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Faculty Publications

University of Missouri School of Law

2004

Articles 1 - 30 of 40

Full-Text Articles in Law

Rejecting The Marie Antoinette Paradigm Of Prejudgment Interest, Royce De R. Barondes Oct 2004

Rejecting The Marie Antoinette Paradigm Of Prejudgment Interest, Royce De R. Barondes

Faculty Publications

This paper examines principles for properly computing prejudgment interest by examining the impact on different corporate constituencies. This paper concludes that prejudgment interest at a promisor's cost of funds can undercompensate promisees, by shifting value from the promisee's equityholders to its creditors through a forced investment that decreases the risk of the promisee's portfolio of assets.

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Tim, R. Lawrence Dessem Oct 2004

Tim, R. Lawrence Dessem

Faculty Publications

There comes a time when every law school dean questions just why she or he has chosen to serve as dean. Deans experience both very high highs and very low lows. The dean often sees faculty, staff, and students at their best but just as often sees these same individuals at their worst. Regardless of the mix of highs to lows in any deanship, decanal service--if taken seriously-- demands a tremendous commitment of time and energy. Thus the question is posed: Why devote such a significant portion of one's professional time to such service?

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Two Mistakes Behavioralists Make: A Reply To Professor Feigenson Et Al. And Professor Slovic, Thom Lambert Oct 2004

Two Mistakes Behavioralists Make: A Reply To Professor Feigenson Et Al. And Professor Slovic, Thom Lambert

Faculty Publications

First, the growing catalog of cognitive quirks may lead behavioralists to hastily adopt “non-rational” explanations for otherwise rational behavior. Second, because their evidence seems to undermine the rationality assumption of Chicago school law and economics, behavioralists may improperly assume that their work also undermines that school's default policy prescription--i.e., laissez faire. Consequently, they may advocate inappropriately paternalistic government policies.

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Foreword - Interdisciplinary Perspectives On Fear And Risk Perception In Times Of Democratic Crisis (Symposium), Christina E. Wells, Jennifer K. Robbennolt Oct 2004

Foreword - Interdisciplinary Perspectives On Fear And Risk Perception In Times Of Democratic Crisis (Symposium), Christina E. Wells, Jennifer K. Robbennolt

Faculty Publications

The articles and essays included or referenced in this volume discuss both the factors that affect decision making in times of crisis and their implications for law and democratic theory. Professor Cass Sunstein's keynote address, Fear and Liberty, noted that psychological biases such as the availability heuristic and probability neglect can skew risk perception, leading to excessive public fear of national security risks and unreasonable curtailment of civil liberties. According to Sunstein, courts, which are typically responsible for protecting civil liberties, often lack sufficient information to assess whether national security concerns justify incursions on civil liberties. Nevertheless, he concluded that …

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Refreshing Contractual Analysis Of Adr Agreements By Curing Bipolar Avoidance Of Modern Common Law, Amy J. Schmitz Oct 2004

Refreshing Contractual Analysis Of Adr Agreements By Curing Bipolar Avoidance Of Modern Common Law, Amy J. Schmitz

Faculty Publications

Law governing enforcement of ADR agreement not governed by the Federal Arbitration Act (FAA) has been uncertain, and often aimless. This Article therefore calls for clarification of this law, through development of a modern contractual approach for enforcing these non-FAA ADR procedures. Although courts may look to the FAA as a resource for evaluating and developing an enforcement approach, they also should employ modern contract and remedy tools that are more adaptive than the Act's summary enforcement because it allow courts to consider contextual, relational, and equitable factors when determining application of specific enforcement remedies. This allows courts to apply …

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A Brief Exploration Of Space: Some Observations On Law School Architecture, Robert H. Jerry Ii Oct 2004

A Brief Exploration Of Space: Some Observations On Law School Architecture, Robert H. Jerry Ii

Faculty Publications

The costs and benefits of some architectural choices are immediately obvious, as in the case of disability accommodations. But other choices are less obvious, even when one does not attempt to predict how a design will function thirty or forty years hence. This is why having a skilled design team involved in developing the plan and executing it is so important.

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Encouraging Courage: Law's Response To Fear And Risk, William B. Fisch Oct 2004

Encouraging Courage: Law's Response To Fear And Risk, William B. Fisch

Faculty Publications

Our three papers provide a helpful review of the many things that can go wrong with our system for the protection of civil liberties under the pressures of war or other emergencies. Professor Winfield focuses on the U.S. Attorney General, the non-judicial officer from whom the public might expect the highest fidelity to the law and the constitution. She offers a sobering perspective on the ways in which those expectations can be and have been disappointed. The star of her taxonomy, I take it, is the Leveler, who reaches an independent (and rights-protective!) view of the law and works to …

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Function Over Formalism: A Provisional Theory Of The Constitutional Law Of Crime And Punishment, Frank O. Bowman Iii Oct 2004

Function Over Formalism: A Provisional Theory Of The Constitutional Law Of Crime And Punishment, Frank O. Bowman Iii

Faculty Publications

This Article is, in effect, the second half of the author's argument against the Supreme Court's interpretation of the Sixth Amendment in Blakely v. Washington. The first half appeared in "Train Wreck? Or Can the Federal Sentencing System Be Saved? A Plea for Rapid Reversal of Blakely v. Washington," 41 American Criminal Law Review 217 (2004), and made a pragmatic, consequentialist argument against the Blakely result. This Article takes the next step of providing an alternative constitutional model of criminal sentencing to that offered by Justice Scalia in Blakely. The model emphasizes that a good constitutional model should pay particular …

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Questioning Deference, Christina E. Wells Oct 2004

Questioning Deference, Christina E. Wells

Faculty Publications

This article examines the accepted axiom that courts should defer to the government's actions during national security crises even when such actions potentially violate citizens' constitutional rights. The paper questions two assumptions underlying that axiom - first, that executive officials are best equipped to determine when security needs justify liberty infringements and, second, that judges are particularly unqualified to meddle in security issues, even when civil liberties are involved. Relying on psychological theories regarding the role that fear plays in skewing risk assessment and historical analyses of past crises, the paper argues that times of crisis lend themselves to unnecessary …

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Fear And Risk In 'Times Of Crisis': The Media's Challenge, Richard C. Reuben Oct 2004

Fear And Risk In 'Times Of Crisis': The Media's Challenge, Richard C. Reuben

Faculty Publications

As we have heard time and again during this conference, perspective is a crucial safeguard against the distorting effect of fear. While space and consumer patience may be thin, it is during times of crisis that the media's capacity to provide context becomes most important. This is part of the challenge of risk communication. Editors need to insist on this perspective rather than trying to cut it out if the story still reads, and reporters need to learn how to write about it effectively as well as compellingly. None of these challenges is easy. Institutional reform never is. But I …

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Drifting Down The Dnieper With Prince Potemkin: Some Skeptical Reflections About The Place Of Compliance Programs In Federal Criminal Sentencing (Symposium), Frank O. Bowman Iii Oct 2004

Drifting Down The Dnieper With Prince Potemkin: Some Skeptical Reflections About The Place Of Compliance Programs In Federal Criminal Sentencing (Symposium), Frank O. Bowman Iii

Faculty Publications

This Article explains how the federal organizational sentencing guidelines work and how they have created incentives for businesses to set up compliance programs. It then considers the paucity of evidence that compliance programs actually prevent the occurrence of corporate crime. It also questions whether investments in compliance programs make sense even for companies caught in a federal criminal investigation. There is little evidence that compliance programs have any significant effect on the likelihood that federal prosecutors will file criminal charges in the first instance. Even more surprisingly, examination of U.S. Sentencing Commission statistics reveals that the compliance program movement seems …

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"National Security" Information And The Freedom Of Information Act, Christina E. Wells Oct 2004

"National Security" Information And The Freedom Of Information Act, Christina E. Wells

Faculty Publications

Secrecy regarding national security information is a widely accepted phenomenon. Throughout history, however, such secrecy has proved problematic. Although officials often have credible and legitimate reasons to keep national security information secret, government secrecy initiatives have invariably expanded to encompass information beyond their initial rationale. Over time, we have come to realize the very real problems associated with excessive government secrecy.

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The Vanishing Trial Report, John M. Lande Jul 2004

The Vanishing Trial Report, John M. Lande

Faculty Publications

Some in the alternative dispute resolution community are afraid that ADR will be blamed for the apparent disappearance of trials. A close look at the data, however, suggests that changing patterns of litigation are not necessarily bad and that the growth of ADR is probably as much a result of these changes as a cause of them.

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Using "Norms" To Change International Law: Un Human Rights Laws Sneaking In Through The Back Door, Troy A. Rule Jul 2004

Using "Norms" To Change International Law: Un Human Rights Laws Sneaking In Through The Back Door, Troy A. Rule

Faculty Publications

For decades, multinational businesses have self-regulated their operations with respect to human rights, largely unfettered by international law. In recent years, however, human rights groups have advocated that the United Nations (“UN”) create clear legal obligations for multinationals respecting their human rights-related conduct. At least partly due to the substantial burden such obligations could place on international businesses, these efforts by human rights proponents have proven largely fruitless--until now.On August 13, 2003, the UN Sub-commission on the Promotion and Protection of Human Rights adopted the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human …

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Book Review: Law And Colonial Cultures: Legal Regimes In World History, 1400-1900, Sam F. Halabi Jul 2004

Book Review: Law And Colonial Cultures: Legal Regimes In World History, 1400-1900, Sam F. Halabi

Faculty Publications

Challenging scholars of both colonial history and globalization, Lauren Benton's Law and Colonial Cultures argues that state-centered legal orders emerged as a result of the presence of colonial powers, both European and non-European. She describes how the colonial state developed through jurisdictional conflicts between native judicial systems and colonial legal systems.

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Memorandum Presenting The Case For Rapid Congressional Action In Response To Blakely V. Washington, Frank O. Bowman Iii Jun 2004

Memorandum Presenting The Case For Rapid Congressional Action In Response To Blakely V. Washington, Frank O. Bowman Iii

Faculty Publications

Soon after the decision of the U.S. Supreme Court in Blakely v. Washington, which invalidated the Washington state sentencing guidelines and cast doubt on the constitutionality of the Federal Sentencing Guidelines, the Senate Judiciary Committee held a hearing on "Blakely v. Washington and the Future of the Federal Sentencing Guidelines." Witnesses from the U.S. Department of Justice, the U.S. Sentencing Commission, and the judiciary downplayed the seriousness of the situation and urged caution in any congressional action. Concerned that the situation in the courts was more dire than the institutional witnesses had been willing to admit, Professor Frank Bowman subsequently …

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Memorandum Presenting A Proposal For Bringing The Federal Sentencing Guidelines Into Conformity With Blakely V. Washington, Frank O. Bowman Iii Jun 2004

Memorandum Presenting A Proposal For Bringing The Federal Sentencing Guidelines Into Conformity With Blakely V. Washington, Frank O. Bowman Iii

Faculty Publications

On June 24, 2004, the U.S. Supreme Court decided Blakely v. Washington, a case that invalidated the Washington state sentencing guidelines and cast the validity of the Federal Sentencing Guidelines into grave doubt. On June 27, 2004, Professor Frank Bowman sent a memorandum to the United States Sentencing Commission analyzing the probable impact of Blakely on the federal guidelines and proposing a legislative modification of the Guidelines to render them compliant with Blakely. The proposal relies on the rule of McMillan v. Pennsylvania, 477 U.S. 79 (1986), and Harris v. United States, 536 U.S. 545 (2002), that post-conviction judicial findings …

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Abandonments In Bankruptcy: Unifying Competing Tax And Bankruptcy Policies, Michelle A. Cecil Apr 2004

Abandonments In Bankruptcy: Unifying Competing Tax And Bankruptcy Policies, Michelle A. Cecil

Faculty Publications

This Article attempts to resolve one such issue: the tax consequences of property abandonments by the bankruptcy trustee.

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The Citation Of Unpublished Opinions As Precedent, Martha Dragich Apr 2004

The Citation Of Unpublished Opinions As Precedent, Martha Dragich

Faculty Publications

Professor Dragich examines the no-citation rules of the federal courts of appeals in light of the purpose and operation of the doctrine of precedent. The article concludes that no-citation rules are fundamentally incompatible with the rule of precedent. The rules also cannot be justified on grounds of economy or efficiency. The courts of appeals cannot legitimately declare decisions to be "non-precedential," and must not continue to forbid their citation.

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Pour Encourager Les Autres? The Curious History And Distressing Implications Of The Criminal Provisions Of The Sarbanes-Oxley Act And The Sentencing Guidelines Amendments That Followed, Frank O. Bowman Iii Apr 2004

Pour Encourager Les Autres? The Curious History And Distressing Implications Of The Criminal Provisions Of The Sarbanes-Oxley Act And The Sentencing Guidelines Amendments That Followed, Frank O. Bowman Iii

Faculty Publications

This Article presents a legislative history of the Sarbanes-Oxley Act and the subsequent amendments to the U.S. Sentencing Guidelines. It explains the surprising interaction between the civil and criminal provisions of Sarbanes-Oxley. The Article also provides a dramatic and detailed account of the interplay of political interests and agendas that ultimately led to large sentence increases for serious corporate criminals and blanket sentence increases for virtually all federal fraud defendants. The tale illuminates the substance of the new legislation and sentencing rules, but is more broadly instructive regarding the distribution of power over criminal sentencing between the three branches and …

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The Law And Economics Of Employee Information Exchange In The Knowledge Economy, Rafael Gely, Leonard Bierman Apr 2004

The Law And Economics Of Employee Information Exchange In The Knowledge Economy, Rafael Gely, Leonard Bierman

Faculty Publications

Mr. Fowler's story illustrates nicely how, in the new economy, knowledge has become both the key production process component and an important object of exchange itself. While knowledge has always been a component of economic activity, it has become “the one factor of production” capable of increasing the productive capacity of both capital and labor. Mr. Fowler's story also reminds us that, as it was the case in years past, the interests of employers and employees do not necessarily coincide when it comes to allocating rights regarding the ownership and exchange of knowledge.Interestingly, this transition towards a “knowledge economy,” and …

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What Law Schools Can Learn From Billy Beane And The Oakland Athletics , Rafael Gely, Paul L. Caron Apr 2004

What Law Schools Can Learn From Billy Beane And The Oakland Athletics , Rafael Gely, Paul L. Caron

Faculty Publications

In Moneyball, Michael Lewis writes about a story with which he fell in love, a story about professional baseball and the people that play it. A surprising number of books and articles have been written by law professors who have had long love affairs with baseball. These books and articles are a two-way street, with baseball and law each informing and enriching the other. For example, law professors versed in antitrust, labor, property, tax, and tort law have brought their legal training to bear on particular aspects of baseball. Law professors also have mined their passion for baseball in extracting …

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Affirmative Refraction: Grutter V. Bollinger Through The Lens Of The Case "The Case Of The Speluncean Explorers", Rafael Gely, Paul L. Caron Apr 2004

Affirmative Refraction: Grutter V. Bollinger Through The Lens Of The Case "The Case Of The Speluncean Explorers", Rafael Gely, Paul L. Caron

Faculty Publications

What can a fifty year-old hypothetical about human cannibalism concocted by the late Lon Fuller teach us about the Supreme Court's recent foray into the affirmative action debate in twenty-first century America? Indeed, what can a tax law professor and a labor law professor add to the cacophony of voices of leading constitutional law scholars on the Court's most important pronouncement on race in a generation? We make a rather modest claim, based on teaching both of these cases in our one-week Introduction to Law classes for incoming first year students, that a helpful way to view Grutter v. Bollinger …

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Train Wreck? Or Can The Federal Sentencing System Be Saved? A Plea For Rapid Reversal Of Blakely V. Washington, Frank O. Bowman Iii Apr 2004

Train Wreck? Or Can The Federal Sentencing System Be Saved? A Plea For Rapid Reversal Of Blakely V. Washington, Frank O. Bowman Iii

Faculty Publications

In Blakely v. Washington, the Court found the Washington State Sentencing Guidelines unconstitutional, placed the validity of the Federal Sentencing Guidelines in the gravest doubt, and cast a shadow of deep uncertainty over many state sentencing systems and the entire twenty-five-year sentencing reform movement. Over the next year, legal publications will be deluged with sober analyses, exegeses, dissections, and deconstructions of the doctrinal origins and long-term effects of Blakely. If the big train wreck really happens, I expect I'll write a few myself. However, it is early for that sort of thing since so much about Blakely remains unclear. Indeed, …

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Promoting The Promise Manufactured Homes Provide For Affordable Housing, Amy J. Schmitz Apr 2004

Promoting The Promise Manufactured Homes Provide For Affordable Housing, Amy J. Schmitz

Faculty Publications

This Article raises issues for HUD and other policy makers to consider with respect to MHIA programs and broader mobile home policies. It also seeks to spark public awareness about the potential that mobile homes provide for affordable housing. The time is ripe for policy makers on federal and state levels to craft safety and financing regulations that take into account the unique character and complexities of mobile home transactions and mobile home ownership. Furthermore, the MHIA should ignite mobile home manufacturers, retailers, lenders, and consumer advocates to join forces to help alleviate burdens of mobile home ownership and provide …

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A Brief History Of 180-Day Exclusivity Under The Hatch-Waxman Amendments To The Federal Food, Drug, And Cosmetic Act, Erika Lietzan Jan 2004

A Brief History Of 180-Day Exclusivity Under The Hatch-Waxman Amendments To The Federal Food, Drug, And Cosmetic Act, Erika Lietzan

Faculty Publications

This article summarizes the history of the 180-day exclusivity provision in the Hatch- Waxman Amendments to the Federal Food, Drug, and Cosmetic Act (FDCA). Part II presents the statutory language, as amended in the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA), and summarizes the law that applies to new abbreviated new drug applications (ANDAs) (those filed after December 8, 2003, provided there was no paragraph IV certification to the listed drug prior to December 8), as well as the law that applies to all other ("old") ANDAs. Part III describes the legislative history of the original 1984 …

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Lessons From Juvenile Justice History In The United States, Douglas E. Abrams Jan 2004

Lessons From Juvenile Justice History In The United States, Douglas E. Abrams

Faculty Publications

Properly understood, “juvenile justice” encompasses all four primary categories of juvenile court jurisdiction - - abuse and neglect, adoption, status offenses and delinquency. I will concentrate today on delinquency - - what states have done with * children found to have committed acts that would be crimes if committed by adults.

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Damages As Narrative, Melody Richardson Daily Jan 2004

Damages As Narrative, Melody Richardson Daily

Faculty Publications

The traditional approach to legal instruction in America-the casebook method-requires students to read hundreds of appellate decisions, most of which include equally terse accounts of human suffering. How might this pedagogical approach affect future lawyers? Can reading a book like Damages help law students develop the ability to empathize with their clients?

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Taking Back The Law School Classroom: Using Technology To Foster Active Student Learning , Rafael Gely, Paul L. Caron Jan 2004

Taking Back The Law School Classroom: Using Technology To Foster Active Student Learning , Rafael Gely, Paul L. Caron

Faculty Publications

Law schools (and indeed all of higher education) have witnessed an explosive growth in the use of technology in the classroom. Many law teachers now deploy a wide array of technological bells and whistles, including PowerPoint slides, Web-based course platforms, in-class Internet access, and the like. Students, in turn, increasingly come to class armed with laptop computers to harvest the fruits of the classroom experience. Yet in recent years there has been something of a backlash, with various law teachers arguing that this technology is interfering with, rather than improving, pedagogy in the classroom. According to the critics, the technology …

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Love, Sex And Politics? Sure. Salary? No Way: Workplace Social Norms And The Law, Rafael Gely, Leonard Bierman Jan 2004

Love, Sex And Politics? Sure. Salary? No Way: Workplace Social Norms And The Law, Rafael Gely, Leonard Bierman

Faculty Publications

A recent article in the New York Times captioned “Love, sex and politics? Sure. Salary? No way” discusses Americans' strong aversion to talking about their salaries. The piece notes that while discussion of financial matters is often acceptable in some parts of the world, it is generally considered “crass” in the United States. In short, discussion by individuals of their salaries and related matters can be seen as violating an American “social norm.” One-third of United States private sector employers have reinforced this norm by adopting specific rules prohibiting employees from discussing their wages with co-workers, rules known as pay …

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