Law Commons^™

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 …

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.

Digital Accessibility And Disability Accommodations In Online Dispute Resolution: Odr For Everyone, David Larson

Faculty Scholarship

Court systems are exploring and beginning to adopt online dispute resolution (ODR) systems, and it is critical that they make digital accessibility a priority. Even though we need to pay close attention to ODR developments in court systems, we cannot overlook the fact that there are ODR providers in the private sector whose systems also must be accessible for persons with disabilities. Plaintiffs filed more ADA Title III website accessibility lawsuits in federal court for the first six months of 2018 than in all of 2017. There were at least 1053 such lawsuits in the first six months of 2018, …

School Desegregation 2.0: What Is Required To Finally Integrate America's Public Schools, Jim Hilbert

Faculty Scholarship

More than ten years have passed since the United States Supreme Court last addressed school desegregation. In its abbreviated tenure in the decades following Brown v. Board of Education, school desegregation was successful in many respects. Longstanding policies of state-sponsored educational apartheid eventually ended. A great many school buildings became more diverse. Countless students of color gained access to improved academic opportunities and better life outcomes. A consensus formed around the positive impacts that desegregation could have on both students of color and white students. When courts retreated from upholding desegregation policies, many communities developed their own voluntary plans, some …

Limiting Liberty To Prevent Obesity: Justifiability Of Strong Hard Paternalism In Public Health Regulation, Thaddeus Mason Pope

Faculty Scholarship

Because of the largely self-regarding nature of obesity, many current and proposed public health regulatory measures are paternalistic. That is, these measures interfere with a person’s liberty with the primary goal of improving that person’s own welfare.

Paternalistic public health measures may be effective in reducing obesity. They may even be the only sufficiently effective type of regulation. But many commentators argue that paternalistic public health measures are not politically viable enough to get enacted. After all, paternalism is repugnant in our individualistic culture. It is "wrong" for the government to limit our liberty for our own good.

In this …

Muscogee Constitutional Jurisprudence: Vhakv Em Pvtakv (The Carpet Under The Law), Sarah Deer, Cecilia Knapp

Faculty Scholarship

In 1974, a group of Mvskoke citizens from Oklahoma sued the federal government in federal court. Hanging in the balance was the future of Mvskoke self-determination. The plaintiffs insisted that their 1867 Constitution remained in full effect, and that they still governed themselves pursuant to it. The United States argued that the constitution had been nullified by federal law passed in the early 1900s.

To find in favor of the plaintiffs, the court would have to rule that the United States had been ignoring the most basic civil rights of Mvskoke citizens and flouting the law for over seventy years. …

Over The Borderline-A Review Of Margaret Price's Mad At School: Rhetorics Of Mental Disability And Academic Life, Gregory M. Duhl

Faculty Scholarship

This Article is about “madness” in higher education. In Mad at School: Rhetorics of Mental Disability and Academic Life, Professor Margaret Price analyzes the rhetoric and discourse surrounding mental disabilities in academia. In this Article, I place Price’s work in a legal context, discussing why the Americans with Disabilities Act fails those with mental illness and why reform is needed to protect them. My own narrative as a law professor with Borderline Personality Disorder frames my critique. Narratives of mental illness are important because they help connect those who are often stigmatized and isolated due to mental illness and provide …

Finding A Voice Of Challenge: The State Responds To Religious Women And Their Communities, Marie Failinger

Faculty Scholarship

The appropriate response of Western nation-states to the situation of religious women who are caught between democratic norms of gender equality and the demands of their religious community has been a source of tension in many Western nations, including the U.S. This article attempts to give voice to the complex nature of women’s religious conduct as tied to their identities, and to propose alternative ways that the state might further its norms of gender equality besides intrusive regulation of religious communities.

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 …

From Right To Wrong: A Critique Of The 2000 Uniform Parentage Act, Mary P. Byrn

Faculty Scholarship

In 1973, the National Conference of Commissioners on Uniform State Laws (the Conference) proposed a Uniform Parentage Act (UPA) that radically changed how parentage was determined in the United States. Prior to 1973, the parentage laws of most states failed to identify two legal parents for thousands of children merely because their parents were not married. These "illegitimate" children were considered a "child of no one" under the law and were denied the significant emotional, financial, and legal benefits of having two legal parents. By the early 1970s, however, the conference recognized that such treatment of children was becoming scientifically, …

How A Marriage Discrimination Amendment Would Disrespect Democracy In Minnesota, Anthony S. Winer

Faculty Scholarship

The proposed marriage discrimination amendment to the Minnesota Constitution is profoundly anti-democratic. It is extremely wide-ranging in its scope, it obliterates the opportunity of the LGBT community to legislatively advance its interests in the area, it falsely assumes characteristics of the state judiciary that do not in fact exist, and it is drafted with language that is particularly hostile to LGBT concerns and democracy in general. It was a triumph for reason and democracy that this amendment was defeated in 2006. It should never be introduced again. In the unfortunate event that it is introduced again, it should be resoundingly …

Monstrous Impersonation: A Critique Of Consent-Based Justifications For Hard Paternalism, Thaddeus Mason Pope

Faculty Scholarship

Restricting a person's substantially voluntary, self-regarding conduct primarily for the sake of that person is hard paternalism. Particularly in the public health context, scholars, legislators, and judges are devoting increasing attention to discussing the conditions and circumstances under which hard paternalism is justified. One popular type of argument for the justifiability of hard paternalism takes its normative warrant from the consent of the restricted person.

In this Article, I argue that scholars and policymakers should abandon consent-based arguments for the justifiability of hard paternalism. Such arguments are torn between incoherence and lacking moral force. Very few consent-based arguments successfully resolve …

Controlling Identity: Plessy, Privacy, And Racial Defamation, Jonathan Kahn

Faculty Scholarship

This Article explores the origins of privacy law in early twentieth century America in relation to the legal solidification of Jim Crow in the aftermath of Plessy v. Ferguson. It considers some distinctively southern aspects of the origins of the right to privacy and argues that by viewing privacy, racial defamation, and Jim Crow in relation to each other, we can gain new insights into each-coming to understand that Plessy was not just about controlling space, or property, or even equality but also about controlling identity itself, and coming to see that in its origins, the right to privacy had …

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 …

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 …

Minnesota's Sex Offender Commitment Program: Would An Empirically-Based Prevention Policy By More Effective?, Eric S. Janus

Faculty Scholarship

Minnesota’s sex offender commitment scheme is not just a bad idea; it likely has bad consequences. It is a huge and disproportionate sink for resources that ight be put to more effective use in the fight against sexual violence. Worse, its demand for resources will continue to grow, thus predetermining to a large extent how prevention and treatment dollars are spent. It is very possible that a more rational allocation of these resources would actually prevent more violence than the allocation that is automatically produced by the sex offender commitment scheme. At the very least, the fight against sexual violence …

The Colored Man Standing By The Punch Bowl, Michael K. Jordan

Faculty Scholarship

This essay will explore racial dissonance and how it affects our thinking about race relations and social policy in America. The first part of this essay will examine the concept of race. Though we often think of race as delineating real characteristics that exist objectively, race is actually a socially created abstraction. In addition, how this abstraction changes over time will also be explored. This is another way of saying that "colored people" has been replaced by the term "black people." The difference between the two terms raises important questions about social policy. Next, this article explores the connection among …

Remembering Mrs. Murphy: A Remedies Approach To The Conflict Between Gay/Lesbian Renters And Religious Landlords, Marie Failinger

Faculty Scholarship

There have been a number of legislative, caselaw and academic attempts at trying to resolve the conflict between the non-discrimination rights of gay and lesbian couples seeking housing and the free exercise rights of religious landlords who don't believe they should rent to unmarried couples. The academic writing often tries to resolve this conflict either by minimizing the harm to one of the parties (e.g., by categorizing the landlord's harm as merely commercial, or the tenant's as merely a problem of housing availability) or denying the relative importance of one of the party's rights. Others attempt a more positivist approach, …

Lena Olive Smith: A Minnesota Civil Rights Pioneer, Ann Juergens

Faculty Scholarship

Lena Olive Smith and the National Association for the Advancement of Colored People (NAACP) created a spirited partnership in the public interest during the 1920s and 1930s. Throughout their long collaboration, this woman lawyer, her clients, and the Minneapolis branch of a national grassroots organization faced similar challenges: to stay solvent, to end segregation and increase equality, and to live with dignity. This article is divided into four sections. The first three roughly correspond with stages in Smith’s life and work. Part II briefly chronicles Smith’s first thirty six years, 1885 to 1921, as a single African-American woman in the …

A Citizen Of Fine Spirit, Douglas R. Heidenreich

Faculty Scholarship

William T. Francis was (1869-1929), by most measures, the most successful of the early African American alumni of William Mitchell College of Law's predecessor law schools. Francis was a skilled lawyer, an adroit politician, a popular orator, a vigorous crusader for human and civil rights, and a respected U.S. diplomat.

The Hubris Of The Master Chefs Of Diversity Stew, Michael K. Jordan

Faculty Scholarship

This article discusses the dangers of pursuing diversity, be it in the workplace, in a student body, or in a society, in a manner that puts a high level of control in the hands of a few experts using a specifc "recipe". These masters of diversity may pose serious threats to some basic principles that most Americans hold to be essential componenets of what it means to be free, self-determining individuals.

Fundamental Rights In The "Gray" Area: The Right Of Privacy Under The Minnesota Constitution, Michael K. Steenson

Faculty Scholarship

This Article explores the constitutional aspects of Minnesota privacy law. Part II briefly explains federal privacy law to provide a baseline for consideration of privacy law in Minnesota. Part III examines the right of privacy as it has evolved in the Minnesota common law. Part IV evaluates the Minnesota Supreme Court's application of federal privacy standards and then examines the court's decisions that outline the right of privacy under the Minnesota Constitution. Part V concludes by raising questions concerning the potential application of the court's concept of privacy under the Minnesota Constitution as applied to two areas: same-sex marriages and …

Civil Actions For Emotional Distress And R.A.V. V. City Of St. Paul, Michael K. Steenson

Faculty Scholarship

The law of emotional distress is characterized by judicial reluctance to create and expand remedies for emotional injuries. The issue here is whether the Court's decision in R.A.V. v. City of St. Paul will impose further limitations on the right to recover civil damages for the intentional infliction of emotional injury, particular emotional injuries resulting from hate speech. This symposium first examines the applicability of the tort to redress claims based on abusive epithets based on the victim's race, gender, or sexual orientation. The symposium then argues that using this tort in cases involving hate speech should not create constitutional …

Mental Impairments And The Rehabilitation Act Of 1973, David Allen Larson

Faculty Scholarship

This article examines the question of whether an asserted mental disorder should be regarded as a statutory impairment. The article begins by outlining the Rehabilitation Act and by discussing the diagnostic difficulties that exist in the mental health field. It then surveys specific cases arising under the Rehabilitation Act. Selected cases reviewing state statutory language are also examined. The article provides a broad discussion of the questions and concerns that must be considered when formulating a nondiscrimination policy protecting mentally impaired persons. It concludes by suggesting an approach for handling cases alleging discrimination due to a mental impairment.

What Disabilities Are Protected Under The Rehabilitation Act Of 1973?, David Larson

Faculty Scholarship

It can be difficult for an employer or a recipient of federal funds to determine exactly what types of disabilities are protected by the Rehabilitation Act of 1973. Relevant literature has not given a great deal of attention to this specific question. Recent cases, however, provide additional information that can assist in determining which disabilities are protected. The question of what is protected handicap differs from the question of whether a handicapped person is also “qualified.” This article focuses on the threshold question of determining whether a handicap actually exists, concentrating on the Rehabilitation Act of 1973. The definition of …