Law Commons^™

Toward Genuine Tribal Consultation In The 21st Century, Colette Routel, Jeffrey K. Holth

Faculty Scholarship

The tribal right to consultation requires the federal government to consult with Indian tribes prior to the approval of any federal project, regulation, or agency policy. This article, which provides the first comprehensive analysis of this right, highlights the current inconsistencies in interpretation and application of the consultation duty. It then attempts to provide suggestions for changes that can be implemented by the legislative, executive or judicial branches.

In Part I, we provide a brief overview of the development of the trust responsibility and explain how it came to include three substantive duties: to provide services to tribal members, to …

The Paradoxes Of Restitution, Mark A. Edwards

Faculty Scholarship

Restitution following mass dispossession is often considered both ideal and impossible. Why? This article identifies two previously unnamed paradoxes that undermine the possibility of restitution.

First, both dispossession and restitution depend on the social construction of rights-worthiness. Over time, people once considered unworthy of property rights ‘become’ worthy of them. However, time also corrodes the practicality and moral weight of restitution claims. By the time the dispossessed ‘become’ worthy of property rights, restitution claims are no longer practically or morally viable. This is the time-unworthiness paradox.

Second, restitution claims are undermined by the concept of collective responsibility. People are sometimes …

Lawyers And Mediation: Lessons From Mediator Stories, Sharon Press

Faculty Scholarship

In Stories Mediators Tell, Lela Love and Eric Galton have compiled a compelling anthology of stories about mediation. Not surprisingly, most of the stories involve a significant moment when something special happened for the parties. The author was reminded of presentations by Baruch Bush and Joe Folger in the early 1990's (around the time the first edition of The Promise of Mediation was published). They would ask mediators who attended their sessions to recount to a partner one of their memorable mediations. Inevitably, the stories were about transformative moments - of parties obtaining clarity for the first time - of …

Beyond Skills Training, Revisited: The Clinical Education Spiral, Carolyn Grose

Faculty Scholarship

No abstract provided.

Electronically Stored Information: What Hath God Wrought?, Roger S. Haydock

Journal of Law and Practice

No abstract provided.

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. …

Novelty Grace Periods: A National Law Survey, Frederik Struve

Student Scholarship

This survey includes all national law statutes (known to the author), conveying broader rights when compared with Article 55 of the European Patent Convention. The statutes provided in this survey have primarily been retrieved from the World Intellectual Property Organization (WIPO) and from national patent offices where appropriate. Links to the materials used are provided after each statute.

Briefly, the survey documents that 72 countries offer broader rights to applicants, when compared with EPC Article 55. Of those countries, 46 include the right to claim priority under the Paris Convention. In all, 61 contracting states to the Patent Cooperation Treaty …

Minnesota's Criminal Sexual Conduct Statutes: A Call For Change, Jenna Yauch-Erickson

Symposium: 50th Anniversary of the Minnesota Criminal Code-Looking Back and Looking Forward

Minnesota criminalizes five degrees of Criminal Sexual Conduct (“CSC”). The base conduct prohibited in fifth degree CSC is nonconsensual sexual contact. The four higher degrees of CSC require one or more aggravating elements in addition to a nonconsensual sexual act. The two aggravating elements which distinguish the degrees of CSC in Minnesota are force and personal injury. These aggravators are supposed to separate out the worst offenses and offenders for the harshest punishment. But problematic statutory definitions and judicial interpretations have created overlap in the meaning of force and injury. Because the same conduct satisfies both the force and injury …

Mens Rea In Minnesota And The Model Penal Code, Ted Sampsell-Jones

Symposium: 50th Anniversary of the Minnesota Criminal Code-Looking Back and Looking Forward

When Minnesota engaged in the great reform and recodification effort that led to the Criminal Code of 1963, it was part of a nationwide reform movement. That movement was spurred in large part by the American Law Institute and its Model Penal Code. The Minnesota drafters were influenced by the MPC, and at least in some areas, adopted MPC recommendations.

The MPC’s most significant innovation was in the law of mens rea—the body of law concerning the mental state or “guilty mind” necessary for criminal liability. The MPC drafters recognized that the common law of mens rea was fundamentally incoherent …

Re-Thinking Minnesota's Criminal Justice Response To Sexual Violence Using A Prevention Lens, Caroline Palmer, Bradley Prowant

Symposium: 50th Anniversary of the Minnesota Criminal Code-Looking Back and Looking Forward

Sexual violence is one of the most difficult issues we face in the human condition. Even with the many strides that have occurred in recent years to support a victim-centered response, survivors who seek help from the legal, medical and mental health systems, among others still “may face disbelief, blame, and refusals of help instead of assistance.” It is a problem that demands a response from all levels of society. And yet this response is lacking.

The key question we as a society confront is what changes will satisfactorily balance justice for victims with offender accountability, attempts at rehabilitation through …

The Exception That Swallowed The Rule: Fixing The Multiple-Victim Exception To Minnesota Statute Section 609.035, Benjamin J. Butler

Symposium: 50th Anniversary of the Minnesota Criminal Code-Looking Back and Looking Forward

This article proposes that the Legislature should amend section 609.035 to address the problems with the court-created version of the multiple-victim exception. First, the Legislature should amend the statute to allow for the imposition of multiple sentences in cases involving crimes committed against multiple victims. Second, in keeping with Minnesota’s goal of maintaining a rational, proportional sentencing system, the Legislature should limit the district court to imposing no more than two sentences per behavioral incident. Third, the Legislature should codify Minnesota Supreme Court case law holding that the court can only impose a sentence for the most serious offense committed …

Escape From The Twilight Zone: Minnesota’S Definitions Of “Substantial Bodily Harm” And “Great Bodily Harm” Leave Too Much Room For Injustice, And They Can Be Improved, Joshua Larson

Symposium: 50th Anniversary of the Minnesota Criminal Code-Looking Back and Looking Forward

The article first will discuss the current assault-statute regime in Minnesota and its origin and development. Then, the article will identify appellate decisions that have examined the concepts of bodily harm, substantial bodily harm, and great bodily harm. Following this, the article will describe the Wisconsin assault-statute regime. Lastly, the article will propose how Minnesota should improve.

Library Services For The Self-Interested Law School: Enhancing The Visibility Of Faculty Scholarship, Simon Canick

Faculty Scholarship

This article suggests a new set of filters through which to evaluate law library services, in particular those that support faculty scholarship. These filters include recent profound changes in legal education and the motivators of today’s law professors. By understanding the needs of self-interested deans and professors, libraries can fill new roles that are consistent with our core values. Libraries can also focus on dissemination and promotion of faculty work, especially through innovative open access projects.

Clinicians May Not Administer Life-Sustaining Treatment Without Consent: Civil, Criminal, And Disciplinary Sanctions, Thaddeus Mason Pope

Faculty Scholarship

Both medical and legal commentators contend that there is little legal risk for administering life-sustaining treatment without consent. In this Article, I argue that this perception is inaccurate. First, it is based on an outdated data set, primarily damages cases from the 1990s. More recent plaintiffs have been comparatively more successful in establishing civil liability. Second, the published assessments focus on too-limited data set. Even if the reviewed cases were not outdated, a focus limited to civil liability would still be too narrow. Legal sanctions have also included licensure discipline and other administrative sanctions. In short, the legal risks of …

Legal Education And Professional Skills: Myths And Misconceptions About Theory And Practice, Kate Kruse

Faculty Scholarship

Current critiques of legal education push law schools toward seemingly contradictory goals: (1) provide more practical training to a greater number of students; and (2) lower operational costs. This article addresses those who have a sincere desire to meet both goals. Although it offers a proposal for restructuring legal education, its primary focuses is on the mental and psychological barriers — the mistakes in thinking — that prevent law faculties from engaging in substantial. At the deepest level is a basic myth: that professional education can meaningfully separate theory from practice. This myth divides legal education into a series of …

The Domagala Dilemma-Domagala V. Rolland, Michael K. Steenson

Faculty Scholarship

In Domagala v. Rolland, the Minnesota Supreme Court granted review in a personal injury case that was dominated by duty and special relationship issues, even though the parties agreed that there was no special relationship between them. The case, straddling the misfeasance/nonfeasance line, was complicated by the defense theory (that the lack of a special relationship meant that the defendant owed no duty to protect or warn the plaintiff), and the plaintiff’s theory (that the defendant owed a duty of reasonable care to the plaintiff because he acted affirmatively, even if the risk to the plaintiff did not become apparent …

Criminal Justice In Indian Country, Sarah Deer

Faculty Scholarship

On March 7,2013, President Obama signed the 2013 Violence Against Women Act Re-authorization ("VAWA 2013"). Contained within that legislation is a partial re-authorization of tribal criminal jurisdiction over non-Indians, which is a topic covered in this short article. VAWA 2013 recognizes that the inherent right of tribal nations includes criminal jurisdiction over non-Indian defendants accused of domestic violence. The topics discussed in this article-statistical evidence, interdiction of violence, and protecting Native women-will likely become even more important as tribal leaders and jurists consider the future of tribal self-determination and seek to realize the full potential of the changes created by …

Dakota Tribal Courts In Minnesota: Benchmarks Of Self-Determination, Sarah Deer, John E. Jacobson

Faculty Scholarship

Professor Frank Pommersheim has written that “[t]ribal courts are the front line institutions that most often confront issues of American Indian self-determination and sovereignty.”1 It is only fitting, then, that an issue devoted to the legal history and survival of Dakota people includes some information about the role Dakota tribal courts play in furthering the aims of self-determination. Of the over 565 federally recognized tribes in the United States, most operate some form of dispute resolution or judicial system—and all have distinct, unique histories and stories.2 Little has been written about the Dakota legal systems, and it is in the …

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 …

An Empirical Analysis Of The Use Of The Intent Test To Determine Parentage In Assisted Reproductive Technology Cases, Mary P. Byrn, Lisa Giddings

Faculty Scholarship

States have been slow to adopt model acts regarding assisted reproductive technology (ART), or to draft ART legislation of their own, leaving most parents of ART children without a clear path to obtain legal parentage. As a result, when a child conceived via ART is born, the adults involved must turn to the courts to make a determination as to legal parentage. These courts have used a variety of approaches to determine legal parentage in ART cases, which along with the inherent discretion involved in judicial decisions absent clear precedent or statute has led to unpredictable, and sometimes inequitable, findings …

Minnesota Bounties On Dakota Men During The U.S.-Dakota War, Colette Routel

Faculty Scholarship

The U.S.-Dakota War was one of the formative events in Minnesota history, and despite the passage of time, it still stirs up powerful emotions among descendants of the Dakota and white settlers who experienced this tragedy. Hundreds of people lost their lives in just over a month of fighting in 1862. By the time the year was over, thirty-eight Dakota men had been hanged in the largest mass execution in United States history. Not long afterwards, the United States abrogated its treaties with the Dakota, confiscated their reservations along the Minnesota River, and forced most of the Dakota to remove …

Legal, Medical, And Ethical Issues In Minnesota End-Of-Life Care: An Introduction To The Symposium, Thaddeus Mason Pope

Faculty Scholarship

As America grays, and medicine’s ability to treat the sickest of patients expands, the legal, medical, and ethical issues in end-of-life care become more numerous, pressing, and intertwined. Because Minnesota’s citizens, clinicians, and courts are not far from these concerns, the Hamline University Health Law Institute and the Hamline Law Review hosted an interdisciplinary Symposium entitled "Legal, Medical, and Ethical Issues in Minnesota End-of-Life Care."

On November 9, 2012, we welcomed more than 200 participants to the newly opened Carol Young Anderson and Dennis L. Anderson Center on Hamline University’s Saint Paul campus. These participants included: attorneys, physicians, nurses, social …

Taxing Anxiety, Morgan Holcomb

Faculty Scholarship

In this article, I argue for a statutory change to the disparity in the taxation of damages. I submit that nearly all damages, including damages received on account of physical injury, ought to be taxable, and that juries must be apprised of tax consequences so that they can make proper adjustments to take account of these tax consequences. I will refer to this as the full inclusion proposal with jury awareness - for ease, the full inclusion proposal.

My proposed change is the more sound solution for several reasons. Full inclusion creates certainty and avoids wasteful tax gamesmanship. Furthermore, assuming …

Dispute Resolution Mechanisms For Intractable Medical Futility Disputes, Thaddeus Mason Pope

Faculty Scholarship

Medical futility disputes occur frequently in healthcare facilities across the United States. In this Article, I provide an overview of dispute resolution mechanisms through which healthcare providers can resolve these disputes. In Section I, identify three distinctive features of medical futility disputes. First, they usually concern life-sustaining medical treatment for patients in a hospital’s intensive care unit. Second, these patients typically lack decision making capacity. So, a surrogate must make treatment decisions on the patient’s behalf. Third, this surrogate and the patient’s physician disagree over the treatment plan. The surrogate wants to continue life-sustaining treatment. But the physician thinks that …

Notice And An Opportunity To Be Heard Before The President Kills You, Richard Murphy, Afsheen John Radsan

Faculty Scholarship

The United States identifies particular people as especially dangerous members of al Qaeda, the Taliban, or associated forces, and then kills them. Critics insist that this targeted killing is illegal; some go so far as to call it assassination. The drone strike that killed Anwar al-Awlaki, an American citizen, generated furious criticism for purportedly violating his due process rights.

In spring 2013, President Obama responded in a wide-ranging speech on national security policy. On the topic of drones, he stated that terrorists are targeted only if they constitute “a continuing and imminent threat to the American people.” He announced that …

Professional Learning Communities And Collaborative Teams: Tools To Jump-Start The Learning Outcomes Assessment Process, Sharon Sandeen

Faculty Scholarship

The legal community has talked for years about proposed changes to the American Bar Association's (ABA) standards for the accreditation of law schools to include some form of learning outcomes assessment (LOA).' Although it is still unclear if and when comprehensive new standards will take effect and, more importantly, when law schools will be required to fully implement LOA processes, it is never too early to help law students meet their full potential since the essential purpose of LOA is to improve student learning. Moreover, current ABA Standard 203 (Strategic Planning and Assessment) requires law schools to regularly assess their …