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Articles 91 - 120 of 122
Full-Text Articles in Law
Here's Your Burrito And Watch Your Back: Does Missouri Really Want To Hold Businesses Liable For Attacks On Patrons, Timothy A. Reuschel
Here's Your Burrito And Watch Your Back: Does Missouri Really Want To Hold Businesses Liable For Attacks On Patrons, Timothy A. Reuschel
Missouri Law Review
In the late 1980s, Missouri altered a longstanding common law rule and found that businesses sometimes owe a duty to their patrons to protect against or warn about criminal attacks by third parties.' This new rule generally applies when a business has experienced prior incidents that are reasonably recent and similar to the attack in question.3 In Stroot v. Taco Bell Corp., the Missouri Court of Appeals for the Eastern District of Missouri upheld a summary judgment entered in favor of a business for an attack that occurred in the business's parking lot even though the victim alleged that prior …
Corporations Practicing Law Through Lawyers: Why The Unauthorized Practice Of Law Doctrine Should Not Apply, Grace M. Giesel
Corporations Practicing Law Through Lawyers: Why The Unauthorized Practice Of Law Doctrine Should Not Apply, Grace M. Giesel
Missouri Law Review
Historically, a doctrine has existed within the area of unauthorized practice of law regulation which holds that a corporation or other entity cannot be licensed to practice law and thus cannot legally practice law. Even if the entity hires as an employee an attorney duly licensed to render the service, the doctrine forbids the attomey from representing any party other than the employer because if the attorney were to represent a third party, the entity, a nonlawyer, would be representing the third party, and this would violate the rule that corporations may not practice law.2 The primary motivating rationale of …
Deserving Disabilities: Why The Definition Under The Americans With Disabilities Act Should Be Revised To Eliminate The Substantial Limitation Requirement, Cheryl L. Anderson
Deserving Disabilities: Why The Definition Under The Americans With Disabilities Act Should Be Revised To Eliminate The Substantial Limitation Requirement, Cheryl L. Anderson
Missouri Law Review
A commentator on a public radio program recently spoke in favor of the Americans with Disabilities Act ("ADA") by asserting that "[t]he blind, deaf, and crippled really do deserve our help."' Although this commentator purported to support the ADA, his actual message was that the definition of "disability" in the Act is excessively vague and allows individuals not "deserving" of legal protection, such as persons with back impairments and mental impairments, to, in his words, "[hitch] a ride on the disability bandwagon."2 His argument that the ADA should reach only the claims of "deserving" individuals with disabilities has had powerful …
Respecting Your Elders: The Highly Marketable Skills Standard For Social Security Disability Claimants Over Age Sixty, Thomas G. Pirmantgen
Respecting Your Elders: The Highly Marketable Skills Standard For Social Security Disability Claimants Over Age Sixty, Thomas G. Pirmantgen
Missouri Law Review
As individuals age, they may face barriers to obtaining employment that did not exist for them when they were younger. Age thus may become a factor in any assessment of the likelihood that persons will successfully find new work. For Social Security disability benefits claimants under age fifty, age is generally not considered to present an obstacle to adjusting to new employment contexts. However, for claimants over age fifty, age is acknowledged as a factor that may significantly impact their ability to adjust to new work
Sacrificial Attorney: Assignment Of Legal Malpractice Claims, The, John M. Limbaugh
Sacrificial Attorney: Assignment Of Legal Malpractice Claims, The, John M. Limbaugh
Missouri Law Review
The Missouri Court of Appeals for the Western District of Missouri ruled, in a case of first impression, that causes of action for legal malpractice are nonassignable. The court found that permitting assignments would be contrary to public policy because assignments would create a marketplace for legal malpractice claims, jeopardize the attorney's duties of loyalty and confidentiality to the client, and restrict access to competent legal services. This Note agrees with the court's result but will explore and challenge the public policy arguments against assignment of legal malpractice claims.
Those With Disabilities Take Heed: Eighth Circuit Suggests That Ada May Not Protect Those Who Fail To Control A Controllable Disability, Brian T. Rabineau
Those With Disabilities Take Heed: Eighth Circuit Suggests That Ada May Not Protect Those Who Fail To Control A Controllable Disability, Brian T. Rabineau
Missouri Law Review
Finding that millions of Americans suffer discrimination as a result of a disability, the federal government enacted the Americans with Disabilities Act ("ADA") in an attempt to rectify and prevent such injustice.2 For the most part, many will find themselves within the ADA's protection. At times, however, an individual may be unable to establish a prima facie case of discrimination, thereby finding himself excluded In Burroughs v. City of Springfield, a case of first impression, the Eighth Circuit considered whether the ADA's protection extends to one who fails to control his diabetes.' The court determined that failure to control a …
Role Of Federal Courts In Assisting International Arbitration - National Broadcasting Co. V. Bear Stearns & (And) Co., The, Thurston K. Cromwell
Role Of Federal Courts In Assisting International Arbitration - National Broadcasting Co. V. Bear Stearns & (And) Co., The, Thurston K. Cromwell
Journal of Dispute Resolution
This Note examines a Second Circuit decision that determined private, international arbitration proceedings do not qualify for the same discovery assistance as do foreign, governmental proceedings under 28 U.S.C. § 1782 ("§ 1782"). This Note will focus on the Second Circuit's controversial interpretation of § 1782 and its impact on the future of private, international arbitration.
Charitable Choice And The Critics, Carl H. Esbeck
Charitable Choice And The Critics, Carl H. Esbeck
Faculty Publications
First, the statute prohibits the government from discriminating with regard to religion when determining whether providers are eligible to deliver social services under these programs. Second, the statute imposes on government the duty not to intrude into the religious autonomy of faith-based providers. Third, the statute imposes on both government and participating FBOs the duty not to abridge certain rights of the ultimate beneficiaries of these programs. I will touch on these three principles below, and do so in reverse order.
Statutory Rape Law And Enforcement In The Wake Of Welfare Reform, Rigel C. Oliveri
Statutory Rape Law And Enforcement In The Wake Of Welfare Reform, Rigel C. Oliveri
Faculty Publications
The recent national efforts at reforming the welfare system and new research on the connection between teen pregnancy and statutory rape have led many states to enact stricter laws against statutory rape and to increase the enforcement of existing laws. Punitive statutory rape laws are being viewed more and more as a mechanism for shrinking the welfare rolls by reducing teen pregnancy. Rigel Oliveri documents the resurgence of statutory rape law and enforcement and explores the ramifications it will have on teen parents. In particular, Oliveri approaches the issue from several analytical frameworks, discussing arguments for consent-based standards, the privacy …
Constitutional Gravity: A Unitary Theory Of Alternative Dispute Resolution And Public Civil Justice, Richard C. Reuben
Constitutional Gravity: A Unitary Theory Of Alternative Dispute Resolution And Public Civil Justice, Richard C. Reuben
Faculty Publications
Under the traditional bipolar model, civil dispute resolution is generally divided into two spheres: trial, which is public in nature and therefore subject to constitutional due process, and alternative dispute resolution (ADR), which is private in nature and therefore not subject to such constraints. In this article, Professor Richard Reuben proposes a unitary understanding of public civil dispute resolution, one that recognizes that ADR is often energized by state action and thus is constitutionally required to comply with minimal but meaningful due process standards. Depending upon the process, such standards might include the right to an impartial forum, the right …
Reinvigorating Chapter 11: The Case For Reinstating The Stock-For-Debt Exception In Bankruptcy, Michelle A. Cecil
Reinvigorating Chapter 11: The Case For Reinstating The Stock-For-Debt Exception In Bankruptcy, Michelle A. Cecil
Faculty Publications
This Article suggests that such a proposal will harmonize the bankruptcy policy of rehabilitating financially distressed corporations with the tax policy of ensuring that true economic income is subject to federal income taxation.27 Parts II and III of this Article will trace the common law evolution of the stock-for-debt exception and its statutory codification in 1980, with particular emphasis on the stated policy justifications for the exception. Part IV will then examine the history of the repeal of the stock-for-debt exception, demonstrating that the repeal was the result of hasty political maneuvering rather than reasoned legislative decision-making. In Part V, …
Silencing John Doe: Defamation And Discourse In Cyberspace, Lyrissa Lidsky
Silencing John Doe: Defamation And Discourse In Cyberspace, Lyrissa Lidsky
Faculty Publications
John Doe has become a popular defamation defendant as corporations and their officers bring defamation suits for statements made about them in Internet discussion fora. These new suits are not even arguably about recovering money damages but instead are brought for symbolic reasons — some worthy, some not so worthy. If the only consequence of these suits were that Internet users were held accountable for their speech, the suits would be an unalloyed good. However, these suits threaten to suppress legitimate criticism along with intentional and reckless falsehoods, and existing First Amendment law doctrines are not responsive to the threat …
Future Of Adr - The Earl F. Nelson Memorial Lecture, The, Frank E. A. Sander
Future Of Adr - The Earl F. Nelson Memorial Lecture, The, Frank E. A. Sander
Journal of Dispute Resolution
Because I've been fortunate to observe the ADR scene for much of its recent development, I'm often asked my views of where we stand now. My somewhat flip answer is, "On Monday, Wednesday and Friday, I think we've made amazing progress. On Tuesday, Thursday and Saturday, ADR seems more like a grain of sand on the adversary system beach." So I think we have a way to go. Let me try to elaborate a little on those thoughts
Continuing The Conversation About The Current Status And The Future Of Adr: A View From The Courts, Wayne D. Brazil
Continuing The Conversation About The Current Status And The Future Of Adr: A View From The Courts, Wayne D. Brazil
Journal of Dispute Resolution
In this essay I would like to complement the picture that Professor Sander has presented by adding information about and commentary from the perspective of the courts. After offering some general observations about the current status of ADR in the courts, I will describe what I think the near-term future looks like. Then I will articulate values that we need to take special care to preserve in court-sponsored ADR programs. I also will identify dangers that we, as courts, must try to avoid on the road ahead. Along the way, I will respond specifically to three of the concerns that …
Variations In Mediation: How - And Why - Legal Mediators Change Styles In The Course Of A Case, Dwight Golann
Variations In Mediation: How - And Why - Legal Mediators Change Styles In The Course Of A Case, Dwight Golann
Journal of Dispute Resolution
I will seek to show in this article that professional legal mediators in fact use a variety of styles, and that they change their approach constantly during a single mediation, even within a single meeting with a disputant. I will argue that these stylistic changes are the norm rather than the exception in the mediation of civil legal disputes and that the use of evaluative techniques is also frequent, even among those mediators who favor a broad, facilitative approach. Finally, I will describe the contrasting styles that the filmed mediators used in the same dispute and argue that these variations …
Some Reflections On Adr, James F. Henry
Some Reflections On Adr, James F. Henry
Journal of Dispute Resolution
It may be time for practitioners and theorists who have contributed quality and innovation to the ADR movement to declare victory. It also may be time to "cut and run," because ADR must address some difficult issues if it is to realize its full potential. So far, we have assembled an excellent state-of-the-art in a relatively short period, but we have paid relatively little attention to the ADR infrastructure required to fulfill the quality and promises of ADR. It is that delivery system of ADR which will determine the degree of economy, accessability, expedience, innovation and party control that are …
Adr Research At The Crossroads, Deborah R. Hensler
Adr Research At The Crossroads, Deborah R. Hensler
Journal of Dispute Resolution
One of the remarkable aspects of the ADR movement is the empirical research that it has engendered. The granddaddy of court-administered alternative dispute resolution--the pretrial settlement conference--was the occasion for the first experimental study of an innovative legal procedure.' Small claims courts--another early alternative to full-fledged litigation--were put under the microscope in the 1960s.' Over the years, a host of empirical studies on the adoption, implementation and consequences of court ADR programs has been published.'
Is Binding Arbitration A Form Of Adr: An Argument That The Term Adr Has Begun To Outlive Its Usefulness, Jean R. Sternlight
Is Binding Arbitration A Form Of Adr: An Argument That The Term Adr Has Begun To Outlive Its Usefulness, Jean R. Sternlight
Journal of Dispute Resolution
While the semantic question may be uninteresting, I suggest that it is useful to ask the normative question of how we should categorize binding arbitration.'7 Again, there may be no clear "right" answer. Nevertheless, addressing the question of the appropriate categorization of binding arbitration provides a good means for rethinking the nature of binding arbitration, what we mean by ADR, and how the variety of dispute resolution techniques typically grouped together as ADR relate to litigation. Artificially grouping these disparate processes together under the "ADR" umbrella is beginning to prove problematic. While we may continue to use the phrase in …
Consensual Approaches To Resolving Public Policy Disputes, Brett A. Williams
Consensual Approaches To Resolving Public Policy Disputes, Brett A. Williams
Journal of Dispute Resolution
This Comment will explore various consensual approaches and their application to public disputes. Specifically, unassisted and assisted negotiation will be examined in detail.9 In addition, the specific application of consensual approaches will be explored in the context of public environmental disputes.'0 Finally, the issue of alternative resolution to public disputes at the federal administrative level will be examined.
Appeals From Arbitration Orders Under The Federal Arbitration Act: Pro-Arbitration Policy Clashes With The Right To Appeal Final Decisions - Randolph V. Green Tree Financial Corp., Sarah Baxter
Journal of Dispute Resolution
Some circuits have also taken the position that when a court rules on an arbitration order in an embedded proceeding and dismisses the remaining claims in the action, those decisions are also not final or appealable. Other circuits, however, have taken the view that when a court rules on an arbitration order and dismisses the remaining claims in an action, such a decision is final and appealable. A decision on an arbitration order in an independent action is a final decision. This Note explores the circuit split over the issue of whether orders compelling arbitration in embedded proceedings may be …
Concern Over Confidentiality In Mediation - An In-Depth Look At The Protection Provided By The Proposed Uniform Mediation Act, The, Mindy D. Rufenacht
Concern Over Confidentiality In Mediation - An In-Depth Look At The Protection Provided By The Proposed Uniform Mediation Act, The, Mindy D. Rufenacht
Journal of Dispute Resolution
This Comment will investigate the historical problems with confidentiality in mediation and evaluate the Proposed Uniform Mediation Act's (hereinafter "U.M.A." or "Act") approaches to remedying confidentiality issues. The reader should carefully note that the Uniform Mediation Act is in an on-going drafting phase at this time, and the content of the Act's drafts discussed herein are not final and are for discussion purposes only. This Comment's discussion will cover confidentiality in disclosure with respect to parties, waiver, and a mediator's duty of non-disclosure. This Comment will also compare the mechanisms the U.M.A. has put in place to govern confidentiality to …
Arbitration Agreements Between Employers And Employees: The Sixth Circuit Says The Eeoc Is Not Bound - Eeoc V. Frank's Nursery & (And) Crafts, Inc., Earl D. Kraus
Journal of Dispute Resolution
In Frank's Nursery, however, the EEOC pursued court action against an employer that included monetary relief for the employee even though there was an individual arbitration agreement between the employer and employee.5 Should the arbitration agreement restrict the EEOC from bringing such action? Currently, there is a split in the circuits on this issue. According to the Sixth Circuit in Frank's Nursery, the EEOC is not bound by the arbitration agreement and, therefore, can pursue court action against the employer that includes monetary relief on behalf of the employee.6 The Second Circuit, however, has not allowed the EEOC to pursue …
Federalism Versus The Greater Good ... Should Powerful Franchisors Be Allowed To Contract For The Home Court Advantage Through Forum Selection Clauses - Kkw Enterprises, Inc. V. Gloria Jean's Gourmet Coffees Franchising Corp., Nathan E. Ross
Journal of Dispute Resolution
When Congress condified the Federal Arbitration Act (F.A.A.), it sought to make arbitration a viable alternative to tradition litigation. Since the enactment of the FAA, the United States Supreme Court has addressed and answered numerous issues regarding the functioning of the FAA. However, the Supreme Court has yet to determine whether the FAA preempts state laws that invalidate forum selection clauses contained in franchise agreements. In Gloria Jean's, the First Circuit Court of Appeals squarely faced this issue and held that the FAA preempts state laws that attempt to negate the terms contained in a forum selection provision of a …
Preface, Ryan D. O'Dell