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Prolegomenon On The Status Of The Hopey, Changey Thing In American Criminal Justice, Frank O. Bowman Iii Dec 2010

Prolegomenon On The Status Of The Hopey, Changey Thing In American Criminal Justice, Frank O. Bowman Iii

Faculty Publications

This is an introductory essay to Volume 23, Number 2, of the FEDERAL SENTENCING REPORTER, which considers the state of American criminal justice policy in 2010, two years after the "Change" election of 2008. Part I of the essay paints a statistical picture of trends in federal criminal practice and sentencing over the last half-decade or so, with particular emphasis on sentence severity and the degree of regional and inter-judge sentencing disparity. The statistics suggest that the expectation that the 2005 Booker decision would produce a substantial increase in the exercise of judicial sentencing discretion and a progressive abandonment of …


Title Page Nov 2010

Title Page

Journal of Environmental and Sustainability Law

No abstract provided.


Uncommon Law: Ruminations On Public Nuisance , Richard O. Faulk Nov 2010

Uncommon Law: Ruminations On Public Nuisance , Richard O. Faulk

Journal of Environmental and Sustainability Law

No abstract provided.


Table Of Contents Nov 2010

Table Of Contents

Journal of Environmental and Sustainability Law

No abstract provided.


Prairie Winds: A Look At Commercial Wind Farm Regulation Within Kansas. Zimmerman V. Board Of County Commissioners Of Wabaunsee County, Jonathan R. Austin Nov 2010

Prairie Winds: A Look At Commercial Wind Farm Regulation Within Kansas. Zimmerman V. Board Of County Commissioners Of Wabaunsee County, Jonathan R. Austin

Journal of Environmental and Sustainability Law

No abstract provided.


State Sponsored Global Warming Litigation: Federalism Properly Utilized Or Abused?, Joseph Forderer Nov 2010

State Sponsored Global Warming Litigation: Federalism Properly Utilized Or Abused?, Joseph Forderer

Journal of Environmental and Sustainability Law

No abstract provided.


Where Are We Going To Put All Of This Junk? The Ninth Circuit Dismisses An Attempt To Construct A Large Landfill In Southern California. National Parks & Conservation Association V. Bureau Of Land Management, Aaron Sanders Nov 2010

Where Are We Going To Put All Of This Junk? The Ninth Circuit Dismisses An Attempt To Construct A Large Landfill In Southern California. National Parks & Conservation Association V. Bureau Of Land Management, Aaron Sanders

Journal of Environmental and Sustainability Law

No abstract provided.


Who's Footing The Bill For The Attorneys' Fees?: An Examination Of The Policy Underlying The Clean Water Act's Citizen Suit Provision. Saint John's Organic Farm V. Gem County Mosquito Abatement District, Mary Cile Glover-Rogers Nov 2010

Who's Footing The Bill For The Attorneys' Fees?: An Examination Of The Policy Underlying The Clean Water Act's Citizen Suit Provision. Saint John's Organic Farm V. Gem County Mosquito Abatement District, Mary Cile Glover-Rogers

Journal of Environmental and Sustainability Law

No abstract provided.


No Prp Left Behind: The Tenth Circuit Allows Non-Settling Prps To Intervene As Of Right In Cercla Consent Decree Actions. United States V. Albert Investment Co., Katie Jo Wheeler Nov 2010

No Prp Left Behind: The Tenth Circuit Allows Non-Settling Prps To Intervene As Of Right In Cercla Consent Decree Actions. United States V. Albert Investment Co., Katie Jo Wheeler

Journal of Environmental and Sustainability Law

No abstract provided.


Environmental Law Updates Nov 2010

Environmental Law Updates

Journal of Environmental and Sustainability Law

No abstract provided.


Death Of The Challenge To Lethal Injection - Missouri's Protocol Deemed Constitutional Yet Again, Tanya M. Maerz Nov 2010

Death Of The Challenge To Lethal Injection - Missouri's Protocol Deemed Constitutional Yet Again, Tanya M. Maerz

Missouri Law Review

Lethal injection is currently the predominant form of execution nationwide. Most proponents of this method cite the convenience and the humanity of this procedure over past methods of execution. However, lethal injections are fraught with problems such as the specificity and safety of the written procedures themselves, implementation of such procedures, and whether lethal injection and executions in general are constitutional. Most often, prisoners file constitutional challenges to lethal injections under the Eighth Amendment, which prevents imposing cruel and unusual punishment on an American citizen. One of the more recent cases in Missouri cited such a challenge to the implementation …


Constitutional Interpretation Through A Global Lens, Rex D. Glensy Nov 2010

Constitutional Interpretation Through A Global Lens, Rex D. Glensy

Missouri Law Review

This Article seeks to clarify the current debate concerning the use of non-U.S. persuasive authority within the context of constitutional interpretation. It begins by noting that commentary on comparative constitutional law often fails to make any distinction between foreign domestic sources and international law used comparatively, and thus risks evoking parallels between different systems of law that lack context and plausibility. It then draws on various normative theories and underpinnings of both domestic and international legal regimes to show that a proper comparative enterprise must take this distinction into account. The Article concludes by explaining that only when those policy …


One Prong, Two Prong, Many Prongs: A Look Into The Economic Substance Doctrine, Amanda L. Yoder Nov 2010

One Prong, Two Prong, Many Prongs: A Look Into The Economic Substance Doctrine, Amanda L. Yoder

Missouri Law Review

Almost every federal circuit, as well as Congress, has weighed in on the economic substance doctrine and attempted to clarify its boundaries. The economic substance doctrine deals with transactions that, although technically in accord with the Internal Revenue Code (the Code or I.R.C.), were originally structured solely for tax avoidance purposes. The Internal Revenue Service and courts dislike these transactions because they thwart the general intent of Congress in enacting certain tax-saving Code provisions. Until recent amendments to the I.R.C., the federal circuits were split between two different approaches to tax avoidance transactions, yet the application of the two approaches …


Cumulative Subject Index For Volumes 74-75 Nov 2010

Cumulative Subject Index For Volumes 74-75

Missouri Law Review

Cumulative Subject Index for Volumes 74-75


Are You My Mother - Missouri Denies Custodial Rights To Same-Sex Parent, Emmalee M. Miller Nov 2010

Are You My Mother - Missouri Denies Custodial Rights To Same-Sex Parent, Emmalee M. Miller

Missouri Law Review

This Note argues that Missouri should adopt a doctrine of alternative parentage that expands the definition of "parent" to include those in same-sex relationships who are not the biological or adoptive parents.' 0 In Part II, this Note analyzes the facts and holding of White. Next, in Part 111, this Note explores the Uniform Parentage Act and introduces the nontraditional forms of standing created by courts to allow third parties to obtain custody rights. Then, Part IV examines the court's rationale in White. Lastly, Part V explores why the court erred in its decision and why courts should recognize alternative …


Table Of Contents - Issue 4 Nov 2010

Table Of Contents - Issue 4

Missouri Law Review

Table of Contents - Issue 4


Strip Searches Of Students: Addressing The Undressing Of Children In Schools And Redressing The Fourth Amendment Violations, Diana R. Donahoe Nov 2010

Strip Searches Of Students: Addressing The Undressing Of Children In Schools And Redressing The Fourth Amendment Violations, Diana R. Donahoe

Missouri Law Review

This Article exposes the problems created by T.L.O. and its progeny, analyzes the Safford decision, and proposes recommendations for lower courts, legislatures, and local school boards to redress the current strip search crisis in public schools. Part II explains the T.L.O. two-prong test and illustrates the problems the T.L.O. Court and lower courts have had in applying it, specifically in strip search cases. Part III analyzes the Safford opinion and its ramifications. Part IV proposes ways in which lower courts, legislatures, and local school boards can redress the problems created by TL.O. and Saf ford so that officials will no …


Strict In Theory, But Accommodating In Fact, Ozan O. Varol Nov 2010

Strict In Theory, But Accommodating In Fact, Ozan O. Varol

Missouri Law Review

As law students quickly learn, the strict-scrutiny test governs challenges under the Equal Protection Clause to the government's use of suspect classifications and infringement on certain fundamental rights. To survive strict scrutiny, the government bears the heavy burden of showing a compelling interest in drawing a suspect classification or infringing on a fundamental right and narrowly tailored means to achieve that interest. Over the years, strict scrutiny has expanded to serve as a bulwark against government intrusions on many fundamental rights and liberties in the United States Constitution - including the right to vote, marry, access the courts, and freedom …


Cut And Run - Tuition Reimbursement And The 1997 Idea Amendments, Brianna L. Lennon Nov 2010

Cut And Run - Tuition Reimbursement And The 1997 Idea Amendments, Brianna L. Lennon

Missouri Law Review

This Note addresses the challenges that courts face in balancing the legislative purpose of IDEA with its practical application. At its core, IDEA was enacted to preserve the right of all children to a "free appropriate public education" (FAPE), including special needs students who, under the law, have "the right to sit in the same classrooms, to learn the same skills, [and] to dream the same dreams as their fellow Americans." At the same time, IDEA and its amendments emphasize that "parents [need] a greater voice in their children's education." These goals can create a disconnect between what schools must …


Employees' Decade: Recent Developments Under The Mhra And The Employers' Potential Rebound, The, Dane C. Martin Nov 2010

Employees' Decade: Recent Developments Under The Mhra And The Employers' Potential Rebound, The, Dane C. Martin

Missouri Law Review

This Note will identify the considerable changes and varying interpretations of the MHRA over the last decade, analyze the optimal balance between the competing, important interests, and determine any potential need for amendment, including consideration of the various proposals currently before the legislature. Part 11 thus analyzes the four major areas of difficulty in the adjudication of MHRA claims in the last decade, including jury trials, available damages, the burden of proof, and individual liability. Next, Part III recognizes the most recent developments under the MHRA. And lastly, Part IV involves a two-part discussion beginning with the policy and effect …


Private Transfer Fee Covenants: Cleaning Up The Mess, R. Wilson Freyermuth Oct 2010

Private Transfer Fee Covenants: Cleaning Up The Mess, R. Wilson Freyermuth

Faculty Publications

The purposes for creating a "private transfer fee" covenant range from supporting community services to creating a future revenue stream for the developer. Traditionally, courts examined these covenants using the touch and concern standard. The Restatement (Third) of Property: Servitudes, however, rejects this standard. This Article discusses this new approach as it relates to private transfer fees. The author argues that private transfer fee covenants are contrary to public policy and encourages states to enact legislation limiting the enforcement of these covenants.


Helping Good Lawyers Help Clients Make Good Decisions About Dispute Resolution, John M. Lande Oct 2010

Helping Good Lawyers Help Clients Make Good Decisions About Dispute Resolution, John M. Lande

Faculty Publications

Counseling clients about dispute resolution options is easier said than done. These can be complex and difficult decisions, and lawyers may not have appropriate resources to help lawyers counsel clients in choosing dispute resolution options. While establishing rules requiring this kind of training may help to remedy this shortcoming, perhaps the most promising involves using dispute systems design (DSD) procedures to establish better ways of training lawyers to counsel clients.


Volume 34, Issue 2 (Fall 2010) Oct 2010

Volume 34, Issue 2 (Fall 2010)

Transcript

No abstract provided.


Uniformity, Inferiority, And The Law Of The Circuit Doctrine, Martha Dragich Oct 2010

Uniformity, Inferiority, And The Law Of The Circuit Doctrine, Martha Dragich

Faculty Publications

This Article considers whether Congress or the Supreme Court could reverse the law of the circuit doctrine. Part I explores the importance of uniformity in federal law. Part II considers the extent to which a desire for uniformity has shaped the structure of the federal court system. Part III considers how the evolution of the courts of appeals as independent regional adjudicatory bodies affects the uniformity objective. Part IV examines the attributes of superior and inferior courts, and applies these criteria to the current courts of appeals. Part V examines the tension between uniformity and inferiority as determinants of the …


Operating Efficiently Post-Bilski By Ordering Patent Doctrine Decision-Making, Dennis D. Crouch, Robert P. Merges Oct 2010

Operating Efficiently Post-Bilski By Ordering Patent Doctrine Decision-Making, Dennis D. Crouch, Robert P. Merges

Faculty Publications

Now that the Supreme Court has decided Bilski v. Kappos, there is an enormous amount of speculation about the case’s impact on patent applicants, litigants, and other participants in the patent system. Most of the commentary is concerned with the holding in Bilski, how this holding will be applied by courts and the Patent Office, and ultimately, the effect of the holding on inventors, and those who hold and seek patents.


What Great Writers Can Teach Lawyers And Judges: Wisdom From Plato To Mark Twain To Stephen King (Part 1), Douglas E. Abrams Oct 2010

What Great Writers Can Teach Lawyers And Judges: Wisdom From Plato To Mark Twain To Stephen King (Part 1), Douglas E. Abrams

Faculty Publications

No abstract provided.


Panel Discussion At "Signs Of The Times: The First Amendment And Religious Symbolism", Carl H. Esbeck Oct 2010

Panel Discussion At "Signs Of The Times: The First Amendment And Religious Symbolism", Carl H. Esbeck

Faculty Publications

No abstract provided.


Before You Take A Collaborative Law Case, John M. Lande Oct 2010

Before You Take A Collaborative Law Case, John M. Lande

Faculty Publications

Under the Model Rules of Professional Conduct, lawyers have a duty to screen potential Collaborative Law (CL) cases for appropriateness and obtain clients' informed consent to use CL. The duty to screen cases is based on the "reasonableness" requirement of Rule 1.2(c) and the requirement to avoid conflicts of interest that might interfere with competent and diligent representation under Rule 1.7. Both rules require lawyers to obtain clients' informed consent to participate in a CL process. Although the Uniform Collaborative Law Act is not an ethical rule, sections 14 and 15 create relevant duties, including detailed provisions requiring lawyers to …


Disclose - Disclose - Disclose - Longmeyer Distorts The Trustee's Duty To Inform Trust Beneficiaries, David M. English, Berry T. Turney, Dana G. Fitzsimons Jr. Jul 2010

Disclose - Disclose - Disclose - Longmeyer Distorts The Trustee's Duty To Inform Trust Beneficiaries, David M. English, Berry T. Turney, Dana G. Fitzsimons Jr.

Faculty Publications

The evolution of the law concerning the trustee's duty to disclose information to the trust beneficiaries, through cases like Longmeyer, creates new risks for trustees who are unaware of their obligations. Trustees will also face an increasing number of difficult situations as in Longmeyer as a result of an aging and increasingly infirm population. Although it can be a difficult decision to make under pressure, a trustee should give strong consideration to policies that favor prompt and complete disclosure even in difficult circumstances. Also, trustees should remember that the courts are available for their protection when confronted with genuine doubt …


Putting The Brakes On Private Transfer Fee Covenants, R. Wilson Freyermuth Jul 2010

Putting The Brakes On Private Transfer Fee Covenants, R. Wilson Freyermuth

Faculty Publications

This article will discuss private transfer fee covenants, using one popular model as an example. After explaining how a private transfer fee covenant operates, the article will review the background legal principles relevant to its enforceability As this article will argue, sound policy does not justify the enforcement of private transfer fee covenants. The article concludes with a discussion of recent state legislative efforts to invalidate private transfer fee covenants and highlights a new model statute that, if adopted, would declare such covenants void as contrary to public policy.