Mitchell Hamline School of Law
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Furtive Blackness: On Blackness and Being
Get PDFFurtive Blackness: On Blackness and Being (“Furtive Blackness”) and The Strict Scrutiny of Black and BlaQueer Life (“Strict Scrutiny”) take a fresh approach to both criminal law and constitutional law; particularly as they apply to African descended peoples in the United States. This is an intervention as to the description of the terms of Blackness in light of the social order but, also, an exposure of the failures and gaps of law. This is why the categories as we have them are inefficient to account for Black life. The way legal scholars have encountered and understood the language of law has been wholly insufficient to understand how law encounters human life. These articles are about the hermeneutics of law. While I center case history and Black letter law, I am also arguing explicitly that the law has a dynamic life beyond the courtroom, a life of constructing and dissembling Black life. Together, these essays and exercises in legal philosophy are pointing toward a new method of thinking about law, a method that makes central the material reality of the Black in black letter law.
They examine the semiotic relationships between race, gender, sexuality, and the law. While Furtive Blackness is primarily concerned with regimes of policing—both by badged officers and deputized citizens—Strict Scrutiny examines how the reconstruction amendments have been deployed and redeployed to strictly scrutinize Black presence and appeals to justice and make them unintelligible, irrelevant claims without justiciable and therefore outside of law the concern of law. Strict Scrutiny is a riff on the phrase of judicial review that is primarily concerned with the Court’s inversion of the term to tightly regulate and foreclose Black access to legal redress, as well as the police practice of strictly scrutinizing Black presence and movement in public and private places. In essence, the ascription of furtivity makes way for strict scrutinization; while the Black interior strategy of furtivity and refusal creates a survival praxis that allows for a reprieve in the wake of these indignities.
These articles are an interpretation of the law as a tool of anti-blackness and an exposition of Black thought and deed in response to anti Blackness, both in black letter law and day to day life. Both articles are descriptive, interdisciplinary and rooted in traditional law and accented by Black queer and feminist theory, critical race studies, performance studies and literary analysis
Anything You Can Do, AI Can\u27t Do Better: An Analysis of Conception as a Requirement For Patent Inventorship And A Rationale For Excluding AI Inventors
Get PDFContracts: An Eight-Factor Test for Quantum Meruit Compensation for a Dismissed Contingency Fee Counsel—Faricy Law Firm, P.A. v. API, Inc. Asbestos Settlement Trust, 912 N.W.2d 652 (Minn. 2018)
Get PDFMinnesota\u27s Rape Shield Law: A Sword for Prosecutors; A Blow to Defendants\u27 Constitutional Rights
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Can an Improved Disclosure Mechanism Moderate Algorithm-Based Software Patentability in the Public Interest?
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Video Advance Directives: Growth and Benefits of Audiovisual Recording
Get PDFThe key question in Cruzan v. Director, Missouri Department of Health was one of substantiation and evidence: how can the incapacitated patient’s surrogate decision maker prove that the health care decisions she makes on the patient’s behalf are the same health care decisions that the patient would have made for herself? Answering this question, the Court observed that an advance directive would constitute adequate proof because an advance directive constitutes clear and convincing evidence of a patient’s wishes.
Today, clinicians and policymakers no longer focus on the constitutional question of how much evidence state law may require from a patient’s surrogate. Instead, the current relevant question is more practical than legal: how can people best assure that their health care wishes are known and respected after they lose decision-making capacity? Thirty years ago, the Cruzan Court identified advance directives as a paradigm solution to this problem. And that is how policymakers have understood the lesson of the case. But if advance directives are a good way to communicate one’s wishes, then video advance directives are even better.
This article makes the case for video advance directives as a valuable, additional way for individuals to record their health care treatment preferences. Supplementing a traditional advance directive with a video advance directive increases the likelihood that surrogates and clinicians will understand and follow the patient’s recorded wishes in the way the patient intended.
The primary purpose of advance directives is to assure that incapacitated patients get both the medical treatment they want and avoid the medical treatment they do not want. These objectives are more likely to be achieved by supplementing a cold and sterile paper document with an audiovisual recording of the patient’s own voice, body language, and facial expressions. In short, video advance directives offer material advantages over traditional written advance directives.
Part II describes two persistent problems with traditional advance directives: uncertainty regarding their validity and uncertainty regarding their meaning. Part II explains how video advance directives avoid or mitigate these problems. The benefits of video advance directives are demonstrated by analogous experience with video wills, as well as by new research on video advance directives. Given this evidence base, it is no surprise that the use of video advance directives has been growing. Part IV describes seven companies that offer video advance directive services. Finally, Part V concludes that stakeholders promoting advance directives should also promote audiovisual recording
