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Articles 1 - 30 of 49
Full-Text Articles in Law
Future Of Bankruptcy: A Roundtable Discussion
Future Of Bankruptcy: A Roundtable Discussion
Missouri Law Review
Moderator: Michelle Arnopol Cecil, William H. Pittman Professor of Law, University of Missouri-Columbia School of Law Participants: Marianne Culhane, Professor of Law, Creighton University School of Law A. Mechele Dickerson, Associate Dean for Academic Affairs and Fulbright and Jaworski Professor of Law, University of Texas School of Law The Honorable William Edmonds, Chief United States Bankruptcy Judge, Northern District of Iowa Daniel L. Keating, Associate Dean for Academic Affairs and Tyrrell Williams Professor of Law, Washington University School of Law Katherine Porter, Associate Professor of Law, University of Iowa College of Law John Pottow, Assistant Professor of Law, University of …
Race Matters In Bankruptcy Reform, A. Mechele Dickerson
Race Matters In Bankruptcy Reform, A. Mechele Dickerson
Missouri Law Review
On April 20, 2005, the Bankruptcy Abuse Prevention and Consumer Protection Act of ("BAPCPA") was signed into law and became fully effective for cases filed on or after October 17, 2005. 4 After considering bankruptcy reform for almost a decade, Congress ultimately concluded that some debtors were abusing bankruptcy laws by, among other things, discharging debts they had the means to pay. To curb this perceived abuse, Congress decided to radically overhaul the consumer provisions of the Code by generally making it harder for an opportunistic or "Abusive Debtor" to discharge his debts. Given the sweeping nature of these changes, …
Psychology And Bapcpa: Enhanced Disclosure And Emotion, Richard L. Wiener, Michael Holtje, Ryan J. Winter, Jason A. Cantone
Psychology And Bapcpa: Enhanced Disclosure And Emotion, Richard L. Wiener, Michael Holtje, Ryan J. Winter, Jason A. Cantone
Missouri Law Review
This article describes a program of research that applies social analytic jurisprudence to test some of the assumptions in consumer bankruptcy law and policy.4 Our work first seeks to describe selected provisions from the newly enacted bankruptcy amendments that pertain to enhanced disclosure requirements, and then to locate some of the behavioral assumptions implicit in these provisions. 5 Next, we assess the accuracy of these assumptions based on an experiment that we conducted looking at a simulated online shopping trip that we constructed specifically to test the effects of enhanced disclosure
Foreword, Michelle Arnopol Cecil
Foreword, Michelle Arnopol Cecil
Missouri Law Review
With the tumultuous period after the enactment of BAPCPA as our backdrop, hundreds of academics, practitioners, and judges gathered together for a two-day symposium to explore the positive and negative aspects of bankruptcy reform from a variety of interdisciplinary perspectives. This volume of the Missouri Law Review is devoted almost exclusively to that symposium. Not only does it include the ten participants' written scholarship that emerged from that extraordinary setting, during which we all benefitted tremendously from the input of others who had thought about, written about, and worked with the provisions of BAPCPA, but it also contains a fascinating …
Abuse Prevention 2005, James J. White
Abuse Prevention 2005, James J. White
Missouri Law Review
The 2005 amendments to the Bankruptcy Code (BAPCPA or Act) that became effective in October of 2005 had an unusually long and difficult gestation. The legislation was conceived and even passed by Congress once during the Clinton administration. After President Clinton's pocket veto, the Act did not again reach a President's desk until President George W. Bush signed the Act into law on April 20, 2005, during the first year of his second term. The Act was conceived by institutional unsecured consumer creditors as the antidote to the rapidly rising number of consumer bankruptcies that followed the enactment of the …
Authority With The Force Of Law: Statutory Interpretation As Policymaking In Gonzales V. Oregon, Alfred J. Ludwig
Authority With The Force Of Law: Statutory Interpretation As Policymaking In Gonzales V. Oregon, Alfred J. Ludwig
Missouri Law Review
The Oregon Death with Dignity Act was enacted in 1994 by the State of Oregon to allow physicians to aid terminally ill patients who wished to end their lives in a controlled manner. In 2001, Attorney General John Ashcroft issued an Interpretive Rule stating that prescribing a controlled substance for the purpose of physician-assisted suicide would not qualify as a requisite "legitimate medical purpose" under the federal Controlled Substances Act, and that any physician who prescribed a controlled substance for the purpose of ending a patient's life faced deregistration. In Gonzales v. Oregon, the Supreme Court of the United States …
Residential Privacy And Free Speech: Competing Interests In Charitable Solicitation Regulation, Marcus Wilbers
Residential Privacy And Free Speech: Competing Interests In Charitable Solicitation Regulation, Marcus Wilbers
Missouri Law Review
Although these two quotations represent society's mixed feelings toward charity, they also represent a distinction people often make between a charity's aims and its means. Charitable organizations have the potential to spread hope, re-allocate societal resources, and advocate societal values. How they go about accomplishing these noble goals, however, is sometimes the subject of public frustration and annoyance. This creates a tension between admiring the charity's philanthropy and becoming irritated with the means used to achieve it. Undoubtedly, one of the most unwelcome guests in any household is a telemarketer. In fact, 98% of 1.78 million respondents to a recent …
Bankruptcy Reform And The Costs Of Sickness: Exploring The Intersections, Melissa B. Jacoby
Bankruptcy Reform And The Costs Of Sickness: Exploring The Intersections, Melissa B. Jacoby
Missouri Law Review
Two important developments in the personal bankruptcy system unfolded over the course of the last several years: lawmakers considered and ultimately passed an omnibus bankruptcy bill, and researchers began to delve more broadly and deeply into medical-related financial distress among bankruptcy filers. Drawing on prior scholarship, this article contributes to this symposium by considering what, if anything, these developments have to do with one another. Part I briefly reviews two recent empirical studies of bankruptcy filers and the findings they produced. Although these findings may not have had discrete prescriptive implications for bankruptcy reform, they have contributed to a more …
Why The Bankruptcy Reform Act Left Labor Legacy Costs Alone, Daniel Keating
Why The Bankruptcy Reform Act Left Labor Legacy Costs Alone, Daniel Keating
Missouri Law Review
This paper proceeds in four parts. Part I describes the world of labor legacy costs and how they end up intersecting with bankruptcy. Part II discusses what approaches Congress or the courts have already used to address the labor/bankruptcy intersection. Part III explores what Congress might have considered in the bankruptcy reform bill if it had been motivated to take a serious look at labor legacy costs in bankruptcy. Part IV explains possible theories as to why Congress chose not to reform the labor/bankruptcy intersection and why that decision was frustrating but prudent.
Good In Theory, Bad In Practice: The Unintended Consequences Of Bapcpa's Credit Counseling Requirement, Katherine A. Jeter-Boldt
Good In Theory, Bad In Practice: The Unintended Consequences Of Bapcpa's Credit Counseling Requirement, Katherine A. Jeter-Boldt
Missouri Law Review
On April 20, 2005, after nearly a decade of lobbying by the credit industry, President Bush signed the Bankruptcy Abuse and Consumer Protection Act (BAPCPA). The publicly stated goal of BAPCPA was to make bankruptcy less desirable so that debtors would stop abusing the protections of the Bankruptcy Code. Although Congress was motivated by laudable intentions, it is clear that BAPCPA contains at least one good idea that does not work in practice - the credit counseling requirement. Under BAPCPA, a debtor must receive credit counseling before filing for bankruptcy. Not only did Congress fail to instruct judges on the …
Standing On Hallowed Ground: Should The Federal Judiciary Monitor Executive Violations Of The Establishment Clause, Bradley Thomas Wilders
Standing On Hallowed Ground: Should The Federal Judiciary Monitor Executive Violations Of The Establishment Clause, Bradley Thomas Wilders
Missouri Law Review
This Note argues that the Seventh Circuit reached the correct result. However, there is little logic in continuing to limit Establishment Clause adjudications to plaintiffs who can show injury-in-fact or, absent such injury, plaintiffs who can claim the allegedly unconstitutional act was an exercise of the Taxing and Spending Clause. Instead, because the Establishment Clause is a unique structural restraint which separates the government from organized religion4 and prohibits government support of religion that divides the political process along religious lines, this Note concludes that standing to sue for Establishment Clause violations should be extended to acts of any government …
Judicial Discretion To Find Abuse Under Section 707(B)(3), Eugene R. Wedoff
Judicial Discretion To Find Abuse Under Section 707(B)(3), Eugene R. Wedoff
Missouri Law Review
This article suggests the contrary - that if a section 707(b) motion properly raises the question, a bankruptcy judge has a duty to consider the actual financial situation of a debtor who is not subject to a means test presumption; that the judge should find abuse where the debtor can repay a sufficient amount of unsecured debt; and that the means test serves to guide, rather than foreclose, such determinations of abuse. Part I discusses the language of BAPCPA that requires this result, focusing on the nature of the means test as a presumption. Part II examines (and finds wanting) …
Bankruptcy Reform: What's Tax Got To Do With It, Michelle Arnopol Cecil
Bankruptcy Reform: What's Tax Got To Do With It, Michelle Arnopol Cecil
Missouri Law Review
On April 20, 2005, President Bush signed into law the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA"), the most sweeping bankruptcy reform legislation passed by Congress in over a quarter of a century. The bill, which spanned over 600 pages, completelyoverhauled the consumer bankruptcy system and made significant changes to business bankruptcies as well. Yet despite Congress's massive effort to improve the current bankruptcy system in BAPCPA, it failed to address a number of important issues in the area of bankruptcy taxation, a critical but often overlooked area of bankruptcy law. One such issue involves the tax …
Potential And Peril Of Bapcpa For Empirical Research, The, Katherine Porter
Potential And Peril Of Bapcpa For Empirical Research, The, Katherine Porter
Missouri Law Review
This article surveys the history of bankruptcy data and identifies the BAPCPA provisions that bear directly on research. It concludes by examining how such studies will and should proceed. BAPCPA provides both opportunities and hazards to advance our understanding of bankruptcy. The development of comprehensive federal data offers the potential to dramatically increase the scope of knowledge about the bankruptcy system. The peril lies in the government conducting its research without the transparency and accountability necessary to convince private industry, academic scholars, and the general public of the integrity and usefulness of these data. Rather than eclipsing academic research, the …
Totality Of The Circumstances Of The Debtor's Financial Situation In Post-Means Test World: Trying To Bridge The Wedoff/Culhane & White Divide, The, John A. E. Pottow
Totality Of The Circumstances Of The Debtor's Financial Situation In Post-Means Test World: Trying To Bridge The Wedoff/Culhane & White Divide, The, John A. E. Pottow
Missouri Law Review
Bankruptcy Judge Eugene Wedoff and Creighton Law School professors Marianne Culhane and Michaela White engage in a spirited debate over a series of law review articles about the proper scope of motions to dismiss a debtor's petition under section 707(b) of the freshly revised Bankruptcy Code. It is an interesting and provocative dialogue, with both sides advancing their respective positions persuasively. As a result, I find myself in the unfortunate position of wanting to agree with both. Since that is impossible, however, this brief article is my attempt to find a middle ground between their two positions. It does so …
Crystals, Mud, Bapcpa, And The Structure Of Bankruptcy Decisionmaking, R. Wilson Freyermuth
Crystals, Mud, Bapcpa, And The Structure Of Bankruptcy Decisionmaking, R. Wilson Freyermuth
Missouri Law Review
As a real estate professor, I tend to focus on bankruptcy only as it intersects with mortgage law and Article 9 of the Uniform Commercial Code. Thus, I feel somewhat out of my element as a commenter in this symposium, and my observations may be suspect coming from a bankruptcy "outsider." But as an outside observer, it seems troublesome that bankruptcy's dispute resolution system - and particularly its multiple layers of appellate review - has always been so poorly designed to produce doctrinal clarity. And even if BAPCPA does resolve a number of specific legal issues that have bedeviled the …
Right To Rest In Peace: Missouri Prohibits Protesting At Funerals, The, Megan Dunn
Right To Rest In Peace: Missouri Prohibits Protesting At Funerals, The, Megan Dunn
Missouri Law Review
The Westboro Baptist Church, led by Fred Phelps and based in Topeka, Kansas, has received national attention since the early 1990s, when members of this vehemently anti-homosexual group began actively protesting events involving prominent homosexual people. Eventually, these protests grew to include people who were even marginally supportive of homosexuality. While these protests incited outrage among various groups of people, no widespread effort was made to limit the group's ability to protest at such events. In 2005, however, the group expanded its targets to include military funerals, maintaining that God was killing soldiers in Iraq because of His displeasure with …
Knock-And-Announce Rule: An Illusory Hurdle Or A Legitimate Law Enforcement Limitation, The, Mitchell E. Kempker
Knock-And-Announce Rule: An Illusory Hurdle Or A Legitimate Law Enforcement Limitation, The, Mitchell E. Kempker
Missouri Law Review
Woven into the western world's legal fabric by English courts over four centuries ago, the knock-and-announce rule requires law enforcement officials to knock at a residence and announce their presence prior to executing a search warrant. Recently, the efficacy of this law enforcement restriction and essential civil right has been challenged by various United States courts. On June 15, 2006, the United States Supreme Court eviscerated an essential remedy for violation of this rule, and last year, the Eighth Circuit's decision in Doran v. Eckold diminished the threshold for permissible no-knock entries. These decisions have eroded the constitutional protection the …
Eminent Domain Reform In Missouri: A Legislative Memoir, Dale A. Whitman
Eminent Domain Reform In Missouri: A Legislative Memoir, Dale A. Whitman
Missouri Law Review
The Missouri General Assembly, like a number of other state legislatures, undertook to reform its statutes relating to eminent domain during the 2006 legislative session. This article is the story of that effort and an analysis of the result. I write from a personal perspective. I was fortunate to have been personally involved in many of the decisions that were made as the bill, House Bill 1944, made its was through the legislative process. This opportunity was, I think, fairly unusual for a law professor; in thirty-seven years of teaching property law, I had never previously been so closely engaged …
Making Main Street Legal Again: The Smartcode Solution To Sprawl, Chad D. Emerson
Making Main Street Legal Again: The Smartcode Solution To Sprawl, Chad D. Emerson
Missouri Law Review
This article will analyze the format of the SmartCode, and, since the SmartCode is only a model code that must be legally customized for local jurisdictions, the article will further explain the legal steps that communities must take in order to implement the SmartCode as a zoning option. While doing so, the article will examine how the strict Euclidean structure of today's conventional zoning codes has necessitated the creation of the SmartCode in order to allow communities to legally utilize traditional town and neighborhood planning techniques
Employers Beware: The Missouri Court Of Appeals Takes A Bit Out Of The Employment At-Will Doctrine, Daniel P. O'Donnell Jr.
Employers Beware: The Missouri Court Of Appeals Takes A Bit Out Of The Employment At-Will Doctrine, Daniel P. O'Donnell Jr.
Missouri Law Review
In Dunn v. Enterprise Rent-A-Car Co., the Court of Appeals for the Eastern District of Missouri held that Thomas P. Dunn had presented sufficient evidence to state a cause of action for wrongful discharge for refusing to engage in conduct and for reporting conduct which he reasonably believed violated federal securities laws. Dunn continued Missouri's trend of expanding the availability of wrongful discharge actions to at-will employees terminated in contravention of public policy by merely requiring that the employee "reasonably believe" the instances at issue violate the law. This Note argues that the Eastern District was correct in extending the …
Original Intent In The First Congress, Louis J. Sirico Jr.
Original Intent In The First Congress, Louis J. Sirico Jr.
Missouri Law Review
This study examines the arguments that members of the First Congress made with respect to original intent. It identifies and classifies these arguments in categories analogous to those that might be used in cataloguing arguments based on canons of statutory construction. Given the overlapping functions of constitutional argument for courts and legislatures, the analogy should be unsurprising
Special Statutes Of Limitation And The Servicemembers Civil Relief Act: Case Closed, Alfred J. Ludwig
Special Statutes Of Limitation And The Servicemembers Civil Relief Act: Case Closed, Alfred J. Ludwig
Missouri Law Review
The Servicemembers Civil Relief Act (SCRA) was enacted by Congress "to provide for the temporary suspension of judicial and administrative proceedings and transactions that may adversely affect the civil rights of servicemembers during their military service." To this end, the SCRA prevents any period of military service from being "included in computing any period limited by law, regulation, or order . . . by or against the servicemember or the servicemember's heirs, executors, administrators, or assigns." In State ex rel. Estate of Perry v. Roper, the Court of Appeals for the Western District of Missouri applied the SCRA to prevent …
Group Status And Criminal Defenses: Logical Relationship Or Marriage Of Convenience, Eugene R. Melhizer
Group Status And Criminal Defenses: Logical Relationship Or Marriage Of Convenience, Eugene R. Melhizer
Missouri Law Review
Section I provides a brief overview of the significance of group status generally and its traditional relevance and usage within the criminal justice system. This discussion places the novel, defense-oriented approach to group status in a proper historical and analytical context. Section II begins by sketching a generally accepted system of defenses and placing general defenses within this context. It next describes the proper understanding of justification and excuse, the two preeminent theories for exculpatory general defenses. This complicated and often-contentious area of law is exposited here only insofar as it is necessary to lay the groundwork for the critique …
Inducement Liability For Copyright Infringement Is Born: The Supreme Court Attempts To Remedy The Law's Broken Leg With A Cast On The Arm, Evan F. Fitts
Missouri Law Review
In the wake of Napster's demise, several software companies emerged, intending to capitalize on the high demand for free software that would enable users to access copyrighted music. Grokster, Ltd. ("Grokster") and StreamCast Networks, Inc. ("StreamCast") were two such software companies that, like Napster, were eventually sued for copyright infringement by numerous entertainment industry copyright holders. In Metro-GodwynMayer Studios Inc. v. Grokster, Ltd., the Supreme Court attempted to clarify when a product distributor could be held liable for the infinging acts of a third party that used its product. This note argues that although the Supreme Court's decision introduced a …
Missouri Still Refuses To Impose Social Host Liability For Furnishing Alcohol To Minors, Al J. Smith
Missouri Still Refuses To Impose Social Host Liability For Furnishing Alcohol To Minors, Al J. Smith
Missouri Law Review
Following the repeal of the Missouri Dramshop Act in 1934, Missouri courts did not recognize a civil cause of action against a supplier of alcohol for injuries suffered by a third person that were caused by an intoxicated person. For many decades, a supplier of alcohol was immune from any liability. Gradually, as society took notice of the dangers created by intoxicated drivers, various courts began chipping away at this common law immunity. Jurisdictions across the country began imposing liability against commercial vendors of alcohol for the injuries caused by intoxicated patrons. In the early 1980s, the Missouri courts first …
Unnecessary But Proper: The Missouri Court Of Appeals Expands The Constructive Trust Doctrine While Ignoring The Recording Act, Benjamin C. Hassebrock
Unnecessary But Proper: The Missouri Court Of Appeals Expands The Constructive Trust Doctrine While Ignoring The Recording Act, Benjamin C. Hassebrock
Missouri Law Review
Missouri common law has long held that a constructive trust should be imposed only in cases of fraud or other wrongful conduct. The Missouri Court of Appeals overruled that precedent in Brown v. Brown, holding that a mere mistake is a sufficient ground for imposing a constructive trust. With this decision, the court considerably expanded the circumstances under which a plaintiff may be entitled to this equitable remedy. While the essential holding of Brown is a positive step for Missouri case law, the decision failed to distinguish between a mistaken conveyance that is purely gratuitous and one that is supported …
You're Fired - The Role Of State Courts In The Expungement Of Criminal Records For Federal Security Clearance Purposes, Megan Dunn
Missouri Law Review
The events of September 11, 2001, radically altered many facets of American life. One dramatic change was the establishment of the Federal Department of Homeland Security, created to regulate and oversee various aspects of the federal government in an effort to promote safety and prevent terrorism. As part of this mission, the Department of Homeland Security now manages the investigations that determine eligibility for security clearances necessary for many federal government jobs. As a result of this process, Scott Dyer was denied renewal of the security clearance necessary for his employment as a building engineer at a federal courthouse in …
Stretching The Fourteenth Amendment And Substantive Due Process: Another Close Call For 42 U.S.C. 1983, Brad K. Thoenen
Stretching The Fourteenth Amendment And Substantive Due Process: Another Close Call For 42 U.S.C. 1983, Brad K. Thoenen
Missouri Law Review
Forty years ago, Justice John Harlan noted that the United State Constitution "is not a panacea for every blot upon the public welfare, nor [is the] Court . . .a general haven for reform movements." Written during an era of judicial progressivism, Justice Harlan's words capture perfectly the essence of the Eighth Circuit's majority opinion in Terrell v. Larson, a recent substantive due process case from Minnesota. Substantive due process claims often tug at the heartstrings of our jurisprudence, and Terrell is certainly no exception. This Note will explore the legal foundations and policy implications of Terrell and attempt to …