investment is not worth the effort. However, year after year, supervisors and volunteers continue to give thousands of service hours, providing critical legal services to clients who would otherwise go unrepresented. This essay examines some of the …

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Janssen V. Best & Flanagan: At Long Last, The Beginning Of The End For The Auerbach Approach In Minnesota?, Eric J. Moutz Jan 2003

Janssen V. Best & Flanagan: At Long Last, The Beginning Of The End For The Auerbach Approach In Minnesota?, Eric J. Moutz

William Mitchell Law Review

This May, the Minnesota Supreme Court weighed in on the issue of special litigation committees for the first time in Janssen v. Best & Flanagan. The Janssen decision provides some confusing but tantalizing hints that the Minnesota courts may be ready to increase their scrutiny of internal corporate governance. This article describes the history, substance, and holding of Janssen and explores what it might mean for the business judgment rule in Minnesota. The article concludes by arguing that the Minnesota courts should abandon the deferential approach they have traditionally taken to special litigation committee decisions and that the Janssen decision …

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Criminal Law—Scarlet Letters: Traffic Stops Based On “Special” License Plates Must Follow The Letter Of The Constitution—State V. Henning, Piper Kenney Webb, Bruce H. Hanley Jan 2003

Criminal Law—Scarlet Letters: Traffic Stops Based On “Special” License Plates Must Follow The Letter Of The Constitution—State V. Henning, Piper Kenney Webb, Bruce H. Hanley

William Mitchell Law Review

The Minnesota Supreme Court recently addressed whether a Minnesota statute authorizing law enforcement to stop motorists based solely on the presence of special license plates issued primarily to repeat drunken drivers is proper under the United States and Minnesota Constitutions. In State v. Henning, the court held the statute unconstitutional by a 4-3 decision. Finding no persuasive reason to do otherwise, the court struck down the legislature's attempt to eliminate the requirement that law enforcement have “reasonable articulable suspicion” to conduct an investigatory stop of a motor vehicle. This article provides a brief survey of similar laws in other states …

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Minnesota And The American Rule: The Recoverability Of Attorneys’ Fees Following In Re Silicone Implant Insurance Coverage Litigation, John M. Bjorkman Jan 2003

Minnesota And The American Rule: The Recoverability Of Attorneys’ Fees Following In Re Silicone Implant Insurance Coverage Litigation, John M. Bjorkman

William Mitchell Law Review

In the United States, a successful litigant is generally not entitled to recover attorneys' fees from the opposing party absent specific statutory or contractual authorization. This basic principle is commonly referred to as the American Rule. Minnesota recognized and adopted the American Rule roughly 125 years ago. A limited number of exceptions to this longstanding rule exist, but Minnesota courts have generally been reluctant to expand or add to these exceptions. In Minnesota, an exception to the American Rule exists for fees incurred in a declaratory action to establish insurance coverage but only if the insurer has breached its duty …

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Tort Law—The Motorist’S Guide To State Policy: Vehicle Owner Vicarious Liability Following Grants Of Initial Permission—Christensen V. Milbank Insurance Co., Christopher K. Iijima Jan 2003

Tort Law—The Motorist’S Guide To State Policy: Vehicle Owner Vicarious Liability Following Grants Of Initial Permission—Christensen V. Milbank Insurance Co., Christopher K. Iijima

William Mitchell Law Review

This note explores the Christensen decision and its effect on motor vehicle owner liability in Minnesota. First, the note presents a historical perspective from which to view the Christensen decision and Minnesota's motor vehicle liability and conversion laws. Next, the note summarizes the factual and procedural history of the Christensen case. Then the note discusses the Minnesota Supreme Court holding in Christensen. The note goes further to present a policy and legal analysis of the Christensen decision. Further, the note suggests an amendment to allow evenhanded treatment of vehicle owners, while satisfying state policy. The note concludes that the Christensen …

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