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University of Missouri School of Law

1994

Articles 91 - 110 of 110

Full-Text Articles in Law

Liability Insurers Get A Fair Deal, James E. Berger Jan 1994

Liability Insurers Get A Fair Deal, James E. Berger

Missouri Law Review

Public policy does not allow insurance against the results of intentional acts. Thus, most liability insurance contracts contain a clause that excludes coverage for bodily injury or property damage intended or expected as a result of an insured's actions These clauses are generally referred to as "intentional acts exclusion clauses" or "intentional injury exclusion clauses." The real question in all cases is what the insurer must show to invoke the exclusion. There are two basic requirements: (1) The act done was intended; and (2) there was some intent for the act to cause injury. Most courts agree that the act …

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Role Of The Trust Treatise In The 1990s, The, D. W. M. Waters Jan 1994

Role Of The Trust Treatise In The 1990s, The, D. W. M. Waters

Missouri Law Review

The attainment, the volume and the range of the publications he left behind are truly -remarkable, but for many Canadian lawyers, as surely for lawyers throughout the common law world beyond American shores, the name of William F. Fratcher is associated with Scott on Trusts,' a work that everywhere has long been recognised as a classic. Today that subject is a matter of debate, and this article, in order to mark the distinguished work of Scott's first editor, sets out to examine, in the context of the common law jurisdictions of the Commonwealth (formerly the British Commonwealth), the present day …

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Maintaining Order In The Post-Strike Workplace: Employee Expression And The Scope Of Section 7, Lyrissa Lidsky Jan 1994

Maintaining Order In The Post-Strike Workplace: Employee Expression And The Scope Of Section 7, Lyrissa Lidsky

Faculty Publications

In the aftermath of a typical strike, management often seeks to restore order to the workplace by imposing restrictions on employee expression. Although in principle employee expression is protected by section 7 of the National Labor Relations Act, courts, relying on outdated notions of workplace organization, often accept ad hoc management justifications for restrictions on employee expression. The author argues that after a strike, it is crucial for employees to be able to express their grievances or vent their frustrations at exactly the same time that employers feel it necessary to restrict expression as a way of re-imposing order in …

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Table Of Contents - Issue 1 Jan 1994

Table Of Contents - Issue 1

Journal of Dispute Resolution

No abstract provided.

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Ethics: No One Ever Said It Would Be Easy: Bush's Contribution To Mediation Practice, Albie M. Davis Jan 1994

Ethics: No One Ever Said It Would Be Easy: Bush's Contribution To Mediation Practice, Albie M. Davis

Journal of Dispute Resolution

The beauty of Robert Baruch Bush's research on ethics is that his conclusions grow out of the real life experiences of mediators.' Yes, his interpretation is influenced by his own biases, and yes, the Florida mediation scene, where he made his observations, is not a microcosm of the rest of the nation or the world; nevertheless, in spite of these limitations, he did a remarkable job of capturing the dilemmas that most mediators face.

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Easier Said Than Done: Resolving Ethical Dilemmas In Policy And Practice, Linda Stamato Jan 1994

Easier Said Than Done: Resolving Ethical Dilemmas In Policy And Practice, Linda Stamato

Journal of Dispute Resolution

This is not to argue against core principles. There is, I think, a consensus on these: responsible and fair dealing, disclosure of personal conflicts, good faith, diligence, impartiality, confidentiality, and, certainly, honesty and integrity. I take these ethical requirements to be the sine qua non of professional mediation practice; the primary representations to be made prior to, and, indeed, to be adhered to in the course of mediation. SPIDR attempted to codify these values in its Ethical Standards of Professional Responsibility, which were adopted by the SPIDR Board in 1986 and confirmed in 1991. What we in mediation practice are …

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Arbitrability In Recent Federal Civil Rights Legislation: The Need For Amendment, Douglas E. Abrams Jan 1994

Arbitrability In Recent Federal Civil Rights Legislation: The Need For Amendment, Douglas E. Abrams

Faculty Publications

This Article discusses the shortcomings inherent in the consideration and enactment of the arbitrability provisions of the ADA and the 1991 Civil Rights Act. As a threshold matter, Part II demonstrates that the latter Act's textual encouragement of arbitration indicates that Congress misapprehended the effect of Gilmer, which the Supreme Court had decided barely six months before the Act's passage. Specifically, this Part will argue that after Gilmer, textual encouragement of arbitration has little or no greater legal significance than textual silence would have. In the few decades before the decision, textual encouragement would have had significant impact because particular …

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An Economic Analysis Of The Potential For Coercion In Consent Solicitations For Bonds, Royce De R. Barondes Jan 1994

An Economic Analysis Of The Potential For Coercion In Consent Solicitations For Bonds, Royce De R. Barondes

Faculty Publications

This Article examines why issuers frequently cannot present bondholders with an offer that draws on collective action problems to force the acceptance of the offer by the bondholders. The analysis is restricted to publicly offered bonds. For a number of reasons, privately placed debt presents fewer opportunities for coercion. A prior business relationship among various purchasers, which facilitates cooperation, may be more likely with respect to privately placed debt. Privately placed debt often has more significant protection for the bondholders than public debt with the same level of seniority

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Study Of Ethical Dilemmas And Policy Implications, A, Robert A. Baruch Bush, Jan 1994

Study Of Ethical Dilemmas And Policy Implications, A, Robert A. Baruch Bush,

Journal of Dispute Resolution

This paper is based on research sponsored by the National Institute for Dispute Resolution and by Hofstra University School of Law. The research involved interviews with roughly eighty mediators working in one of the three areas mentioned above. The mediators were asked to identify situations they had experienced in mediation that, in their view, raised difficult ethical dilemmas on which they felt the need for guidance by professional standards and program policy. This report summarizes and illustrates the findings of the research as to the major types of dilemmas practicing mediators are confronted with and analyzes these dilemmas and their …

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Constitutionality Of The Indian Gaming Regulatory Act: State Sovereignty And Compulsory Negotiations - Cheyenne River Sioux Tribe V. South Dakota, The, Joel P. Brous Jan 1994

Constitutionality Of The Indian Gaming Regulatory Act: State Sovereignty And Compulsory Negotiations - Cheyenne River Sioux Tribe V. South Dakota, The, Joel P. Brous

Journal of Dispute Resolution

Indian tribes located within states that permit gambling are allowed to license and operate gaming activities on Indian lands2 as long as these activities comply with the Indian Gaming Regulatory Act [hereinafter IGRA]. 3 Congress enacted the IGRA to balance tribal autonomy and economic self-sufficiency with the state police power seeking to control tribal gaming operations.4 In Cheyenne River Sioux Tribe v. South Dakota, the United States Court of Appeals for the Eighth Circuit addressed the constitutionality of the IGRA and held that the IGRA violated neither the Eleventh nor the Tenth Amendments.' This Note examines the split of authority …

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Michigan's Binding Summary Jury Trial: Reward Or Punishment - Farleigh V. Amalgamated Transit Union, Local 1251, Thomas G. Glick Jan 1994

Michigan's Binding Summary Jury Trial: Reward Or Punishment - Farleigh V. Amalgamated Transit Union, Local 1251, Thomas G. Glick

Journal of Dispute Resolution

In 1988, the Michigan Supreme Court added the summary jury trial to its arsenal of settlement devices available to trial judges.' Unfortunately, the summary jury trial employed in Farleigh v. Amalgamated Transit Union, Local 1251 failed to meet its goal, and no settlement was reached by the parties.6 Nevertheless, the Michigan Court of Appeals chose to enforce the summary jury verdict,7 thereby drawing into question not only the ability of the summary jury trial to meet the preliminary goal of promoting settlement, but also the larger goal of the accomplishment of justice

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Good Policy Or Judicial Abdication: When Courts Uphold Arbitral Awards Which Are In Excess Of The Arbitrator's Jurisdiction - Hall V. Superior Court, Sharon E. Schulte Jan 1994

Good Policy Or Judicial Abdication: When Courts Uphold Arbitral Awards Which Are In Excess Of The Arbitrator's Jurisdiction - Hall V. Superior Court, Sharon E. Schulte

Journal of Dispute Resolution

Legislatures and the court system have advanced a strong policy to encourage individuals to arbitrate disputes and avoid the traditional judicial system. 2 In order to promote this policy, it is vital that arbitrators' awards be respected and upheld if at all possible. Consequently, the grounds for review of arbitration awards are limited.' One of the grounds available for vacating an arbitral decision arises when an arbitrator exceeds his or her jurisdiction by purporting to decide issues not submitted by the parties for arbitral determination. 4 This Note discusses the potential consequences to the overall policy goals of encouraging arbitration …

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Title Page Jan 1994

Title Page

Journal of Dispute Resolution

No abstract provided.

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Bush On Mediator Dilemmas, Joseph B. Stulberg Jan 1994

Bush On Mediator Dilemmas, Joseph B. Stulberg

Journal of Dispute Resolution

Despite its richness, I believe that there are three features of the study that raise both conceptual and practical difficulties. They are: (1) its methodology for identifying ethical dilemmas; (2) its presumptions regarding the extent to which public policy can or should address some or all of the mediator's dilemmas; and (3) its applicability to mediator roles and dilemmas in contexts outside a court-referral system. I consider each of these features below.

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Ethical Dilemmas Or Benign Neglect, Richard A. Salem Jan 1994

Ethical Dilemmas Or Benign Neglect, Richard A. Salem

Journal of Dispute Resolution

But, the real message of this study is that guidance for mediators facing ethical dilemmas is long past due. The Florida mediators, as might have been anticipated, are encountering a number of ethical problems that are familiar to mediators elsewhere and that are endemic to practicing in this field. But, as Professor Bush suggests, the interviews indicate that some of the problems confronting Florida mediators result from their being placed in the untenable position of not being provided with: (1) sufficient policy and procedural guidelines; or (2) training to competently mediate cases being referred to them.

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Consolidation Of Separate Arbitration Proceedings: Liberal Construction Versus Contractarian Approaches - United Kingdom Of Great Britain V. Boeing Co., Michael L. Decamp Jan 1994

Consolidation Of Separate Arbitration Proceedings: Liberal Construction Versus Contractarian Approaches - United Kingdom Of Great Britain V. Boeing Co., Michael L. Decamp

Journal of Dispute Resolution

The Federal Arbitration Act (F.A.A.) provides arbitration agreements with the validity and enforceability afforded other contracts under the law. The F.A.A. does this by vesting the United States district courts with the authority to compel parties to arbitrate according to their agreements. However, when a court must decide whether to consolidate separate arbitration proceedings because they involve common questions of fact and law and common parties, the F.A.A. is silent as to the court's authority. This silence has resulted in courts either allowing consolidation under a liberal interpretation of the act ("liberal construction" approach), or refraining from granting consolidation under …

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Finding The Parameters: The Scope Of Arbitration Agreements In Medical Service Contracts In California - Pietrelli V. Peacock, Mark Riley Kroeker Jan 1994

Finding The Parameters: The Scope Of Arbitration Agreements In Medical Service Contracts In California - Pietrelli V. Peacock, Mark Riley Kroeker

Journal of Dispute Resolution

There is perhaps no better indicator of the general perception of "crisis" in the American medical system than the lavish attention given President Clinton's health care reform initiatives in the media.2 In the 1970s, the frequency of medical malpractice claims and the cost of malpractice insurance, two sources of this perceived crisis, came into sharp focus.3 Experiencing a decline in profits as a result of increased malpractice litigation, many insurers began refusing to provide coverage or demanding high premium increases.4 This created a problem in malpractice insurance availability to health care providers.5 Health care providers, insurers, and state legislatures responded …

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Emergency Medical Treatment Statute: A Federal How To On Avoiding Mandatory Arbitration Of Medical Malpractice Claims - Brooks V. Maryland Hospital, Inc., The, Karen E. Martin Jan 1994

Emergency Medical Treatment Statute: A Federal How To On Avoiding Mandatory Arbitration Of Medical Malpractice Claims - Brooks V. Maryland Hospital, Inc., The, Karen E. Martin

Journal of Dispute Resolution

To combat the explosion of medical malpractice claims, some states have made arbitration a mandatory prerequisite to filing medical malpractice suits. These states hope that mandatory arbitration will decrease the number of claims and lessen the impact of medical malpractice suits. The federal government has created an obstacle to this effort in the form of the emergency medical treatment statute. This federal statute regulates emergency room care, but courts have been hesitant to call it a medical malpractice statute. As a result of the ambiguity in the federal statute, claimants are able to avoid state-mandated arbitration, thereby circumventing the goals …

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Reply To The Commentators On The Ethical Dilemmas Study, A, Robert A. Baruch Bush Jan 1994

Reply To The Commentators On The Ethical Dilemmas Study, A, Robert A. Baruch Bush

Journal of Dispute Resolution

The invitation to republish here the report on my study of mediators' ethical dilemmas was a very gratifying one. My hope was that this report would generate further thought and discussion on this important subject, and this symposium will certainly help to realize that aim. For this I am grateful to the editors of the Journal and their advisor, Professor Leonard Riskin. Moreover, the best part of this invitation was that it contemplated the publication of comments on the report from a number of well-known and thoughtful figures in the mediation field. This kind of public dialogue is something all …

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Reversal Arbitration Board: An Adr Model For Resolving Intra-Corporate Disputes, The, Rene Stemple Ellis, Geetha Ravindra, Neil Vidmar, Thomas Davis Jan 1994

Reversal Arbitration Board: An Adr Model For Resolving Intra-Corporate Disputes, The, Rene Stemple Ellis, Geetha Ravindra, Neil Vidmar, Thomas Davis

Journal of Dispute Resolution

In this article, we describe the development and implementation of an innovative Alternative Dispute Resolution (ADR) program that uses neutral adjudicators to minimize lawsuits between Toyota Motor Sales, USA and its automobile dealerships. The Toyota Reversal Arbitration Board [hereinafterRAB] has several distinguishing characteristics. First, while many forms of ADR seek to shift the focus of disputes away from formal rules, the Toyota RAB was specifically designed to convey and enforce organizational rules. Second, an aspect of organizational decision making is entrusted to neutral, outside adjudicators trained as specialists in the rules and the context out of which disputes arise. Third, …

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