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Keeping The Elderly Quiet: The Trump Administration And The Reincarnation Of Mandatory Arbitration In Nursing Home Contracts, Katey Peters
Keeping The Elderly Quiet: The Trump Administration And The Reincarnation Of Mandatory Arbitration In Nursing Home Contracts, Katey Peters
Journal of Dispute Resolution
Mandatory arbitration provisions are the current standard in nursing home admission contracts, but the legal arguments surrounding their enforcement raise questions concerning the validity of these standard provisions. Arbitration provisions allow nursing homes to limit the transparency into their operations and keep victims, and their families, quiet and out of the public eye. This, in turn, limits the understanding of the shortcoming of current regulations and where new regulations may help. The current Coronavirus Disease 2019 (“COVID-19”) pandemic has brought to light some of these otherwise hidden regulatory issues surrounding nursing homes. As a result, several states have tried to …
Acceptable Lies In Contract Negotiations, Stefanie Jung
Acceptable Lies In Contract Negotiations, Stefanie Jung
Journal of Dispute Resolution
It is well established that lying is a widespread phenomenon in business-to-business (“B2B”) contract negotiations. Some of the most prominent lies may be those about the subject matter of the contract. However, negotiators also frequently lie about other aspects like offers from other potential buyers or sellers, the availability of their product, the legal situation regarding contractual aspects, as well as their emotions and preferences.
Clandestine Awards, Information Asymmetries, And Equality Of Arms In Investment Arbitration, Fernando Dias Simões
Clandestine Awards, Information Asymmetries, And Equality Of Arms In Investment Arbitration, Fernando Dias Simões
Journal of Dispute Resolution
Among the numerous criticisms leveled at investor-state arbitration over the years, it has almost become de rigueur to point out a lack of transparency. In this arena “transparency” refers to the extent to which the public may be aware of the existence of a dispute, have access to key arbitral documents, or attend oral hearings.
Disentangling Conflicts Of Laws In Eu And Member States’ Investment Agreements, Ottavio Quirico
Disentangling Conflicts Of Laws In Eu And Member States’ Investment Agreements, Ottavio Quirico
Journal of Dispute Resolution
The European Union (“EU”) is integrated into global markets via an open investment regime, which has fostered the development of wide economic relations. In 2019, the net investment outflow from EU Member States toward third countries totaled $42,6761 million, while inflow totaled $47,3196 million. To regulate investment disparities since the establishment of the common market in the 1950s, EU Member States have concluded about 1400 multilateral investment treaties (“MITs”) and bilateral investment treaties (“BITs”) with third countries. EU Member States have also negotiated around 190 MITs and BITs inter se, or intra-EU investment agreements. Since the adoption of the Lisbon …
Digital Assets & License Protections In An Age That Denies Class Actions And Mandates Arbitration, Kevin Carr
Digital Assets & License Protections In An Age That Denies Class Actions And Mandates Arbitration, Kevin Carr
Journal of Dispute Resolution
The battle of star system B-R5RB is probably a conflict and place that you have never heard of, even though an estimated £300,000 worth of property damage and loss occurred due to an interstellar battle on July 27, 2014. Hundreds of competing rival ships were destroyed, with over 7,600 individuals taking part in one of the single largest property disputes of the 21st century. The conflict lasted approximately 21 hours and had ripple effects across an entire galaxy. If this sounds like fiction, I assure you, it is not. You have likely never heard of star system B-R5RB or the …
Supplemental Environmental Projects’ Wild Ride Is A Call For Legislative Action To Protect A Valuable Negotiation Tool, Joel Smith
Journal of Dispute Resolution
In March 2020, the head of the Department of Justice’s Environmental Natural Resources Division (“DOJ ENRD”) issued a decision that fundamentally altered the federal government’s ability to address environmental harm. The decision removed a valuable tool from the negotiation toolbox that Department of Justice (“DOJ”) attorneys used for decades when negotiating settlements in civil enforcement of federal environmental protection laws. This policy change had the potential to significantly impact resolution of complex environmental disputes. In February 2021, the new Chief of the DOJ ENRD rescinded the 2020 memo in response to an executive order from newly elected President Joe Biden. …
Can Artificial Intelligence (“Ai”) Replace Human Arbitrators? Technological Concerns And Legal Implications, Gizem Halis Kasap
Can Artificial Intelligence (“Ai”) Replace Human Arbitrators? Technological Concerns And Legal Implications, Gizem Halis Kasap
Journal of Dispute Resolution
Artificial intelligence (“AI”) is no longer a precursor to the future—it is already here in the mainstream. Some countries, for example, have started to implement AI-based technologies into their adjudication processes. It has been reported that Estonia is currently developing an AI judge that can adjudicate small claims disputes of less than º7,000 and that China already has digital courts presided over by an AI judge. Together with the triggering effect of such futuristic news, AI studies that predict the outcome of litigation have stirred heated debate about the possible arrival of AI judges.
A Common-Law Remedy For The Eviction Epidemic, Brian M. Miller
A Common-Law Remedy For The Eviction Epidemic, Brian M. Miller
Missouri Law Review
Eviction burdens tenants and their households with incredible hardship. But it long has been the standard legal remedy when a tenant fails to keep up with rent payments. The combination of these two facts has birthed a crisis. Many commentators have responded to the crisis by suggesting legislative or executive solutions, but courts and the common law have been mostly ignored. This article focuses on courts and the role they can play under the common law to minimize unnecessarily harmful evictions. By considering reasonable expectations and interests of not only landlords, but of tenants and the public as well, this …
The Walking Dead: How The Criminal Regulation Of Sodomy Survived Lawrence V. Texas, Jordan Carr Peterson
The Walking Dead: How The Criminal Regulation Of Sodomy Survived Lawrence V. Texas, Jordan Carr Peterson
Missouri Law Review
Eighteen years after the Supreme Court held in Lawrence v. Texas that a law criminalizing sodomy violated the constitutional guarantee to substantive due process, individuals are still arrested, prosecuted, convicted, and incarcerated pursuant to statutes that are the material equivalent of the one at issue in Lawrence. Though this seems both strange and unfair, it is neither unusual nor accidental. Because the constitutional order renders the judiciary a passive institution and radically fragments authority across a polycentric collection of governments, noncompliance with judicial decisions is endemic to American institutional design.
Pomegranates And Railroads: Why Pom Wonderful Suggests That The Federal Railroad Safety Act Should Never Preclude Federal Employers Liability Act Claims, Dominic G. Biffignani
Pomegranates And Railroads: Why Pom Wonderful Suggests That The Federal Railroad Safety Act Should Never Preclude Federal Employers Liability Act Claims, Dominic G. Biffignani
Missouri Law Review
On September 30, 2010, Scott Schendel was the engineer on a locomotive heading southbound near Two Harbors, Minnesota. His shift started early that morning – he clocked in at 4:30 a.m. – and the railroad wanted to make sure Schendel’s locomotive returned to Two Harbors before his mandatory twelve-hour on-duty time limit expired. At 4:05 p.m., however, disaster struck: Schendel’s locomotive collided with a northbound train, causing catastrophic damage. Three locomotives and fourteen rail cars derailed, resulting in $8.1 million in damages to railroad property.
At The Edge Of Objectivity: The Missouri Court Of Appeals’ Deference To A Seemingly Subjective Assessment Of Prejudice Under Strickland, Bradley J. Isbell
At The Edge Of Objectivity: The Missouri Court Of Appeals’ Deference To A Seemingly Subjective Assessment Of Prejudice Under Strickland, Bradley J. Isbell
Missouri Law Review
Strickland v. Washington is often heralded as one of the most important criminal procedure cases of the last century. The opinion created a two-prong framework for analyzing a post-conviction relief claim of ineffective assistance of counsel: performance and prejudice. The focus of this Note is the prejudice prong, specifically when the post-conviction court is the same court that presided over a defendant’s trial or sentencing.
Insider Trading Under Sarbanes-Oxley: Bypassing The Personal Benefit Test, Andrew J. Meyer
Insider Trading Under Sarbanes-Oxley: Bypassing The Personal Benefit Test, Andrew J. Meyer
Missouri Law Review
Insider trading is broadly defined as the use of material nonpublic information in connection with the trade of stock or other securities. To the average person, the classic case of insider trading is a corporate executive reaping handsome personal profits by trading stock using insider information that he obtained through his position within the corporation. The reality, however, can be much more complicated
A “20/20” Vision: Supreme Court Of Missouri Revisits Admissibility Of Eyewitness Expert Testimony After More Than 30 Years, Emily Miller
A “20/20” Vision: Supreme Court Of Missouri Revisits Admissibility Of Eyewitness Expert Testimony After More Than 30 Years, Emily Miller
Missouri Law Review
Since 1989 the admissibility of expert testimony regarding eyewitness identifications has been unaddressed in Missouri’s courts. During this time, over 2,000 scientific studies have illustrated the fallibility of eyewitness testimony. The United States Supreme Court has long recognized the “vagaries” of eyewitness identification and the real potential for erroneous identifications leading to wrongful convictions. Most recently, advanced capabilities with DNA evidence have highlighted the tragic consequences of erroneous eyewitness identification. Indeed, a now often-cited fact: Of the 375 exonerations since 1989, nearly seventy percent involved wrongful convictions founded at least in part on eyewitness identification.
Redefining “Amend”: For The “Better” Of Whom?, Clayton A. Voss
Redefining “Amend”: For The “Better” Of Whom?, Clayton A. Voss
Missouri Law Review
In Trustees of Clayton Terrace Subdivision v. 6 Clayton Terrace, LLC, the Supreme Court of Missouri overturned eighty years of legal precedent regarding the ability of homeowners to amend residential subdivision agreements to place further burdens on the use of real property. The court established that subdivisions can now increase the burdens on their lot owners, provided that the minimum number of owners, as required by the amendment provision in the subdivision indentures, support the new restriction. The court’s holding signifies a shift away from the traditional principle that a covenant authorizing a requisite majority of owners to “amend” or …
Governing By Executive Order During The Covid-19 Pandemic: Preliminary Observations Concerning The Proper Balance Between Executive Orders And More Formal Rule Making, Kelly J. Deere
Missouri Law Review
As the United States entered 2021, almost all fifty states were still operating under a state of emergency due to COVID-19 more than nine months later. Governors using emergency powers provided to them under their respective emergency disaster statutes and state constitutions continued to govern their state by executive order. These executive orders have had significant impacts on citizens’ everyday lives including stay-at-home orders, limits on non-essential gatherings, non-essential business closures and moratoriums on evictions. And these emergency orders have been opposed at almost every turn from citizens gathering in public protest shouting “Liberate Michigan,” to constitutional legal challenges to …
Balancing Purpose, Power, And Discretion Between Article Iii Courts And The Patent Office, Emily N. Weber
Balancing Purpose, Power, And Discretion Between Article Iii Courts And The Patent Office, Emily N. Weber
Missouri Law Review
The function of the United States Patent and Trademark Office (“USPTO”) is to promote the industrial and technological innovation of the nation and strengthen the economy through the preservation, classification, and dissemination of patent information. The America Invents Act (“AIA”) prescribed a multitude of supporting goals to best promote innovation, such as preserving “quality patents,” “timely consideration” of issues, maintaining “cost-effective” methods, preventing “frivolous litigation,” and preventing “uncertainty.” The AIA ensures the “efficiency, objectivity, predictability, and transparency” of the patent system. Part of this act included revamping the adjudicatory forum located within the USPTO, the Patent Trial and Appeal Board …
Symposium: A New Hope? An Interdisciplinary Reflection On The Constitution, Politics, And Polarization In Jack Balkin’S “The Cycles Of Constitutional Time”, Paul Litton
Missouri Law Review
Politically, we are living in dark times. Political polarization has increased over the past forty years, reaching an extreme and causing real damage to our political system and to our interpersonal lives. Americans are experiencing more hostility and anger towards their neighbors, family members, and fellow citizens with opposing political views. Growing distrust in government and intense polarization causally contributed to the 2016 presidential election of a populist demagogue whose appeals to toxic prejudices, racial resentment, and baseless fears were designed to exacerbate political and civil division. After he lost the 2020 election, a mob of his most ardent supporters …
Race And The Cycles Of Constitutional Time, Jack M. Balkin
Race And The Cycles Of Constitutional Time, Jack M. Balkin
Missouri Law Review
The Cycles of Constitutional Time argues that we can understand American constitutional development in terms of three kinds of cycles. The first is the rise and fall of regimes featuring dominant political parties. The second is a very long cycle of polarization and depolarization that stretches from the Civil War through the present. The third cycle is a series of episodes of constitutional rot and constitutional renewal.