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Articles 1 - 30 of 37
Full-Text Articles in Law
Don't Fear Carnivore: It Won't Devour Individual Privacy, Thomas R. Mccarthy
Don't Fear Carnivore: It Won't Devour Individual Privacy, Thomas R. Mccarthy
Missouri Law Review
This Article examines the FBI's use of the Carnivore program and it's implication on online privacy.
Running Aground On The (Shoal) Waters Of The United States: The Supreme Court Invalidates The Migratory Bird Rule, William F. Northrip
Running Aground On The (Shoal) Waters Of The United States: The Supreme Court Invalidates The Migratory Bird Rule, William F. Northrip
Missouri Law Review
For the better part of the last fifty years, the Commerce Clause provided a safe harbor for congressional legislation. However, the legislative landscape began to change with the Supreme Court’s decision in United States v. Lopez. For the first time in nearly sixty years, an act of Congress was invalidated as exceeding the authority granted to Congress by the commerce Clause. As courts applied the stricter standard announced in Lopez, some regulations began to founder under the newly heightened scrutiny. Among the regulations that struggled in these rough waters was 33 C.F.R. § 328.3, the United States Army Corps of …
Antitrust Decisions And Legislative Intent, David F. Shores
Antitrust Decisions And Legislative Intent, David F. Shores
Missouri Law Review
While recent decisions leave no doubt that the Court has revised its view concerning the purpose or goals of the antitrust laws, exactly when the revisionist period began is less clear. Continental T.V., Inc. v. GTE Sylvania Inc., was decided in the 1976-77 term. In overruling its decision in United States v. Arnold Schwinn & Co., decided just ten years earlier, the Court relied heavily on the writing of Robert Bork. Bock since has become the leading advocate for the new antitrust thinking. The 1976-77 Supreme court term seems to be a reasonable point of departure. Thus, the article will …
Nearly Forgotten Supervisory Power: The Wrench To Retaining The Miranda Warnings, The, Nathan E. Ross
Nearly Forgotten Supervisory Power: The Wrench To Retaining The Miranda Warnings, The, Nathan E. Ross
Missouri Law Review
This Comment addresses the supervisory power generally, and it specifically focuses on how the existence of the Court’s supervisory power jurisprudence created a conundrum for the Rehnquist Court’s attempt to preserve the Miranda warnings. Part II traces the history and development of the supervisory power as an independent basis for decision and the alleged sources of this power. Part III analyzes the Court’s decision in Dickerson v. United States, including Justice Scalia’s dissent, within the context of Miranda and Section 3501. Finally, Part IV discusses why the Court chose to constitutionalize the Miranda warnings, instead of invoking it supervisory power, …
Fitting A Square Peg Into A Round Hole: The Application Of Traditional Rules Of Law To Modern Technological Advancements In The Workplace, Gregory I. Rasin, Joseph P. Moan
Fitting A Square Peg Into A Round Hole: The Application Of Traditional Rules Of Law To Modern Technological Advancements In The Workplace, Gregory I. Rasin, Joseph P. Moan
Missouri Law Review
In the ever-changing technological environment, the transmission of information has become as simple and as quick as the click of a mouse or the touch of a button. However, the emergence and widespread use of computers, electronic mail, and the Internet in the workplace also has created challenges for employers, their attorneys, and the courts. Specifically, the courts are forced to apply traditional rules of law to modern technological advancements. The lack of symmetry between these two notions has created uncertainty for today’s employer. This Article discusses the impact of new technology on employment law, particularly in the areas of …
Kiss And Tell: Making The Case For The Torious Transmission Of Herpes And Human Papillomavirus, Michele L. Mekel
Kiss And Tell: Making The Case For The Torious Transmission Of Herpes And Human Papillomavirus, Michele L. Mekel
Missouri Law Review
Recognizing theories of recovery for a tort committed an estimated six million times per year in the United States alone at an annual cost in excess of $4 billion is logical—if not imperative. Not all jurisdictions, however, recognize theories of recovery when the tort in question is the wrongful transmission of herpes and human papillomavirus (“HPV”), two of the most common, incurable sexually transmitted diseases (“STDs”) in America. Nevertheless, in Deuschle v. Jobe, the Missouri Court of Appeals for the Western District of Missouri took a significant step by acknowledging an unmarried sexual partner’s right to bring negligence and intentional …
Regulation Fd: Leveling The Playing Field For Some But Not For Others, Patrick T. Morgan
Regulation Fd: Leveling The Playing Field For Some But Not For Others, Patrick T. Morgan
Missouri Law Review
This Law Summary will review the SEC’s vision of itself as the investor’s protector. In so doing, this Law Summary considers the workings of the capital markets, the price of information, and the vital role of selective disclosure. Next, this Law Summary outlines the SEC’s previous attempts to regulate selective disclosure. A presentation of Regulation Fair Disclosure follows with a focus on its more salient points for corporate counsel. Finally, the Law Summary concludes with a commentary that is generally skeptical of Regulation Fair Disclosure’s actual results.
Crime Of Dispassion: Eighth Circuit (Mis)Applies Deshaney In Failing To Hold State Employees Accountable To The Children They Protect, Bryan R. Berry
Crime Of Dispassion: Eighth Circuit (Mis)Applies Deshaney In Failing To Hold State Employees Accountable To The Children They Protect, Bryan R. Berry
Missouri Law Review
This Note reviews the legal landscape of Fourteenth Amendment substantive due process theory promulgated by the Supreme Court and discusses the importance of the landmark decision in DeShaney v. Winnebago County Department of Social Services in that context. Next, this Note discusses the treatment of DeShaney by the circuit courts, focusing on two exceptions to DeShaney’s analysis that have been carved out by many courts. This Note then reviews the decision in McMullen, and argues that the court of appeals improperly applied DeShaney to the facts in McMullen and that, in any event, DeShaney is an unfortunate extension of an …
Times They Are A-Changin': Personal Jurisdiction In Cyberspace, The, Erica D. O'Loughlin
Times They Are A-Changin': Personal Jurisdiction In Cyberspace, The, Erica D. O'Loughlin
Missouri Law Review
This Note evaluates the difficulty in deciding what type of internet activity will support the exercise of personal jurisdiction over a foreign defendant. There are some discrepancies among the federal court decision as courts have been left to their own devices to decide there issues without guidance form the Supreme Court. As declared by on commentator, and expressed by the United States District Court for the district of Oregon in Millennium Enterprises, Inc. v. Millennium Music, LP, “the case law dealing with the exercise of personal jurisdiction based on an Interactive Website is a ‘current hodgepodge of case law [which] …
Unbundling Our Tort Rights: Assignability For Personal Injury And Wrongful Death Claims, Patrick T. Morgan
Unbundling Our Tort Rights: Assignability For Personal Injury And Wrongful Death Claims, Patrick T. Morgan
Missouri Law Review
This Note explores the origins of the prohibition on champerty and maintenance in tort litigation. It suggests that a modern understanding appropriate to our mature legal system should allow a tort victim to assign his right to sue and collect damages for a wrongful injury or death. This ability to unbundle this right would lead to an efficient restructuring of incentives in tort liability and open courtroom doors to those currently excluded.
Little Waste Goes A Long Way: The Recovery Of Response Costs Under Cercla, A, Cathi M. Kraetzer
Little Waste Goes A Long Way: The Recovery Of Response Costs Under Cercla, A, Cathi M. Kraetzer
Missouri Law Review
In Johnson v. James Langley Operating Co., the United States Court of Appeals for the Eighth Circuit held that plaintiffs, in order to impose liability on defendants, need not show that they incurred response costs by acting to contain a release that threatened public health or the environment. By rejecting the Fifth Circuit’s holding in Amoco Oil Co. v. Borden, Inc., the court created a circuit split. This Note argues that the Eighth Circuit’s liberal interpretation of the plain language of CERCLA furthers the goals of the statute more than the Fifth Circuit’s narrow interpretation. This Note also argues that …
Donkeys, Elephants, And Barney Fife: Are Deputy Sheriffs Policymakers Subject To Patronage Termination, Bryan R. Berry
Donkeys, Elephants, And Barney Fife: Are Deputy Sheriffs Policymakers Subject To Patronage Termination, Bryan R. Berry
Missouri Law Review
This Note examines DiRuzza v. County of Tehama, a recent Ninth Circuit decision that takes a case-specific approach to defining the position of deputy sheriff for the purpose of deciding whether that position involves policymaking and is, therefore, subject to patronage. Furthermore, this Note reviews the landscape of other circuit court decisions on the susceptibility of deputy sheriffs to patronage termination, including the Eighth Circuit’s relative silence on the issue. Finally, this Note argues that the Supreme Court should sanction the approach espoused by DiRuzza in an effort to harmonize what has become cacophonous mix of low court voices on …
Adr And The Federal Government: Not Such Strange Bedfellows After All, Daniel Marcus, Jeffrey M. Senger
Adr And The Federal Government: Not Such Strange Bedfellows After All, Daniel Marcus, Jeffrey M. Senger
Missouri Law Review
These remarks focus on the Federal Government's use of ADR. The Department of Justice, as the nation's most prolific litigator, can benefit greatly from the effective use of ADR. What factors limit its use and how it has been implemented are discussed below.
Policy Of Family Privacy: Uncovering The Bias In Favor Of Nuclear Families In American Consitutional Law And Policy Reform, The, Richard F. Storrow
Policy Of Family Privacy: Uncovering The Bias In Favor Of Nuclear Families In American Consitutional Law And Policy Reform, The, Richard F. Storrow
Missouri Law Review
This Article re-examines the landmark cases comprising the backbone of the family privacy doctrine and discloses, within the folds of their rhetoric of individual liberty, a policy of privacy promoting nuclear families. The re-examination of the landmark cases in Part II demonstrates that the policy of family privacy is to foster the creation and longevity of traditional, nuclear families. Part II illustrates how this policy has become more clearly articulated over time through the Court’s restrictive interpretation of fundamental rights and its recent decision in Troxel v. Granville, the much-awaited ruling on grandparental visitation rights. In Part III, this Article …
Hobson's Choice: Ensuring Open Government Or Conserving Government Funds, A, Michele L. Mekel
Hobson's Choice: Ensuring Open Government Or Conserving Government Funds, A, Michele L. Mekel
Missouri Law Review
In Hemeyer v. KRCG-TV, a case that arose when the Cole County Sheriff filed suit seeking a judicial determination supporting closure of a videotape of a legislator’s booking on drunk driving charges, the Missouri Supreme Court reiterated the public policy statement of openness that is part of the state’s Sunshine Law. To give broad effect to the policy of openness, as prescribed in the Sunshine Law, the court interpreted a component of the Sunshine Law’s remedial provision, Missouri Revised Statutes Section 610.027.5 (“Subsection 5”), liberally against the Cole county Sheriff. As a result of its liberal construction of Subsection 5, …
In The Wake Of Heins: Break Out Your Rulers Missouri It's Time To Measure Your Levees, Blake J. Pryor
In The Wake Of Heins: Break Out Your Rulers Missouri It's Time To Measure Your Levees, Blake J. Pryor
Missouri Law Review
Following the trend in other states, Missouri recently adopted the comparative reasonableness rule for cases involving the diversion of surface water and groundwater. The rule of reasonableness allows a landowner to make reasonable use of the land even though water drainage and flow is altered, as long as the use does not cause unreasonable harm. Missouri’s change to the reasonableness rule from the common-enemy doctrine has yielded favorable results for plaintiffs seeking damages for improper water disposal, but the rule’s initial adoption has left courts with wide latitude in how it should be interpreted. In the last decade, courts have …
Consumer Discrimination: The Limitations Of Federal Civil Rights Protection, Deseriee A. Kennedy
Consumer Discrimination: The Limitations Of Federal Civil Rights Protection, Deseriee A. Kennedy
Missouri Law Review
This Article argues that consumer discrimination is symptomatic of the myriad ways in which racism has become subtly muted and infused into everyday interaction. This “everyday racism,” while carried out and experienced by individuals, is a result of social and institutional policies and, therefore, it represents a fusion of both individual and institutional racism. Despite the ubiquity of the experience, courts have been reluctant to directly address the harms that result from being the target of racial profiling in consumer setting using pre-trial dismissals and an unduly constricted reading of the Civil Rights Act to reject plaintiffs’ claims. The courts …
Tribute To Governor Mel Carnahan, A, Kenneth D. Dean
Tribute To Governor Mel Carnahan, A, Kenneth D. Dean
Missouri Law Review
No abstract provided.
Touchdown--A Victory For Injured Fans At Sporting Events, Stefan A. Mallen
Touchdown--A Victory For Injured Fans At Sporting Events, Stefan A. Mallen
Missouri Law Review
When fans attend sporting events, they usually do so at their own peril. Fans are expected to assume the known risks of flying baseballs, hockey pucks, or footballs. In fact, Judge Cardozo once summarized this situation by saying, “the timorous may stay at home.” While sports fans generally assume the risk of liability from acts by players that send balls flying into the stands, the question arises as to the liability of stadium owners for injuries caused when one fan injures another fan after a player has sent a ball into the crowd. In Hayden v. University of Notre Dame, …
Resuscitating Professionalism: Self-Regulation In The Medical Marketplace, Gail B. Agrawal
Resuscitating Professionalism: Self-Regulation In The Medical Marketplace, Gail B. Agrawal
Missouri Law Review
This Article contends that market failures and the inherent limitation of an economic model to regulate health care delivery warrant a reexamination of physician self-regulation as a means to address the necessity of and concerns about health care spending controls. Although physicians, like all market participants, will respond to economic incentives, the standards for professional conduct adopted through self-regulatory mechanisms are an additional, important, and overlooked determinant of physician conduct. They can be used to achieve results that evade both market forces and command-and-control legislation. These standard, however, have not kept up-to-date with the new market demands on physicians. If …
Deadly Trap Or Reasonable Danger: What Standard Of Care Applies To Non-Electrical Injuries From Power Lines, Brett A. Emison
Deadly Trap Or Reasonable Danger: What Standard Of Care Applies To Non-Electrical Injuries From Power Lines, Brett A. Emison
Missouri Law Review
Missouri demands “the highest degree of care regarding dangerous instrumentalities because of the great risk of injury or death.” However, Missouri also has held that only ordinary care is required when, in a suit against an electric utility, the injury was not caused by the “the inherently dangerous properties of electricity.” This Note examines the struggles faced by a divided court in determining which standard to apply when these holdings conflict.
How Secure Are You--The Effects Of Perfection And Non-Perfection Under Article 9 Of The Uniform Commercial Code, Cory L. Collins
How Secure Are You--The Effects Of Perfection And Non-Perfection Under Article 9 Of The Uniform Commercial Code, Cory L. Collins
Missouri Law Review
Article 9 of the Uniform Commercial Code’s approach to multi-state transactions leaves much to be desired. The recently proposed Revision will significantly alter the approach taken for multi-state transactions. The Revision’s approach is not only easier to understand, but it also provides significantly more certainty to the secured party that it was filed in the proper location and thereby perfected it security interest. The approach taken by the Revision is a vast improvement over the Code and should be embraced by the Missouri legislature, borrowers, lenders, and practitioners.
Confusion In The Realm Of Taxpayer Standing: The State Of State Taxpayer Standing In The Eighth Circuit, Richard M. Elias
Confusion In The Realm Of Taxpayer Standing: The State Of State Taxpayer Standing In The Eighth Circuit, Richard M. Elias
Missouri Law Review
In Tarsney v. O’Keefe, the United States Court of Appeals for the Eighth Circuit dismissed a claim for lack of standing brought by Minnesota state taxpayers challenging a state program that provided abortions for indigent women. In so doing, the Eighth Circuit applied the holding of Flast v. Cohen, the United States Supreme Court case that narrowly limited federal taxpayer standing. The Eighth Circuit, however, erred in relying on Flast, as that case applies only to federal taxpayer standing, not state taxpayers. The court should have interpreted and applied the holding of Doremus v. Board of Education of Borough of …
When Will The Smoke Clear: Application Of Waiver And Estoppel In Missouri Insurance Law, Jeremy P. Brummond
When Will The Smoke Clear: Application Of Waiver And Estoppel In Missouri Insurance Law, Jeremy P. Brummond
Missouri Law Review
This Article examines the Missouri Supreme Court’s decision in Shahan v. Shahan. What is interesting about the court’s decision is the approach the court used to achieve the desired result. In insurance law, generally, a court cannot use the doctrines of waiver and estoppel to create coverage where coverage did not previously exist under the express terms of the insurance policy. The court in Shahan, notwithstanding Missouri’s adherence to the majority approach, underwent an analysis of a rule that was based on waiver and estoppel despite the fact that a favorable ruling for the insured would contradict the general principle …
Preemption Of Local Governments' Authority To Limit Wireless Phone Service Is A Tough Cell Under The Telecommunications Act, Jennifer A. Floyd
Preemption Of Local Governments' Authority To Limit Wireless Phone Service Is A Tough Cell Under The Telecommunications Act, Jennifer A. Floyd
Missouri Law Review
This Note focuses on the substantive limitation of Section 332(c)(7)(B) of the Telecommunications Act which prevents local government from unreasonably discriminating among providers and from prohibiting the provision of service in decisions regarding the placement, construction, and modification of personal wireless facilities. Courts have addressed claims of unreasonable discrimination and prohibition of provision of service with a variety of results. Competing interpretations of the TCA have blurred the function and power of state and local governments in deciding whether to approve personal wireless service applications for construction or modification of towers. Spring Spectrum, L.P. v. Willoth provides a consumer-centered interpretation …
Daddy, Will You Buy Me A College Education--Children Of Divorce And The Constitutional Implications Of Noncustodial Parents Providing For Higher Education, Lindsay E. Cohen
Daddy, Will You Buy Me A College Education--Children Of Divorce And The Constitutional Implications Of Noncustodial Parents Providing For Higher Education, Lindsay E. Cohen
Missouri Law Review
It is not surprising that in an age when obtaining a college education has become increasingly popular and necessary, litigation involving the responsibility of parents to pay for or contribute to the costs of their child’s college education has also increased. This Note discusses the controversial issues of whether a parent has such an obligation and whether this obligation extends to noncustodial divorced parents. The results of much of the litigation throughout the United States on this topic vary greatly depending on the facts and circumstances of each case. In order to fully comprehend the current litigation involving noncustodial divorced …
High Schools And The First Amendment: The Eighth Circuit Leaves Students' Rights At The Schoolhouse Gate, Lynn S. Brackman
High Schools And The First Amendment: The Eighth Circuit Leaves Students' Rights At The Schoolhouse Gate, Lynn S. Brackman
Missouri Law Review
Teenagers straddle that fine line between childhood and adulthood, at times putting both feet on one side of the line, only to jump to the other side on another day. As parents, lawmakers, and scholars struggle to figure out just how much adult responsibility teens should be allowed, teens continue to push for new freedoms. All this maneuvering often results in conflict, especially in secondary schools, where the struggle is perhaps the most pronounced. One focus of the conflict occurring in schools has been whether the First Amendment covers students once they enter the educational setting. In order to teach …
Beyond Campaign Finance: The First Amendment Implications Of Nixon V. Shrink Missouri Goverment Pac, Christina E. Wells
Beyond Campaign Finance: The First Amendment Implications Of Nixon V. Shrink Missouri Goverment Pac, Christina E. Wells
Missouri Law Review
Part I of this Essay discusses legal background, focusing first on the Court's decision in Buckley and then on the Shrink litigation. Part II itemizes Shrink's flaws, ultimately concludng that those flaws cannot be attributed solely to Buckley. Finally, Part III examines the Court's standards of scrutiny in First Amendment cases and argues that Shrink results at least in part from flaws found in those standards.
Antidiscrimination Laws And The First Amendment, David E. Bernstein
Antidiscrimination Laws And The First Amendment, David E. Bernstein
Missouri Law Review
Part I of this Article discusses the development of Supreme Court doctrine regarding First Amendment challenges to the enforcement of antidiscrimination laws. Part II discusses attempted justifications by courts and academics for applying the toothless compelling interest test in conflicts between the First Amendment and antidiscrimination laws. Rationales have ranged from Congress’ purported intent to eradicate discrimination by passing Title VII of the 1964 Civil Rights Act to the anti-caste attributes of the Reconstructions Amendments. All of these arguments fail. Also examined is the threat reliance on the compelling interest test posed to the rights of speech, expressive association, and …
Expiating The Sins Of Yoder And Smith: Toward A Unified Theory Of First Amendment Exemptions From Neutral Laws Of General Applicability, Brian A. Freeman
Expiating The Sins Of Yoder And Smith: Toward A Unified Theory Of First Amendment Exemptions From Neutral Laws Of General Applicability, Brian A. Freeman
Missouri Law Review
This Article explores the extent to which the Constitution requires exemptions from neutral laws of general applicability in order to protect the free exercise of religion. Part I sets forth the current Supreme Court jurisprudence in this area, focusing on the most recent cases, which suggest that only laws that are not neutral or generally applicable are subject to strict scrutiny; otherwise, the majority believes that neutral generally applicable laws are subject to rational basis review. Part I also includes a discussion of analogous First Amendment freedom of expression cases, especially the “expressive conduct” cases, in which the court uses …