Digital Commons Network^™

Fictional Persona Test: Copyright Preemption In Human Audiovisual Characters, Peter K. Yu

Faculty Scholarship

Whether a producer's copyright in human audiovisual characters preempts the actors' rights of publicity claims is the focus of this Note. Part I outlines the framework of state right of publicity law and traces the development of case law involving such a right. Because "[a]dvertisers who want to run a particular advertisement nationally must comply with the law of all fifty states," this Note focuses on the right of publicity of the state with the broadest interpretation-the state of California. This Part shows that, under existing California right of publicity law, virtually anything evoking one's personal identity, including copyrighted materials, …

The Continuing Relevance Of Section 8 (A) (2) To The Contemporary Workplace, Michael C. Harper

Faculty Scholarship

In this article I evaluate the claims of the critics of the current section 8(a)(2). I do so, as I believe would Professor St. Antoine, ¹⁴ with an eye toward the historical development of new production systems in America and the concomitant development of personnel policies to fit those systems. I consider the purposes for which firm managers seemed to establish and control employee advisory committees before passage of the NLRA and the purposes for which managers seem to establish and control such committees in today's economy. I conclude that these purposes have not substantially changed. Managers before passage of …

Facilitative Mediation Or Evaluative Mediation: May Your Choice Be A Wise One, Scott H. Hughes

Faculty Scholarship

Describing the distinctions and criticisms between facilitative mediation, that provides a setting for disputants to understand and make choices, and evaluative mediation, where the mediator provides guidance. Attorneys should fully understand mediation styles, and explore these options with their client.

Globalizing Intellectual Property: Linkage And The Challenge Of A Justice-Constituency, Samuel K. Murumba

Faculty Scholarship

No abstract provided.

Panel Discussions From "Indian Nations On The Eve Of The 21st Century, John P. Lavelle, Frank Pommersheim, Larry Long, James Abourezk, Christopher Schneider

Faculty Scholarship

On the afternoon of May 19, 1998, in the University of South Dakota School of Law Courtroom, two panels assembled to discuss current issues in Indian land and water rights. The panels were part of the Fifth Biennial Indian Law Symposium entitled "Indian Nations on The Eve of The Twenty-First Century: Sovereignty, Self-Government, Water Rights, Land Rights." Those panel discussions are reprinted here, with minor stylistic edits.

The first panel, dealing with water rights, included Mark Van Norman, Susan Williams, Robert Cournoyer, Tony Iron Shell, Professor John Davidson, and moderator Robert Gough.

The second panel, dealing with land rights, was …

Caring For Justice, Reviewing Robin West, Michael T. Cahill

Faculty Scholarship

No abstract provided.

Dynamic Treaty Interpretation, Michael P. Van Alstine

Faculty Scholarship

No abstract provided.

Professional Responsibility And Liability Issues Related To Limited Liability Law Partnerships, Susan Saab Fortney

Faculty Scholarship

This article surveys the professional responsibility and liability issues related to attorneys practicing in limited liability law firms. Part I of this article provides background information regarding the development of the limited liability partnership (LLP) and its popularity among legal professionals. Part II tackles the 1996 ethics opinion on LLPs rendered by the American Bar Association Standing Committee on Ethics and Professional Responsibility. This article criticizes the ABA opinion by examining the conclusions and reasoning articulated in the opinion, indentifying disciplinary rules that the opinion did not address, and considering the possible effects of the opinion. Part III focuses on …

Reflections On Comparative Law, Environmental Law, And Sustainability, John C. Dernbach

Faculty Scholarship

No abstract provided.

Linguistics And The Composition Of Legal Documents: Border Crossing, Elizabeth Fajans, Mary R. Falk

Faculty Scholarship

No abstract provided.

Creating Law At The Securities And Exchange Commission: The Lawyer As Prosecutor, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Slashing And Burning Prisoners Rights: Congress And The Supreme Court In Dialogue, Susan Herman

Faculty Scholarship

No abstract provided.

Some Observations On The Juvenile Commitment Cases: Reconceptualizing What The Child Has At Stake, James W. Ellis

Faculty Scholarship

These remarks will focus on the constitutional issues surrounding the treatment and habilitation of children with mental disabilities. I believe that we need to rethink the premises on which we construct our analysis of these problems, and it will surprise few in this audience that I conclude the Supreme Court of the United States did not get it precisely right.

Campaign Finance: The Impact On The Legislative And Regulatory Process, John B. Anderson

Faculty Scholarship

During a Senate campaign more than four decades ago, revelations of a $5,000 contribution offer to Senator Karl Mundt of South Dakota precipitated a Senate investigation. At that time, Congress was considering legislation dealing with the regulation of natural gas. The discovery of the contribution offer ignited such a furor that it prompted President Eisenhower to declare he would veto any bill relating to natural gas regulation enacted under a cloud of suspicion. He carried out his threat, and it was another decade before Congress finally enacted legislation deregulating natural gas at the wellhead. Since that time, as the costs …

The Director's Choice: The Fine Line Between Interpretation And Infringement Of An Author's Work, Jon M. Garon

Faculty Scholarship

No abstract provided.

The Role Of Corporate Law In The Adaptation Of French Enterprise, James A. Fanto

Faculty Scholarship

No abstract provided.

The Province And Duty Of The Political Departments, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

Joe Six-Pack, U.S. V. O'Hagan, And Private Securities Litigation Reform: A Line Must Be Drawn, Michael H. Dessent

Faculty Scholarship

No abstract provided.

An Old Jurisprudence: Respect In Retrospect, Anita Bernstein

Faculty Scholarship

No abstract provided.

Privacy Online, Nick Allard

Faculty Scholarship

No abstract provided.

The Role Of Corporate Law In French Corporate Governance, James A. Fanto

Faculty Scholarship

No abstract provided.

Racial Disparities In The Delivery Of Health Care, Barbara A. Noah

Faculty Scholarship

This Article focuses on the role of conscious and unconscious racial bias in the delivery of care; it does not begin to address the larger issue of inadequate access to care at the outset. Improving access to health care for minorities will undoubtedly have a positive effect on these groups' overall health status; however, to the extent that racial bias in the delivery of care exists apart from problems of inadequate access, the disparity in health status between whites and African Americans will no doubt continue.

Part II of this Article describes racial disparities in a variety of health care …

Comparative Investor Education, James A. Fanto

Faculty Scholarship

No abstract provided.

Summer Musings On Curricular Innovations To Change The Lawyer's Standard Philosophical Map, James Coben

Faculty Scholarship

When Hamline’s participation in the FIPSE grant was announced several years ago, the Hamline community saw an opportunity to help achieve the stated strategic-plan objective to ensure that every graduating student “will have basic knowledge about ADR and the opportunity for simulation experience with ADR.” The FIPSE grant working-group established the following objectives to guide the curriculum-development effort: (a) emphasize the importance of ADR by formally recognizing it as “substance,” (b) help students confront the standard philosophical map of lawyers and promote an “alternative” definition of lawyer as “problem-solver,” (c) provide a baseline familiarity with rule vs. interest and position …

Judicial Opinions Involving Health Insurance Coverage: Trompe L'Oeil Or Window On The World?, William M. Sage

Faculty Scholarship

This essay offers a few thoughts about using judicial decisions as the dataset for research into health insurance coverage. Part I offers a general overview of insurance coverage law. Part II considers why students of health insurance coverage gravitate toward studying published opinions. Part III then discusses what is wrong with the approach, and suggests alternatives. Finally, Part IV turns to what may be right with the approach, concluding that judicial opinions in coverage litigation may reveal the functionality (or dysfunctionality) of the coverage process in managed care. Although the basic critique which the essay presents applies to areas other …

Miners, Vigilantes & Cattlemen: Overcoming Free Rider Problems In The Private Provision Of Law, Andrew P. Morriss

Faculty Scholarship

Law is a good like food, insurance, or housing. Like other goods, it can and often should be provided by private entities. Yet law is usually regarded as the quintessential public good, so obviously public in nature that we need not even discuss its provision by anyone but the State. As Bruce Benson observed "[a]nyone who would even question the 'fact' that law and order are necessary functions of government is likely to be considered a ridiculous, uninformed radical by most observers." Even William Landes and Richard Posner, hardly apologists for the State, have concluded that law often must be …

Toward Understanding Global Governance: The International Law And International Relations Toolbox, Charlotte Ku, Thomas George Weiss

Faculty Scholarship

No abstract provided.

Implied Wavier After Seminole Tribe, Kit Kinports

Faculty Scholarship

Part I of this Article briefly traces the history of the Supreme Court's Eleventh Amendment jurisprudence, focusing in particular on the opinions developing the doctrines of implied waiver and abrogation. Part II makes the case that the doctrine of implied waiver retains validity after Seminole Tribe, at least with respect to federal statutes passed pursuant to the Spending Clause that condition the receipt of federal funds on the states' waiver of the Eleventh Amendment and statutes passed under Congress's other Article I powers that regulate an activity voluntarily undertaken by the states. Finally, Part III considers other potential constitutional …

Virtual Civil Litigation: A Visit To John Bunyan’S Celestial City, Paul D. Carrington

Faculty Scholarship

No abstract provided.

Quo Vadis, Posadas?, William W. Van Alstyne

Faculty Scholarship

This examination looks at Virginia's ban on speech advertising motorcycles and revisits the question raised in the Posadas decision - may a state ban speech about a legal product the state could ban if it so desired. This article uses comparisons to the government employee speech cases to further illuminate the issue.