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Articles 211 - 240 of 7266
Full-Text Articles in Law
Competition Is For The Ring, Not The Court, Cameron Shields
Competition Is For The Ring, Not The Court, Cameron Shields
Journal of Dispute Resolution
Dolph Ziggler and JD McDonagh performed in a ring in front of a crowd of 20,000 people. Their match was broadcast worldwide. Ziggler placed everything on the line in a match where he wagered his entire career with World Wrestling Entertainment (WWE) for the Intercontinental Championship. Back and forth the two fought. Ziggler brought an early onslaught against McDonagh. Punches and kicks rained down. McDonagh, in a turn of luck, slipped through the ropes and reversed the onslaught onto Ziggler. After the pummeling, McDonagh threw Ziggler over the ropes onto the cement floor. The referee started counting down . . …
The Gender Sidelining Trap In Mediator Selection, Erin E. Gleason Alvarez
The Gender Sidelining Trap In Mediator Selection, Erin E. Gleason Alvarez
Journal of Dispute Resolution
One of the greatest advantages of commercial mediation is the parties’ ability to construct the process to fit their needs. In mediation, parties are free to make decisions about how the conversation will be structured—whether in person or online, joint session or not, whether negotiations will take place over a few hours or days, and so forth. Here, parties are also uniquely empowered to design what their settlement will ultimately look like—or decide if settlement is even appropriate. Perhaps most importantly, parties decide who will serve as the mediator, the person they trust to facilitate their discussions and negotiations, and …
Participant Actions And Intermediate Outcomes In Initial Joint Sessions And Initial Caucuses, Roselle L. Wissler, Art Hinshaw
Participant Actions And Intermediate Outcomes In Initial Joint Sessions And Initial Caucuses, Roselle L. Wissler, Art Hinshaw
Journal of Dispute Resolution
Historically, the initial mediation session usually was a joint session where the mediator and the disputants met together to exchange information and discuss the substance of the dispute. Accordingly, the main components of the initial mediation session and the informational and communication benefits they were thought to provide were discussed in the context of the disputants being together and speaking directly. Today, however, many actions that traditionally took place during the initial joint session, including the discussion of substantive matters and exchanges between the parties, are less likely to occur during initial joint sessions than they did historically and are …
The Eviction Crisis Is Rampaging: Time To Implement Diversion Programs, Rachel Elliott
The Eviction Crisis Is Rampaging: Time To Implement Diversion Programs, Rachel Elliott
Journal of Dispute Resolution
More than 7.6 million renters face the threat of eviction annually.1 In early February 2023, Ivy Hany was at risk of being part of this statistic again.2 Years ago, when Ivy was 19, she and her siblings were forced out of their home into a homeless shelter.3 Now, at 53, she was terrified of becoming homeless again.4 Ivy owed her landlord $2,184.75; she would be evicted if she did not pay.5 Fortunately, Ivy had the option of mediation
Extended Reality For Alternative Dispute Resolution, Ryan Gallagher
Extended Reality For Alternative Dispute Resolution, Ryan Gallagher
Journal of Dispute Resolution
“What is real? How do you define ‘real’? If you’re talking about what you can feel, what you can smell, what you can taste and see, then ‘real’ is simply electrical signals interpreted by your brain.” As technology continues to advance, its effects will be felt in all aspects of our lives, and the world of Alternative Dispute Resolution (“ADR”) will be no different. Dispute resolution processes must adapt to the needs of their users. These users are increasingly in different parts of the world as the global economy expands. Inevitably, globalization leads to more conflicts that require resolution. Technology …
I Like My Litigation How I Like My Pie: Whole, Alexandra (Allie) Widick
I Like My Litigation How I Like My Pie: Whole, Alexandra (Allie) Widick
Journal of Dispute Resolution
There is a huge problem with the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (“EFAA”): it contains major ambiguities. The Act was signed into law by President Biden in 2022, and it has the potential to affect many Americans. It has been estimated that about 60 million workers—over half of the non-unionized private workforce—are subject to mandatory arbitration agreements as part of their employment. The Act states in relevant part that no arbitration agreement “shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the …
Legislative Update, Mckayla Bogda, Karen Crouch, Matthew Hellmann, Brett Newberry, William Rodman
Legislative Update, Mckayla Bogda, Karen Crouch, Matthew Hellmann, Brett Newberry, William Rodman
Journal of Dispute Resolution
The Legislative Update tracks legislation related to alternate dispute resolution that has been proposed and passed in state legislatures nationwide. With guidance from the Associate Editor-in-Chief, Associate Members of the Journal of Dispute Resolution wrote this update. This update includes articles focusing on specific bills and trends across legislation from various states that the authors found most interesting and impactful.
Bargaining In The Shadow Of The Efaa, Samuel R. Cole
Bargaining In The Shadow Of The Efaa, Samuel R. Cole
Journal of Dispute Resolution
Labor unions are having something of a moment. In the past few years, high profile unionization efforts like those at Starbucks and successful strikes like SAGAFTRA have generated headlines. Even as labor activists celebrate these wins, American unions face ongoing obstacles. Union membership continues to decrease, and union participation remains at an all-time low. And now courts, perhaps unwittingly, are adding to their woes. In one example, particularly relevant here, courts have overlooked the distinction between arbitration agreements contained in collective bargaining agreements and arbitration agreements contained in contracts between employers and at-will employees. The result has been to entwine …
Breaking Kayfabe, Thomas B. Bennett
Breaking Kayfabe, Thomas B. Bennett
Missouri Law Review
The membership of the Supreme Court affects how it decides cases. This maxim is well accepted among the public. But it is exceedingly rare for Supreme Court opinions to acknowledge this fact, even when it provides the best explanation for the Court’s behavior. And in the unusual instance in which Supreme Court opinions do refer to changes in the Court’s membership, it is jarring. This Article explores two questions that flow from these uncontroversial facts. First, why does it happen so rarely? Second, why does it happen at all? To answer these questions, the Article looks to an unusual source: …
The Clock Is Ticking: Legal Barriers In § 1983 Execution Protocol Challenges, Christian Witte
The Clock Is Ticking: Legal Barriers In § 1983 Execution Protocol Challenges, Christian Witte
Missouri Law Review
At 7:53 p.m. on January 25, 2024, the curtains opened, revealing Kenneth Smith strapped down in the execution room, covered by a white sheet. A respirator mask covered his face, serving as the conduit for nitrogen gas that Smith would soon inhale. The prison warden entered the execution chamber, read Smith’s death warrant, and allowed Smith to share his final words: “Tonight Alabama causes humanity to take a step backwards. I’m leaving with love, peace[,] and light . . . . Love all of you.” Alabama’s Attorney General permitted the warden to continue, signaling no court orders were staying the …
Do As I Say, Not As I Do: The Foreign Tax Credit Regulations’ Focus On The Terms Of Foreign Tax Law, Rebecca Rosenberg
Do As I Say, Not As I Do: The Foreign Tax Credit Regulations’ Focus On The Terms Of Foreign Tax Law, Rebecca Rosenberg
Missouri Law Review
The latest set of final regulations on foreign tax credits generally analyzes the creditability of foreign taxes by comparing U.S. regulatory requirements to the words of foreign tax laws, not to their application in practice or their economic effect. This approach essentially chooses increased administrability and reduced whipsaw potential at some cost to accuracy. It also represents a return to the position that the IRS advocated before the United States Supreme Court’s decision in PPL. The regulations’ preamble implies that taxpayers were not always following the post-PPL approach of examining a foreign tax’s economic effect. If taxpayers were more likely …
Custom’S Pervasive Role In Law And The Boundaries Of Positivism, James P. George
Custom’S Pervasive Role In Law And The Boundaries Of Positivism, James P. George
Missouri Law Review
Custom is law’s foundation, modulator, and occasional antithesis. This Article explores that relationship, starting with varying insights from some of the few legal philosophers who have examined the custom/law dynamic. The heart of this Article provides examples showing custom’s many influences on the law, set in five functional areas: origin, application, interstitial, rule-source, and oppositional. Although the custom/law interplay spans human behavior, these examples come from law practice where custom is exposed. Many are routine, some are significant, and all show our reliance on behaviors and norms that are not positive law. The conclusion addresses but does not resolve some …
From Sheltering To Sentencing: An Examination Of Immigrant Harboring Under 8 U.S.C. § 1324, Annie K. Kreikemeier
From Sheltering To Sentencing: An Examination Of Immigrant Harboring Under 8 U.S.C. § 1324, Annie K. Kreikemeier
Missouri Law Review
Imagine you are washing dishes in the restaurant where you work when government officials walk through the front door. You hear them announce that they have a warrant to search the restaurant and ask to speak with the owners. Amidst all of the confusion and panic, you become instantly alarmed. If the owners are arrested, you will lose your job, your living space, and your means of transportation. Even more terrifying, you realize the impending raid likely indicates your imminent removal from the country. You are one of the estimated 11,047,000 unauthorized immigrants currently living in the United States. If …
True Threats To First Amendment Protections In The Age Of Voter Disinformation, Taylor Todd
True Threats To First Amendment Protections In The Age Of Voter Disinformation, Taylor Todd
Missouri Law Review
Imagine that in the weeks leading up to a presidential election, the boss of a factory that primarily employs minority workers credibly and repeatedly warns the rank-and-file, “If any of you vote in this upcoming election, we will make sure that you are fired.” If delivered and understood with serious intent, this statement would clearly violate the federal Voting Rights Act of 1965 (“VRA”), which states that “[n]o person . . . shall intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any person for voting or attempting to vote . . . .” Remarkably, however, such a …
The Second Amendment Preservation Act: Revealing The Realities Of Congress’S Commerce Clause Power, Tasneem Huq
The Second Amendment Preservation Act: Revealing The Realities Of Congress’S Commerce Clause Power, Tasneem Huq
Missouri Law Review
“If men were angels, no government would be necessary.” When James Madison published this in the Federalist Papers, the United States Constitution was not even a year old. The Framers were striving to convince American citizens of the Constitution’s vitality while simultaneously grappling with the challenges of developing what the new government, as to be set forth in the Constitution, should look like. The challenge, as identified by Madison, was that the government needed the power to govern while retaining the ability to control itself. The Framers sought to address this problem by creating a system of federalism. But rather …
A Nation Of Kings: Judicial Overextension Of Official Immunity And The Abdication Of Responsibility For Our Most Vulnerable Citizens, Adam Schexnayder
A Nation Of Kings: Judicial Overextension Of Official Immunity And The Abdication Of Responsibility For Our Most Vulnerable Citizens, Adam Schexnayder
Missouri Law Review
Imagine a man who cannot speak, cannot walk, cannot feed himself, and cannot clean himself. He has no family to speak of, or if he does, the time and economic burden of his care will jeopardize their own survival. Our society has enacted laws to provide some level of support and care for this man and employs the resources of the state to pursue that goal. Tragically, the man dies in the state’s care due to unquestionable negligence. If his family had the resources to place him in a private facility, basic negligence law tells us the private facility may …
Time And Retribution, Meghan J. Ryan
Time And Retribution, Meghan J. Ryan
Missouri Law Review
Time is missing from discussions on the theory of retribution. A colossal body of scholarship has been devoted to exploring the theory of retribution, or “just deserts,” but much less has attempted to translate this theory into practice, explaining how to determine an actual offender’s desert in real life. The limited scholarship on this topic touches on who might best assess an offender’s desert. For example, should a judge, a juror, or the public itself be making these desert decisions? But there is also a temporal aspect to this decision-making that has thus far largely eluded exploration: When should the …
Discovery, Injury, And Diligence: Reconciling Subjective And Objective Copyright Limitations Standards Post-Warner Chappell, Dennis D. Crouch, Timothy Knight
Discovery, Injury, And Diligence: Reconciling Subjective And Objective Copyright Limitations Standards Post-Warner Chappell, Dennis D. Crouch, Timothy Knight
Faculty Publications
This Article examines the evolving interpretation of the Copyright Act's statute of limitations in light of RADesign, Inc. v. Michael Grecco Productions, Inc., a case pending before the Supreme Court. Following the Court's decision in Warner Chappell Music, Inc. v. Nealy (2024), which left open the question of whether copyright claims can be based on infringement occurring more than three years prior, the circuit courts remain split on whether the three-year statute of limitations runs from the time of infringement (the "injury rule") or from when the copyright holder discovers the infringement (the "discovery rule"). Through analysis of the Grecco …
Federal Circuit’S Filing Requirements: A Trap For Even The Experts, Dennis D. Crouch
Federal Circuit’S Filing Requirements: A Trap For Even The Experts, Dennis D. Crouch
Faculty Publications
The Federal Circuit Court of Appeals has established itself as the most procedurally demanding appellate court in the federal system, routinely issuing notices of non-compliance even to the nation's most experienced practitioners. This essay examines the pervasive nature of filing errors in Federal Circuit appeals, analyzing examples from recent cases involving prestigious law firms and institutions. Despite the court's 2023 memo detailing "Common Filing Errors," practitioners continue to struggle with requirements ranging from form completion and addenda formatting to confidentiality designations and caption compliance. The article argues that the prevalence of these issues among highly qualified counsel suggests a systemic …
Housing Sexual Harassment: A Department Of Justice Case Study, Rigel C. Oliveri
Housing Sexual Harassment: A Department Of Justice Case Study, Rigel C. Oliveri
Faculty Publications
Sexual harassment in housing-when tenants or prospective tenants are sexually harassed by their landlords, housing providers, or other people associated with their housing-is a clear national problem. In 2019 the Department of Justice (DOJ) and the Department of Housing and Urban Development (HUD) announced an initiative to bring attention to this issue, as well as a shared commitment to increased enforcement against harassers.
This enforcement push provides an opportunity for study. In particular, there are now a significant number of complaints and other litigation documents posted to the DOJ's website that provide a convenient and robust sample for analysis. The …
A Silence After Slaughter-House: Nineteenth-Century State Constitutional Substantive Rights, Liberties, And Privileges, Charles W. "Rocky" Rhodes
A Silence After Slaughter-House: Nineteenth-Century State Constitutional Substantive Rights, Liberties, And Privileges, Charles W. "Rocky" Rhodes
Faculty Publications
In rejecting federal constitutional challenges to the Louisiana legislature’s exclusive butchering grant in the Slaughter-House Cases, the United States Supreme Court opined that it was the states’ obligation to protect fundamental privileges, such as rights to acquire and possess property, engage in trade and commerce, and pursue happiness, subject only to those restraints necessary for the public good. But the states met this charge with silence. State courts across the nation consistently parroted Slaughter-House’s reasoning, even while occasionally acknowledging the decision did not bind their interpretation of state constitutional provisions guaranteeing fundamental rights, liberties, privileges, and immunities. Although two states …
Comparative Lessons For Enhancing Representation In The U.S. Judiciary - And Countering Democratic Decline, Shruti Rana
Comparative Lessons For Enhancing Representation In The U.S. Judiciary - And Countering Democratic Decline, Shruti Rana
Faculty Publications
At this precarious moment for democratic institutions and the rule of law in the United States, this Essay draws upon efforts to build more representative judiciaries in other countries and in international fora to identify promising strategies for enhancing representation in the U.S. judiciary, particularly with respect to gender and parity. 23 It argues that efforts to enhance judicial representation and parity in the United States could benefit from incorporating and building upon international legal principles and the practices of international courts, institutions, and organizations with respect to parity and representation. Crucially, at the same time, efforts to ensure greater …
Tax Base Diversification As An Enforcement Tool, David Gamage, Brian Galle, Yulia Kuchumova
Tax Base Diversification As An Enforcement Tool, David Gamage, Brian Galle, Yulia Kuchumova
Faculty Publications
We examine when it is optimal to employ sales or VAT-type taxes as complements to a labor income tax. We find a Ramsey-type result in which each tax instrument should be imposed in inverse proportion to the combined elasticity of real and avoidance responses to the respective tax. Contrary to some prior results, we find that sales-type taxes are optimally non-zero across a variety of settings, and in particular when the (weighted) elasticity of taxable income with respect to the wage tax is greater than the cross-elasticity of taxable income with respect to the sales tax. We argue this parameter …