Law Commons^™

E-Nudging Justice: The Role Of Digital Choice Architecture In Online Courts, Ayelet Sela

Journal of Dispute Resolution

Justice systems around the world are launching online courts and tribunals as a means to improve their efficiency, increase access to justice, and ameliorate the quality of proceedings. These online courts and tribunals are publicly administered judicial online dispute resolution (ODR) systems that enable litigants, lawyers, judges and court personnel to complete all litigation related activities, from filing through final disposition, on a dedicated digital platform. Online courts are envisioned as a promising response to many challenges that civil justice systems face, including those stemming from voluminous case filings, procedural complexity, limited accessibility, high costs of litigation, and the ubiquity …

Understanding Actual Dr Practice And Communicating Clearly About It, John M. Lande

Faculty Blogs

This post recommends we develop a common language of dispute resolution and increasingly use qualitative research methods.

Masthead

Missouri Law Review

No abstract provided.

Military Sexual Trauma: A Current Analysis Of Disability Claims Adjudication Under Veterans Benefits Law, Angela K. Drake, Charlotte R. Burgess-Mundwiller

Missouri Law Review

According to the 2018 Report of the Department of Veterans Office of Inspector General, military sexual trauma (“MST”) is on the rise, increasing 10% from the previous year. The Inspector General also found that the Department of Veteran Affairs (“VA”) improperly processed 49% of MST claims in the six-month time period reviewed. During this same time period, veterans’ benefits appeals took an average of seven years to complete, with one in four-teen veterans dying while the appeal was pending. These grim statistics, combined with an adjudication process described as an administrative “hamster wheel,” are untenable in a benefits system statutorily …

Table Of Contents

Missouri Law Review

No abstract provided.

Honey Badger Does Care About First Amendment Protections In Trademark Law, Dana Kramer

Missouri Law Review

In his viral YouTube video, The Crazy Nastyass Honey Badger, comedian Christopher Gordon narrates a honey badger’s actions as it hunts cobras and eats larvae from a beehive: “But look, the honey badger doesn’t care. It’s getting stung like a thousand times. It doesn’t give a shit.” Shortly after Gordon’s video went viral, Drape Creative, Inc. and Papyrus-Recycled Greetings, Inc. began producing greeting cards with catchphrases from Gordon’s YouTube video even though the companies did not have a licensing agreement with Gordon. Subsequently, in Gordon v. Drape Creative, Inc., Gordon sued those two companies for trademark infringement.

Breaking The Ban: Sports Gambling, Anti-Commandeering, And Lots And Lots Of Money, George R. Brand

Missouri Law Review

While there are myriad factors impacting historical trends in gambling revenues across America, this Note will focus specifically on the legal treatment of sports gambling. In 1992, Congress passed the Professional and Amateur Sports Protection Act (“PASPA”), which banned sports gambling nationwide, with a few exceptions such as Las Vegas. Under PASPA, all states had a one-year grace period after the statute went into effect where they could legalize sports gambling within their state and escape PASPA’s pending ban. Although New Jersey failed to take advantage of this loophole during the grace period, state legislators attempted to legalize sports gambling …

Faculty List

Missouri Law Review

No abstract provided.

Copyright

Missouri Law Review

No abstract provided.

How Evidence Of Subsequent Remedial Measures Matters, Bernard Chao, Kylie Santos

Missouri Law Review

Federal Rule of Evidence 407 prohibits plaintiffs from introducing evidence of subsequent remedial measures to show that the defendant is to blame. Among its purported justifications, the rule prevents hindsight bias from unduly influencing jury decisions. Nonetheless, plaintiffs often take advantage of the rule’s numerous exceptions to introduce evidence of remedial measures for other purposes (e.g. to prove feasibility). Fearing that the exceptions could swallow the rule, some courts will even exclude evidence that fits into one of these exceptions because it is ostensibly too prejudicial. Alternatively, other courts instruct juries that they should only use the evidence for the …

Actual Agreement, Shared Meaning Analysis, And The Invalidation Of Boilerplate: A Response To Professors Kar And Radin, Steven W. Feldman

Missouri Law Review

In their February 2019 article in the Harvard Law Review, Pseudo-Contract And Shared Meaning Analysis, Professors Robin Bradley Kar and Margaret Jane Radin argued that, notwithstanding its physical presence in the document (or on a computer screen), boilerplate without actual agreement lacks contractual force.

The authors advocated the technique of shared meaning analysis as a solution to the challenges presented by boilerplate contracts. By referring to “shared meaning,” Kar and Radin proposed that courts enforce “[t]he meaning that parties produce and agree to during contract formation that is most consistent with the presupposition that both were using language cooperatively to …

Safety And Efficacy Of Orthopaedic Surgical Devices Under The Fda’S Updated Premarket Notification Program, Frank Griffin

Missouri Law Review

Orthopaedic surgical devices are recalled 11.5 times more when they obtain U.S. Food and Drug Administration (“FDA”) clearance by Premarket Notification (“510(k)”) than when they are cleared via the more vigorous Pre-market Approval (“PMA”) review. Recall of implanted orthopaedic devices can be devastating for patients – especially if the device must be removed or revised. 510(k) approval is also associated with other negative outcome issues among orthopaedic devices – including outlier devices, new devices underperforming their predicate ancestors, and significant statistical risks – which are discussed in this paper. In November 2018, the FDA announced changes to 510(k) including: (1) …

Second Injury Funds Nationally And In Missouri – Liability, Functionality, And Viability In Modern Times, Rhett Buchmiller

Missouri Law Review

A Second Injury Fund (“SIF”) is a statutory form of workers’ compensation relief operating under state law. SIFs allow employers to reduce their own liability for a worker’s injury if part of the harm from that injury was caused by a previously existing disability. The need for SIFs arises from the possibility that workers with prior injuries who are then reinjured are likely to experience greater harm than other workers. As a result, employers could be exposed to greater liability, which might incentivize employers to discriminate against potential employees with previous injuries.

In Custodia Legis: Implied Warranty Of Habitability Procedure In Missouri, Connor M. Sosnoff

Missouri Law Review

The common law has changed drastically in its treatment of tenants who rent their living spaces from landlords. Over the course of the twentieth century, property doctrine has evolved in response to an ever changing society. Although early common law failed to recognize the relationship between land-lord and tenant as a contractual relationship, modern common law has developed to treat the relationship as such. The implication of contractual principles upon the relationship has increased the scope of duties landlords owe ten-ants in exchange for the tenants’ agreed upon rent.

The Land Of Opportunity Zones: Deferring Taxable Capital Gains Through Investments In Low-Income Communities, Reid S. Vardell

Missouri Law Review

The market reserve of unrealized capital gains in the United States has grown to an estimated $6 trillion. A new program provides a novel way to incentivize investors into realizing those gains but deferring recognition, while at the same time helping to revitalize areas of America that need it most.

Helping People Make Hard Decisions – And Making Them Ourselves, John Lande

Faculty Blogs

This post discusses surgeon Atul Gawande’s wonderful book, Being Mortal: Medicine and What Matters in the End, which critiques the way that the medical profession helps elderly patients make decisions. The post notes similarities with lawyers’ interactions with clients to help them make decisions in legal cases. It argues that Dr. Gawande’s prescriptions for medical practice also are relevant to legal practice. Lawyers generally should do a better job of listening to their clients, providing reasonably clear and accurate information about potential risks and benefits, helping them make hard decisions, and respecting their autonomy.

Planning For Good Quality Decision-Making In Mediation Using Two-Stage Mediation, John Lande

Faculty Blogs

This post describes risks of unplanned one-session mediations, planning for two-stage mediation, and benefits and risks of two-stage mediation.

Access Before Evidence And The Price Of The Fda's New Drug Authorities, Erika Lietzan

Faculty Publications

Sometimes drug innovation seems to happen in reverse. Patients enjoy a treatment for years even though the treatment has not been approved by the FDA or proven safe and effective to the FDA's standards. (Sometimes this happens because the FDA has declined to take enforcement action.) The agency encourages companies to perform the work necessary to satisfy the United States "gold standard" for new drug approval, however, by promising exclusivity in the marketplace. When a company does this work, at considerable expense, the results are predictable. The new drug is expensive, and patients and payers (and sometimes policymakers) are outraged. …

Frozen Pre-Embryo Practice In Missouri, Mary M. Beck, L. "Joanna" Beck Wilkinson

Faculty Publications

McQueen v. Gadberry was an Eastern District dissolution dispute over frozen pre-implantation embryos formed from McQueen’s eggs and Gadberry’s sperm. The St. Louis County trial court found the pre-embryos to be marital property of a special character and awarded them jointly to each of the former spouses. The appellate court affirmed. McQueen is an important decision because the finding that embryos are marital property was an issue of first impression that affects many Missouri families. Infertility is a common problem, couples frequently utilize assisted reproductive technologies (ART) to form families, and the extra frozen pre-implantation embryos (hereinafter pre-embryos) have fueled …

America's Founding Editors: Writing The Declaration Of Independence, Douglas E. Abrams

Faculty Publications

On Congress’ behalf, one of its members, 33-year-old Virginia lawyer Thomas Jefferson, drafted the Declaration of Independence. For the next half century, Jefferson’s fierce pride of authorship, unrestrained by humility, kept him from crediting Congress for skilled editing that helped make him a national icon by sharpening his powerful, but less than polished, draft. The irony of lawyer Jefferson’s enduring bitterness and ingratitude can stimulate today’s lawyers to sharpen their own drafts by respecting cooperative editors as valuable allies, not as troublesome adversaries.

Michael Buenger’S Great Keynote Address At The Aba Court Adr Conference, John Lande

Faculty Blogs

This post discusses the keynote address at the ABA Court ADR Conference, delivered by Michael Buenger, the executive vice-president and chief operating officer of the National Center for State Courts. His talk, Rethinking the Delivery of Justice in a Self-Service Society, focused on the changes needed to deal with social and technological changes in the present and future. He described the reality that the courts and “alternative” dispute resolution are becoming increasingly integrated, and he argued that we need to plan better so that this combined system can better serve the public.

Show Me Criminal Procedure, Ben L. Trachtenberg, Anne M. Alexander

Open Educational Resources

Show Me Criminal Procedure is an open educational resources casebook available for free to students. This is the 2d ed. published in Spring 2019.

Copyright Law: An Open Source Casebook, Gary Myers

Open Educational Resources

Copyright Law is an open access casebook available for free to students. This edition was published in Spring 2019.

Trademarks & The First Amendment After Matal V. Tam, Gary Myers

Faculty Publications

The United States Supreme Court's unanimous ruling in Mata! v. Tam is a landmark decision regarding the intersection between free speech and trademark law. Addressing whether trademarks can legitimately be barred from federal trademark protection under the Lanham Act based solely on their possible disparaging content, the litigation involving an Asian-American band that sought to register the name, "The Slants," brought this important interplay into stark relief. Writing in bold strokes, Justice Alito's opinion holds that the Lanham Act's prohibition on disparaging marks, 15 U.S.C. §1052(a), violates the Free Speech Clause of the First Amendment. "It offends a bedrock First …

Copyright

Missouri Law Review

No abstract provided.

Uncorrected Injustice: Plain Error Review Of Misapplied Sentencing Law, Alec D. Guy

Missouri Law Review

Criminal convictions often result in a restriction on the defendant’s freedom and a deprivation of the defendant’s liberty. Given the gravity of these consequences, there are multiple procedures the court must follow not only in determining guilt but also in imposing a sentence. Sentencing ranges are an essential component of criminal law. In Missouri, sentencing ranges are found in statutes, and these statutes help trial judges determine what sentence to impose. Unfortunately, these guidelines can be incorrectly applied. If these errors are not addressed at the trial level, the appellate process can provide relief. However, interesting questions arise when the …

Faculty List

Missouri Law Review

No abstract provided.

Speech As Speech: “Professional Speech” And Missouri’S Informed Consent For Abortion Statute, Michael J. Essma

Missouri Law Review

Does life begin at conception? Do women need to see a sonogram to make an informed decision about whether they want an abortion? Some state legislatures believe so. Laws mandating politically driven doctor-patient dialogue affect one of the hallmarks of the physician-patient relationship: a patient’s trust in the physician’s expertise. The common law and statutory requirement that a patient provide informed consent for a medical procedure facilitates the development of trust between patient and physician by allowing the patient to understand the procedure and discuss her options with her physician. However, provisions of abortion-specific informed consent statutes that require physicians …

Residential Mortgage Default And The Constraints Of Junior Liens, R. Wilson Freyermuth, Dale A. Whitman

Faculty Publications

Our purpose in this Article is to show how and why junior liens impose these constraints on the process of resolving residential mortgage loan defaults, and to suggest some changes in the law that can restore a measure of desirable flexibility for borrowers and servicers in negotiating default resolutions. At the same time, these suggestions take into account, as they must, the need for fairness in respecting the legitimate rights of junior lienholders.

Masthead

Missouri Law Review

No abstract provided.