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Articles 1 - 30 of 36
Full-Text Articles in Law
Loss Of A Chance As A Cause Of Action In Medical Malpractice Cases, Robert S. Bruer
Loss Of A Chance As A Cause Of Action In Medical Malpractice Cases, Robert S. Bruer
Missouri Law Review
Judicial treatment of the relationship between causation and the relatively new theory of loss of a chance in medical malpractice cases demonstrates this welter of confusion. In 1992, the Supreme Court of Missouri addressed whether loss of chance can constitute a cause of action under Missouri law. This Note will examine the Wollen decision as well as the myriad of cases addressing loss of chance.
Clinton Court Is Open For Business: The Business Law Jurisprudence Of Justice Stephen Breyer, The, Edward A. Fallone
Clinton Court Is Open For Business: The Business Law Jurisprudence Of Justice Stephen Breyer, The, Edward A. Fallone
Missouri Law Review
The nomination process for the Supreme Court has taken a welcome turn towards civility under President Clinton. The Ginsburg and Breyer nominations have been notable for the lack of partisan attacks on either nominee. However, analysis of the nominees' prior judicial record by the media and some observers continues to be outcome oriented rather than theory based. This single-minded attention to the ultimate "winners" and "losers" in a case creates the illusion of a particular political ideology on the part of the judge, with little true predictive value.
Children And Comparative Fault: Determining The Burden Small Shoulders Should Bear, Leta Elizabeth Hodge
Children And Comparative Fault: Determining The Burden Small Shoulders Should Bear, Leta Elizabeth Hodge
Missouri Law Review
Missouri has long favored a system that treats assessment of a child's contributory fault as a fact issue. Although the system, referred to as the "modem trend," has undeniable advantages and provides protection for both children and the adults who negligently injure them, the system has drawbacks when applied to very young children. The negatives of the system should lead us to question whether society is adequately protecting its youngsters or demanding far too much of them.
Preemption And Medical Devices: The Courts Run Amok, Robert S. Adler, Richard A. Mann
Preemption And Medical Devices: The Courts Run Amok, Robert S. Adler, Richard A. Mann
Missouri Law Review
Perhaps the most dramatic indication that the courts have shifted attitudes on health and safety matters comes from recent cases relating to medical devices and preemption. In this Article, we review the law relating to preemption, the Cipollone decision, the preemption provisions of the MDA, the regulations issued by the Food and Drug Administration ("FDA") relating to preemption, and the impact of Cipollone on court interpretations of the MDA. Based on our review of the intended preemptive effect of the MDA, we conclude that it is unlikely that either Congress or the FDA intended for the MDA to preempt state …
Amending The Article Nine Filing System To Meet Current Deficiencies, Edward S. Adams, Steve H. Nickles
Amending The Article Nine Filing System To Meet Current Deficiencies, Edward S. Adams, Steve H. Nickles
Missouri Law Review
Article Nine' is currently undergoing substantial revision. "[B]ecause secured credit is a trillion-dollar activity," this revision is extraordinarily significant. A focal point of this amendment process is Article Nine's notice-filing system which apprises prospective creditors, and others, of a secured party's interest in a debtor's collateral.' As few would dispute, the notice-filing system, which seeks to cure the "ostensible ownership problem," is in serious need of repair.
Cause-In-Fact In Missouri: A Return To Normalcy, Christopher M. Hohn
Cause-In-Fact In Missouri: A Return To Normalcy, Christopher M. Hohn
Missouri Law Review
In order to establish liability in most tort actions, a plaintiff must show that the defendant "caused" the injury or harm in question. This Note focuses on the cause-in-fact requirement discussed in the Missouri Supreme Court case, Callahan v. Cardinal Glennon Hospital. In Callahan , the court dispelled much of the confusion that has plagued Missouri cause-in-fact analysis.' The court clearly expounded the test for cause-in-fact questions. Furthermore, the court explained the exception to the basic test, and clarified Missouri law regarding this essential element of tort liability.
Output Contracts And The Unreasonably Disproportionate Clause Of 2-306, Randal Owings Owings
Output Contracts And The Unreasonably Disproportionate Clause Of 2-306, Randal Owings Owings
Missouri Law Review
Open quantity contracts evolved due to the commercial advantages inherent in such contracts. However, the level of permissible quantity variation within an open quantity contract has been frequently litigated. In Atlantic Track and Turnout v. Perini, the First Circuit resolved a dispute concerning variation within such a contract. This Note examines the traditional analysis used by the court in resolving this dispute and suggests an alternative method of analysis.
Birth Of Preconception Torts In Missouri, The, Raymond E. Williams
Birth Of Preconception Torts In Missouri, The, Raymond E. Williams
Missouri Law Review
The term"'preconception tort' refers to negligent conduct which occurred prior to the plaintiff’s conception.” This Note examines the legal development of preconception tort doctrine with particular focus on the foreseeability, statute of limitations, and policy issues flowing from the duty a defendant owes to an unborn plaintiff.
Missouri Slams The Door On Employees Of Independent Contractors, Matthew A. Clement
Missouri Slams The Door On Employees Of Independent Contractors, Matthew A. Clement
Missouri Law Review
Generally, a landowner is not liable for torts committed by an independent contractor. However, a landowner may be held responsible by an injured party if the work performed is "inherently dangerous." This Note examines the evolution of the law in this area and addresses the policies that aid in determining whether to allow employees of independent contractors to recover in tort from landowners when workers' compensation has already reimbursed them.
Equal Protection For Foreign And Alien Corporations: Towards Intermediate Scrutiny For A Quasi-Suspect Classification, Hartwin Bungert
Equal Protection For Foreign And Alien Corporations: Towards Intermediate Scrutiny For A Quasi-Suspect Classification, Hartwin Bungert
Missouri Law Review
State statutory legislation and, to a lesser extent, federal statutory legislation often discriminates against foreign and alien corporations.' So far, this kind of discrimination against corporations is not accorded much attention in U.S. equal protection doctrine, although the discrimination of alien, natural persons has been topic of much debate and of some well-known Supreme Court cases. This article argues for application of at least an intermediate level of scrutiny, if not strict scrutiny, for classifications on the ground of "corporate nationality" under the Equal Protection Clause of the U.S. Constitution.
Private Accountability And The Fourteenth Amendment; State Action, Federalism And Congress, Alan R. Madry
Private Accountability And The Fourteenth Amendment; State Action, Federalism And Congress, Alan R. Madry
Missouri Law Review
In this essay, I hope to expand the foundation of that conclusion and further explore its implications for private accountability and the duties of the Court, Congress and state lawmakers. Part I extends the discussion from state responsibility to private accountability. It first examines the paradoxes implicit in the Courts doctrine of private accountability. Among the forces that have shaped the present doctrine of private accountability, and motivated the scholarly debate, is the palpable need to protect the fundamental interests of people against invasion by powerful private initiatives.
Judicial Enforcement Of Moral Imperatives: Is The Best Interest Of The Child Being Sacrificed To Maintain Societal Homogeneity, Juliet A. Cox
Judicial Enforcement Of Moral Imperatives: Is The Best Interest Of The Child Being Sacrificed To Maintain Societal Homogeneity, Juliet A. Cox
Missouri Law Review
When parents divorce, courts are forced to deternine which parent should obtain custody of the children. The applicable standard in all states for deciding who should receive custody is the "best interest of the child. This comment will analyze the historical shift in moral judgment of interracial relationships, the judicial response to the changing public view and the effect of the changing public view on child custody decisions. It will then juxtapose that history with the current change in societal judgment of gay and lesbian relationships and the corresponding judicial response with respect to custody disputes.
Exploding Myths: An Empirical And Economic Reassessment Of The Rise Of Employment At-Will, Andrew P. Morriss
Exploding Myths: An Empirical And Economic Reassessment Of The Rise Of Employment At-Will, Andrew P. Morriss
Missouri Law Review
Like many other types of contracts, employment contracts are frequently incomplete, with important terms missing or unclear. Courts have created a variety of rules to assist in filling these gaps. One of these rules, the employment at-will rule, specifies a default rule which governs in cases where the parties to an employment contract fail to explicitly state the contract's duration. The at-will rule is straightforward, providing that where the term of the contract is indefinite, both the employer and employee are free to terminate the contract without liability at any time. This paper takes a new approach to the history …
Title Ii Of The Civil Rights Act Of 1964 And Membership Organizations Unconnected To A Physical Facility, Sandra J. Colhour
Title Ii Of The Civil Rights Act Of 1964 And Membership Organizations Unconnected To A Physical Facility, Sandra J. Colhour
Missouri Law Review
In Welsh v. Boy Scouts of America, the Seventh Circuit interpreted Title II of the Civil Rights Act of 1964. At the time of the 1964 Act, almost ninety years had passed since Congress last focused on civil rights legislation in public accommodations? While Congress clearly intended for Title II to end racial and certain other types of discrimination in public accommodations,4 congressional intent with regard to entities that do not clearly resemble any of Title II's specific examples is less clear. This Note examines the sources behind the court's decision, evaluates the court's theory of interpretation, and predicts the …
Comparison Of The Rules And Rationales For Allocating Risks Arising In Realty Sales Using Executory Sale Contracts And Escrows, A, Robert L. Flores
Comparison Of The Rules And Rationales For Allocating Risks Arising In Realty Sales Using Executory Sale Contracts And Escrows, A, Robert L. Flores
Missouri Law Review
In a typical transaction for the sale and purchase of residential real estate there are two transition periods during which the parties are exposed to risks of sudden significant loss. One risk is of destruction of the premises by fire or other casualty ("realty loss"). Another risk is that money deposited in escrow will be lost through embezzlement or poor caretaking by an escrow holder ("escrow loss"). The two risk periods often overlap, and the two risks clearly are part of the same overall transaction. Because the two types of risk are commonly associated, the theories, doctrines, and rules developed …
Other Constituency Statutes, Richard B. Tyler
Other Constituency Statutes, Richard B. Tyler
Missouri Law Review
This Article will use the Missouri experience as a point of departure to consider what the legal effect of "other constituency" statutes might be. Recognizing that "other constituency" statutes were adopted along with other statutes clearly aimed at deterring unwanted takeovers, those other statutes will also be discussed. First, the Missouri law relating to corporate governance prior to the enactment of the package of Missouri legislation that includes the other constituency statute will be examined, including the legislative history of these statutes and the sources from which they seem to have been drawn. Next, this Article will consider whether, and …
Mystery And The Mastery Of The Judicial Power, The, Jim Chen
Mystery And The Mastery Of The Judicial Power, The, Jim Chen
Missouri Law Review
What do law clerks do at the Supreme Court? One day this question took me entirely by surprise. Not because of its substance: I have repeatedly answered this question ever since Justice Clarence Thomas invited me to serve as his clerk for October Term 1992. As with so much else in law, context had triumphed over content.
Corporate Counsel And Business Ethics: A Personal Review, H. J. Aibel
Corporate Counsel And Business Ethics: A Personal Review, H. J. Aibel
Missouri Law Review
From time to time divergences between the goals of the individuals and the best interests of the corporation, as the lawyer sees the situation, can give rise to career threatening tensions, if not ethical and legal issues. This is particularly the case with regard to corporate programs to ensure compliance with legal, regulatory, and ethical requirements. It is these problems of practicing in a corporate law department that I would like to discuss this afternoon. For me, these tensions and the ethical and legal challenges of carrying out compliance functions became clear early on in my career as a corporate …
Physician-Patient Relationship: The Permissibility Of Ex Parte Communications Between Plaintiff's Treating Physicians And Defense Counsel, The, John Jennings
Missouri Law Review
Ex parte interviews of nonparty witnesses are commonly used by attorneys in determining whether witnesses have sufficiently valuable information to warrant taking their deposition or using their testimony at trial as well as in actually preparing witnesses to testify. In the Brandt cases, the Missouri Supreme Court permitted ex parte communications between a plaintiffs physicians and defense counsel. This Note will examine the reasoning behind the court's decision and compare the Brandt decision to various approaches taken by other jurisdictions to resolve the apparent conflict between the physician-patient relationship and informal discovery methods such as ex parte communications.
Missouri Firefighter's Rule, The, Christopher M. Hohn
Missouri Firefighter's Rule, The, Christopher M. Hohn
Missouri Law Review
The firefighter's rule bars injured firefighters and police officers from recovering against individuals whose ordinary negligence created the situation that required the presence of the officer or firefighter. In Missouri, the firefighter's rule originated as a landowner liability rule and as an exception to the rescue doctrine More recently, however, the rule has been influenced by the doctrine of assumption of risk and by public policy concerns. The result has been a hodgepodge of old and new rationales that form the basis for an inconsistent rule that relies on superfluous analysis. In Gray v. Russell, the Missouri Supreme Court reasserted …
Cumulative Subject Index For Volumes 56-58
Cumulative Subject Index For Volumes 56-58
Missouri Law Review
Cumulative Subject Index for Volumes 56-60
Notice And The Missouri Probate Nonclaim Statutes: The Lingering Effects Of Pope, Brian J. Doherty
Notice And The Missouri Probate Nonclaim Statutes: The Lingering Effects Of Pope, Brian J. Doherty
Missouri Law Review
The stem warnings published in Missouri newspapers used to read, "All creditors of the decedent are notified to file claims in court within six months from the date of first publication of this notice or be forever barred."' This language reflected section 473.360 of the Revised Statutes of Missouri. However, the decision of the United States Supreme Court in Tulsa Professional Collection Services, Inc. v. .Pope limited the effective operation of this strict statute. This Comment will review the case law addressing notice requirements and nonclaim statutes, discuss Missouri's response to Pope, analyze the issues that are likely to be …
When Words Fail Me: Diagramming The Rule Against Perpetuities, Mark Reutlinger
When Words Fail Me: Diagramming The Rule Against Perpetuities, Mark Reutlinger
Missouri Law Review
There is no shortage of creative ways in which teachers of Property law have sought to represent graphically the operation of the Rule Against Perpetuities. I have myself, over the years, tried a number of methods, none of them wholly satisfactory. The reason we all keep trying is that the Rule simply does not lend itself to mere verbal explanation. Although quite easy to state and memorize, each of its terms is saturated with difficult and interrelated concepts that operate on several planes. A future interest must "vest"or fail within 21 years of a "life in being" at the "creation" …
Bibliography Of William F. Fratcher's Writings
Bibliography Of William F. Fratcher's Writings
Missouri Law Review
Bibliography of William F. Fratcher's Writings
Legacy Of William F. Fratcher: A Beneficiary's View, The, Edward C. Halbach Jr.
Legacy Of William F. Fratcher: A Beneficiary's View, The, Edward C. Halbach Jr.
Missouri Law Review
Halbach in this article pays tribute to William F. Fratcher.