Law Commons^™

A Primer For The First-Time Law Dean Candidate, Robert H. Jerry Ii

Faculty Publications

This article identifies fourteen principles of which the first-time dean candidate should be mindful. The prescriptions are aspirational in nature, and the article suggests the reader engage in some introspection about which of the fourteen items are most applicable on a personal level.

Table Of Contents

Journal of Environmental and Sustainability Law

No abstract provided.

Nepa's Procedural Requirements: Fact Or Fiction? Kuff V. United States Forest Service , Brian Laflamme

Journal of Environmental and Sustainability Law

No abstract provided.

Citizen Suits And The Clean Water Act: Has Article Iii Become A Permanent Roadblock To Private Enforcement? Natural Resources Defense Council V. Southwest Marine, Inc. , Brett A. Williams

Journal of Environmental and Sustainability Law

No abstract provided.

Right-To-Farm Statute Runs A 'Foul' With The Fifth Amendment's Taking Clause. Bormann V. Board Of Supervisors In And For Kossuth County, William C. Robinson

Journal of Environmental and Sustainability Law

No abstract provided.

Case Summaries

Journal of Environmental and Sustainability Law

No abstract provided.

Missouri's Single-Subject Rule: A Legal Tool To Block Environmental Legislation? National Solid Waste Ass'n, Et Al. V. Director Of The Department Of Natural Resources, Harold Stearley

Journal of Environmental and Sustainability Law

No abstract provided.

Study Of Subrogation Mostly In Letter Of Credit And Other Abstract Obligation Transactions, A, John F. Dolan

Missouri Law Review

While efficiency analysis would leave the loss on the erring bank, the revised version of Article 5 of the Uniform Commercial Code ("Revised Article 5") includes a provision granting subrogation to letter of credit issuers as if they were sureties.2 Some commentators view this statutory provision as a surefire source of subrogation for the banks. This Article mounts an argument to the contrary. Because subrogation is an equitable remedy resting on an unjust enrichment standard,3 this Article contends that bank issuers must make an unjust enrichment case before they can avail themselves of the subrogation remedy, even under Revised Article …

Clean Water Act Compliance Audit Program For Pork Producers: How Was Such An Agreement Between Epa And The National Pork Producers Reached , Anita K. Chancey

Missouri Law Review

A recent agreement between the Environmental Protection Agency and the National Pork Producers Council puts into place a voluntary inspection program that may lead to reduced fines for pork producers who report and correct Clean Water Act violations This agreement represents the first of its kind between an agriculture group and the Environmental Protection Agency.2 This Article explores the background that led to the agreement. The evolution from small family farming to large corporate livestock production, along with the environmental concerns such evolution has produced, is traced. The next section lays out some of the federal and state statutory and …

Health Insurer's Use Of Genetic Information: A Missouri Perspective On A Changing Regulatory Landscape , Robert H. Jerry Ii

Missouri Law Review

At the dawn of the new millennium, the mysteries of the human genome' are being revealed: A working draft of ninety percent of the human genome sequence is expected to be completed by mid-2000, five years ahead of schedule.2 Few endeavors in human history have promised so much while causing so much concern.

Common Law Misappropriation In The Digital Era, Dale P. Olson

Missouri Law Review

Information is often valuable and when publicly disclosed may be difficult to protect or control.' Such information, whether in the form of data or a product configuration, unless it can be exploited while keeping it secret,2 is accordingly susceptible to copying by competitors absent legal protection. The law, however, has not provided a framework that supplements the armamentarium of federal intellectual property law3 because the protection authorized by federal constitutional limits also thrust works into the public domain. The evolving technological developments which permit the effectively instantaneous transmission of information, as well as the inexpensive copying of trade values in …

Missouri's Mystifying Doctrine Of Sovereign Immunity: The Imposition Of Duty Under The Dangerous Condition Exception, Stacy L. Nagel

Missouri Law Review

In Missouri, the doctrine of sovereign immunity has been plagued with confusion. Much of this confusion has resulted from wrangling between the Missouri Supreme Court and the legislature. Statutes offering little guidance have been developed, and hard to reconcile cases have been produced. Perhaps nowhere is this confusion more evident than in the area of tort liability under the "dangerous condition" exception to sovereign immunity. Martin v. Missouri Highway & Transportation Department is a prime example of the bewilderment bred by Missouri's statute of sovereign immunity and particularly the "dangerous condition" exception. The Martin court discusses the conditions under which …

Successive Torts Resulting In A Single, Indivisible Injury: Plaintiffs, Prepare To Prove The Impossible, Michael J. Kleffner

Missouri Law Review

In most lawsuits, plaintiffs' medical experts can accurately allocate plaintiffs' injuries to a specific, causal factor. In some instances, however, two events may combine to cause an injury that is incapable of rational apportionment, even by the most learned medical expert. In such a case, the indivisible injury doctrine may relieve a plaintiff of the difficult burden of proving which tortfeasor caused her injuries. The indivisible injury doctrine, however, does not benefit all plaintiffs who have suffered an injury that cannot be apportioned. As illustrated by the instant case, certain plaintiffs must prove the impossible, namely, which tortfeasor caused their …

Premises Liability: The Disappearance Of The Open And Obvious Doctrine, Ann K. Dittmeier

Missouri Law Review

In the past, landowners were sovereign over their land, and they were immune from liability for accidents that occurred on their land.2 One doctrine that reflects this limited liability is the open and obvious rule, which states that landowners have no duty of care to protect someone on their premises from an open and obvious condition The traditional rule has recently been modified in many jurisdictions to disallow a landowner from asserting an open and obvious condition as a complete defense.4 The modified version holds occupiers liable if they reasonably could have anticipated that the invitee would encounter the danger …

Assessing The Best Interests Of The Child: Missouri Declares That A Homosexual Parent Is Not Ipso Facto Unfit For Custody, Heidi C. Doerhoff

Missouri Law Review

In formal child custody disputes, the voices of those at the center of the controversy, the children, are rarely heard.Their parents, who otherwise are presumed to act in their best interests, battle one another in legal proceedings that reward the parent who more persuasively portrays the deficiencies of the other's parenting skills. Because the children, especially the very young, have no adequate basis for making judgments about their long-term well-being, the state acts asparenspatriae while their parents are adversaries.Through its laws and decision makers, the state attempts to ensure that the final custody arrangement is guided by the best interests …

Attorneys Beware: Obtaining Credit Reports On Opposing Party May Lead To Punitive Damages, Matthew S. Criscimagna

Missouri Law Review

Knowledge is power, and a credit report is a great way to obtain knowledge. An attorney could gain useful information from a credit report when preparing for litigation, especially in determining who to sue or whether to sue. However, under the Fair Credit Reporting Act ("ECRA" or "Act"), an attorney may face punitive damages if he or she uses a credit report in a manner that is not authorized by the FCRA. This is exactly what happened to an Arkansas attorney who, while aggressively representing her clients, obtained credit reports on the opposing party. She could have avoided the imposed …

Practical Magic: A Few Down-To-Earth Suggestions For The New Sentencing Commission, Frank O. Bowman Iii

Faculty Publications

Most of the contributions to this outpouring of advice to the new Sentencing Commissioners have to do with the substance of the Guidelines. What follows here is far more prosaic - some suggestions not about what the Commission should do, but about how the Commission should work. I make these suggestions with some trepidation, recognizing the difficulty of the task the new members have undertaken. However, I hope the perspective of one who practiced before and after the Guidelines as a federal prosecutor, participated in the internal workings of the Commission as Special Counsel in 1995-96, and has been a …

High Crimes And Misdemeanors: Defining The Constitutional Limits On Presidential Impeachment, Frank O. Bowman Iii, Stephen L. Sepinuck

Faculty Publications

This Article had its genesis in a statement by the authors submitted to the House Judiciary Committee during its proceedings regarding the impeachment of President Clinton. This final much expanded version appears after the conclusion of the Clinton impeachment proceedings in the Senate, and it is certainly informed by the course those proceedings took. Strictly speaking, however, this is not an article “about” the Clinton impeachment. Although this Article draws some conclusions from the treatment by the House and Senate of the fundamental allegations against President Clinton, it does not address in detail the specific facts underlying those allegations. The …

(Seven Principles For Good Practice In Legal Education): Principle 5: Good Practice Emphasizes Time On Task, R. Lawrence Dessem

Faculty Publications

Time plus energy equals learning. Efficient time-management skills are critical for students and professors alike. Allocating realistic amounts of time means effective learning for students and effective teaching for faculty. How an institution defines time expectations for students, faculty, administrators, and other professional staff can establish the basis for high performance for all. The fifth principle for good practice in undergraduate education is almost a truism: good practice emphasizes time on task. In their original statement of the seven principles, Arthur W. Chickering and Zelda F. Gamson expressed this as a mathematical formula: “Time plus energy equals learning.” Time on …

Fall 1999

Transcript

No abstract provided.

The Pendulum Swings Again, Richard C. Reuben

Faculty Publications

Mandatory arbitration provisions in contracts of adhesion expose the difficult tension between individual contractual rights and collective contractual needs. The question is where we draw the line. The law of adhesion contracts has traditionally used the doctrine of unconscionability to draw that line, and cases like Graham v Scissor-Tail more precisely instruct us to draw it at the reasonable expectations of the parties. By presumptively refusing to enforce cram-down arbitration provisions for consumer claims, absent evidence of knowing and voluntary waiver, we will restore those reasonable expectations, and, in the words of the case law, ensure minimum levels of integrity …

Court Issues Major Ruling On Mediation Confidentiality, Richard C. Reuben

Faculty Publications

A prominent federal court judge has issued an important ruling on mediation confidentiality, one that promises to influence both doctrinal and legislative development.

The case is Olan v Congress Mortgage Co., 1999 WL 909731 (N.D.Cal.), and in it, federal Magistrate Judge Wayne Brazil ultimately compels testimony by a California mediator, despite California's categorical exclusion of evidence arising from mediations. The lengthy opinion is most scholarly, and well worth taking the time to read.

Volume 22, Issue 2 (Fall 1999)

Transcript

No abstract provided.

Why In-House Live Client Clinics Won't Work In Romania: Confessions Of A Clinician Educator, Rodney J. Uphoff

Faculty Publications

Romanians eat our Big Macs, wolf down pizza slices at Pizza Hut, and guzzle Coca-Cola. They wear baseball caps, Nike clothing, and tennis shoes. They listen to American rap and pop music, see American movies with Romanian subtitles, and watch all of our old television shows. Romanians of all ages, but especially the young, hunger and thirst for all things Western, particularly from the United States. Doesn't it follow, then, that Romanian law schools ought to have - and, indeed, Romanian law professors would want - that symbol of an innovative, modern American law school curriculum: a live client clinical …

Departing Is Such Sweet Sorrow: A Year Of Judicial Revolt On "Substantial Assistance" Departures Follows A Decade Of Prosecutorial Indiscipline (Prosecution Law Symposium), Frank O. Bowman Iii

Faculty Publications

the first section of this essay is devoted to demonstrating the courts' errors. Nonetheless, considered together, these opinions are perhaps an understandable reflection of judicial unease with an important component of the federal sentencing system — the longstanding, but increasingly common, practice of making deals with criminal defendants to reduce their sentences in return for testimony against their accomplices. This Article's second section will consider the most common criticisms of the system of bargaining for testimony under the United States Sentencing Guidelines (the Guidelines) to determine whether Singleton and Sealed Case may be good policy even if they are bad …

Defending Substantial Assistance: An Old Prosecutor's Meditation On Singleton, Sealed Case, And The Maxfield-Kramer Report, Frank O. Bowman Iii

Faculty Publications

This essay begins with a brief analysis of the panel and en banc opinions in Sealed Case and Singleton, and then turns to the more arresting question of whether the panel decisions were transitory aberrations or something more. Particularly if one considers Singleton and Sealed Case together with the Sentencing Commission's staff report on substantial assistance practice (the “Maxfield - Kramer Report”), it is difficult to escape the conclusion that unease with the current substantial assistance regime is growing. Unlike many observers, I view §5K1.1 as a very good thing, an invaluable prosecutorial tool against group criminality, but a tool …

Successive Causes And The Enigma Of Duplicated Harm, David A. Fischer

Faculty Publications

Some of the most intriguing brain teasers in tort law involve the valuation of damages for harm arising from wrongfully inflicted injury to person or property. Consider the following example: A wrongdoer shoots and instantly kills a person in the path of an avalanche that would have killed the person a few seconds later. The person's survivors bring a wrongful death action against the shooter, seeking compensation for the loss of support they would have received from the decedent if she had lived. Should the court require the shooter to pay for loss of support beyond the time that the …

Major Step Forward: Proposed Uniform Mediation Act Goes Public For Comments, Richard C. Reuben, Nancy H. Rogers

Faculty Publications

The move toward a simplified and uniform law for mediation takes an important step forward this summer, with the release of the first integrated draft of the proposed Uniform Mediation Act. The act is being drafted by cooperating committees of the American Bar Association Section of Dispute Resolution and the National Conference of Commissioners on Uniform State Laws. If enacted and adopted uniformly, it would replace the hundreds of pages of complex and often conflicting statutes across the country with a few short pages of simple, accessible, and helpful rules.

On Teaching Mediation, Edwin H. Greenebaum

Journal of Dispute Resolution

In this article, I will delineate the issues and explore the implications of resolving them in different ways. Part I develops a taxonomy of variations in models of mediation. In Part II, I analyze choices and constraints in course design. In Part III, I specify the choices I have made in structuring my own course in mediation. I will relate those choices to the context of my school, to my students' backgrounds and interests, and to my competencies and goals. The initial version of this paper was written for my students to read as they entered my course. Pedagogically, the …

Faa Pre-Emption: When Should Conflicting State Law Be Pre-Empted By The Faa - Weston Securities Corp. V. Aykanian, Suzanne H. Johnson

Journal of Dispute Resolution

Since the creation of the F.A.A., courts, including the United States Supreme Court, have considered whether the F.A.A. pre-empts conflicting state law. Although courts generally find that the F.A.A. pre-empts state substantive and procedural law when it stands as an obstacle to Congress' goal of enforcing arbitration,5 the Massachusetts Court of Appeals, in Weston Securities Corp. v. Aykanian, made its own determination on this issue, since it was a case of first impression for the court. The court faced the question of whether a Massachusetts procedural rule, which did not allow an immediate appeal from an order to arbitrate, was …