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Cable Television, New Technologies And The First Amendment After Turner Broadcasting System, Inc. V. F.C.C., Erik Forde Ugland
Cable Television, New Technologies And The First Amendment After Turner Broadcasting System, Inc. V. F.C.C., Erik Forde Ugland
Missouri Law Review
From the moment it emerged as an independently viable communications medium, the cable television industry has been forced to operate within the shadow of regulatory oversight. With passage of the Cable Television Consumer Protection and Competition Act of 1992,' and judicial endorsement of much of that legislation in Turner BroadcastingSystem, Inc. v. F.C.C., cable's future rests squarely in the hands of the federal government. Congress, with some help from the Supreme Court, has made it clear that any blueprints for the future of the nation's communications infrastructure will have to pass through Washington. This article is divided into four parts. …
Duty Of Mental Health Care Providers To Restrain Their Patients Or Warn Third Parties, The, Timothy E. Gammon, John K. Hulston
Duty Of Mental Health Care Providers To Restrain Their Patients Or Warn Third Parties, The, Timothy E. Gammon, John K. Hulston
Missouri Law Review
When should liability be imposed upon those who fail to prevent injury or ring the alarm bell? This article addresses two well worn and hotly debated issues from a Missouri perspective. First, should physicians, other mental health care providers, mental health care hospitals, and other facilities be liable for either: (1) the failure to restrain a patient, or (2) the release of a patient who subsequently injures an individual member of the general public? Second, should there be liability for failure to warn specific third persons, members of law enforcement, other officials, or the public generally in such situations?
Fog, Fairness, And The Federal Fisc: Tenancy-By-The-Entireties Interests And The Federal Tax Lien, Steve R. Johnson
Fog, Fairness, And The Federal Fisc: Tenancy-By-The-Entireties Interests And The Federal Tax Lien, Steve R. Johnson
Missouri Law Review
This rule-the tenancy-by-the-entireties bar to tax collection-is unsound. It inadequately reconciles the interests at stake, and it is inconsistent with the modem understanding of the nature and reach of the federal tax lien.This article recommends that the bar be abrogated. In place of the old rule, the article proposes that the federal tax lien should attach to entireties property, but only to the extent of the lesser of (1) the debtor tenant's tax liabilities or (2) the value of the debtor tenant's interest in the property. The article has five parts. Part I describes the origins of the entireties bar …
Five Decades Of Explanation And Evolution, Yet The Rule Appears Unchanged: Missouri's Points Relied On Rule, Paula R. Hicks
Five Decades Of Explanation And Evolution, Yet The Rule Appears Unchanged: Missouri's Points Relied On Rule, Paula R. Hicks
Missouri Law Review
Missouri Supreme Court Rule 84.04(d) provides that appellate briefs must contain "points relied on," the purpose of which is to inform the court and the party-opponent of the specific issues of the case. Despite the efforts of the courts, many attorneys have continued to make the same errors, which has often resulted in the dismissal of individual points relied on, and sometimes the dismissal of entire appeals.' This note suggests that incorporating five decades of case law into the language of Rule 84.04(d) would give practitioners better notice of the rule's requirements, which would lead to fewer violations of those …
Eleventh Amendment: A Move Towards Simplicity In The Test For Immunity, Jennifer A. Winking
Eleventh Amendment: A Move Towards Simplicity In The Test For Immunity, Jennifer A. Winking
Missouri Law Review
The Eleventh Amendment was ratified in response to Chisholm v. Georgia, which held that the language of Article III, § 2 makes a state amenable to suit in federal court by citizens of another state.' By its express terms, Eleventh Amendment immunity is only available to states being sued by citizens of other states.' Since its enactment some two centuries ago, the Amendment has been interpreted to extend to a state being sued by its own citizens and to agencies which constitute an arm-of-the- state. This note examines the Supreme Court's restatement of the test for immunity and its impact …
Protection For Employee Whistleblowers Under The Fair Labor Standards Act And Missouri's Public Policy Exception: What Happens If The Employee Never Whistled , Jeff Le Riche
Missouri Law Review
The Fair Labor Standards Act ("FLSA") was implemented by Congress in 1938 in an attempt to assure most workers of an adequate minimum wage and payment for overtime work. FLSA § 15(a)(3) was enacted to protect employees from retaliatory discharges based upon the reporting of violations of the substantive FLSA provisions In Saffels v. Rice, the Court of Appeals for the Eighth Circuit extended protection to employees who were dismissed based on the employer's mistaken belief the employee reported violations of the law to the authorities based on both FLSA § 15(a)(3) and Missouri's commonlaw public policy exception to the …
Death Of Res Gestae And Other Developments In Missouri Hearsay Law, The, Amanda Bartlett Mook
Death Of Res Gestae And Other Developments In Missouri Hearsay Law, The, Amanda Bartlett Mook
Missouri Law Review
Res gestae is a Latin term that has had many meanings in American courts. Courts have used it when referring to a variety of hearsay exceptions, such as the excited utterance exception, the present sense impression exception, the verbal part of the act doctrine, and statements of mental or physical condition. In Bynote v. National Super Markets ,Inc., the Missouri Supreme Court determined that the use of the term res gestae should be abandoned in favor of the specific hearsay exceptions it has covered. The court also held that any requirement of executive capacity to meet the vicarious admission of …
Clash Between The First Amendment And Civil Rights: Public University Nondiscrimination Clauses, The, Richard M. Paul Iii, Derek Rose
Clash Between The First Amendment And Civil Rights: Public University Nondiscrimination Clauses, The, Richard M. Paul Iii, Derek Rose
Missouri Law Review
Individual rights have become increasingly important in this country in the past few decades. University campuses across the country form part of the current bedrock of this movement. Therefore, it should come as no surprise that public universities,' the closest representative of the government to college students, are the subject of much of the pressure to enact rules protecting the rights, viewpoints, and actions of minority members of society. Universities originally intended that nondiscrimination clauses ensure student groups recognized by the university did not exercise improper prejudices based on gender, nationality, or religious belief. Recently, however, the gay rights movement …
Standing Alone: Standing Under The Fair Housing Act, Michael E. Rosman
Standing Alone: Standing Under The Fair Housing Act, Michael E. Rosman
Missouri Law Review
In 1980, one of the leading authorities on housing law noted that the Supreme Court had been "especially active" in the 1970's in addressing standing problems in cases with allegations of housing discrimination;' indeed, he wrote that "standing problems in fair housing cases seem to have grown out of all proportion to their proper place in this field. Part I of this article reviews the general principles of standing as they have been enunciated in the last few decades by the Supreme Court. Part II examines the analysis of the "injury" requirement in Ragin v. Harry Macklowe, and points out …
Future Of The Federal Courts, The, Richard S. Arnold
Future Of The Federal Courts, The, Richard S. Arnold
Missouri Law Review
Richard Arnold in this article talks about the future of the Federal courts, how overwhelmed the courts have been with appeals cases, and how to minimize that number.
Sorting Through The Establishment Clause Tests, Looking Past The Lemon, Stephanie E. Russell
Sorting Through The Establishment Clause Tests, Looking Past The Lemon, Stephanie E. Russell
Missouri Law Review
After the decision in Lemon v. Kurtzman, one three-pronged test controlled all Establishment Clause issues. The Lemon test has guided the court's analysis of a broad range of issues, including governmental speech on religious topics, governmental impositions of burdens and grants of benefits, and governmental delegations of civil power to religious bodies. The Lemon test was not originally intended to provide strict rules, but rather, "helpful signposts." However, the Court began using the Lemon test exclusively to evaluate Establishment Clause issues soon after the decision was rendered.
Surviving Enhanced Judicial Scrutiny Of Directors' Decisions--Reaching The Protection Of The Business Judgment Rule, Terry M. Jarrett
Surviving Enhanced Judicial Scrutiny Of Directors' Decisions--Reaching The Protection Of The Business Judgment Rule, Terry M. Jarrett
Missouri Law Review
In the merger and acquisition craze of the 1980's, it became increasingly apparent that shareholders needed protection from directors who were not always acting in the best interests of the corporation. This note traces the history of the enhanced judicial scrutiny doctrine and explores the difficulty boards of directors face in characterizing and analyzing the myriad of transactions and events which may occur in a merger or sale scenario. Then, possible courses of action such boards may take to protect themselves are discussed.
Punitive Damages In Negligence Cases: The Conflicting Standards, Kevin L. Austin
Punitive Damages In Negligence Cases: The Conflicting Standards, Kevin L. Austin
Missouri Law Review
In Missouri, punitive damages are awarded for the purpose of inflicting punishment for wrongdoing, and are intended to serve as an example and deterrent to similar conduct. They are distinguished from actual damages, which are awarded to compensate for actual injuries or loss sustained. While prevalent in intentional torts because of malice, Missouri also allows, under certain circumstances, punitive damages to be awarded in negligence cases.' The issue then becomes identification of those certain circumstances. This Note will examine the reasoning and the specific fact situations which have supported punitive damages in negligence cases and then compare the decision in …
Imposing Strict Products Liability On Medical Care Providers, Christopher L. Thompson
Imposing Strict Products Liability On Medical Care Providers, Christopher L. Thompson
Missouri Law Review
Most jurisdictions preclude strict product liability claims against medical care providers. These jurisdictions have held, generally, that health care professionals do not sell medical products used pursuant to courses of medical treatment as is required under the products liability doctrine generally defined by Restatement (Second) of Torts § 402A and adopted, with modification, a majority of states. However, the Missouri Court of Appeals, in Bell v. Poplar Bluffs Physicians Group, held strict products liability does apply to medical care providers. The purpose of this Note is to analyze the Bell decision in light of both (i) the policies and purposes …
Sentencing Criminals: The Constitutionality Of Victim Impact Statements, Carrie L. Mulholland
Sentencing Criminals: The Constitutionality Of Victim Impact Statements, Carrie L. Mulholland
Missouri Law Review
Most jurisdictions around the country permit juries to consider victim impact statements, statements taken from the family of a victim of violent crime relating to the family's loss, during the sentencing phase of criminal trials. In 1994, the Missouri Supreme Court followed this trend in State v. Wise by approving the use of victim impact statements, and allowing the statements to be presented to the jury at the sentencing stage of a capital punishment trial. Despite the constitutionality of the introduction of a victim's family's statements, the statements have been severely criticized for: (1) rendering the sentencing of a criminal …
Double Jeopardy And The Fraudulently-Obtained Acquittal, David S. Rudstein
Double Jeopardy And The Fraudulently-Obtained Acquittal, David S. Rudstein
Missouri Law Review
On December 8, 1993, a Cook County, Illinois, grand jury returned an indictment' charging Harry Aleman, a reputed crime syndicate assassin, with the murder of William Logan, a truck dispatcher and Teamsters union steward, who was shot to death outside his home in Chicago in 1972. The reprosecution of Harry Aleman raises an interesting question concerning the effect under the Double Jeopardy Clause of an acquittal resulting from fraud. This article examines that question and concludes that the safeguard against double jeopardy prevents the government from retrying an individual following her acquittal for the same offense, even though that acquittal …
First Amendment And Private Property: A Sign For Free Speech, The, Anthony J. Durone, Melissa K. Smith
First Amendment And Private Property: A Sign For Free Speech, The, Anthony J. Durone, Melissa K. Smith
Missouri Law Review
Freedom of speech is one of the best known of all the constitutional rights protected by the Bill of Rights. Freedom of speech has received special attention from the courts for at least three reasons: (1) it is essential to the political process that is the foundation of our democracy;3 (2) it is fundamentally important to the discovery of truth in the free marketplace of ideas;4 and (3) it is an end in itself in a free country. In furtherance of a substantial interest, however, the freedom of speech falls subject to the police power of the state. In City …
Good Will Adjustment Games: An Economic And Legal Analysis Of Secret Warranty Regulation, Jeff Sovern
Good Will Adjustment Games: An Economic And Legal Analysis Of Secret Warranty Regulation, Jeff Sovern
Missouri Law Review
Secret warranty programs, which have existed for at least twenty years, are enormous in scope: nearly every car on the road is said to be subject to one of the more than 500 secret warranties supposedly operating at any given time,! while one expert estimates that the ten largest known secret warranty programs have covered 30 million automobiles and $3 billion in repairs. The purpose of this Article is to discuss whether secret warranties should be regulated, and if so, how. Part II of the Article reviews what is known about the working of secret warranty programs. Part III discusses …
You Have The Right To Criticize This Casenote: Protecting Negative Reviews Within The Law Of Defamation And The First Amendment, David C. Vogel
You Have The Right To Criticize This Casenote: Protecting Negative Reviews Within The Law Of Defamation And The First Amendment, David C. Vogel
Missouri Law Review
In Moldea v. New York Times Co., the District of Columbia Court of Appeals attempted to determine under what circumstances a statement labeled as opinion may be the basis for a defamation suit. The court approached the topic with some difficulty, as the United States Supreme Court's 1990 decision in Milkovich v. Lorain Journal Co. had created confusion in lower courts over not only the validity of several traditional tests used to distinguish between fact and opinion, but also as to whether placing statements in an opinion context provides them with blanket protection from liability, regardless of their content. The …
New Value Exception To The Chapter 11 Absolute Priority Rule, The, Douglas S. Neville
New Value Exception To The Chapter 11 Absolute Priority Rule, The, Douglas S. Neville
Missouri Law Review
The absolute priority rule, as codified in the 1978 Bankruptcy Code, provides that in certain circumstances junior claimants of a company involved in a Chapter 11 reorganization may not receive or retain any property under the reorganization plan. The new value exception to the Chapter 11 absolute priority rule allows a debtor's owner to retain an interest in a business or property under certain circumstances, even if all senior claimants are not paid in full.' However, there is currently a question as to whether the new value exception survived the enactment of the 1978 Bankruptcy Code.' In Bonner Mall Partnership …
Balancing Finality, Efficiency, And Truth When A Party Fails To Appear For Trial: Missouri Clarifies The Meaning Of Otherwise Defend In Its New Default Judgment Rule, Paula R. Hicks
Missouri Law Review
In Missouri, there has always been some confusion as to the name of the judgment entered when a party fails to appear for trial after participating in all other aspects of the litigation process. However, prior to 1988, the Missouri Supreme Court Rules and the holdings of the appellate courts4 made clear that the judgment in such a case was treated as a "judgment on the merits" and not as a "default judgment.” In Cotleur v. Danziger, the Missouri Supreme Court held that a judgment entered when a party failed to appear for trial is not a default judgment, in …
Closing Arguments: Enforcing Fairness In The Presentation Of Damages, John M. Hark
Closing Arguments: Enforcing Fairness In The Presentation Of Damages, John M. Hark
Missouri Law Review
The permissible scope of closing arguments before a jury is broad.' One limit, however, arises in plaintiff's final closing. Offering the party with the burden of proof an opportunity to respond to any new arguments raised by the opposing party arose from notions of fairness. The court held that it was an abuse of discretion to allow a plaintiff to withhold a request for a specific amount for total damages until the plaintiff's final closing argument, when the issue had not been addressed by the initial closing argument or the defendant's argument. This Note reviews the Tune decision, and discusses …
Comparison Of The Interpretation Of Statutes And Collective Bargaining Agreements: Grasping The Pivot Of Tao, A, James E. Westbrook
Comparison Of The Interpretation Of Statutes And Collective Bargaining Agreements: Grasping The Pivot Of Tao, A, James E. Westbrook
Missouri Law Review
There has been an explosion in writing about statutory interpretation in recent years. Legal scholars have responded to theoretical writing about interpretation in general and to articles and judicial opinions by judges with an impressive array of articles and books. The purpose of this Article is to reflect on some of the common assumptions and interpretive practices of arbitrators in the light of this writing about statutory interpretation.
Severing Venue And Personal Jurisdiction In Missouri, Joseph H. Knittig
Severing Venue And Personal Jurisdiction In Missouri, Joseph H. Knittig
Missouri Law Review
The concepts of venue and jurisdiction carry independent and severable meanings. "Venue" means the place where a case is to be tried, while "jurisdiction" speaks to the power of the court to hear and determine a case In Missouri, a "unique melding" of the concepts developed. A line of cases commingling venue and personal jurisdiction yielded strange and often unduly harsh results.' In State ex rel. DePaul Health Center v. Mummert,6 the Missouri Supreme Court attempted to sever venue and jurisdiction, and finally restore some common sense and predictability to sixty plus years of confusion.
Substantive And Procedural Due Process For Unaccompanied Alien Juveniles, Gail Quick Goeke
Substantive And Procedural Due Process For Unaccompanied Alien Juveniles, Gail Quick Goeke
Missouri Law Review
Approximately seventy percent of the juveniles arrested for violation of immigration laws are unaccompanied by their parents or guardians. Many are refugees from Central America, sent ahead of their parents for safety reasons, or separated from their families during flight Prior to 1984, the Immigration and Naturalization Service ("INS") allowed release of these unaccompanied children to another responsible adult on the assurance that the adult would bring the child to court when required. In 1984, the Western Regional Office of the INS adopted the policy that minors in deportation proceedings would only be released to a parent or lawful guardian, …
After-Acquired Evidence: Tonic For An Employer's Cognitive Dissonance, Kenneth A. Sprang
After-Acquired Evidence: Tonic For An Employer's Cognitive Dissonance, Kenneth A. Sprang
Missouri Law Review
During the last thirty years, there have been dramatic changes in the law governing job security of employees in the workplace, particularly with regard to employment discrimination. Federal law now protects employees from workplace discrimination based upon sex," race, religion, color, national origin," age, and handicap or disability. The latest in the arsenal of defense weapons developed by employers is the "after-acquired evidence doctrine." This affirmative defense, which was first announced by the Tenth Circuit in 1988, allows an employer who has acted adversely toward an employee for an unlawful discriminatory reason to avoid liability as a matter of law, …