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Articles 811 - 840 of 7283
Full-Text Articles in Law
Another One Bites The Dust: How Jevic Curtailed Creditor Rights To Negotiate In And Out Of Bankruptcy, Jaden Banks
Another One Bites The Dust: How Jevic Curtailed Creditor Rights To Negotiate In And Out Of Bankruptcy, Jaden Banks
Journal of Dispute Resolution
Gone are the days of bankruptcy where the insolvent debtor faced an ignominious execution or was sentenced to lifelong imprisonment to satisfy a creditor's demand for their pound of flesh. The modern U.S. Bankruptcy System has moved beyond its focus on draconian punishment, instead, its focus is on fairness to the debtor and distribution of assets among creditors. With recent Supreme Court cases such as Jevic, significant concerns have been raised about the effectiveness of negotiated agreements, related to, but outside of bankruptcy. These concerns center on the reduction in the fairness of certain debtor tools namely prepackaged and cramdown …
Setting The Table For Mediation Success: Supporting Disputants To Arrive Prepared, Timothy Hedeen, Vittorio Indovina, Joanne Donner, Claudia Stura
Setting The Table For Mediation Success: Supporting Disputants To Arrive Prepared, Timothy Hedeen, Vittorio Indovina, Joanne Donner, Claudia Stura
Journal of Dispute Resolution
Consider the following two scenarios. Tom Jones sued his neighbor over a dispute they had regarding the boundaries of their abutting properties. Within a week of filing the suit, he received notice that a mediation had been scheduled for their case. Three weeks later he arrived at the appointed place and time of the mediation where he found his neighbor, his neighbor's attorney, and a mediator. After brief introductions, they were invited to take their seats and were provided a short overview of mediation, a process that was new and unfamiliar to Tom Jones. Two hours later, he left in …
Forgotten Heroes: The Unacceptable Results Of Military Administrative Separations, Bryan Oliver
Forgotten Heroes: The Unacceptable Results Of Military Administrative Separations, Bryan Oliver
Journal of Dispute Resolution
The United States Military is charged with protecting the interests of the United States against foreign actors that seek to undermine our safety, values, and standing as the world's leading democratic power. The performance of this duty is often carried out without a ripple in the fabric of the average citizens' daily life. The adage "no news is good news" describes the way the civilian population thinks about how the military functions. However, the civilian population of the United States should be aware of situations where service-members are not treated fairly by the military's processes.
Arbitration In The Age Of Covid: Examining Arbitration's Move Online, Amy J. Schmitz
Arbitration In The Age Of Covid: Examining Arbitration's Move Online, Amy J. Schmitz
Faculty Publications
Arbitration has been moving online over time with the growth of the Internet and Online Dispute Resolution (“ODR”), which includes use of technology to assist online negotiation, mediation, arbitration, and variations thereof. Online Arbitration (“OArb”) is nonetheless a unique subset of ODR because it usually culminates in a final and binding award by a neutral third party that is enforceable under the Federal Arbitration Act (“FAA”). Indeed, I have written about OArb on prior occasions, due to its unique status under the FAA and other arbitration laws. However, OArb was relatively limited until the COVID-19 pandemic sparked the acceleration of …
The Paradox Of Exclusive State-Court Jurisdiction Over Federal Claims, Thomas B. Bennett
The Paradox Of Exclusive State-Court Jurisdiction Over Federal Claims, Thomas B. Bennett
Faculty Publications
Standing doctrine is supposed to ensure the separation of powers and an adversary process of adjudication. But recently, it has begun serving a new and unintended purpose: transferring federal claims from federal to state court. Paradoxically, current standing doctrine assigns a growing class of federal claims - despite Congressional intent to the contrary - to the exclusive jurisdiction of state courts. Even then, only in some states, and only to the extent authorized by state law.
This paradox arises at the intersection of three distinct areas of doctrine:
(1) a newly sharpened requirement of concrete injury under Article III that …
Arbitration In The Age Of Covid: Examining Arbitration's Move Online, Amy J. Schmitz
Arbitration In The Age Of Covid: Examining Arbitration's Move Online, Amy J. Schmitz
Faculty Publications
Arbitration has been moving online over time with the growth of the Internet and Online Dispute Resolution ("ODR"), which includes use of technology to assist online negotiation, mediation, arbitration, and variations thereof Online Arbitration ("OArb ") is nonetheless a unique subset of ODR because it usually culminates in a final and binding award by a neutral third party that is enforceable under the Federal Arbitration Act ("FAA"). Indeed, I have written about OArb on prior occasions, due to its unique status under the FAA and other arbitration laws. However, OArb was relatively limited until the COVID-19 pandemic sparked the acceleration …
Seismic Shifts: The Covid-19 Pandemic's Gendered Fault Lines And Implications For International Law, Shruti Rana
Seismic Shifts: The Covid-19 Pandemic's Gendered Fault Lines And Implications For International Law, Shruti Rana
Faculty Publications
As we look towards the pandemic's end, this article examines the pandemic's impacts on the international legal order through a gendered lens. It argues that in the short-term, the pandemic reinforces public-private divides in international law, reinvigorating previous debates over the state's power in social relations-its role in protecting people from, as opposed to perpetrating, harm. It argues that in the long-term, these developments threaten to unravel the most recent gains in international law and global governance that have operated to support and expand the recognition of human rights to marginalised groups. Left unaddressed, this unraveling will further entrench such …
A Reasonable Person Standard For Qualified Immunity, Bailey D. Barnes
A Reasonable Person Standard For Qualified Immunity, Bailey D. Barnes
Faculty Publications
Ahmaud Arbery, Jacob Blake, Rayshard Brooks, George Floyd, Daniel Prude, Breonna Taylor. In 2020, the United States' longstanding problem of police brutality, especially related to officer encounters with minorities, was on full display. The names listed here are only a snapshot of those cases that garnered the most significant media attention. Though in admittedly differing circumstances, each of these cases demonstrates that both on-duty and off-duty police interactions can have dire, even deadly, consequences. Yet, these situations are only those that resulted in death or severe injury. Invariably, there are numerous other instances where law enforcement, clothed with the state's …
Wage Enslavement: How The Tax System Holds Back Historically Disadvantaged Groups Of Americans, David Gamage, Goldburn P. Maynard Jr.
Wage Enslavement: How The Tax System Holds Back Historically Disadvantaged Groups Of Americans, David Gamage, Goldburn P. Maynard Jr.
Faculty Publications
Despite the importance placed on equality of opportunity within United States political culture, the existing tax system inhibits historically disadvantaged groups from building wealth or catching up with historically more privileged groups. This effectively then traps many members of historically disadvantaged groups into a continued cycle of dependence on tax-disfavored wage and salary income, a phenomenon that we metaphorically label as “wage enslavement.” This Article explains this phenomenon and then calls for reform.
References To Aesop's Fables In Judicial Opinions And Written Advocacy, Douglas E. Abrams
References To Aesop's Fables In Judicial Opinions And Written Advocacy, Douglas E. Abrams
Faculty Publications
In several “Writing It Right” articles over the past few years, I have described how federal and state judges frequently accent their opinions' substantive or procedural points with careful references to cultural markers familiar to many Americans. This article continues traveling the literary lane by turning to Aesop’s Fables. By invoking a Fable, the Friends of Animals district court continued a tradition that began in 1823, when the Pennsylvania Supreme Court cited Aesop in a will contest.
Ignoring Drug Trademarks, Erika Lietzan
Ignoring Drug Trademarks, Erika Lietzan
Faculty Publications
If you walk into a pharmacy with a prescription for Merck’s ZOCOR, which contains simvastatin, the pharmacist will probably give you a product containing simvastatin made by another company. The pharmacist will dispense a “generic” simvastatin product. State generic substitution laws, passed in the 1970s to help the government save money by switching patients to cheaper generic drugs, either permit or require this substitution. But drug brand names -- such as ZOCOR -- are trademarks. Like other trademarks, they distinguish goods in the market from others, and they signal the source of the goods. These state laws essentially treat the …
“Equal Outcomes”: A Constitutional Comparison Of Gender Equality Guarantees In The United States And South Africa, Melanie Mcmullen
“Equal Outcomes”: A Constitutional Comparison Of Gender Equality Guarantees In The United States And South Africa, Melanie Mcmullen
Missouri Law Review
The evolution of women’s rights throughout history has had significant effects on the cultural and legal climate of the world. Each country has its own approach to gender equality, and each country has an impact on the global mindset on women’s roles in society. South Africa, for example, is a new and growing democracy that provides more equality guarantees than even the oldest established democracy – the United States. The exploration of newer ideas and approaches to equality can only benefit the growth and expansion of equal rights in the United States.
One Tire, One Time: The Supreme Court Of Missouri’S Expansion Of Reasonable Suspicion, Luke A. Hawley
One Tire, One Time: The Supreme Court Of Missouri’S Expansion Of Reasonable Suspicion, Luke A. Hawley
Missouri Law Review
All drivers are familiar with the white “fog line” that separates the road from the shoulder. What Missouri drivers may not be familiar with is the fact that they can be pulled over any time one of their tires cross that line. This fact may surprise Missouri drivers, in part because it has only recently become the law. While fog line infractions may seem trivial on their face, the traffic stops that result from fog line infractions trigger significant constitutional repercussions.
Hiring And Training Competent Title Ix Hearing Officers, Ben Trachtenberg
Hiring And Training Competent Title Ix Hearing Officers, Ben Trachtenberg
Missouri Law Review
American colleges and universities are not ready to comply with new Title IX regulations concerning campus hearings. Regulations released in May 2020 by the U.S. Department of Education, effective in August 2020, require that colleges and universities use hearing officers who are “trained on issues of relevance, including how to apply. . .rape shield provisions” and legal privileges. Institutions must conduct “a live hearing” at which the hearing officer “must permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility.” This “cross-examination … must be conducted directly, orally, …
Qualified Immunity Creates Nearly Insurmountable Protection For Defendants Against First Amendment Retaliatory Claim, Abigail Greene
Qualified Immunity Creates Nearly Insurmountable Protection For Defendants Against First Amendment Retaliatory Claim, Abigail Greene
Missouri Law Review
There are more than 3,000 sheriffs’ departments in the United States with varying authority based on the state and county in which they are located. Their authority may be as wide reaching as a “full-service countywide law enforcement agenc[y]” or may be as limited as having “no law enforcement jurisdiction in county areas served by local or municipal police departments.” Dissimilar to other law enforcement officials, who are hired after an interview and application process, most sheriffs gain their positions through partisan elections. Offices in forty-one states – more than 2,700 counties – conduct partisan elections for the sheriff position.
Citizen Activist Or Professional Lobbyist? Eighth Circuit Decides That Political Activity Is “Lobbying” Only When Money Is Involved, Maddie Mcmillian Green
Citizen Activist Or Professional Lobbyist? Eighth Circuit Decides That Political Activity Is “Lobbying” Only When Money Is Involved, Maddie Mcmillian Green
Missouri Law Review
In determining the constitutionality of lobbyist registration laws, where do courts draw the line between lobbyists and politically active citizens? What is the difference between a citizen simply sharing their ideas with their elected officials and influencing them? In 2019, the United States Court of Appeals for the Eighth Circuit attempted to draw the line in Calzone v. Summers by holding that Missouri lobbyist registration laws violated the First Amendment as applied to an uncompensated lobbyist who incurred no expenditures relating to his lobbying efforts. This decision protects individuals who neither spend nor receive any money in connection with their …
Foundational And Contemporary Court Confidentiality, Dustin B. Benham
Foundational And Contemporary Court Confidentiality, Dustin B. Benham
Missouri Law Review
An integrated confidentiality system now pervades American dispute resolution. This system was created over the course of decades by legislatures, rule makers, and courts. Proponents of confidentiality have long justified expansive secrecy by claiming that the benefits of withholding litigation information outweigh any potential public harm. Recent evidence undermines this premise. In some of the most important public-harms cases of the past two decades, critical health-and-safety information was kept secret in court files. People died or were injured in the meantime. It has also become apparent that consolidating cases in multi-district litigation has the potential to accelerate and homogenize confidentiality …
Ai In International Arbitration: Need For The Human Touch, Derick H. Lindquist, Ylli Dauta
Ai In International Arbitration: Need For The Human Touch, Derick H. Lindquist, Ylli Dauta
Journal of Dispute Resolution
Technology is rapidly changing the way law is practiced. The legal profession, including arbitration, will feel the effect of technological advancements in AI and Legal Tech. In fact, the Covid-19 pandemic has already pushed arbitration to either be virtual in toto or hybrid in other cases. An exclusively physical arbitration hearing is currently the exception, rather than the norm. Admittedly this is a temporary and perhaps unsustainable situation, nevertheless the current landscape underscores that humans are replaceable.
Domestic Courts' Impact On Arbitral Awards: Pragmatic Reflections On The New York Convention, Mohamed Sweify
Domestic Courts' Impact On Arbitral Awards: Pragmatic Reflections On The New York Convention, Mohamed Sweify
Journal of Dispute Resolution
On June 1, 2018, the heirs of the late Sheikhs Abdullah Al-Solaiman AlHamdan and Khalid Abu Al-Waleed Al-Oarqani ("Claimants") petitioned to confirm and enforce an $18 billion arbitral award against Chevron entities before the Northern District of California and the Southern District of Texas. The award was issued under the auspices of the illegitimate "International Arbitration Centre" ("IAC") in Cairo, Egypt. The dispute involved a decades-old concession agreement in which the Saudi government permitted Chevron's predecessor, the Standard Oil Company of California ("SoCal"), to develop certain Saudi oil fields. Both enforcement petitions were dismissed.
The Grass Is Always Greener: Applying Adr To Marijuana Disputes, Garrison Harms
The Grass Is Always Greener: Applying Adr To Marijuana Disputes, Garrison Harms
Journal of Dispute Resolution
As the public opinion of marijuana use continues to evolve, the legal landscape surrounding marijuana evolves as well. The progressive changes made in state law and accompanying range of legal permissibility have created problems for those that consume, cultivate, produce, and distribute marijuana and marijuana-infused products. Such challenges arise because federal law does not mirror the many different approaches taken by the states that have legalized--or, at least, decriminalized-marijuana use. Under federal law, the use, sale, or distribution of marijuana is illegal.
State Legislative Update, Eli Dodge, Kevin Johnston, Seth Christensen
State Legislative Update, Eli Dodge, Kevin Johnston, Seth Christensen
Journal of Dispute Resolution
The State Legislative Update is compiled and written annually by the Journal of Dispute Resolution 's Associate Members under the direction of the Associate Editor in Chief. It is designed to provide readers with a listing of pertinent legislation affecting the field of alternative dispute resolution ("ADR") and a more detailed look at certain bills because of their importance or novelty within the field. This year's State Legislative Update is especially important because the operations of state legislatures were altered due to the COVID-19 Pandemic.
Black Lawyers Of Missouri: 150 Years Of Progress And Promise, Willie J. Epps Jr.
Black Lawyers Of Missouri: 150 Years Of Progress And Promise, Willie J. Epps Jr.
Missouri Law Review
In this Article, Judge Epps amasses and orchestrates an unprecedented amount of information about Missouri’s Black lawyers from 1871 to 2021. As Missouri marks its bicentennial, and the sesquicentennial of the first Black lawyer admitted to practice here, this Article offers analysis and insights about the most well-known Black lawyers, including new details on many previously unknown Black lawyers. According to Judge Epps, the earliest of these legal pioneers courageously practiced law when Blacks had few or no rights under the Supreme Court’s interpretation of the Constitution, and de jure and de facto discrimination reigned in Missouri. His research shows …
Still Waters Run Deep(Fakes): The Rising Concerns Of “Deepfake” Technology And Its Influence On Democracy And The First Amendment, Lindsey Wilkerson
Still Waters Run Deep(Fakes): The Rising Concerns Of “Deepfake” Technology And Its Influence On Democracy And The First Amendment, Lindsey Wilkerson
Missouri Law Review
This Note explores how deepfake technology can disrupt democracy and influence elections through the protections given to political speech under the First Amendment. Part II describes deepfakes in greater detail and identifies the wide uses for deepfake technology. Part III reflects on how the federal government and states are attempting to regulate deepfakes, mainly to protect individuals from pornographic exploitation and election tampering. Finally, Part IV discusses in detail how the First Amendment creates constitutional barriers in regulating deepfakes.