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Faculty Publications

University of Missouri School of Law

2003

Articles 1 - 16 of 16

Full-Text Articles in Law

Ten Things Deans Can Do With Students, R. Lawrence Dessem Oct 2003

Ten Things Deans Can Do With Students, R. Lawrence Dessem

Faculty Publications

A healthy relationship with students is beneficial to one's deanship, law school, and to the dean herself. An experienced provost once told me that serving as dean was the best job that he had ever had because he still had significant contact with students. Deans should take advantage of the possibilities for student interactions that their deanships afford them. What follows is my “top ten list” of ways in which deans can build a positive relationship with their students.

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Pay Secrecy/ Confidentiality Rules And The National Labor Relations Act, Rafael Gely, Leonard Bierman Oct 2003

Pay Secrecy/ Confidentiality Rules And The National Labor Relations Act, Rafael Gely, Leonard Bierman

Faculty Publications

This article seeks to provide a comprehensive account of doctrinal issues related to the use of pay secrecy/confidentiality rules (“PSC rules”) under the NLRA. In Part II, we describe what pay secrecy/confidentiality is and discuss recent survey evidence of their presence in workplaces across the United States. In Part III, we describe the current legal framework under which PSC rules are evaluated under the NLRA, while in Parts IV and V, we explore various doctrinal issues related to these rules in more detail. This leads us to Part VI, where we ponder the future of PSC rules under the NLRA …

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First Options, Consent To Arbitration, And The Demise Of Separability: Restoring Access To Justice For Contracts With Arbitration Provisions, Richard C. Reuben Apr 2003

First Options, Consent To Arbitration, And The Demise Of Separability: Restoring Access To Justice For Contracts With Arbitration Provisions, Richard C. Reuben

Faculty Publications

This article describes the context and current state of the law in this area under the Federal Arbitration Act (FAA), urges the Court to continue its path toward actual consent to arbitration, and suggests an approach for finally reconciling the tension between Prima Paint and First Options. Part II describes the nature and historical context of the arbitrability problem. Part III focuses specifically on the doctrine of separability, which is the most critical (and most complex) of these exceptions. Part IV discusses the impact on separability of recent U.S. Supreme Court case law, especially the 1995 decision in First Options …

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A Challenge To The Rationale For General Economic Crime Sentence Increases Following Sarbanes-Oxley, Frank O. Bowman Iii Apr 2003

A Challenge To The Rationale For General Economic Crime Sentence Increases Following Sarbanes-Oxley, Frank O. Bowman Iii

Faculty Publications

I am writing in response to the Commission's request for comment published in the Federal Register on January 17, 2003. I will address the question of whether the base offense level and/or the loss table of U.S.S.G. § 2B1.1 should be further modified to provide across-the-board sentence increases for economic crime offenders at virtually all loss levels. In my view, no case for doing so has yet been made.

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Editor's Observations: The Sarbanes-Oxley Act And What Came After, Frank O. Bowman Iii Apr 2003

Editor's Observations: The Sarbanes-Oxley Act And What Came After, Frank O. Bowman Iii

Faculty Publications

On December 2, 2001, the Enron Corporation filed the largest bankruptcy petition in U.S. history. Losses to investors, creditors, employees, and pensioners were in the billions. Criminal investigations are ongoing. On May 1, 2003, the U.S. Sentencing Commission passed a set of amendments to the U.S. Sentencing Guidelines that will, among other things, prevent a federal district judge from awarding a sentence of straight probation to a defendant convicted at trial of an $11,000 mail fraud. This Issue of FSR tells the story of how the first of these apparently unrelated events led to the second. Put another way, this …

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So, You Want To Be A Partner At Sidley & Austin?, Rafael Gely, Leonard Bierman Jan 2003

So, You Want To Be A Partner At Sidley & Austin?, Rafael Gely, Leonard Bierman

Faculty Publications

One of the effects of the “industrialization” of professional organizations has been a shift in the business forms that these organizations adopt. Some organizations have shifted from partnership associations into professional corporations. Other organizations have remained partnerships in form, but have significantly restructured the roles of partners.

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Possibilities For Collaborative Law: Ethics And Practice Of Lawyer Disqualification And Process Control In A New Model Of Lawyering, John M. Lande Jan 2003

Possibilities For Collaborative Law: Ethics And Practice Of Lawyer Disqualification And Process Control In A New Model Of Lawyering, John M. Lande

Faculty Publications

This article assesses the possibilities for collaborative law (CL) to promote problem-solving negotiation and analyzes the operation and effect of the CL disqualification agreement (DA), which CL leaders hold as essential to the process. In CL, the lawyers and clients agree to negotiate from the outset of the case using a problem-solving approach. Under CL theory, the process creates a metaphorical "container" by using a DA disqualifying both lawyers from representing their clients if either party chooses to proceed in litigation. This article argues that much CL theory and practice is valuable, including protocols of early commitment to negotiation, interest-based …

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The Sound Of Dust Settling: A Response To Residual Criticisms Of The Uma, Richard C. Reuben Jan 2003

The Sound Of Dust Settling: A Response To Residual Criticisms Of The Uma, Richard C. Reuben

Faculty Publications

The Uniform Mediation Act has gone to the states for consideration after about five years of research, drafting, and vetting, and ultimately, overwhelming support by the American Bar Association, the National Conference of Commissioners on Uniform State Laws, most major dispute resolution professional organizations and service providers, and many if not most leading dispute scholars. Despite this support, concerns about the UMA still continue to echo from its drafting. Professor Brian Shannon's criticisms largely echo these discussions, and in this article I seek to respond to some of them - after first extending my greatest appreciation to Professor Shannon for …

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Discussing The First Amendment , Christina E. Wells Jan 2003

Discussing The First Amendment , Christina E. Wells

Faculty Publications

Despite its many good qualities, Eternally Vigilant nevertheless suffers from a flaw common to First Amendment scholarship--a tendency to give short shrift to study of the social, psychological, historical, and political factors that influence the Court's decision making and, thus, free speech doctrine. Discussion including these influences would facilitate an even greater understanding of free speech doctrine and the principles that underlie it.

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Supreme Court's 2002 Term Employment Law Cases: Is This Justice Scalia's Court?, Rafael Gely Jan 2003

Supreme Court's 2002 Term Employment Law Cases: Is This Justice Scalia's Court?, Rafael Gely

Faculty Publications

In a recent article,' Erwin Chemerinsky argues that the Supreme Court's constitutional law decisions of the 2002 Term "cannot be explained by any overarching theory or underlying set of interpretative principles." Instead, he argues, "constitutional law is all about value choices made by the Justices." Professor Chemerinsky also argues that given the current composition of the Court, "it is the value choices of the middle" - Justice O'Connor and Justice Kennedy - that matter the most. Professor Chemerinsky ends his article with the assertion that "[f]or better or worse, this really is the O'Connor Court." In reviewing the cases decided …

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Is Civil Authority Business Interruption Coverage A Soft Risk In The Post-9/11 World, Robert H. Jerry Ii Jan 2003

Is Civil Authority Business Interruption Coverage A Soft Risk In The Post-9/11 World, Robert H. Jerry Ii

Faculty Publications

Tthe question whether 9/11 has changed the insurance world cannot be answered simply In some respects, nothing is different, but it is difficult to be sanguine about this assessment. Terrorism is less predictable in terms of magnitude and frequency of loss, and this raises doubts about the capacity of the industry with respect to future events. Until the uncertainty with respect to the terrorism risk abates and markets stabilize, problems of cost and availability will persist. This, of course, has been true in other insurance sectors in the past, and temporary dislocations do not necessarily justify government intervention. If, however, …

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The Kansas Uniform Trust Code, David M. English Jan 2003

The Kansas Uniform Trust Code, David M. English

Faculty Publications

Senate Bill 297, which was enacted by the Kansas legislature in 2002 and which became effective on January 1, 2003, is a substantial adoption of the Uniform Trust Code (2000) (“UTC”). The Kansas UTC is codified in a new chapter, Kansas Statutes Annotated chapter 58a. The UTC is the Uniform Law Commissioners' first effort to provide the states with a comprehensive model for codifying their law on trusts.

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Are Security Deposits "Security Interests"? The Proper Scope Of Article 9 And Statutory Interpretation In Consumer Class Actions, R. Wilson Freyermuth Jan 2003

Are Security Deposits "Security Interests"? The Proper Scope Of Article 9 And Statutory Interpretation In Consumer Class Actions, R. Wilson Freyermuth

Faculty Publications

Assume that Jane Doe leases an automobile from a General Motors dealer, pursuant to a lease contract under which Jane makes a cash security deposit. Under the lease, the lessor agrees to “refund” the deposit at the conclusion of the lease term in the event that Jane fully performs her obligations under the lease. Is this transaction governed by Article 9--i.e., has the lessor taken a “security interest” in Jane's cash deposit to secure Jane's obligations under the lease agreement?

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The Authority Of A Court To Order Disgorgement For Violations Of The Current Good Manufacturing Practices Requirement Of The Federal Food, Drug, And Cosmetic Act, Erika Lietzan, Elizabeth M. Walsh Jan 2003

The Authority Of A Court To Order Disgorgement For Violations Of The Current Good Manufacturing Practices Requirement Of The Federal Food, Drug, And Cosmetic Act, Erika Lietzan, Elizabeth M. Walsh

Faculty Publications

This article addresses the question as to whether a federal court has the authority to compel a pharmaceutical company to disgorge profits obtained from an alleged violation of the FDCA, specifically the failure of a pharmaceutical company to comply with current good manufacturing practices (GMPs). Section II of this article summarizes the article to which we are responding. In all fairness, it did not purport to be a full-blown defense, and we expect the agency's comprehensive defense of disgorgement would be considerably more detailed. Section III turns to the Sixth Circuit case on which FDA rests its argument for disgorgement, …

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The Antitrust Implications Of Collaborative Standard Setting By Insurers Regarding The Use Of Genetic Information In Life Insurance Underwriting, Robert H. Jerry Ii Jan 2003

The Antitrust Implications Of Collaborative Standard Setting By Insurers Regarding The Use Of Genetic Information In Life Insurance Underwriting, Robert H. Jerry Ii

Faculty Publications

The discussion in this Article is divided into four parts. Part I summarizes the landscape, past and present, with respect to insurer collaboration in underwriting. Part II considers whether, absent an antitrust exemption, multiinsurer agreements and collaborative insurer standard-setting with respect to underwriting violate federal antitrust law. This Part also evaluates whether insurers, to the extent potential federal liability exists, enjoy any kind of statutory or judicial exemption from federal law for such activities. Part III considers the same questions addressed in Part II but in the context of state antitrust laws. Because antitrust law, including the law of antitrust …

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Insurance, Terrorism, And 9/11, Robert H. Jerry Ii Jan 2003

Insurance, Terrorism, And 9/11, Robert H. Jerry Ii

Faculty Publications

The question of whether 9/11 has changed the insurance world cannot be answered simply. In some respects, nothing is different, but it is difficult to be sanguine about this assessment. Terrorism is less predictable in terms of magnitude and frequency of loss, and this raises doubts about the capacity of the industry with respect to future events. Until the uncertainty with respect to the terrorism risk abates and markets stabilize, problems of cost and availability will persist. This, of course, has been true in other insurance sectors in the past, and temporary dislocations do not necessarily justify government intervention. If, …

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