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Articles 31 - 60 of 100
Full-Text Articles in Law
State Legislative Update, J. Matthew Belz, Caleb Lewis, Remington Smith, Peter Wilder
State Legislative Update, J. Matthew Belz, Caleb Lewis, Remington Smith, Peter Wilder
Journal of Dispute Resolution
Collaborative law is a relatively new dispute resolution method by which parties mutually agree to negotiate a settlement in good faith. Either party may terminate the collaborative process at will and present the matter to a court for a decision. Upon termination of the collaborative process, both attorneys must withdraw and cease all participation in the case. The continuing saturation of court dockets and the expense of litigation require the promotion of viable, alternative means to resolve disputes. Collaborative law as authorized under Texas Senate Bill 942 is an especially attractive process because it demands cooperation between the disputing parties …
Beyond Let Them Eat Cake: An Argument For The Armendariz Method Of Cost Allocation In Mandatory Employment And Consumer Arbitration, Dan O'Hearn
Journal of Dispute Resolution
Jane Doe is a twenty-two year old young woman who recently has been experiencing problems at work. About two years ago, Jane took a job at a local fast food establishment, Bubba's, which is a subsidiary of a larger corporation. The job has provided barely enough income for Jane to support herself and her two year old daughter while she has been earning an associate teaching degree at the local junior college. Jane planned to continue working at Bubba's while finishing her degree, but the recent behavior of her supervisor has made her question whether she will be able to …
Sacrificing Settlement Agreements In The Name Of Mediation Confidentiality: The California Supreme Court's Narrow Holding Has Harsh Consequence, Laura J. Bettenhausen
Sacrificing Settlement Agreements In The Name Of Mediation Confidentiality: The California Supreme Court's Narrow Holding Has Harsh Consequence, Laura J. Bettenhausen
Journal of Dispute Resolution
Confidentiality is regarded as one of the primary benefits of mediation. For parties who wish to avoid the public eye, mediation is often preferable to court. However, when parties reach some form of a settlement agreement during mediation, and subsequently disagree as to the terms of that agreement, the parties may find themselves in court. In court, the issue of whether the settlement agreement is admissible arises. In Fair v. Bakhtiari, the California Supreme Court addressed the question of whether an arbitration provision listed in a settlement agreement renders the agreement admissible under the California Evidence Code. The court emphasized …
Arbitration By Accident: The Consequence Of Unintentionally Meeting The Clear And Unmistakable Evidence Standard, Mark A. Mulchek
Arbitration By Accident: The Consequence Of Unintentionally Meeting The Clear And Unmistakable Evidence Standard, Mark A. Mulchek
Journal of Dispute Resolution
A fundamental principle of arbitration law is that parties may only be compelled to submit an issue to arbitration if they agreed to do so. The question of when an arbitrator, instead of a district court, can decide the arbitrability of an issue has been taken up by the courts in recent years. In First Options of Chicago, Inc. v. Kaplan, the Supreme Court stated that an arbitrator may decide questions of arbitrability only when the parties have "clearly and unmistakably" agreed to defer such questions to an arbitrator. Since First Options, the lower courts have attempted to define when …
Only The Rich Can Afford A Remedy: The Unconscionable Enforcement Of Arbitration Provisions Against The Indigent, Ryan M. Turley
Only The Rich Can Afford A Remedy: The Unconscionable Enforcement Of Arbitration Provisions Against The Indigent, Ryan M. Turley
Journal of Dispute Resolution
In Overstreet v. Contigroup Cos., Inc.,2 the Fifth Circuit Court of Appeals held that neither economic disadvantage nor undisclosed arbitration fees may form the basis for striking down an arbitration provision on the grounds of unconscionability.3 While the Supreme Court and the Federal Arbitration Act (FAA) expressly authorize the use of the doctrine of unconscionability to invalidate arbitration provisions, courts are sharply divided on its proper application. 4 The difficult juxtaposition of the Supreme Court's interpretation of the FAA as a "liberal federal policy favoring arbitration" and the traditional application of unconscionability as a means of policing unfair contracts has …
Application Of Due Process To Arbitration Awards Of Punitive Damages - Where Is The State Action, The, Charles Smith
Application Of Due Process To Arbitration Awards Of Punitive Damages - Where Is The State Action, The, Charles Smith
Journal of Dispute Resolution
This article will analyze why the position of the courts-no state action-is correct. Specifically, this article will take the position that the policy of finality traditionally found in arbitration law must trump any constitutional inquiries. This is because arbitration is ultimately based on the parties' agreement, which inevitably recites that the arbitrator's decision shall be final and, in any event, this finality is generally implied.
Mediator As Cook: Mediation Metaphors At The Movies, The, Jennifer L. Schulz
Mediator As Cook: Mediation Metaphors At The Movies, The, Jennifer L. Schulz
Journal of Dispute Resolution
In this article I will explore the vitality of the metaphor of the mediator as cook by tracing it through other food and conflict resolution related films. In so doing, I hope to achieve two things: first, to continue to insist that non-adversarial processes like mediation be included in the study of Law & Film, and second, to show that the metaphor suggested for mediators based on one film, resonates in other films and suggests new insights about mediator style and practice. Through a Law & Film analysis of two films, Soul Food and Mostly Martha, I will argue that …
Low-Value &(And) Predictably Small: When Should Class-Arbitration Waivers Be Invalidated As Unconscionable, Christopher B. Mckinney
Low-Value &(And) Predictably Small: When Should Class-Arbitration Waivers Be Invalidated As Unconscionable, Christopher B. Mckinney
Journal of Dispute Resolution
In Muhammad v. County Bank of Rehoboth Beach, the New Jersey Supreme Court chose the interests of consumers over liberally construed Federal Arbitration Act (FAA) policies in deciding that a no class-arbitration provision contained within a payday loan contract was unconscionable. The court used state law contract principles to invalidate the clause, finding that the clause violated several state public policies. Particularly important to the court was the fact that individual claims for damages would be nominal, and thus individual vindication of statutory rights would prove too costly to be practical. In making this distinction, the court suggested a preference …
Table Of Contents
Journal of Environmental and Sustainability Law
No abstract provided.
A Not-So Equitable Allocation: The Need For An Environmental Cost Principle , Joshua H. Van Eaton
A Not-So Equitable Allocation: The Need For An Environmental Cost Principle , Joshua H. Van Eaton
Journal of Environmental and Sustainability Law
No abstract provided.
Corporate Farming: How Interpretation Of The Commerce Clause Is Making Restrictions More Difficult. Jones V. Gale , Brock H. Cooper
Corporate Farming: How Interpretation Of The Commerce Clause Is Making Restrictions More Difficult. Jones V. Gale , Brock H. Cooper
Journal of Environmental and Sustainability Law
No abstract provided.
Reimbursement For Voluntarily Cleaning Up Your Mess? The Seventh Circuit Says Yes Under Cercla. Metropolitan Water Reclamation District Of Greater Chicago V. North American Galvanizing & Coatings, Inc., Nikki Mullins
Journal of Environmental and Sustainability Law
No abstract provided.
Words Speak Louder Than Actions: Ninth Circuit Narrows Exception To Plain Meaning Interpretation Of Sip's. Safe Air For Everyone V. Epa, Ryan Westhoff
Words Speak Louder Than Actions: Ninth Circuit Narrows Exception To Plain Meaning Interpretation Of Sip's. Safe Air For Everyone V. Epa, Ryan Westhoff
Journal of Environmental and Sustainability Law
No abstract provided.
Conservation Easements: Tax Shields With Philanthropic Means. Glass V. Commissioner, John H. A. Griesedieck
Conservation Easements: Tax Shields With Philanthropic Means. Glass V. Commissioner, John H. A. Griesedieck
Journal of Environmental and Sustainability Law
No abstract provided.
Environmental Updates
Journal of Environmental and Sustainability Law
No abstract provided.
Premarital Agreements And Choice Of Law: One, Two, Three, Baby, You And Me, Julia Halloran Mclaughlin
Premarital Agreements And Choice Of Law: One, Two, Three, Baby, You And Me, Julia Halloran Mclaughlin
Missouri Law Review
Part II of this article presents an overview of premarital agreement rules related to procedural and substantive fairness. Part III examines the relationship between the Restatement (First) of Conflict of Laws (hereinafter Restatement (First)) and the Restatement (Second) of Conflict of Laws (hereinafter Restatement (Second)), with a specific focus on the ability of parties to contractually predetermine controlling law in relationship to marital rights and obligations before they marry. Part IV analyzes the choice of law provision in the UPAA. Part V synthesizes the existing judicial treatment of choice of law provisions in premarital agreements in jurisdictions applying the Restatement …
Good Guidance, Good Grief, Stephen M. Johnnson
Good Guidance, Good Grief, Stephen M. Johnnson
Missouri Law Review
This article examines the problems created by the White House reforms and prior reforms proposed by congress, ACUS and academics, and outlines the advantages and disadvantages of the alternative APA amendments outlined above. Part II of the article explores the basic differences between legislative rules, interpretive rules and policy statements and the reasons for the trend away from legislative rules. Part III introduces the long-standing concerns regarding interpretive rules and policy statements. Part IV examines the proposals and initiatives of ACUS, academics, and the various branches of the Federal government to address those concerns; and Part V identifies the weaknesses …
Rationalizing Away Political Powerlessness: Equal Protection Analysis Of Laws Classifying Gays And Lesbians, Emily K. Baxter
Rationalizing Away Political Powerlessness: Equal Protection Analysis Of Laws Classifying Gays And Lesbians, Emily K. Baxter
Missouri Law Review
In November of 2000, Nebraska joined a growing number of states that have banned same sex marriage by passing a constitutional amendment prohibiting the recognition of same sex marriage, civil unions, and domestic partnerships. Unlike legislation and amendments in other states which either simply define marriage as a union between a man and a woman or refuse to recognize same sex marriage, the amendment to the Nebraska constitution is a broad prohibition on the recognition of any partnership rights for same sex couples. The United States Supreme Court has yet to establish whether or not gays and lesbians should be …
Title Vii And The Protection Of Minority Languages In The American Workplace: The Search For A Justification, James Leonard
Title Vii And The Protection Of Minority Languages In The American Workplace: The Search For A Justification, James Leonard
Missouri Law Review
My purpose in this Article is to examine possible justifications for the EEOC's language rules under Title VII. Part II provides necessary background information, describing the EEOC rule system as well as the threegeneration process of English acquisition in immigrant families. The remainder of the Article is devoted to potential normative explanations for the EEOC rules. Part III asks whether the Guidelines promote equality interests while Parts IV and V question whether they vindicate personal autonomy or multicultural interests, respectively. I conclude that none of these arguments offers a sufficient justification for interfering with managerial judgments.
Scheme Liability Under Section 10(B) Of The Securities Exchange Act Of 1934, Taavi Annus
Scheme Liability Under Section 10(B) Of The Securities Exchange Act Of 1934, Taavi Annus
Missouri Law Review
This law summary analyzes the recent cases where plaintiffs have tried to utilize the scheme liability theory. Even though courts have frequently analyzed claims based on this theory, they approach the issue rather unsystematically, reach inconsistent results, and do not employ a similar analytic structure. Part of this inconsistency is based on the fact that scheme liability is applied in cases involving very different fraudulent practices and against actors with very different functions. Due to this wide range of circumstances, the different approaches of courts may actually be justified. It is probably inappropriate to formulate a single test or rule …
No Free Pass For Employees: Missouri Says Yes To Individual Liability Under The Missouri Human Rights Act, Richard D. Worth
No Free Pass For Employees: Missouri Says Yes To Individual Liability Under The Missouri Human Rights Act, Richard D. Worth
Missouri Law Review
For over a decade, Missouri federal courts have debated the interpretation of the term "employer" provided in the Missouri Human Rights Act ("MHRA"), offering two distinct interpretations. Some have held that the MHRA's definition of "employer" allows for individual liability for managers and supervisors along with the employing entity. However, recent Missouri federal opinions have reluctantly followed Eighth Circuit precedent in holding that the MHRA does not impose individual liability. Amid the conflicting federal judicial decisions, one thing has remained constant: every Missouri federal court has tried to predict how the Missouri Supreme Court would decide the issue. As a …
Capricious, Even Perverse Policy: Random, Suspicionless Drug Testing Policies In High Schools And The Fourth Amendment, A, Jennifer K. Turner
Capricious, Even Perverse Policy: Random, Suspicionless Drug Testing Policies In High Schools And The Fourth Amendment, A, Jennifer K. Turner
Missouri Law Review
Today's high school students must worry about more than simply writing their next paper or passing their next exam. They must also worry about passing another kind of test - a drug test. Students who fail this test may lose both their privilege to participate in extracurricular activities and their permit to park on campus. Teenage drug use is a national problem that many think is on the rise. A growing number of school districts across the country have responded to this apparent problem by implementing random, suspicionless drug testing (RSDT) programs. RSDT programs test particular groups of students, usually …
Attempted Enticement Of A Minor: No Place For Pedophiles To Hide Under 18 U.S.C. 2422(B), Bridget M. Boggess
Attempted Enticement Of A Minor: No Place For Pedophiles To Hide Under 18 U.S.C. 2422(B), Bridget M. Boggess
Missouri Law Review
This law summary analyzes the relevant law concerning attempted enticement of a minor and the potential defenses to a claim of attempted enticement under § 2422(b). Additionally, this law summary examines the current trends surrounding the crime of attempted enticement of a minor, including the growing circuit court consensus that an actual minor is not necessary for a conviction under § 2422(b), the increased use of Internet sting operations to pursue pedophiles, and the popularity of investigative television shows such as To Catch a Predator. Although Internet sting operations seem to be a resourceful way to track pedophiles online and …
Rescuing Burke, Carl T. Bogus
Rescuing Burke, Carl T. Bogus
Missouri Law Review
This Article has three objectives. The first is to demonstrate Burke's liberalism. The second is to argue that Burke might also be considered a conservative, but a certain kind of conservative only, namely, a traditional conservative. Edmund Burke's philosophy is at war with that of the dominant conservatives of today - libertarians, neoconservatives, and social conservatives 2 - even though these conservatives seek to associate their thinking with his. Thus, I seek to deny to these groups Burke's good name. At the same time, I wish to show that Burke offers common ground to some liberals and conservatives. These groups …
John Locke And The Meaning Of The Takings Clause, Jeffrety M. Gaba
John Locke And The Meaning Of The Takings Clause, Jeffrety M. Gaba
Missouri Law Review
The purpose of this article is to provide both a detailed analysis of Locke to aid the Takings debate and a particular reading of the Two Treatises that provides a coherent picture of the limits of government authority over private property. Part I is an introduction to John Locke and the Two Treatises of Government. Part II addresses Locke's justifications for acquisition of private property in a pre-govenment "State of Nature" and the constraints on property reflected in a series of Lockean "provisos." Robert Nozick in Anarchy, State and Utopia, has suggested that the "historical shadow" of Locke's provisos can …
First Amendment And Non-Political Speech: Exploring A Constitutional Model That Focuses On The Existence Of Alternative Channels Of Communication, The, Patrick M. Garry
First Amendment And Non-Political Speech: Exploring A Constitutional Model That Focuses On The Existence Of Alternative Channels Of Communication, The, Patrick M. Garry
Missouri Law Review
This Article attempts to illustrate how media entertainment speech currently possesses a constitutional advantage over the traditional political speech of physical protest. Part I discusses current First Amendment doctrines relating to permissible types of speech regulation. Although these doctrines claim to be content-neutral, they effectively discriminate against the speech of on-site political protest. Part II examines how this discrimination comes into being. Since many of the constitutional doctrines relating to speech regulation are geared to the "place" where the speech occurs, these doctrines essentially let media entertainment off the hook, since the vast majority of that entertainment has no "place" …
Appropriate Conduct: The Constitutionality Of The Missouri Legislature's Appropriations For The State Family Planning Program, Jessica L. Conlon
Appropriate Conduct: The Constitutionality Of The Missouri Legislature's Appropriations For The State Family Planning Program, Jessica L. Conlon
Missouri Law Review
Each year, approximately 7.4 million American women obtain contraceptive and reproductive health care from government-funded family planning programs. According to the Alan Guttmacher Institute, these programs, which primarily serve women who are "young, unmarried, less-educated or poor," help 1.3 million women avoid unintended pregnancies in an efficient use of taxpayer dollars. Despite the substantial benefits of family planning programs, they are not without their critics. Abortion opponents often challenge publicly-funded family planning programs because some organizations that provide family planning services also provide abortions. Their concern is that, by funding family planning services in those organizations that also provide abortions, …
Advertising Regulations On Sexually Oriented Business: How Far Is Too Far, Jennifer Stonecipher
Advertising Regulations On Sexually Oriented Business: How Far Is Too Far, Jennifer Stonecipher
Missouri Law Review
In recent decades, various courts have held that the First Amendment extends to commercial speech . Although the level of protection afforded to commercial speech differs from that given to non-commercial speech, these courts have held that the First Amendment protects commercial speech that is neither misleading nor concerns illegal activities. Under such a framework, in order to regulate commercial speech, the government must demonstrate that the regulation directly advances a substantial interest and is no more restrictive than necessary to serve that interest. In Passions Video, Inc. v. Nixon, a group of business owners challenged a Missouri statute that …
Determining When To Start The Clock: The Capable Ascertainment Standard And Repressed Memory Sexual Abuse Cases, John Daly Cooney
Determining When To Start The Clock: The Capable Ascertainment Standard And Repressed Memory Sexual Abuse Cases, John Daly Cooney
Missouri Law Review
In Missouri, for purposes of determining when the statute of limitations begins to run, a cause of action shall not be deemed to accrue when the alleged wrong or breach of duty occurs, but rather when the "damage resulting therefrom is sustained and is capable of ascertainment." While this test has governed Missouri tort cases since 1919, when it was explicitly written into Missouri statutory law, courts have struggled in determining when damages are "capable of ascertainment" in order to satisfy the test. In Powel v. Chaminade College Preparatory, Inc., the Supreme Court of Missouri attempted to establish a generally …
Hanging On To Till: Interpretations Of Bapcpa's Hanging Paragraph, Kaitlin A. Bridges
Hanging On To Till: Interpretations Of Bapcpa's Hanging Paragraph, Kaitlin A. Bridges
Missouri Law Review
Bankruptcy law has significantly changed in the last two years due to the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act ("BAPCPA"). An already complex and challenging area of law, bankruptcy has become even more so, as debtors and creditors begin to question how their rights have changed. For courts, one of the most perplexing issues is whether the standards and interpretations that were established in preBAPCPA bankruptcy cases are still applicable today. As courts have examined the potential effects of the new legislation, different opinions have emerged, leaving even more uncertainty for interested parties. One of the …