Law Commons^™

Unto The (Data) Breach, Charlotte A. Tschider

Faculty Publications & Other Works

Since the early 2000s, U.S. courts have begun hearing “data breach” liability cases, the inevitable result of a growing internet-connected technology infrastructure. The relatively recent development of case law signals a body of law in development, stunted by significant limiting factors that prevent the coalescence of legal principles. To date, no holistic empirical exploration of data breach cases has offered sufficient detail to explore these factors. This descriptive empirical study analyzes, in detail, 225 data breach cases from 2005–2022, reviewing these cases over an extended period to descriptively identify key trends and changes within a bona fide data breach case’s …

Tribes As Nations: The Future Of The Trust Relationship, Adam Crepelle

Faculty Publications & Other Works

Tribes are nations. This fundamental truth is often lost in the trust relationship. For most of the United States’ history, the trust relationship was used as a justification to control tribes and obtain their resources. The trust relationship took a new shape during the 1970s—tribal self-determination. Self-determination has resulted in many benefits for tribes; however, tribes still suffer from externally imposed constraints on their sovereignty, such as complex federal bureaucracy and limits on their jurisdiction. This Article argues removing the antiquated constraints on tribal sovereignty is required for the trust relationship to advance, and, once it advances, tribes will be …

Tribal Civil Procedure: An Unexplored Path To Sovereignty And Economic Development, Adam Crepelle

Faculty Publications & Other Works

This Article argues civil procedure reform is a means of strengthening tribal sovereignty and economies. Although tribal civil procedure codes are largely consistent with their state and federal counterparts, tribal rules of procedure can be difficult to locate. The inability to locate tribal rules of procedure has led the Supreme Court to diminish tribal jurisdiction over non-Indians. Similarly, uncertainty about the rules governing tribal court operation deter businesses from investing in Indian country. By making greater efforts to publish tribal procedure rules and the jurisprudence interpreting them, tribes can enhance their sovereignty and their economies.

Tribes should also consider civil …

Best Kept Secret: The Hidden Health Costs Of Corporate Confidentiality, Cynthia M. Ho

Faculty Publications & Other Works

Although patents are well known to negatively impact health when drugs are unaffordable, trade secrets also harm health, and in more ways than patents. Patented drugs harm public health simply by temporarily increasing prices on treatments. Trade secrets, on the other hand, can not only increase treatment costs, but also hide knowledge needed for effective medical treatment. Also, because patents, but not trade secrets, have a limited term, patent health harms clearly terminate while trade secret harms do not. Moreover, the public may not even be fully aware of all trade secret health harms because trade secret information is, by …

Balancing Speech And Reputation: The Impact Of The First Amendment On Minnesota Defamation Law, Mike Steenson

Mitchell Hamline Law Review

No abstract provided.

Survivors Speak Out: Analyzing Minnesota's Anti-Slapp Law Through The Lens Of Johnson V. Freborg, Taylor Anderson

Mitchell Hamline Law Review

No abstract provided.

(Doesn't) Gotta Be This Or That: The Updated Mhra Versus The Gender Binary, Phil Duran

Mitchell Hamline Law Review

No abstract provided.

Unpacking The 2024 Minnesota Era Language: A Litigator's Perspective, Jess Braverman

Mitchell Hamline Law Review

No abstract provided.

Filling The Gaps: How An Environmental Rights Amendment Can Save Minnesota's Shorelines, Christine Gale

Mitchell Hamline Law Review

No abstract provided.

The Gadfly Of The Dormant Commerce Clause: The Persistence Of The Extraterritoriality Doctrine After National Pork Producers Council V. Ross, Karl Morton Badger

Mitchell Hamline Law Review

No abstract provided.

Fighting Fgm In Minnesota: Minnesota Legislation Vs. Model Legislation, Molly Rosenfield

Mitchell Hamline Law Review

No abstract provided.

When Accomodation Bars Access To Justice: Implications Of Video Remote Interpreting In Legal Settings, Quincy Craft Faber

Mitchell Hamline Law Review

No abstract provided.

Medical Review Officers And The Limits Of Judicial Review, Leonard C. Brahin

Mitchell Hamline Law Review

In the public imagination, defenders of our national security wear military garb. But the individuals who determine their fitness-for-duty wear white coats. The unenviable task of assessing those who make up our national security workforce is carried out by a group of independent physicians who must make nuanced determinations about illicit drug and alcohol use by government employees. In addition to testing roles that may seem unexciting, like accountants and auditors, medical review officers (MROs) are tasked with ensuring employees of nuclear power plants and commercial drivers are fit for duty. In doing so, they rely on their experience, expertise, …

Preparing Students For The Artificial Intelligence Era: The Crucial Role Of Critical Thinking Skills, Samantha A. Moppett

Mitchell Hamline Law Review

As artificial intelligence transforms the legal profession, the role of critical thinking skills among legal professionals becomes increasingly vital. This Essay argues that while AI will automate many routine le-gal tasks, successful legal practice in the AI era will require lawyers to possess robust critical thinking abilities to effectively evaluate AI out-puts, develop strategic solutions, and handle complex analytical work that AI cannot replicate. However, at this crucial juncture, evidence suggests a significant deficit in critical thinking skills among incoming law students. This deficit poses particular challenges as the legal profes-sion increasingly integrates generative AI tools that can handle routine …

Generative Ai As Courtroom Evidence: A Practical Guide, Neal Feigenson, Brian Carney

Mitchell Hamline Law Review

No abstract provided.

Trust, But Verify: The Case For Abolishing The Outlier Authentication Provisions Of The Federal Rules Of Evidence, Sydney A. Beckman

Mitchell Hamline Law Review

No abstract provided.

How Workplace Equity Laws Perpetuate Inequity, Margaret H. Zhang

Mitchell Hamline Law Review

No abstract provided.

Judicial Imperialism: The Supreme Court’S Assault On Tribal Sovereignty And The Rule Of Law, Adam Crepelle

Faculty Publications & Other Works

The rule of law requires predictability, and the rules governing Indian country create uncertainty. For example, determining whether a person can be arrested on a reservation depends upon a combination of whether the victim and perpetrators are Indians, the type of crime, and the status of the land where the incident occurred. The same goes for contract enforcement. Even when forum selection and choice of law provisions exist, it can take years to determine whether the dispute should be adjudicated in tribal, state, or federal court. Ambiguity extends to countless other areas, including marijuana legalization and usury caps.

Indian country’s …

The Color Of Carbon: Racial Capitalism, Climate Change, And Law, Sumudu Atapattu, Carmen G. Gonzalez

Faculty Publications & Other Works

Climate change is a direct consequence of capitalism’s drive to maximize profits through the unbridled extraction of wealth from humans and nature, aided and abetted at every turn by law. In its voracious demand for cheap labor, cheap raw materials, and cheap waste disposal, capitalism has created a treadmill of fossil fuel–dependent production and consumption that has triggered a planetary emergency. It has also produced extreme economic inequality—a racialized division of wealth grounded in colonialism that enables the ultrarich to capture the spoils of the capitalist global economy while billions of people continue to live in extreme poverty. The articles …

Scienter Potentia Est: The Case For The Presumption Of Use Standard In Insider Trading, Audrey Nelson

Fordham Journal of Corporate & Financial Law

Is it possible to accidentally insider trade? The Supreme Court has held that scienter is a necessary element of all § 10(b) and Rule 10b-5 actions, but the federal appeals courts are split on how the scienter requirement applies to insider trading cases. In a non-insider- trading § 10(b) case, the Supreme Court stated that § 10(b) scienter requires intentional misconduct. Although the Supreme Court has not heard a case specifically about the scienter element in the context of insider trading, those who support a use requirement claim that the § 10(b) scienter element requires the plaintiff to show that …

Amending Regulation D'S Accredited-Investor Definition To Allow Natural Persons To Opt Out Of Unwanted Regulatory Protections, John L. Orcutt

Fordham Journal of Corporate & Financial Law

No abstract provided.

Consumer Financial Data And Non-Horizontal Mergers, Linda Jeng, Jon Frost, Elisabeth Noble, Chris Brummer

Fordham Journal of Corporate & Financial Law

This Article explores the potential competitive implications of non-horizontal mergers where they involve extensive consumer data, including consumer financial data. As data become increasingly central to firm strategy, mergers between data-rich firms, while potentially leading to positive outcomes, can also create market power in ways not entirely accounted for by traditional antitrust theory. The Article considers some of these implications. It introduces new metrics for valuing data sets held by merging firms that could help competition authorities evaluate market impacts more effectively. The Article then suggests potential tools to mitigate anti-competitive effects of data-rich mergers. It advocates for further research …

The Fortunate Demise Of Sec Staff Legal Bulletin No. 14l, Raffaele Felicetti

Fordham Journal of Corporate & Financial Law

In 2021, the SEC published its now rescinded Staff Legal Bulletin No. 14L (“the 2021 Bulletin”), revising its interpretations of the “ordinary business” and “economic relevance” exclusions under Rule 14a-8. This Article contends that the post-Bulletin landscape has proven undesirable. It empirically shows that environmental and social (“E & S”) shareholder proposals—including anti-E&S proposals—surged in response. Between 2022 and 2024 alone, E & S proposals accounted for 40% of all such filings in Russell 3000 companies over the entire 2014-2024 period, generating an estimated $23.3 million in additional processing costs for companies during that three-year window. Despite their volume, these …

Roll The Reel: The Evolution Of Racial Issues In Sports Law, Aaron Hernandez, Danielle R. Gershen

Marquette Sports Law Review

No abstract provided.

Sports Law In Law Reviews And Journals, Joseph A. Delia, Sydney A. Hardy

Marquette Sports Law Review

No abstract provided.

The Arena Tax: Subsidiary Athletics Departments And The Limits Of University Property Tax Exemptions, Matthew Razzano

Marquette Sports Law Review

No abstract provided.

Wisconsin Courts Should Enforce Properly Worded Participation Waivers In The Context Of Recreational Sports, Joshua Kreisler

Marquette Sports Law Review

No abstract provided.

Survey Of Recent Mandamus Decisions Of The Texas Supreme Court, Douglas S. Lang

SMU Annual Texas Survey

No abstract provided.

Real Property, J. Richard White, Amanda R. Grainger

SMU Annual Texas Survey

No abstract provided.

Now?, I. Bennett Capers

Faculty Scholarship

This essay brings Afrofuturism, and its notion of the plasticity of time, to imagine how we will think of the past in the future and, more specifically, to consider what will "enrapture, haunt, and/or plague thinkers in the future." Although many answers come to mind, including this country's original sin-slavery-ultimately this essay turns to our current technologies, especially policing technologies. And this essay turns the question around to ask, "How should we in the present think about the future? And what can we do now to change it?"