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University of Missouri School of Law

Series

2012

Articles 31 - 49 of 49

Full-Text Articles in Law

Traditions And Belligerent Recognition: The Libyan Intervention In Historical And Theoretical Context, Sam F. Halabi Jan 2012

Traditions And Belligerent Recognition: The Libyan Intervention In Historical And Theoretical Context, Sam F. Halabi

Faculty Publications

On February 26 and March 17, 2011, the U.N. Security Council adopted two resolutions authorizing sanctions, referral to the International Criminal Court and military intervention to protect civilians during the Libyan Civil War. Despite these rapid and well-supported interventions, France decided, on March 10, 2011, to recognize the largely anonymous and poorly understood National Transitional Council based in the eastern city of Benghazi as the legitimate representative of the Libyan people. The move both confused its allies and raised a number of legal problems for France, Libya and participants in the multilateral intervention. Nevertheless, Italy, Qatar, the United States, the …

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How Written Advocacy Shapes Doctrine (Part I): Did Bad Briefing Decide Lochner V. New York?, Douglas E. Abrams Jan 2012

How Written Advocacy Shapes Doctrine (Part I): Did Bad Briefing Decide Lochner V. New York?, Douglas E. Abrams

Faculty Publications

No abstract provided.

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Nothing Is Not Enough: Fix The Absurd Post-Booker Federal Sentencing System, Frank O. Bowman Iii Jan 2012

Nothing Is Not Enough: Fix The Absurd Post-Booker Federal Sentencing System, Frank O. Bowman Iii

Faculty Publications

This article is an elaboration of testimony I gave in February 2012 at a U.S. Sentencing Commission hearing considering whether the advisory guidelines system created by the Supreme Court’s 2005 decision in United States v. Booker should be modified or replaced. I argue that it should.

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Arbitration Of Trust Disputes: Two Bodies Of Law Collide, S. I. Strong Jan 2012

Arbitration Of Trust Disputes: Two Bodies Of Law Collide, S. I. Strong

Faculty Publications

This article considers the various issues that arise when two separate bodies of law – trust law and arbitration law – collide, using recent developments in the field of international commercial arbitration to address some of the more intransigent problems facing trust arbitration. The article focuses on five areas of concern: the potential for impermissible ouster of the courts, the operability and effectiveness of the arbitration provision, the extent to which the arbitration provision is binding on the party against whom arbitration is asserted, proper representation of parties and arbitrability. In so doing, this article introduces a number of new …

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Bringing Mindfulness Into The Law School Classroom: A Personal Journey, Richard C. Reuben Jan 2012

Bringing Mindfulness Into The Law School Classroom: A Personal Journey, Richard C. Reuben

Faculty Publications

This autobiographical essay discusses how the author used the techniques and benefits associated with mindfulness to improve his law school classroom teaching. Mindfulness is a state of non-judgmental present moment awareness that is often cultivated through meditation practice but also carried forward into everyday life. The essay discusses how this stance of mindfulness helped the author achieve a greater connection with his students in a variety of both doctrinal and non-traditional classes by fostering more openness, receptivity, and responsiveness to where students are at in the classroom moment, as well as the greater clarity, courage, and compassion that can be …

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Mandatory Arbitration Of Internal Trust Disputes: Improving Arbitrability And Enforceability Through Proper Procedural Choices, S. I. Strong Jan 2012

Mandatory Arbitration Of Internal Trust Disputes: Improving Arbitrability And Enforceability Through Proper Procedural Choices, S. I. Strong

Faculty Publications

Trusts and their civil law equivalents, often known as foundations or associations, play a large and increasing role in the global economy, holding trillions of dollars worth of assets and generating billions of dollars worth of revenue and trustees’ fees annually. Once considered nothing more than “mere” estate planning devices, trusts are now more often seen in commercial rather than in private contexts, and often feature sophisticated financial institutions as professional trustees. With favorable tax laws in various off-shore jurisdictions making international trusts increasingly popular and hostile trust litigation reaching epidemic proportions, arbitration would seem to be many parties’ dispute …

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Airspace And The Takings Clause, Troy A. Rule Jan 2012

Airspace And The Takings Clause, Troy A. Rule

Faculty Publications

This Article highlights several situations in which governments can impose height restrictions or other regulations as a way to effectively take negative airspace easements for their own benefit. The Article describes why current regulatory takings rules fail to adequately protect citizens against these situations and advocates a new rule capable of filling this gap in takings law. The new rule would clarify the Supreme Court’s takings jurisprudence as it relates to airspace and would promote more fair and efficient allocations of airspace rights between governments and private citizens.

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Plagiarism In Lawyers' Advocacy: Imposing Discipline For Conduct Prejudicial To The Administration Of Justice, Douglas E. Abrams Jan 2012

Plagiarism In Lawyers' Advocacy: Imposing Discipline For Conduct Prejudicial To The Administration Of Justice, Douglas E. Abrams

Faculty Publications

In a recent high-profile prosecution, the federal district court criticized defense counsel for filing a post-trial brief that copied passages from previously published material without attribution. The court followed other recent decisions that, since about 2000, have chastised lawyers for briefs marked by plagiarism. Some lawyers had copied passages from earlier judicial opinions that rest in the public domain, and some lawyers (as in the recent prosecution) had copied passages from private sources that are subject to the copyright laws. In either event, courts have labeled lawyers’ plagiarism “reprehensible,” “intolerable,” “completely unacceptable,” and “unprofessional.”

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Tinkering With The Machinery Of Life, Ben L. Trachtenberg Jan 2012

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 …

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Border Skirmishes: The Intersection Between Litigation And International Commercial Arbitration, S. I. Strong Jan 2012

Border Skirmishes: The Intersection Between Litigation And International Commercial Arbitration, S. I. Strong

Faculty Publications

This essay considers the tension between the autonomous theory of international commercial arbitration and the more interactive theory advanced by Gary Born during his keynote address at the recent “Border Skirmishes” symposium at the University of Missouri School of Law. In his presentation, Born considered the relationship between litigation and international commercial arbitration and distinguished between permissible “border crossings” and impermissible “border incursions.” This essay considers how these concepts play out both in routine interactions between courts and tribunals and more in difficult scenarios, such as those involving anti-suit injunctions. The discussion also presents statistics concerning the amount of ancillary …

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Confronting Coventurers: Coconspirator Hearsay, Sir Walter Raleigh, And The Sixth Amendment Confrontation Clause, Ben L. Trachtenberg Jan 2012

Confronting Coventurers: Coconspirator Hearsay, Sir Walter Raleigh, And The Sixth Amendment Confrontation Clause, Ben L. Trachtenberg

Faculty Publications

Using the example of a recent major terrorism prosecution, this article addresses “coventurer hearsay” in the context of the ongoing Confrontation Clause debate concerning the United States Supreme Court’s decision in Crawford v. Washington. Courts have recently begun admitting hearsay evidence pursuant to a revisionist interpretation of the coconspirator statement exception to the hearsay rule. Under the new “lawful joint venture” theory, a hearsay statement may be admitted as a coconspirator statement if made in furtherance of a “joint undertaking” - defined as pretty much any cooperative activity - even if the “conspiracy” is not illegal. Because this new interpretation …

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Airspace And The Takings Clause, Troy A. Rule Jan 2012

Airspace And The Takings Clause, Troy A. Rule

Faculty Publications

This Article argues that the U.S. Supreme Court’s takings jurisprudence fails to account for instances when public entities restrict private airspace solely to keep it open for their own use. Many landowners rely on open space above adjacent land to preserve scenic views for their properties, to provide sunlight access for their rooftop solar panels, or to serve other uses that require no physical invasion of the neighboring space. Private citizens typically must purchase easements or covenants to prevent their neighbors from erecting trees or buildings that would interfere with these non-physical airspace uses. In contrast, public entities can often …

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Before Wisconsin And Ohio: The Quiet Success Of Card-Check Organizing In The Public Sector, Rafael Gely, Timothy D. Chandler Jan 2012

Before Wisconsin And Ohio: The Quiet Success Of Card-Check Organizing In The Public Sector, Rafael Gely, Timothy D. Chandler

Faculty Publications

Card-check laws, which have been unsuccessfully pursued by private-sector unions, mandate that employers recognize the union as the representative of employees on the basis of signed authorization cards without reliance on a representation election. Card check authorization benefits unions because it short circuits the usual organizing process by eliminating the union's need to further prove majority support in a secret ballot election.' But by doing so, it imposes costs on employers by restricting their efforts to erode union support through aggressive campaign tactics. Our paper seeks to better understand the development of these laws and their effects, and in that …

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Access To Consumer Remedies In The Squeaky Wheel System, Amy J. Schmitz Jan 2012

Access To Consumer Remedies In The Squeaky Wheel System, Amy J. Schmitz

Faculty Publications

This article explores the “Squeaky Wheel System” (“SWS”) in business-to-consumer (“B2C”) contexts, referring to merchants’ reservation of purchase remedies and other contract benefits for only the relatively few “squeaky wheel” consumers who have the requisite information and resources to persistently seek assistance. The article uncovers how this system fosters contractual discrimination and hinders consumers’ awareness and access with respect to contract remedies. It also adds empirical insights from my recent e-survey, and offers suggestions for using the internet to empower consumers of all economic and status levels with efficient and accessible means for learning about their purchase rights and asserting …

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Building Bridges To Consumer Remedies In International Econflicts, Amy J. Schmitz Jan 2012

Building Bridges To Consumer Remedies In International Econflicts, Amy J. Schmitz

Faculty Publications

Consumer purchases over the Internet (“ePurchases”) are on the rise, thereby causing an increase in conflicts regarding these purchases (“eConflicts”). Furthermore, these conflicts are increasingly international as consumers purchase goods over the Internet not knowing or caring where the seller is physically located. The problem is that if the purchase goes awry, consumers are often left without recourse due to the futility of pursing international litigation and the textured law and policy regarding enforcement of private dispute resolution procedures, namely arbitration. The United States strictly enforces arbitration contracts in business-to-consumer (“B2C”) relationships, while other countries have refused or limited enforcement …

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Forward: Jim Devine's "Show Me Spirit", R. Lawrence Dessem Jan 2012

Forward: Jim Devine's "Show Me Spirit", R. Lawrence Dessem

Faculty Publications

I am pleased to have been asked by the editors of the Missouri Law Review to write this short introduction to Associate Dean Jim Devine's final Article: "Curt Flood and a Triumph of the Show Me Spirit."' It provides a wonderful window on some of the things that mattered most to Jim: law, history, sports, and personal character and integrity.

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Not A Free Press Court?, Lyrissa Lidsky Jan 2012

Not A Free Press Court?, Lyrissa Lidsky

Faculty Publications

The last decade has been tumultuous for print and broadcast media. Daily newspaper circulation continues to fall precipitously, magazines struggle to survive, and network television audiences keep shrinking. In the meanwhile, cable news is prospering, mobile devices are contributing to increased news consumption, and many new media outlets appear to be thriving. Despite the dynamism in the media industry, the Supreme Court under Chief Justice John Roberts has taken up relatively few First Amendment cases directly involving the media. The Court has addressed a number of important free speech cases since 2005, but thus far the only Roberts Court decisions …

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How The Supreme Court Doomed The Aca To Failure, Thom Lambert Jan 2012

How The Supreme Court Doomed The Aca To Failure, Thom Lambert

Faculty Publications

Now that the dust has settled somewhat, we may assess the likely consequences of the decision in National Federation of Independent Business v. Sebelius. This article briefly summarizes the reasoning underlying the decision's individual mandate ruling. It then considers what lies ahead for health insurance and medical care in the United States if the ACA, as modified by NFIB, is not repealed. Be warned: the picture isn't pretty.

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Public Civil Discourse: A New Domain For Dispute Resolution, Richard C. Reuben Jan 2012

Public Civil Discourse: A New Domain For Dispute Resolution, Richard C. Reuben

Faculty Publications

We in dispute resolution can view civil discourse about public issues - a direct, deliberative way of exercising democracy itself - as a new but related field in which we can apply our skills and services, and this theme edition of Dispute Resolution Magazine is intended to help those of us in dispute resolution cross the isthmus into what for many of us is the new world of civil discourse.

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