Law Commons^™

Can You Have Too Much Of A Good Thing?: The Modern Marketplace Of Ideas, Rachael L. Jones

Missouri Law Review

This Article argues that though the state of the marketplace looks grim, it is not dead yet. Rather, we have entered an era in which the role of the marketplace is shifting. Instead of representing the proverbial promised land of truth and expression, the marketplace is serving an important role in the pursuit of democratic self-governance. From private media companies offering fact-checking services to combat false news to teenagers using social media to call citizens to action on gun reform, the marketplace appears to be adapting. But it remains to be seen whether the marketplace can continue to best serve …

Dynamex Is Dynamite, But Epic Systems Is Its Foil – Chamber Of Commerce: The Sleeper In The Trilogy, William B. Gould Iv

Missouri Law Review

This Article examines the concept of the independent contractor classification – a characterization at issue in early litigation involving the question of whether particular workers are employees or independent contractors. It describes the early cases arising in transportation, including over-the-road trucking, the taxi-cab industry, and package delivery companies like Federal Express (“FedEx”). The Article takes the position that the concept of flexibility, frequently used by employers to classify or reclassify employees as independent contractors, is a false justification for determining that employees are independent contractors. It also takes the position that engaging in part-time work for numerous employers is consistent …

A Sign To Many No More: Supreme Court Of Missouri Casts Away Church’S Sign Variance, Matthew Neuman

Missouri Law Review

Depending on the context in which they are encountered, the consequences of land use zoning may be viewed either as a saving grace – preserving or prospectively safeguarding the locality to similar compatible uses – or as an obstacle to overcome – hindering the development potential or use of a piece of land. Although the level of concern may vary based upon the zoning district, homeowners in residential neighborhoods have a right to be particularly sensitive to adjacent land use. Part II of this Note explores the facts of Antioch Community Church v. Board of Zoning Adjustment of City of …

Examining The Impact Of In Re Brunetti On § 2(A) Of The Lanham Act, Alex Weidner

Missouri Law Review

For § 2(a)of the Lanham Act, 2017 proved to be a devastating year. Not only did the Matal v. Tam decision strike down the disparagement provision, it served as a springboard for In re Brunetti to invalidate the bar against immoral and scandalous marks later that year. This Note examines whether the majority correctly invalidated the immoral-scandalous provision, argues that it did not, and analyzes the likelihood the remaining two provisions in the Lanham Act will be struck down by another First Amendment challenge. Part II summarizes the facts and holding of In re Brunetti. Part III provides an overview …

How Can Practitioners Help Clients Assess Their Interests And Risks In Litigation?, John Lande

Faculty Blogs

This post summarizes the discussion at a Quinnipiac-Yale Dispute Resolution Workshop. It highlights some practical ideas that the audience suggested about clients’ interests, timing of discovery and mediation, possible trial outcomes, legal fees, consequences of litigation, and decision fatigue in “marathon mediations.”

Automatic Authorization Of Frisks In Terry Stops For Suspicion Of Firearms Possession, Royce De R. Barondes

Faculty Publications

The recognition in Heller of an individual right to bear arms has required courts to grapple with the interaction between exercise of this right in public and Terry stops. Core questions are (i) whether reasonable suspicion a person is armed is by itself sufficient to initiate a Terry stop and (ii), if so, whether such a stop inherently authorizes an accompanying frisk. The former issue is examined in a separate forthcoming article, Royce de R. Barondes, Conditioning Exercise of Firearms Rights on Unlimited Terry Stops, 54 Idaho L. Rev. 297.

This article focuses on the second issue. Most fundamentally, insofar …

Calm Down About Common Ownership, Thom Lambert, Michael E. Sykuta

Faculty Publications

Proponents of additional antitrust intervention to police common ownership simply have not made their case. Their theory as to why current levels of intra-industry diversification would cause consumer harm is implausible and the empirical evidence they say demonstrates such harm is both scant and methodologically suspect. The policy solutions they have proposed for dealing with the purported problem would radically rework an industry that has provided substantial benefits to investors, raising the costs of portfolio diversification and enhancing agency costs at public companies. Courts and antitrust enforcers should reject their calls for additional antitrust intervention to police common ownership.

Contumacious Responses To Firearms Legislation (Leosa) Balancing Federalism Concerns, Royce De R. Barondes

Faculty Publications

The Law Enforcement Officers Safety Act (LEOSA) is one of the handful of federal statutes that preempt state firearms regulation. It allows covered individuals (certain current and retired qualified law enforcement personnel) to possess firearms notwithstanding assorted state restrictions-to protect themselves and to supplement local law enforcement efforts.

The act reflects a careful legislative balancing of federalism concerns. Although it relies on states and localities to issue the authorizing credentials, it does not mandate states create a licensing regime out of whole cloth. The act ultimately presents issues requiring a nuanced assessment of the doctrine proscribing federal commandeering of the …

Paper Promises For Drug Innovation, Erika Lietzan

Faculty Publications

Innovation does not stop when a new medicine is launched. Development of new uses for already approved drugs, in particular, can make profound contributions to the public health. Whether a new use is suspected during the initial premarket trials, identified through focused research after approval, or discovered serendipitously by physicians treating patients, however, it requires extensive clinical testing before it can be approved by FDA. This testing takes time and money — three to five years on average, and as much as $300 million. This Article considers the incentives that federal law offers to companies to make this investment: patent …

Reality-Testing Questions For Real Life And Simulations – And Ideas For Stone Soup Assignments, John Lande

Faculty Blogs

Although litigants and their lawyers may generally recognize that litigants will incur some intangible costs, they often do not consider the numerous intangible ways that litigants can be harmed and do not carefully assess these costs when making litigation decisions. Sometimes litigants’ intangible costs are much more important to them than the tangible costs. This post provides detailed descriptions of some of these costs, and includes questions that lawyers and mediators should ask clients to identify and value intangible costs.

What Do Litigants Really Want?, John M. Lande

Faculty Blogs

This post discusses Donna Shestowsky’s article, Inside the Mind of the Client: An Analysis of Litigants’ Decision Criteria for Choosing Procedures. Her study found that the decision-making factor that subjects most often cited was their lawyers’ advice. Donna argues, “Given the extent to which litigants are predisposed to following their lawyers’ advice about which procedures to use, lawyers should attempt to understand their clients’ interests, values, and objectives before sharing their personal evaluations of procedures to avoid imposing their own views.”

Let's Teach Our Students Legal Technology... But What Should We Include?, Randy J. Diamond, Darin Fox, Kenneth J. Hirsh, Heidi Frostestad Kuehl, Michael Robak

Faculty Publications

A "renaissance” is often described as a cultural rebirth, a movement ushering in a modern age and leaving behind the old ways of doing things. There is every indication that we are entering a technology-driven renaissance in the legal profession. Artificial intelligence (AI), “big data,” document automation, e-discovery tools, cloud-based case management systems, and communication and collaboration tools are just a few of the ways that technology is transforming the practice of law in the twenty-first century.

One Judge's Ten Tips For Effective Brief Writing (Part I), Douglas E. Abrams

Faculty Publications

In his years on the federal bankruptcy court bench, Judge Michael had read his share of briefs and other filings. Experience led him to write "Ten Tips for Effective Brief Writing," and to share them on the Court's website to guide counsel who appear before him. He directed the Gordon parties to Tip# 9, "Leave the Venom at Home." "Whether you like (or get along well with) your opposition," the Tip advises, "has little to do with the merits of a particular case. The most effective attack you can make is to persuade ... me that the other side is …

Keet And Heavin On Why Litigation Interest And Risk Assessment Is So Darn Important For Lawyers And Mediators – And How You Can Make Stone Soup With It, John Lande

Faculty Blogs

This post provides links to law review articles by Michaela Keet and Heather Heavin that provide the foundation for the LIRA book.

The European Succession Regulation And The Arbitration Of Trust Disputes, S. I. Strong

Faculty Publications

Over the last few decades, U.S. citizens have become increasingly mobile, with significant numbers of individuals living, working, and investing abroad. Estate planning has become equally international, generating ever-larger numbers of cross-border succession cases. While these sorts of developments are welcome, they require lawyers to appreciate and anticipate the various ways that the laws of different jurisdictions can interact. One of the most important recent developments in international succession law comes out of the European Union. While the European Succession Regulation may initially appear applicable only to nationals of E. U. Member States, U.S. citizens can also be affected by …

Generating A Dissolution Process At The University Of Missouri: A Student Perspective, Evonnia S. Woods

Journal of Dispute Resolution

Although student protests and campus politics during the Fall of 2015 on the University of Missouri’s flagship campus were far more complex than depicted in the media, the point remains that student protests revealed many shortcomings of the University. One of these shortcomings was the lack of a policy-driven dissolution process which, amongst other things, resulted in national critique of how student protests and student demands were handled.

“It All Started With A Mouse”: Resolving International Trademark Disputes Using Arbitration, Ashlyn Calhoun

Journal of Dispute Resolution

This Comment will address how arbitration can resolve international trademark disputes by examining the nature of both international disputes and trademark disputes. In order to do so, Part II will discuss the nature of domestic and international trademark disputes. Part III will examine the benefits of using arbitration in place of litigation. Finally, Part IV will evaluate the use of arbitration to resolve trademark disputes.

Private Universities And The First Amendment, Ben Trachtenberg

Journal of Dispute Resolution

This Article questions whether private colleges and universities should act as though the First Amendment applies to them in the same way it constrains the policy of public colleges and universities. Specifically, the Article examines the common suggestion—by laypersons, lawyers, and scholars alike—that private universities ought to tolerate offensive, hateful, bigoted speech because the values animating First Amendment jurisprudence are similar to those guiding the decisions of good universities committed to free inquiry and the open exchange of ideas. It then notes that this suggestion, while commonly made, is rarely defended with much rigor or vigor. The Article next marshals …

“Hardly Be Said To Offer An Education At All”: Endrew And Its Impact On Special Education Mediation, Grant Simon

Journal of Dispute Resolution

As the standards for special education students in America rise, the need to handle the resulting disputes arises as well. Special education disputes are a common yet emotional process for all parties involved. Such disputes can result in a split between the family and the school district- a split that can potentially leave negative consequences on the student. In 1975, Congress, realizing the personal nature and prevalence of special education issues, passed what would become the Individuals with Disabilities Education Act (IDEA). The IDEA offers states federal funds to assist in educating children with disabilities. This Act also authorizes the …

Judges And Their Editors, Douglas E. Abrams

Faculty Publications

No abstract provided.

Sexual Harassment Of Low-Income Women In Housing: Pilot Study Results, Rigel C. Oliveri

Faculty Publications

In recent months, high-profile and influential figures in media, government, and entertainment have been brought down by credible allegations that they have engaged in sexual misconduct. These revelations have sparked an important national discussion about the prevalence of sexual harassment in American society and the ways in which powerful people can use their positions both to exploit their vulnerable targets and to escape the consequences of their actions.

The conversation is a necessary starting point, but the focus on high-status workplaces overlooks other contexts in which sexual harassment occurs. This Article focuses on one overlooked, significant national problem: the sexual …

Sustainable Affordable Housing, Andrea Boyack

Faculty Publications

Sustainable real estate development is an essential component of intergenerational justice, in part because the real estate sector creates more than 20% of the world’s carbon emissions. Governments, recognizing that environmentally sustainable real estate development involves higher upfront costs, have encouraged green building by offering publicly funded incentives such as tax credits, grants, reduced approval fees, and streamlined permitting. Using market measurement innovations such as the Dow Jones Sustainability Index, investors can promote environmentally sustainable development by prioritizing real estate developers that embrace environmentally conscious practices. Even though real estate in general still underperforms in many other sectors in terms …

Title Page

Journal of Dispute Resolution

No abstract provided.

The Jury Is Out: Mandating Pre-Treatment Arbitration Clauses In Patient Intake Contracts, Sarah Sachs

Journal of Dispute Resolution

This Comment advocates against the use of mandatory arbitration clauses in healthcare providers’ patient intake contracts and discusses the interplay between federal and state statutes that create disparities in enforceability and unenforceability of mandatory arbitration clauses in state courts. Part II discusses the history of mandatory arbitration and its development in healthcare providers’ patient intake contracts. Part III examines state statutory limitations on pre-treatment arbitration clauses. Finally, Part IV addresses how courts analyze these agreements and possible approaches to avoid mandatory arbitration arising in healthcare providers’ patient intake contracts.

Table Of Contents

Journal of Dispute Resolution

No abstract provided.

Free Speech Conflict: What We Learned At Middlebury College, Baishakhi Taylor

Journal of Dispute Resolution

On February 16, Middlebury’s President, Dr. Laurie L. Patton, received an invitation from a student group called the American Enterprise Institute Club (AEI) to give opening remarks at a lecture by a speaker they had invited to campus. The Club was Middlebury’s student chapter of the AEI,8 a conservative think-tank based in Washington, D.C., which has student clubs all across the coun-try. The speaker was Dr. Charles Murray, an American political scientist who is now an AEI emeritus scholar. This was not Dr. Murray’s first visit to the College. He had previously visited the campus for a lecture in 2007, …

Journal Description

Journal of Dispute Resolution

No abstract provided.

The Centrality Of Ongoing Relationships, Jacob Appelsmith

Journal of Dispute Resolution

Should anyone feel positive after a day of discussing the First Amendment in the context of threats to American universities and colleges from Nazis, white su-premacists, anarchists, and others using the campus as the staging ground for disruption and violence? Yes, because it was clear from the Center for the Study of Dispute Resolution’s (“CSDR”) Symposium, at the University of Missouri School of Law, that the evolution in thought over the past year on how institutions of higher education should handle these challenges is truly remarkable. The speakers as a body demonstrated that if an institution is thoughtful in its …

Beyond The Narratives: How Free Speech In Higher Education Is Truly Restricted, Azhar Majeed

Journal of Dispute Resolution

Over the past year, much of the national conversation surrounding freedom of speech on college campuses has focused on controversial speakers, including those invited by students or student groups as well as those appearing on campus without an invitation. The debate continues to rage on as to whether university communities should allow allegedly offensive speakers to come to campus and spew their hateful views; whether universities have an obligation to foot the bill for the security they deem necessary to host such an event; and whether disruptions of speaker events are indicative of decreased tolerance on the part of today’s …

The First Amendment, The University And Conflict: An Introduction To The Symposium, Christina E. Wells

Journal of Dispute Resolution

This Symposium addresses our continuing issues with campus speech conflicts. It aims to help us recognize that speech conflicts are not abstract disputes between ideas – Justice Holmes’s famous rhetoric notwithstanding. Rather our words and ideas represent underlying conflicts between very real people and groups. The speech we use may cause, exacerbate, or resolve conflicts. Sometimes the Supreme Court’s free speech doctrine can aid our understanding and resolution of these conflicts. Other times it cannot. Regardless, simply relying on a First Amendment frame – i.e., claiming that it is one’s right to express oneself in a par-ticular way – may …