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2001

University of Missouri School of Law

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Articles 31 - 60 of 119

Full-Text Articles in Law

Book Review: The Business Of Judging, S. I. Strong Jul 2001

Book Review: The Business Of Judging, S. I. Strong

Faculty Publications

Lord Bingham of Cornhill is no stranger to the business of judging. Senior Lord of Appeal in Ordinary, former Lord Chief Justice of England, former Master of the Rolls, he has been sitting on the bench in one capacity or another for the last twenty years - twenty-five if one counts his tenure as a recorder. Although he began his career at the bar in 1959 as a commercial and civil lawyer, his appointment in 1996 as Lord Chief Justice placed him at the apex of the criminal justice system. In becoming senior Law Lord, Lord Bingham has expanded his …

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Arbitral Discovery Of Non-Parties, Jason F. Darnall, Richard Bales Jul 2001

Arbitral Discovery Of Non-Parties, Jason F. Darnall, Richard Bales

Journal of Dispute Resolution

This article argues that the broad power approach is the better reasoned of the two. Timely discovery of important information is vital in any dispute. Further, fair results should be the goal of any dispute resolution process. The possessor of the pertinent information, i.e., whether it is held by parties or non-parties, should be irrelevant. Part II of this article describes the differences between discovery in litigation and discovery in arbitration. Part III examines the limited power approach to prehearing discovery, which restricts the power of an arbitrator to compel non-party participation in discovery to the actual hearing. Part IV …

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Science-Policy Disputes: Resolution Through Data Mediation, Erik S. Knutsen Jul 2001

Science-Policy Disputes: Resolution Through Data Mediation, Erik S. Knutsen

Journal of Dispute Resolution

It is the aim of this article to propose a novel system of dispute resolution for disputes which turn on interpretations of complex but uncertain scientific evidence. Part II identifies a specific subset of legal disputes that can only be resolved through policy judgments from ambiguous scientific data. Recognizing the underlying commonalities of these science-policy disputes offers an opportunity to craft a single dispute resolution mechanism which may be utilized for a wide variety of disputes. Part III outlines the benefits of using a mediation-based dispute settlement mechanism, as opposed to the traditional adversary-style litigation system, for these specific types …

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Stop The Stay: Interrupting Bankruptcy To Conduct Arbitration - Slipped Disc, Inc. V. Cd Warehouse, Inc., Matthew Dameron Jul 2001

Stop The Stay: Interrupting Bankruptcy To Conduct Arbitration - Slipped Disc, Inc. V. Cd Warehouse, Inc., Matthew Dameron

Journal of Dispute Resolution

Since its inception, arbitration has affected other practice areas of the law differently. Some practice areas, such as bankruptcy, have created special exceptions to accommodate the growth of arbitration. Arbitration's effect on the automatic stay in bankruptcy is explored in the following Note.

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Hold All Arbitrations: Public Policy Invalidations Are On The Loose - Town Of Groton V. United Steelworkers Of America, Christina S. Lewis Jul 2001

Hold All Arbitrations: Public Policy Invalidations Are On The Loose - Town Of Groton V. United Steelworkers Of America, Christina S. Lewis

Journal of Dispute Resolution

The United States Supreme Court has held that arbitration awards derived from collective bargaining agreements may be invalidated based on public policy. However, an arbitration award should only be invalidated if the public policy is explicit, well-defined, and dominant.' This article will examine how the Connecticut Supreme Court applied the public policy test and whether the court adequately justified its decision.

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Supreme Court Defines Final Decisions Relating To Arbitration Decisions And Ducks The More Important Costs Issue - Green Tree Financial Corp. - Alabama V. Randolph, The, Franklin D. Romines Ii. Jul 2001

Supreme Court Defines Final Decisions Relating To Arbitration Decisions And Ducks The More Important Costs Issue - Green Tree Financial Corp. - Alabama V. Randolph, The, Franklin D. Romines Ii.

Journal of Dispute Resolution

The United States Supreme Court in Green Tree Financial Corp. - Alabama v. Randolph dealt with two arbitration issues of varying import. The less controversial issue involved defining the term 'final decision' in the context of arbitration proceedings.2 The second major issue in the case provided the Court an opportunity to analyze cost assignments in arbitration agreements that were silent on the issue.3 This issue has generated considerable policy disagreement among the circuits

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Be Careful What You Say In Mediation - Indiana Supreme Court Rules That Oral Settlement Agreements Reached In Mediation Must Be In Writing To Be Enforceable - Kirk E. And Martha Vernon V. Adam J. Acton, Garrett S. Taylor Jul 2001

Be Careful What You Say In Mediation - Indiana Supreme Court Rules That Oral Settlement Agreements Reached In Mediation Must Be In Writing To Be Enforceable - Kirk E. And Martha Vernon V. Adam J. Acton, Garrett S. Taylor

Journal of Dispute Resolution

When parties use mediation as an alternative to litigation, they generally expect the agreement will be binding upon the parties and confidential. However, the parties must ensure that the agreement they reach is reduced to writing or the agreement may not be enforceable. Furthermore, certain things said during the mediation session may be admissible in future litigation proceedings. The Indiana Supreme Court, in Vernon v. Acton, held that until mediation agreements are reduced to writing and signed by the parties, they must be considered compromise settlement negotiations under the applicable evidence rules and are not admissible as evidence of an …

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Uniform Arbitration Act: Introduction, The, Timothy J. Heinsz Jul 2001

Uniform Arbitration Act: Introduction, The, Timothy J. Heinsz

Journal of Dispute Resolution

The Uniform Arbitration Act (UAA) is one of the most successful laws promulgated by the National Conference of Commissioners on Uniform State Laws (NCCUSL). Originally passed by NCCUSL in 1955, the UAA has served as the bases of arbitration statutes in some forty-eight jurisdictions. As more parties have incorporated arbitration clauses into contractual relationships, the importance of the UAA and its federal counterpart, the Federal Arbitration Act (FAA), have correspondingly increased. Supreme Court precedent at both federal and state levels abrogating the common law hostility against arbitration and replacing this attitude with and avowedly pro-arbitration doctrine has enhanced the arbitration …

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Recent Developments: The Uniform Arbitration Act, Brent A. Correll, S. Jacob Sappington, David Sims, Blake J. Tompkins Jul 2001

Recent Developments: The Uniform Arbitration Act, Brent A. Correll, S. Jacob Sappington, David Sims, Blake J. Tompkins

Journal of Dispute Resolution

Since 1983, this annual Article 2 has been prepared to provide a survey of recent developments in the case law interpreting and applying the various state versions of the Uniform Arbitration Act3. The purpose is to promote uniformity in the interpretation of the U.A.A. by developing and explaining the underlying principles and rationales courts have applied in recent cases.4

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Table Of Contents Jun 2001

Table Of Contents

Journal of Environmental and Sustainability Law

No abstract provided.

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Junk Science, Environmental Risk, And Very Low Detection Levels In Npdes Permits , Todd B. Adams, Barry Michael Levine Jun 2001

Junk Science, Environmental Risk, And Very Low Detection Levels In Npdes Permits , Todd B. Adams, Barry Michael Levine

Journal of Environmental and Sustainability Law

No abstract provided.

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Clean Air Act And The Federal Removal Statute: Do They Fit Together Or Are We Missing A Piece Of The Puzzle? California V. United States, Joshua Klinger Jun 2001

Clean Air Act And The Federal Removal Statute: Do They Fit Together Or Are We Missing A Piece Of The Puzzle? California V. United States, Joshua Klinger

Journal of Environmental and Sustainability Law

No abstract provided.

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Conservation Or Coercion: Federal Regulation Of Intrastate Wetlands Under The Swambuster Provisions Of The Food Security Act. United States V. Dierckman, Patrick R. Douglas Jun 2001

Conservation Or Coercion: Federal Regulation Of Intrastate Wetlands Under The Swambuster Provisions Of The Food Security Act. United States V. Dierckman, Patrick R. Douglas

Journal of Environmental and Sustainability Law

No abstract provided.

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Taking Claims: Are The Federal Courts Truly Open? John Corporation V. City Of Houston, Joel Block Jun 2001

Taking Claims: Are The Federal Courts Truly Open? John Corporation V. City Of Houston, Joel Block

Journal of Environmental and Sustainability Law

No abstract provided.

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Times They Are A-Changin': Personal Jurisdiction In Cyberspace, The, Erica D. O'Loughlin Jun 2001

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] …

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Summer 2001 Jun 2001

Summer 2001

Transcript

No abstract provided.

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Unbundling Our Tort Rights: Assignability For Personal Injury And Wrongful Death Claims, Patrick T. Morgan Jun 2001

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.

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Volume 25, Issue 1 (Summer 2001) Jun 2001

Volume 25, Issue 1 (Summer 2001)

Transcript

No abstract provided.

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Little Waste Goes A Long Way: The Recovery Of Response Costs Under Cercla, A, Cathi M. Kraetzer Jun 2001

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 …

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Donkeys, Elephants, And Barney Fife: Are Deputy Sheriffs Policymakers Subject To Patronage Termination, Bryan R. Berry Jun 2001

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 …

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Adr And The Federal Government: Not Such Strange Bedfellows After All, Daniel Marcus, Jeffrey M. Senger Jun 2001

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.

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Policy Of Family Privacy: Uncovering The Bias In Favor Of Nuclear Families In American Consitutional Law And Policy Reform, The, Richard F. Storrow Jun 2001

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 …

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The Uniform Health-Care Decisions Act And Its Progress In The States, David M. English May 2001

The Uniform Health-Care Decisions Act And Its Progress In The States, David M. English

Faculty Publications

Over the past decade, planning for health care decision making through the making of an advance directive has become a routine part of personal counseling. Public interest in the subject has been fueled by well-publicized cases such as Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990). In response to this interest, most states authorize their citizens to make at least one form of advance directive: all states statutorily authorize powers of attorney for health care, and all but Massachusetts, Michigan and New York authorize living wills. State legislation has been a mixed blessing. Although intended to facilitate …

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Hobson's Choice: Ensuring Open Government Or Conserving Government Funds, A, Michele L. Mekel Apr 2001

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, …

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In The Wake Of Heins: Break Out Your Rulers Missouri It's Time To Measure Your Levees, Blake J. Pryor Apr 2001

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 …

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Consumer Discrimination: The Limitations Of Federal Civil Rights Protection, Deseriee A. Kennedy Apr 2001

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 …

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Tribute To Governor Mel Carnahan, A, Kenneth D. Dean Apr 2001

Tribute To Governor Mel Carnahan, A, Kenneth D. Dean

Missouri Law Review

No abstract provided.

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Touchdown--A Victory For Injured Fans At Sporting Events, Stefan A. Mallen Apr 2001

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, …

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Resuscitating Professionalism: Self-Regulation In The Medical Marketplace, Gail B. Agrawal Apr 2001

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 …

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Deadly Trap Or Reasonable Danger: What Standard Of Care Applies To Non-Electrical Injuries From Power Lines, Brett A. Emison Apr 2001

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.

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