In recent years, the tension between the values of the First Amendment Free Speech doctrine and the desire to protect minority communities against the destructive effects of hateful speech has been investigated extensively. A recent example is the compelling discussion provided by Professor Nadine Strossen in her 2018 book, Hate Speech: Why We Should Resist It with Free Speech, Not Censorship. Her book was one of the focal points of a 2019 conference on free speech at Mitchell Hamline School of Law. Another focal point was the Supreme Court’s landmark 1931 decision, Near v. Minnesota. In this decision, the Supreme Court established the now-familiar rule against prior restraints, thereby invalidating an infamous injunction issued against a Minneapolis newspaper ninety years before the date of the conference.
Continue reading “Antisemitism, Near, and a Threshold for Ignominy”Month: April 2021
The Forensic Interviewer at Trial: Guidelines for the Admission and Scope of Expert Testimony Concerning a Forensic Interview in a Case of Child Abuse (Revised and Expanded)
The field of forensic interviewing is approaching five decades and is an integral part of a multidisciplinary response to a report of child maltreatment. The concept of a “forensic interview” was necessitated by high-profile child sexual abuse cases from the 1980s. In these cases, children were interviewed by professionals with little or no training in the art and science of eliciting information from children. In some cases, children were interviewed on multiple occasions by several persons. In an attempt to improve the response to these cases, Children’s Advocacy Centers (CAC) began to emerge and spread across the country.
Continue reading “The Forensic Interviewer at Trial: Guidelines for the Admission and Scope of Expert Testimony Concerning a Forensic Interview in a Case of Child Abuse (Revised and Expanded)”Not Pictured: Minnesota’s Disfavor Toward Forfeitures–Capistrant v. Lifetouch Nat’l Sch. Studios, Inc., 916 N.W.2d 23 (Minn. 2018)
In Capistrant v. Lifetouch National School Studios, Inc., the Minnesota Supreme Court adopted section 229 of the Restatement (Second) of Contracts (“Restatement Section 229”) to resolve an employment contract conflict that was contrary to Minnesota’s reluctance to enforce forfeitures. In its niche opinion, the majority credits Minnesota’s disfavor of forfeitures but refuses to resolve the contractual dispute as a matter of law. While the Capistrant matter remains unresolved on remand, the court’s decision to integrate Restatement Section 229 creates a precedentially consistent avenue for employees to recover relief from former corporate employers.
Continue reading “Not Pictured: Minnesota’s Disfavor Toward Forfeitures–Capistrant v. Lifetouch Nat’l Sch. Studios, Inc., 916 N.W.2d 23 (Minn. 2018)”The Reconstruction of Mediation: A Shift Toward Cultural Competency and Social Sophistication
In January 2019, pop culture icon Jay-Z brought attention to a critical issue that has existed for decades but has rarely been addressed—that is, the lack of diverse arbitrators and the effect this has on fundamental fairness. While Jay-Z was not the first to speak up about this issue, his powerful voice was perhaps heard louder than those before him. This issue extends to mediators as well, given that both professions interact with parties to resolve disputes, and many professionals serve as both arbitrators and mediators.
Continue reading “The Reconstruction of Mediation: A Shift Toward Cultural Competency and Social Sophistication”Legal Representation for Children: A Matter of Fairness
For decades, advocates, scholars, and practitioners have called on states to ensure quality legal representation for children in dependency, abuse and neglect, and termination of parental rights proceedings. In 1996,the American Bar Association declared, “All children subject to court proceedings involving allegations of child abuse and neglect should have legal representation as long as the court’s jurisdiction continues.” In its Enhanced Resource Guidelines, the National Conference of Juvenile and Family Court Judges asserted, “Children [in dependency and custody proceedings are entitled to representation by attorneys.” The need for such representation is backed by studies and research that have demonstrated procedural and substantive benefits arising from high-quality representation for children.
Continue reading “Legal Representation for Children: A Matter of Fairness”Criminal Law: Incompatible Approaches to Interpreters’ Translations: Protecting Defendants’ Right to Confront — State v. Lopez-Ramos, 929 N.W.2D 414 (Minn. 2019).
The Minnesota Supreme Court recently held in State v. Lopez-Ramos that an interpreter’s translation of a defendant’s foreign language statements during a police interrogation did not implicate the Confrontation Clause. The Lopez-Ramos court applied the language conduit theory to determine an interpreter’s translated statements were attributable to the defendant. Finally, the court concluded that because the defendant was the declarant of the statements, the statements were not hearsay.
Continue reading “Criminal Law: Incompatible Approaches to Interpreters’ Translations: Protecting Defendants’ Right to Confront — State v. Lopez-Ramos, 929 N.W.2D 414 (Minn. 2019).”Permanent Homelands Through Treaties with the United States: Restoring Faith in the Tribal Nation-U.S. Relationship in Light of the McGirt Decision
In North America, Indigenous peoples have lived, governed, stewarded, and spiritually connected to places, territories, and homelands since time immemorial. With European invasion in the Western Hemisphere, genocide was perpetrated along the east coast of the continent and spread to other areas. Turtle Island, as it is lovingly called by Indigenous peoples, was given to Native peoples by the Creator. By the late 1400s to 1700s, invaders caused the lands to be a bloody battleground as the Europeans, including the British, Dutch, French, Portuguese, Russian, and Spanish, brought their conflicts over power and territory to this hemisphere. Early on, Tribal Nations engaged in commerce with the newcomers, but soon turned to defending their peoples and lands.
Continue reading “Permanent Homelands Through Treaties with the United States: Restoring Faith in the Tribal Nation-U.S. Relationship in Light of the McGirt Decision”Channel Your Inner Kindergartner: Fostering a Culture Conducive to Creativity in Legal Practice
The COVID-19 pandemic requires lawyers to address a myriad of unique problems—and highlights the need for lawyers to engage as creative problem solvers. Lawyers must determine how best to deliver legal services while contending with travel restrictions, social distancing, stay-in-place measures, and business and court closures. Furthermore, questions arise as to how to tackle the access to justice gap in the midst of the largest global recession since the Great Depression.
Although lawyers need to work collaboratively to come up with creative solutions to these unprecedented problems, a challenge administered to groups of business students, lawyers, CEOs, engineers, and kindergartners revealed that lawyers do not work efficiently and effectively to creatively solve problems. In dozens of challenges, kindergartners outperformed all of the other groups. Instead of collaborating and focusing on completing the task, the lawyers engaged in status management—trying to determine how they fit into the group and who was in charge. While not smarter than the lawyers, the kindergarteners solved the problems best because they were smarter in the way that they worked with each other.
Continue reading “Channel Your Inner Kindergartner: Fostering a Culture Conducive to Creativity in Legal Practice”