Mitchell Hamline School of Law
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Forcing Creativity: An Analysis of Chinese IP Subsidies and How They Should Be Assessed Under Existing International Trade Agreements
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Minority Oppression and the LLC: Manere v. Collins, the Uniform Act, and Comment 701
Get PDFFor many decades, the law of closely-held businesses was the law of closely-held corporations. For entrepreneurs and attorneys, the corporate liability shield was the key desideratum, and before the advent of limited liability companies the corporation was essentially the only game in town. Unfortunately, for many decades the liability shield came with a potentially dangerous price for minority owners. The traditional corporate norms of majority rule, coupled with the minority shareholders’ inability to exit the enterprise, empowered majority shareholders to “oppress” minority shareholders or defeat such shareholders’ “reasonable expectations.” The “lock-in” phenomenon compounds the minority’s vulnerability; it is typically impossible for a minority shareholder to exit the enterprise except on terms dictated by the majority.
Today the closely-held corporation is no longer the only game in town. Far from it – in every U.S. jurisdiction, formations of limited liability companies far exceed new incorporations, and for some jurisdictions a better verb choice than “exceed” might be “dwarf.” Every year, the percentage of closely held businesses formed as limited liability companies rises as the percentage for corporations falls.
As with corporations, the overwhelming majority of limited liability companies are closely held. As a result, disputes about power abuses within closely-held businesses increasingly occur in the context of LLCs rather than corporations; and the terms “oppression” and “reasonable expectations” increasingly appear in cases involving limited liability companies
Covid-19, Abortion, and Public Health in the Culture Wars
Get PDFAt the start of the COVID-19 pandemic, 36 governors ordered or requested a halt to all elective health care visits, procedures, and tests in March or April 2020 to conserve scarce personal protective equipment (PPE) and testing supplies and to help prevent the spread of the virus. Among those states, at least nine expressly chose to include many or most abortion services within the order’s scope, whether directly or through informal clarification. Civil liberties and women’s health care organizations rapidly filed suit in eight of the states to enjoin the various orders. Over the course of about three weeks, federal district courts in six of the cases granted plaintiffs’ requests for temporary restraining orders. The Sixth, Tenth, and Eleventh Circuits upheld the district courts’ decisions on appeal, but the Fifth and Eighth Circuits reversed. Both of those reversals were ultimately rendered moot when Texas and Arkansas each permitted elective procedures to resume. Three other cases settled.
The states that implemented abortion restrictions generally took substantial efforts to protect their populace from COVID-19, except in health care contexts involving abortion. At the same time, the lower-income women and women of color who disproportionately provided essential services during the pandemic and were infected with and suffered more severe cases of Covid-19 also disproportionately need abortion services. While they were making the greatest sacrifices for all of us, they also found their reproductive safety net in grave jeopardy.
Documents filed in the litigation over state-level COVID abortion restrictions make it clear that the states that sought to use pandemic PPE shortages to restrict abortions were not concerned about the health or welfare of any of the parties involved, including fetuses. The article examines the arguments that they and their amici made to support their policy choices and details the implications of those policies on the patients seeking abortions, their health care providers, their fetuses, and their loved ones in the context of the pandemic. The evidence demonstrates that the restrictions had nothing to do with protecting anyone’s life or health or conserving scarce PPE. The juxtaposition of these restrictions against our society’s fierce fight against the pandemic makes the disparities in how we treat certain biological problems rather stark. The time is ripe for a re-evaluation of when, if ever, it may be reasonable for a state to restrict the right to an abortion
Designing a State Court Small Claims ODR System: Hitting a Moving Target in New York During a Pandemic
Get PDFWhen I began helping the New York State Unified Court System design a pilot online dispute resolution (“ODR”) system back in October 2016, I never imagined more than four years would pass before a system was implemented. One reason our journey was so long is because our target kept moving. After completing a detailed credit card debt collection ODR platform, we had to change direction before implementation and focus instead on small claims cases. Then like the rest of the world, we suddenly had to deal with the COVID-19 pandemic. Although it took longer than anticipated, we achieved our goal and the New York State Civil Court Small Claims ODR platform went live on January 29, 2021. We learned a great deal along the way, and I hope it will be useful to share some of what we did and what we learned. This short article will not describe every detail of the small claims ODR system. It will instead focus on distinct stages of our ODR system design that required close attention
Social Justice and the Supreme Court: Lessons from the Past
Get PDFThis article revisits over sixty years of Supreme Court decisions that have affected the poor and racial minorities, using a novel approach that considers the synergistic relationship between different doctrinal areas rather than focusing on one area. Specifically, I appraise the Supreme Court’s doctrinal contributions from 1953 to the present across three foundational elements of social justice on behalf of the poor and people of color: the school integration cases under the Equal Protection Clause, a series of cases under the Fourth Amendment which sanctioned the police tactic of stop-and-frisk, and attempts to secure economic security for the poor through the Constitution under the Due Process and Equal Protection Clauses. I find that the Warren Court, which is widely considered the most progressive court in U.S. history, failed in several respects. It damaged, rather than abetted, the cause of economic justice. And what it gave to Black children in terms of educational opportunity, it took away from their future selves, their adult community members, and their caretakers by facilitating the mass incarceration of Black men through the practice of stop- and-frisk. I also show how the conservative Courts that followed diluted any gains from this era. I conclude that the Supreme Court has been more foe than friend, and has abandoned, rather than protected, the poor and racial minorities. I draw from this history lessons for the present, including strategies for advancing social justice in the current political and legal environment
