Law Commons^™

Troubling Ambition Of Federal Rule Of Evidence 502(D), The , Michael Correll

Missouri Law Review

Federal Rule of Evidence 502 promised to change American litigation for the better. It was heralded as a solution to the gross inequity and spiraling litigation costs associated with the painstaking, cumbersome, and largely wasteful document reviews necessary to protect the attorney-client privilege. And in some measure, it succeeded. It has brought uniformity, predictability, and equity to issues of inadvertent disclosure and subject matter waiver. But a largely overlooked provision of the rule promises even bigger, and more troubling changes. Federal Rule of Evidence 502(d) authorizes district courts to enter discovery orders protecting parties from the waiver consequences normally attached …

Fast-Track Sentencing: A Potential Solution To The Divisive Discretion, Elizabeth Weber

Missouri Law Review

This Summary examines the current federal sentencing regime, the establishment of fast-track programs, and the resulting circuit split regarding whether a judge can grant a defendant a more lenient sentence based on the lack of availability of a fast-track option in that jurisdiction. Further, it discusses more recent developments regarding the circuit split and how the new DOJ policy purports to resolve the issue. Finally, this Summary argues that while this change does solve the sentencing disparity problem, it conflicts with the congressional policy underlying the official sanction of fast-track programs.

Law Deans In Jail , Morgan Cloud, George Shepherd

Missouri Law Review

A most unlikely collection of suspects – law schools, their deans, U.S. News & World Report and its employees – may have committed felonies by publishing false information as part of U.S. News’ ranking of law schools. The possible federal felonies include mail and wire fraud, conspiracy, racketeering, and making false statements. Employees of law schools and U.S. News who committed these crimes can be punished as individuals, and under federal law the schools and U.S. News would likely be criminally liable for their agents’ crimes. Some law schools and their deans submitted false information about the schools’ expenditures and …

From Stem To Stern: Navigating Bankruptcy Practice After Stern V. Marshall, Michelle Wright

Missouri Law Review

In order to provide a foundation for understanding the Court’s reasoning in Stern, Part II of this Comment briefly covers the history of bankruptcy in America. Section III explains how the Supreme Court of the United States’ holding in Stern v. Marshall16 has affected bankruptcy courts’ disposition of state law claims. Scholars’ interpretations of Stern range from understanding it as a narrow holding that will change little in bankruptcy, to questioning whether it foreshadows the Court holding the entire bankruptcy system is unconstitutional in a future case. Given the breadth of opinions that the decision supports, it is predictable that …

Cloaking A Challenge To Missouri's Marriage Amendment With A Challenge For Survivor Benefits, Benjamin S. Harner

Missouri Law Review

This Law Summary focuses on Glossip’s ongoing challenge to receive survivor benefits. The case not only implicates the Missouri Constitution’s equal protection and due process clauses, but it is also controversial because it involves the same-sex marriage issues that have stirred national debate for quite some time. This Law Summary will discuss each of these issues. Specifically, Part II provides the legal background for Missouri’s equal protection and substantive due process clauses and provides case law pertaining to situations similar to Glossip’s that have arisen in other states. Part III provides a more in-depth background of Glossip’s lawsuit, focusing on …

The Role Of The Judiciary In Charter Schools' Policies , Kate Gallen

Missouri Law Review

Part II of this Comment will provide a detailed history about the development of charter schools nationally. Part III then answers the question of whether widespread support for charter schools is a wise policy choice. Part IV outlines how Missouri has created a strong charter culture, while Part V discusses how Georgia failed to do so, and the consequences of each of those decisions. The Comment finally concludes by arguing for the continued judicial support and more purposeful legislative support of charter schools.

What's It To You: The First Amendment And Matters Of Public Concern , Mark Strasser

Missouri Law Review

This Article traces the development of the “matters of public concern” doctrine, explaining the role that the concept has played in cases ranging from defamation3 to employment termination to publication of (allegedly) private facts.4 The Article discusses various inconsistencies in the Court’s jurisprudence, both with respect to what counts as a matter of public concern5 and with respect to the relative importance of the protection of such matters. 6 It concludes that the current jurisprudence cannot help but cause confusion and inconsistent results in the lower courts and must be clarified at the earliest opportunity. 7

Table Of Contents - Issue 4

Missouri Law Review

Table of Contents - Issue 4

Acronyms, Douglas E. Abrams

Faculty Publications

No abstract provided.

Side Letters, Incorporation By Reference And Construction Of Contractual Relationships Memorialized In Multiple Writings, Royce De R. Barondes

Faculty Publications

This article will examine the legal principles applicable to contractual relationships memorialized in multiple writings.

Defining Religion Down: Hasanna-Tabor, Martinez, And The U.S. Supreme Court, Carl H. Esbeck

Faculty Publications

While two recent Supreme Court cases on religious freedom appear sharply at odds, in one material respect they harmonize around an understanding that religion is fully protected only when exercised in private. CLS v. Martinez involved Hastings College of Law. Hastings' regulation of extracurricular organizations was unusual in requiring that any student can join an organization. This all-comers rule had a discriminatory impact on organizations with exclusionary memberships, such as the Christian Legal Society (CLS) which required subscribing to a statement of faith and conduct. The Court acknowledged the discriminatory effect, but said that the Free Speech Clause protects speech …

Teacher, Mentor, Friend, Leader, Richard C. Reuben, Margaret L. Shaw

Faculty Publications

It is a rare person who through his own thoughts and efforts can truly be said to have changed this country, and the world, for the better. Fewer still do it with humility and grace. Frank E. A. Sander is one such transformative figure, a man who for nearly 40 years has nurtured the field of dispute resolution that today is credited as being one of the most significant shifts in American law. Inspired by his ideas and efforts, the resolution of legal problems is faster, more humane, more effective, and less costly for those in the United States and …

Volume 36, Issue 2 (Fall 2012)

Transcript

No abstract provided.

Bad Faith At Middle Age: Comments On The Principle Without A Name (Yet), Insurance Law, Contract Law, Specialness, Distinctiveness, And Difference, Robert H. Jerry Ii

Faculty Publications

In this article, Robert Jerry expounds on Professor Abraham's article on insurer liability for bad faith by pointing out that the concept of institutional bad faith is not a new phenomenon, but rather, one that is as old as the insurance industry itself Jerry focuses on Abraham's depiction of the "specialness" and "distinctiveness" of insurance, while exploring additional instances of "rotten to the core" systemic bad faith dating as far back as the nineteenth-century. Much like Abraham did in his article on bad faith, Jerry uses these examples of systemic bad faith to further his assertion that the insurance industry, …

Reducing The Discount Rate, Ben L. Trachtenberg

Faculty Publications

This article presents two arguments against the “discounting” of future human lives as part of cost benefit analysis, or CBA. Our first argument is that because CBA has thus far ignored evidence of rising health care expenditures, it underestimates the “willingness to pay” for health and safety that future citizens will likely exhibit, thereby undervaluing their lives. Our second argument is that until recently CBA has ignored the trend of improved material conditions in developed countries, and most agencies continue to ignore it entirely. As time advances, residents of rich countries tend to live better and spend more, meaning that …

Empowering Settlors: How Proper Language Can Increase The Enforceability Of A Mandatory Arbitration Provision In A Trust, S. I. Strong

Faculty Publications

With hostile trust litigation reaching epidemic proportions, many people within the trust industry are interested in identifying new and less expensive ways to resolve trust-related disputes. Arbitration is often proposed as a possible alternative, although questions exist about whether and to what extent a mandatory arbitration provision found in a trust will be considered enforceable by a court. Up until now, most commentary in this area of law has focused on purely jurisprudential issues, with little attention being paid to the practical efforts that settlors can make to increase the enforceability of arbitration provisions found in trusts. This Article takes …

Public Forum 2.1: Public Higher Education Institutions And Social Media, Robert H. Jerry Ii, Lyrissa Lidsky

Faculty Publications

Public colleges and universities increasingly are using Facebook, Second Life, YouTube, Twitter, and other social media communications tools. Yet public colleges and universities are government actors, and their creation and maintenance of social media sites or forums create difficult constitutional and administrative challenges. Our separate experiences, both theoretical and practical, have convinced us of the value of providing guidance for public higher education institutions wishing to engage with their constituents-including prospective, current, and former students and many others-through social media.

Together, we seek to guide public university officials through the complex body of law governing their social media use and …

The Supremacy Clause As Structural Safeguard Of Federalism: State Judges And International Law In The Post-Erie Era, Sam F. Halabi

Faculty Publications

Against a backdrop of state constitutional and legislative initiatives aimed at limiting judicial use of international law, this Article argues that state judges have, by and large, interpreted treaties and customary international law so as to narrow their effect on state law-making prerogatives. Where state judges have used international law more liberally, they have done so to give effect to state executive and legislative objectives. Not only does this thesis suggest that the trend among state legislatures to limit state judges' use of international law is self-defeating, it also gives substance to a relatively unexplored structural safeguard of federalism: state …

Financial Decision-Making For Adults Lacking The Capacity To Make Their Own Decisions, David M. English

Faculty Publications

A significant percentage of individuals lack sufficient mental capacity to make financial, health, and personal-care decisions for at least some period during their lifetimes. For those who die suddenly, that period may be brief. For those with Alzheimer’s Disease or other forms of dementia, the period of incapacity may last many years.

Bullying Victimization As A Disability In Public Elementary And Secondary Education, Douglas E. Abrams

Faculty Publications

This article discusses two reasons why likening bullying victimization to an educational disability makes sense. First, face-to-face bullying and cyberbullying impose on student victims the sort of educational deprivation that the federal Individuals with Disabilities Education Act (IDEA) addresses in the disabilities arena. Second, today’s belated public sensitivity to school bullying victims resembles the belated public sensitivity to students with disabilities that led to passage of the IDEA in 1975.

Resolving Mass Legal Disputes Through Class Arbitration: The United States And Canada Compared, S. I. Strong

Faculty Publications

This article compares three issues that have arisen as a result of recent Supreme Court decisions in both countries: the circumstances in which class arbitration is available; the procedures that must or may be used; and the nature of the right to proceed as a class. In so doing, the article not only offers valuable lessons to parties in the U.S. and Canada, but also provides observers from other countries with a useful framework for considering issues relating to the intersection between collective relief and arbitration.

How Not To File A Complaint, Douglas E. Abrams

Faculty Publications

No abstract provided.

Table Of Contents - Issue 2

Journal of Dispute Resolution

No abstract provided.

Interim Measures , Marianne Roth

Journal of Dispute Resolution

Traditionally, requests for interim relief have been a construct of courts. However, arbitrators are increasingly being asked to make such rulings themselves. Requesting interim relief from an arbitrator, as opposed to the court, is particularly appealing in international arbitration, where parties often engage in arbitration as a way of avoiding local courts and any home court advantage that may be associated with them. Sometimes, though, interim relief may be unavailable from the arbitral tribunal; for example, when coercion is associated with the requested measure. In such situations, the powers to grant interim measures are shared between arbitral tribunals and courts. …

From Noise To Music: The Potential Of The Multi-Door Courthouse (Casas De Justicia) Model To Advance Systemic Inclusion And Participation As A Foundation For Sustainable Rule Of Law In Latin America , Mariana Hernandez-Crespo

Journal of Dispute Resolution

International bodies have attempted to provide a more sustainable response to instability through legal reform with an emphasis on rule of law, access to justice, and the use of alternative or appropriate dispute resolution. Yet, in Latin America of yesterday and today, there is a marked gap between law on the books and law in action, due in part to lack of citizen engagement.

Evaluating Public Access Ombuds Programs: An Analysis Of The Experiences Of Virginia, Iowa And Arizona In Creating And Implementing Ombuds Offices To Handle Disputes Arising Under Open Government Laws , Daxton R. Stewart

Journal of Dispute Resolution

The article begins with a review of literature regarding ombuds, public access laws, and dispute systems design. It follows with case studies of the development of public access ombuds offices in Virginia, Iowa, and Arizona. Finally, this article draws conclusions from those experiences, offering guidance to aid other jurisdictions in designing their own ombuds programs.

Bit Unfair: An Illustration Of The Backlash Against International Arbitration In Latin America, A, David Ma

Journal of Dispute Resolution

With the survival of BITs at fulcrum, the Second Circuit recently decided a highly publicized and notorious case applying international arbitration in Chevron Corp. v. Republic of Ecuador. This comment will discuss Chevron and its effects within the wider corpus of BIT international arbitration to provide an illustration of the current debate and status of the BIT framework. The purported benefits BITs provide to signatory countries exist theoretically, and to test these theoretical underpinnings, this comment will discuss Chevron for the purpose of providing real context to a predominately academic debate. Chevron shall demonstrate that theoretical effects and practical effects …

If It Only Had A Heart: Supreme Court Eschews Compassion For Cash-Strapped Consumers In Upholding The Validity Of Arbitration Clauses In Credit Repair Contracts, Collin Koenig

Journal of Dispute Resolution

in CompuCredit Corp. v. Greenwood, the Supreme Court was faced with the issue of whether consumers' claims under the CROA can be resolved through contractually required arbitration, or whether the language of the statute requires resolution between credit repair organizations and consumers may include enforceable arbitration agreements. This note criticizes the Supreme Court's reasoning, partly inspired by Justice Ginsburg's dissent. In enforcing arbitrability of CROA disputes, the Court has acted contrary to Congress' purposes of the Act: to ensure that consumers are making an "informed decision" when dealing with CROs and to protect consumers from deceptive credit repair services. In …

Faa Versus The Magnuson - Moss Warranty Act: Which Warrants Precedence, The, Tyler Beckerle

Journal of Dispute Resolution

These questions have proven to be a formidable foe for the judiciary. Moreover, courts and commentators have been divided as to what answer will produce the best policy. In 2002, the discussion seemed to be headed toward conclusion after the Fifth and Eleventh Circuits found that the FAA should trump the MMWA in the event of statutory conflict. However, with the Ninth Circuit’s decision in Kolev v. Euromotors West/The Auto Gallery, this polarizing issue has once again become a focus in American jurisprudence. While the Ninth Circuit has recently withdrawn Kolev sua sponte, it is doubtful that the Ninth Circuit …

Supreme Court Issues Notice To Courts: Bifurcated Proceedings Still Required, Valerie Dixon

Journal of Dispute Resolution

The United States Supreme Court has made its preference for arbitration widely known through continued declarations of its policy to that effect. In KPMG v. Cocchi, the Supreme Court reaffirmed that preference once again. In that case, however, the Court also found a need to issue a reminder to lower courts that its decision in Dean Witter v. Byrd was still the law of the land. One of the most interesting questions arising from this clear reminder to adhere to precedent is why the Supreme Court felt the need to articulate it at all.