Law Commons^™

Technology Mediated Dispute Resolution (Tmdr): A New Paradigm For Adr, David Allen Larson

Faculty Scholarship

Technology is changing the way that children are communicating (particularly elementary and pre-school aged children), and these changes have significant implications for alternative dispute resolution processes and practices. Although ADR practitioners and theorists are not ignoring technology, we have focused almost exclusively on the question of how we can use technology to enhance our existing practices. We are not paying sufficient attention to the fact that young children are communicating differently than we communicate. Insufficient energy is being dedicated to the question of how those differences in communication inevitably influence the way that those children resolve disputes.

The article analyzes …

The Character Of The Minnesota Tort System, Michael K. Steenson

Faculty Scholarship

The specific focus of this article is whether the Minnesota tort system is progressive. The answer to that question depends on a number of other questions. First, what are the components of the tort system? Second, what are the primary motivating principles of the system? Third, how is the term “progressive” defined for purposes of evaluating the system, and as applied to the tort system, what conclusions does it yield? Other questions might be whether the tort system in Minnesota is liberal, or conservative, or, perhaps, moderate, with the overriding question of whether those labels make any difference.

The Scapegoat: Emtala And Emergency Department Overcrowding, Laura Hermer

Faculty Scholarship

Part I of this article briefly discusses the Emergency Medical Treatment and Active Labor Act's salient provisions. Part II examines the history of emergency care and changes in healthcare organization and finance affecting the provision of charity care-topics which are significant in unraveling the alleged effects EMTALA has had on the healthcare system. Part III examines policy issues raised by EMTALA within our present system of health insurance and healthcare organization and finance.

This article reaches two conclusions. First, EMTALA, while a poor and archaic fit with our present system of healthcare delivery and finance, in fact has helped to …

Careful What You Wish For — Freedom Of Contract And The Necessity Of Careful Scrivening, Daniel S. Kleinberger

Faculty Scholarship

No abstract provided.

Standing In Babylon, Looking Toward Zion, Kate Kruse

Faculty Scholarship

The UNLV Conference on Representing Children in Families convened an impressive group of academics, policymakers, practitioners, and participants in the child welfare and juvenile justice systems to consider how to move beyond recommendations made ten years earlier about how lawyers for children should approach their work. This essay examines the interrelationship between idealism and realism in the definition of lawyers’ roles as representatives of children and the importance of idealized visions to the process of reforming dysfunctional systems, using examples of child welfare and juvenile justice system reform.

The Ethics Of Invalid And 'Iffy' Contract Clauses, In Symposium: Contracting Out Of The Uniform Commercial Code, Christina L. Kunz

Faculty Scholarship

This Symposium focuses on the extent to which attorneys can use agreed terms to supplant or “bump” the provisions of the Uniform Commercial Code (UCC). The articles in this Symposium demonstrate that the degree to which attorneys customarily “contract out” varies considerably from UCC article to article. In reality, though, the issues surrounding contracting out of UCC provisions are not limited to the UCC, statutes, or other codified rules. Most “repeat players” in the market periodically ask their lawyers to redraft their standard-form contracts in ways that increasingly favor the drafter. Some of these lawyers may intentionally draft clauses that …

No More Deaths: On Conscience, Civil Disobedience, And A New Role For Truth Commissions, Marie Failinger

Faculty Scholarship

This article uses as its focal point the emerging civil disobedience movement in southwestern United States, aimed at providing humanitarian assistance to undocumented workers crossing the U.S. border, and the government's prosecution response to that movement. It argues that the courts that have considered such civil disobedience in previous cases, such as the 1980s Sanctuary movement, have a limited understanding of the right of conscience, and utilizes the insights of Reformation theology on the nature of the conscience to argue that it is necessary for the United States to respect the public role of conscience of civil disobedients in mass …

A Persistent Critique: Constructing Clients’ Stories, Carolyn Grose

Faculty Scholarship

Drawing on narrative, post-colonial, clinical and other critical theory, this article explores the role and necessity of critical reflection by lawyers in the construction of clients' stories in representation. In particular, the piece is framed by the experiences of transgender clients and their student attorneys. The piece begins by examining the "problem of representation" - the challenge of seeing and hearing clients' stories, particularly when those stories do not fit in to our understanding of how the world works. It moves on to describe first the "official stories" that govern how the legal system treats transgender people and second how …

You Don’T Have To Be Ludwig Wittgenstein’: How Llewellyn’S Concept Of Agreement Should Change The Law Of Open-Quantity Contracts, Henry Allen Blair

Faculty Scholarship

In this article, Professor Allen Blair examines the preeminent role of exclusivity in open-quantity contracts under the Uniform Commercial Code (“UCC”). Although the text of the UCC does not mandate that open-quantity contracts be exclusive, the vast majority of courts considering the issue have held that exclusivity is necessary to prevent such contracts from failing for lack of mutuality of obligation. The Article traces the historic development of open-quantity agreements, focusing on pre-Code cases recognizing the commercial utility of such agreements but struggling with how to accommodate them under a classical model of contract formation. It was in this historic …

Direct Versus Derivative And The Law Of Limited Liability Companies, Daniel S. Kleinberger

Faculty Scholarship

The hybrid nature of limited liability companies causes us to re-invent, or at least re-examine, many doctrinal wheels. This Article will reexamine one of the most practical of those wheels-the distinction between direct and derivative claims in the context of a closely-held limited liability company.

Case law concerning the direct/derivative distinction is still overwhelmingly from the law of corporations, although LLC cases are now being reported with some frequency. LLC cases routinely analogize to, or borrow from, the corporate law. This Article encompasses that law, analyzes LLC developments, and argues that courts should (i) avoid the "special injury" rule, (ii) …

Lessons Unlearned: Women Offenders, The Ethics Of Care, And The Promise Of Restorative Justice, Marie Failinger

Faculty Scholarship

The steep rise in female offenders since the 1960s has finally caused criminologists, lawyers, judges, and others to consider why they have not learned more about women offenders’ lives, in order to better understand and explain why they enter, and how they proceed through the criminal system. This article focuses on the reality that women’s relationality, and particularly their relationships with men in their lives, profoundly affect the behavior that lands them in the criminal justice system. This article argues that restorative justice, which is essentially grounded on an ethical understanding of crime and treats the offender as an interacting …

Instituting Innocence Reform: Wisconsin's New Governance Experiment, Kate Kruse

Faculty Scholarship

The DNA exoneration cases of the past two decades have provided a window into what hasn't been working in the criminal justice system and an agenda for criminal justice reform. The challenge currently facing the innocence reform community is to translate this agenda into concrete reforms that institute and sustain best practices for the investigation and prosecution of crimes, while allowing flexibility for the understanding of best practices to continue to evolve. In 2005, Wisconsin underwent a breathtaking course of legal reform in two of the problem areas that have plagued wrongful convictions: mistaken eyewitness identification and false confession. The …

Technology Mediated Dispute Resolution (Tmdr): Opportunities And Dangers, David Allen Larson

Faculty Scholarship

Technology Mediated Dispute Resolution (TMDR) presents opportunities and dangers that we cannot yet fully envision. Technologies are available or imminent, such as tele-immersion, that will dramatically change the ways we think about dispute resolution in a virtual environment. Whether or not one finds the idea of TMDR appealing, a generation of teens and preteens is integrating technology so deeply into their daily lives that they not only will expect, but will demand, that those technologies be used in a dispute resolution proceeding. Because girls communicate differently than boys when using technology, it will be interesting to learn if women prove …

A Crack In The Shield? Malpractice Coverage At Risk, Daniel S. Kleinberger

Faculty Scholarship

A recent, unreported opinion of the Minnesota Court of Appeals has opened up a major hole in the liability shield of professional firms. Continental Casualty Co. v Duckson-Carlson, LLC, misapplies the doctrine of equitable estoppel, misinterprets the Minnesota Professional Firms Act, ignores the fundamental distinction between an entity and its owners, and sub silentio turns the law of third party beneficiaries on its head. From a practical perspective, the decision should trouble every lawyer, doctor, accountant, and other "319B" professional in the state and, moreover, has serious implications for individuals covered by D&O insurance

Senior Corporate Officers And The Duty Of Candor: Do The Ceo And Dfo Have A Duty To Inform?, Z. Jill Barclift

Faculty Scholarship

This article focuses on the duty to inform as a framework to assess liability of senior officers of public companies who withhold information from directors. The broadening of the definition of the duty to inform that senior officers owe directors to include an underlying affirmative duty to provide information, even when director or shareholder action is not requested, offers an opportunity for greater monitoring of corporate governance by focusing on those often most culpable. Currently, the plain language of Delaware’s delegation of authority statute protects directors who reasonably rely in good faith on the reports of corporate officers. However, officers’ …

Against Idols: The Court As A Symbol-Making Or Rhetorical Institution, Marie Failinger

Faculty Scholarship

Symbolic politics can be quite powerful. This article pursues the question of how the Supreme Court signifies itself, how it discovers and enacts the metaphors from which it will play its part in the American political drama aimed at containing some of the nightmares of human existence, while affirming and encouraging the possibilities for human flourishing. Embedded in this inquiry is the question of how the Court can signify itself while still preserving the truth-telling and humility necessary to legitimize Court decisions.

The Patent Cooperation Treaty: At The Center Of The International Patent System, Jay Erstling

Faculty Scholarship

In view of the fact that the PCT is composed of almost 130 countries and that more than 100 national and regional patent offices, as well as WIPO itself, perform PCT functions, it is remarkable that the system operates so smoothly and continues to gain momentum. Perhaps the system’s greatest strength comes from the immense diversity of legal, linguistic, and national cultures that constitute the PCT. While the system has served to harmonize divergent practices, it has also been obliged to accommodate to the sometimes inflexible peculiarities of national law and procedure. The PCT’s ability to strike a balance between …

Radke V. County Of Freeborn: The Return Of The Public Duty Rule?, Mehmet K. Konar-Steenberg

Faculty Scholarship

Article explores when Minnesota law provides a cause of action against government actors who are negligent in the performance of their duties. Part II of this Article traces the separate development of the common law public duty rule and the implied statutory cause of action analysis. Part III examines the Hoppe case, where the supreme court seemed to hold that the absence of an implied statutory cause of action precluded the existence of a common law cause of action. Part IV then assesses the Radke court’s effort to resolve the confusion flowing from Hoppe.

In Praise Of Contextuality - Justice O'Connor And The Establishment Clause, Marie Failinger

Faculty Scholarship

Among Justice Sandra Day O’Connor’s lasting contributions to Supreme Court Jurisprudence has been her attempt to contextualize Religion Clause jurisprudence, to move the Court in the direction of considering the circumstances surrounding government in assessing its constitutionality. Typical of this contributor has been her two decades of work in Establishment Clause law, in particular, ended by Lynch v. Donnelly, in which she introduced the “non-endorsement” test and one of the Ten Commandment cases, McCreary County, Kentucky v. American Civil Liberties Union, in which it was most recently employed. The non-endorsement test has served as one of the two commonly competing …

Engler V. Illinois Farmers Insurance Co. And Negligent Infliction Of Emotional Distress, Michael K. Steenson

Faculty Scholarship

The rules governing negligent infliction of emotional distress claims differ significantly from state to state. The predominant rule is the bystander recovery rule, which permits recovery by persons who are not physically threatened by the defendant’s negligent conduct but who suffer emotional distress from witnessing injury to a third person. In bystander recovery jurisdictions, the required degree of proximity of the plaintiff to the accident scene, how the plaintiff hears about the accident, the plaintiff’s relationship to the person actually injured in the accident, and the proof required to establish severe emotional distress vary, sometimes significantly, from jurisdiction to jurisdiction. …