Open Access. Powered by Scholars. Published by Universities.®
- Discipline
- Publication Year
- Publication Type
Articles 1 - 23 of 23
Full-Text Articles in Law
Resurfacing Sovereignty: Who Regulates Surface Mining In Indian Country After Mcgirt?, Robin M. Rotman, Sam J. Carter
Resurfacing Sovereignty: Who Regulates Surface Mining In Indian Country After Mcgirt?, Robin M. Rotman, Sam J. Carter
Faculty Publications
This article examines disputes over surface mining jurisdiction on the Muscogee (Creek) Nation Reservation post-McGirt and the larger implications for sovereignty and environmental justice in Indian Country that follow. Part II summarizes the history of federal, state, and tribal relations and provides an analysis of the McGirt decision and its potential impacts on natural resource issues. Part III offers an examination of jurisdictional uncertainties post-McGirt through an in-depth discussion of the Surface Mining Control and Reclamation Act and the State of Oklahoma v. United States Department of the Interior case. Drawing from the examination of surface mining regulation, Part IV …
It's None Of Your Business: State Regulation Of Tribal Business Undermines Sovereignty And Justice, Robin M. Rotman, Sam J. Carter
It's None Of Your Business: State Regulation Of Tribal Business Undermines Sovereignty And Justice, Robin M. Rotman, Sam J. Carter
Faculty Publications
The U.S. Constitution grants the federal government plenary power over American Indian affairs, yet states are increasingly attempting to assert regulatory and tax jurisdiction over tribal businesses. This overreach threatens tribal sovereignty and contravenes the terms of treaties entered between the United States and American Indian tribes. This Article begins by examining the legal foundations of federal, state, and tribal relations. It then examines recent cases across four business sectors - gaming, tobacco sales, petroleum sales, and online lending - in order to illustrate the pervasive jurisdictional challenges faced by courts in cases involving tribal businesses. This Article offers three …
Missouri's Residency Restrictions For Medical Marijuana Use, Royce De R. Barondes
Missouri's Residency Restrictions For Medical Marijuana Use, Royce De R. Barondes
Faculty Publications
Missouri's adoption of a constitutional amendment decriminalizing medical marijuana for state law purposes has presented numerous interstitial issues. This article examines one that Missouri's Department of Health and Senior Services ("DHSS") has attempted to address by regulation: residency requirements for qualifying patients. The current regulations add detail to the constitutional requirement that a qualifying patient be a "Missouri resident". They require that a patient must "reside [] in Missouri and not claim resident privileges in another state or country". This article concludes this aspect of the regulations is of dubious tenability.
When Regulations And Arbitration Awards Collide: Potential Difficulties For Arbitrators And Parties: Bangor Gas Co., Llc V. H.Q. Energy Serv. U.S. Inc., Greg Mitchell
Journal of Dispute Resolution
Many commercial transactions are complex. The increasing presence of both arbitration and administrative regulations are part of what creates this complexity. It is thus possible that parties to a commercial transaction will find themselves in arbitration over a dispute involving regulations. This note will explore the potential difficulties parties and arbitrators face when arbitration awards and regulations collide. The difficulties for parties include grounds for vacatur that are either nonexistent or hard to meet, and potentially being forced to choose between violating a regulation or not complying with the award. Additionally, arbitrators face difficulties in fashioning awards that comply with …
Disaggregated State In Transnational Environmental Regulation, The , Hoi L. Kong
Disaggregated State In Transnational Environmental Regulation, The , Hoi L. Kong
Missouri Law Review
This Article argues against a positivist view of international environmental law that (i) conceives of states as unitary entities that speak with one voice in pursuit of a single national interest,1 and that focuses on (ii) authoritative sources of law and (iii) the binding force of these sources of law. Further, this Article argues for a view of transnational law that (i) views the state as disaggregated, rather than unitary, (ii) focuses on informal legal mechanisms that do not have authoritative status and (iii) directs attention towards law’s facilitative functions and away from law’s binding force. This special issue’s theme …
Need For Legitimate Regulatory Regime In Bioethics: A Global And European Perspective, The , Jane Reichel
Need For Legitimate Regulatory Regime In Bioethics: A Global And European Perspective, The , Jane Reichel
Missouri Law Review
Bioethics in global biobanking touches upon several internationally accepted fundamental rights and values, namely the sample donor’s right of privacy, the patient’s right to health, and – at least implicitly – scientific freedom. From the perspective of fundamental rights, however, there are very few internationally applicable rules as to the enforcement of these rights at the administrative level. Instead, the combination of the practical need for common rules and the lack of political will and/or legislative competence within the international community or the European Union (EU) seems to have paved the way for soft law. Further, the role of courts …
Reducing The Discount Rate, Ben L. Trachtenberg
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 …
Regulatory Litigation In The European Union: Does The U.S. Class Action Have A New Analogue?, S. I. Strong
Regulatory Litigation In The European Union: Does The U.S. Class Action Have A New Analogue?, S. I. Strong
Faculty Publications
This article is the first to consider the European resolution from a regulatory perspective, using a combination of new governance theory and equivalence functionalism to determine whether the European Union has adopted or is in the process of adopting a form of regulatory litigation. In so doing, the article considers a number of issues, including the basic definition of regulatory litigation, how class and collective relief can act as a regulatory mechanism and the special problems that arise when regulatory litigation is used in the transnational context. The article also includes a normative element, providing a number of suggestions on …
Tinkering With The Machinery Of Life, Ben L. Trachtenberg
Tinkering With The Machinery Of Life, Ben L. Trachtenberg
Faculty Publications
Recent adjustments by the Environmental Protection Agency (EPA) and the Department of Transportation (DOT) to their cost–benefit analysis procedures could cause tremendous changes to federal regulation. For decades, federal agencies have calculated the value of a statistical life (VSL) and have used that number when evaluating the costs and benefits of proposed regulations. If a regulation was expected to save lives, the number of lives saved could be multiplied by the VSL to monetize the benefits. Because, however, lives saved in the future were given the same nominal value as lives saved in the present, the real value of future …
Health Inflation, Wealth Inflation, And The Discounting Of Human Life, Ben L. Trachtenberg
Health Inflation, Wealth Inflation, And The Discounting Of Human Life, Ben L. Trachtenberg
Faculty Publications
This article presents two new arguments against “discounting” future human lives during cost-benefit analysis, arguing that even absent ethical objections to the disparate treatment of present and future humanity, the economic calculations of cost-benefit analysis itself - if properly calculated - counsel against discounting lives at anything close to current rates. In other words, even if society sets aside all concerns with the discounting of future generations in principle, current discounting of future human lives cannot be justified even on the discounters’ own terms. First, because cost-benefit analysis has thus far ignored evidence of rising health care expenditures, it underestimates …
Plurality Of Political Opinion And The Concentration Of Media In The United States, William B. Fisch
Plurality Of Political Opinion And The Concentration Of Media In The United States, William B. Fisch
Faculty Publications
This paper reviews regulatory efforts of the U.S. federal govern- ment to promote viewpoint diversity in broadcast media (radio, television, cable, and satellite) in the face of increasing concentration of ownership of such media, and the impact on such efforts of the free- doms of speech and press embodied in the First Amendment to the federal constitution. With respect to this issue, the regulatory work has been done overwhelmingly by the Federal Communications Commis- sion, operating under an act of Congress which has been amended from time to time to push the FCC in particular directions. The anti- trust laws …
Applying Restraints To Private Police, Heidi Boghosian
Applying Restraints To Private Police, Heidi Boghosian
Missouri Law Review
Private security needs better public oversight. This Article argues that equitable remedies in the form of improved training and oversight should be requested as part of relief in all Section 1983 claims involving private police. Improved training would greatly benefit society by reducing the number of violent encounters between private security officers and the public.
Oh, Ye Of Little (Good) Faith: Questions, Concerns And Commentary On Efforts To Regulate Participant Conduct In Mediations, Roger L. Carter
Oh, Ye Of Little (Good) Faith: Questions, Concerns And Commentary On Efforts To Regulate Participant Conduct In Mediations, Roger L. Carter
Journal of Dispute Resolution
There are many types of mediation. This article focuses exclusively on mediations within Professor Lande's "liti-mediation culture" - those dealing with disputes that are or may become the subject of litigation. I address both court-connected and private mediations as I believe that the potential for bad faith exists in both. Following this Introduction, in Part II, I examine definitions of "good faith" in mediation, I then review commentary and case law on good faith requirements. In Part III, I argue that certain objectively determinable behavior ought to be proscribed. By contrast, some good faith standards adopted by courts or advocated …
A Tale Of Three Statutes . . . (And One Industry): A Case Study On The Competitive Effects Of Regulation, Rafael Gely
A Tale Of Three Statutes . . . (And One Industry): A Case Study On The Competitive Effects Of Regulation, Rafael Gely
Faculty Publications
The comparison of the three labor regulatory regimes raises an interesting counterexample to the traditional model of regulation. Instead of adopting a one-size-fits-all model, could a regulatory model be conceptualized where a menu of regulatory options is made available to the target population? Under such an approach those affected by the regulatory regime will choose among the various regulatory options and adopt those that better fit their particular situations. Part IV.B develops the basic parameters of this proposal. The article ends with a brief conclusion.
Narrow Application Of Buckley V. Valeo: Is Campaign Finance Reform Possible In The Eighth Circuit, The, Matthew S. Criscimagna
Narrow Application Of Buckley V. Valeo: Is Campaign Finance Reform Possible In The Eighth Circuit, The, Matthew S. Criscimagna
Missouri Law Review
Federal campaign finance reform has been a hot topic as of late, from the recent debates of the McCain-Feingold bill in Congress to the investigation of alleged violations in connection with the 1996 presidential election. The issue of campaign finance reform is of equal importance on the state level. A majority of states have been reforming their campaign finance laws since 1990.2 However, these reforms have not avoided constitutional challenges. The Eighth Circuit has been particularly harsh when reviewing challenges to state campaign finance reform. This has led to a limited number of alternatives for the states to employ when …
What Happened To The Equity In Equitable Subrogation, Robert M. Smith
What Happened To The Equity In Equitable Subrogation, Robert M. Smith
Missouri Law Review
The doctrine of equitable subrogation provides courts with a vehicle to allow a lending institution that has paid off an existing loan to take the original lending institution's place in priority status. 2 While the doctrine appears quite simple, courts have been remarkably inconsistent in their approaches to allowing equitable subrogation claims. This Note discusses the various approaches taken by courts today, and more importantly, analyzes Missouri's current approach as affirmed most recently in Metnor Financial, Inc. v. Landoll Corporation.
Cable Television, New Technologies And The First Amendment After Turner Broadcasting System, Inc. V. F.C.C., Erik Forde Ugland
Cable Television, New Technologies And The First Amendment After Turner Broadcasting System, Inc. V. F.C.C., Erik Forde Ugland
Missouri Law Review
From the moment it emerged as an independently viable communications medium, the cable television industry has been forced to operate within the shadow of regulatory oversight. With passage of the Cable Television Consumer Protection and Competition Act of 1992,' and judicial endorsement of much of that legislation in Turner BroadcastingSystem, Inc. v. F.C.C., cable's future rests squarely in the hands of the federal government. Congress, with some help from the Supreme Court, has made it clear that any blueprints for the future of the nation's communications infrastructure will have to pass through Washington. This article is divided into four parts. …
Good Will Adjustment Games: An Economic And Legal Analysis Of Secret Warranty Regulation, Jeff Sovern
Good Will Adjustment Games: An Economic And Legal Analysis Of Secret Warranty Regulation, Jeff Sovern
Missouri Law Review
Secret warranty programs, which have existed for at least twenty years, are enormous in scope: nearly every car on the road is said to be subject to one of the more than 500 secret warranties supposedly operating at any given time,! while one expert estimates that the ten largest known secret warranty programs have covered 30 million automobiles and $3 billion in repairs. The purpose of this Article is to discuss whether secret warranties should be regulated, and if so, how. Part II of the Article reviews what is known about the working of secret warranty programs. Part III discusses …
A Rational Choice Theory Of Supreme Court Statutory Decisions With Applications To The State Farm And Grove City Cases, Rafael Gely, Pablo T. Spiller
A Rational Choice Theory Of Supreme Court Statutory Decisions With Applications To The State Farm And Grove City Cases, Rafael Gely, Pablo T. Spiller
Faculty Publications
In this article we follow the recent developments of the modern theory of administrative agencies, by developing a rational choice theory of the Supreme Court. Our framework combines two of the main characteristics of this literature: namely, the rational choice modeling strategy with the notion that institutions matter in the design of public policy. We differ basically by modeling the Supreme Court as a self-interested, ideologically motivated institution, making its decisions subject not to the traditional legal rules of precedent, but to the constraints arising from the political interests of other institutions of government-namely, Congress and the President.
Payments By A Cash Basis Federal Savings And Loan Association To The Fslic: Are They Deductible, Philip J. Erbacher
Payments By A Cash Basis Federal Savings And Loan Association To The Fslic: Are They Deductible, Philip J. Erbacher
Missouri Law Review
The author is an attorney in a Kansas City, Missouri law firm. His topic is the deductibility for federal income tax purposes of certain "premium" payments made by federally chartered savings and loan associations to the Federal Savings and Loan Insurance Corporation (FSLIC). Recently his firm was successful in establishing this point before a federal district court, and more recently the Court of Appeals for the Ninth Circuit, re- versing the Tax Court, reached a similar conclusion involving a savings and loan institution chartered under the laws of the state of California. In this article the author urges the correctness …
Aesthetic Zoning: Property Values And The Judicial Decision Process, Sheldon Elliot Steinbacht
Aesthetic Zoning: Property Values And The Judicial Decision Process, Sheldon Elliot Steinbacht
Missouri Law Review
The reluctance of courts, as well as certain segments of the public, to accept aesthetics as the sole basis for zoning stems from a reverence for the historic rights of private property. Put in the least favorable light, aesthetic zoning may be considered as the exercise of the police power to restrain an individual in the use of his private property so that the community may have the luxury of gazing upon pleasant surroundings. Many feel that the property owner should not be compelled to bear the financial burden of making the community beautiful but instead that the community itself …
Missouri Uniform Securities Act, The, Hal M. Bateman
Missouri Uniform Securities Act, The, Hal M. Bateman
Missouri Law Review
Despite the spectacular events of recent years in the field of federal securities law, the less glamorous arena of state securities regulation—better known as "blue sky law"—continues to play an important and regular role in the securities lawyer's practice. The new Missouri Uniform Securities Act must therefore be carefully considered and analyzed by Missouri attorneys. It is the purpose of this article to assist in such consideration and analysis. The adoption of the new Missouri Act is particularly significant for two reasons. First, in displacing the prior Missouri statutes, the new Act provides a modern, comprehensive, and well-drafted statute which …
Modification Of The Riparian Theory And Due Process In Missouri, James D. Ellis
Modification Of The Riparian Theory And Due Process In Missouri, James D. Ellis
Missouri Law Review
Until relatively recent years water rights legislation and litigation has primarily centered in the seventeen arid and semi-arid western states. However, as a result of increased demands on water resources for agricultural, industrial, recreational and public uses, the more humid and traditionally water rich states of the East have expressed concern for and interest in the conservation and regulation of their water resources. A significant number of these states have departed from the common law riparian theory of water use law and have enacted comprehensive regulatory measures, modeled after the water acts common in the western states. In accordance with …