Law Commons^™

Preventing Wrongful Conviction Caused By Eyewitness (Mis)Identification: Establishing A Presumption Of Unreliability, Bailey D. Barnes

Faculty Publications

Wrongful convictions are inherently antithetical to a key tenant of the system of criminal justice in the United States, which former Supreme Court Justice George Sutherland shrewdly articulated as to ensure that "guilt shall not escape or innocence suffer." Reaching even further into the foundations of the common law, the great legal commentator William Blackstone stated of wrongful convictions that "the law holds it better that ten guilty persons escape, than that one innocent party suffer." This core principle of American justice was bolstered by the statements of two key Founding Fathers, John Adams and Benjamin Franklin. Adams stated of …

Two More Plumbers Look At The Leak: Purchasing An Annuity In An Institutionalized Spouse's Ira That Is Irrevocably Payable To The Community Spouse May Work For Medicaid Purposes But Runs A Risk Of Adverse Tax Treatment, David M. English, Ron M. Landsman

Faculty Publications

A recent article in NAELA ]ournal addressed the problem of how to maximize Medicaid benefits and minimize the tax burden for an institutionalized spouse who has a substantial individual retirement account (IRA) in a state where the account is not exempt. The primary problem is that most strategies require that the IRA be cashed out, triggering income tax liability for the entire withdrawal for that tax year. Once the IRA is cashed out, the proceeds can be spent down in any number of ways; one option is for the community spouse to purchase a Medicaid qualified annuity (MQA). The proposed …

Covid-19 And Its Impact On America's Retirement System, David M. English

Faculty Publications

There is a long-standing debate over whether America's retirement system is in crisis. The COVID-19 pandemic has resolved the debate. Perhaps the system was merely challenged prior to March 2020, but it is certainly in crisis now. The pandemic has negatively impacted all four of the principal pillars of retirement: Social Security, employer-sponsored retirement programs, earnings from part-time work, and the worker's own savings. This short article will discuss the impact of the pandemic on the retirement system and discuss possible ways to restore the system to health or at least ameliorate the damage.

Transactional Interest And Risk Assessment, John Lande

Faculty Blogs

This post describes how the LIRA can be adapted for transactional negotiations.

Table Of Contents

The Business, Entrepreneurship & Tax Law Review

No abstract provided.

The Negative Consumer Effects Of Corporate Mergers On Life-Saving Drug Availability, John Marshall

The Business, Entrepreneurship & Tax Law Review

As the market for pharmaceutical drugs has grown, pharmacy benefit managers (“PBMs”) have been able to carve out a niche market for themselves and have become extremely profitable. However, their ability to regulate medication prices may be compromised through mergers with other entities involved in the complex pharmaceutical market. As illustrated by the CVS and Aetna merger, it is clear that a more effective regulatory body must step in or be formed to ensure that private companies cannot exploit. individuals who rely on these life-saving drugs.

No Pay No Play: Not Okay? Analyzing The Constitutionality Of Missouri’S No Pay No Play Statute Following Jiles V. Schuster Co., Jorell Kuttenkuler

The Business, Entrepreneurship & Tax Law Review

This article analyzes the effects of Jiles v. Schuster Co. by looking at the case governing the decision, Watts v. Lester E. Cox Med. Ctrs. Evidence suggests Missouri has not historically upheld the “inviolate” right to a jury determination of damages, as established in that case, and thus casts doubt on the final decision reached in Watts v. Lester E. Cox Med. Ctrs. In Watts, the Supreme Court of Missouri found that statutory caps on non-economic damages stemming from medical malpractice were unconstitutional. Recent cases, such as Jiles, support the conclusion that the No Pay No Play statute falls within …

Vaccine Hesitancy: Experimentalism As Regulatory Opportunity, Ana Santos Rutschman, Timothy L. Wiemken

The Business, Entrepreneurship & Tax Law Review

This issue on patient innovation has prompted us to explore problems related to departures from official vaccination schedules. Vaccine confidence has been plummeting across the world. In this essay, we argue that a more granular understanding of vaccine hesitancy—and ultimately a more finely tuned regulatory framework—is needed to reflect the current behavioral heterogeneity among indicated patients who choose to forego or delay administration of recommended vaccines. In particular, we focus on a phenomenon we term “vaccine staggering:” a departure from vaccination schedules in the form of delays in receiving one or more vaccines, which is motivated by the desire to …

The Law Of Patient Innovation, Sam F. Halabi, Tim Richard

The Business, Entrepreneurship & Tax Law Review

Although the movement for patient empowerment has been under way for decades, patients remain relatively marginalized by medical providers, innovators, and payers. Physicians diagnose and prescribe treatment, innovators endeavor to develop drugs and devices that they can recommend to both physicians and payers, including Medicare. Patients remain in the background, presumed to be passive recipients of breakthroughs that follow this system of discovery and finance. The law is a significant reason why this is so. This Article outlines the most significant areas of law that need to change to allow patients to innovate in collaborative partnership with their physicians, including …

Insert Another Coin To Continue: How In-Game Benefits In Video Games Should Be Addressed By The Irs, Clay Alexander

The Business, Entrepreneurship & Tax Law Review

This article will look at the world of in-game benefits and address the tax implica-tions of various possible classifications. It will also put forward various concerns and possible solutions to the problem posed by this issue.

A Delicate Balance: Limiting Consolidation In Agricultural Seed Markets Without Stifling Innovation, Justin Brickey

The Business, Entrepreneurship & Tax Law Review

Agricultural seed markets have experienced significant consolidation over the past fifty years, apparently driven by private investment in research and development (“R&D”) made profitable through extensive intellectual property protections. The current intellectual property law regime on plants allows an innovator to obtain a wide variety of protections on new plant varieties, whether created through natural breeding processes or genetic engineering. Investment has paid off and the United States has experienced significant benefits through increased productivity, meaning we produce significantly more food today without using more land than our grandparents. However, agricultural markets deserve, and are often given, unique consideration because …

References To Children's Stories And Fairy Tales In Judicial Opinions And Written Advocacy, Douglas E. Abrams

Faculty Publications

Jones v. State is typical of recent state and federal court decisions that have spiced substantive or procedural points with references to classic children’s stories or classic fairy tales. These literary resources have won places in American popular culture and are likely generally familiar to readers, especially when (as in Jones) the court provides any necessary context explaining the resource’s relevance to the decision.

In previous Journal of The Missouri Bar articles, I have written about judges’ invocation of an array of influential cultural markers that are generally familiar to Americans. These articles explored written opinions that accompanied substantive or …

Policing The Police Power: Analyzing Safety-Minded Restrictions On Drink Specials As Valid Exercise Of Municipal Authority, Raymond Rhatican

The Business, Entrepreneurship & Tax Law Review

This article explores the basis and contours of municipal police power through a critical review of recent restrictions proposed in Columbia, Missouri and elsewhere on drink specials. These restrictions are an attempt at benefit-shifting, which would impose an economic burden on restaurant and bar proprietors in exchange for an expected public benefit in reduced late-night nuisances and safety hazards. The article argues that municipal authority pursuant to the police power should be subject to a more exacting level of judicial scrutiny to ensure reasonable and well-considered regulation. Finally, this article suggests a more effective and less burdensome way to address …

Masthead

The Business, Entrepreneurship & Tax Law Review

No abstract provided.

What’S A Bottom Line?, John M. Lande

Faculty Blogs

During the life cycle of a case, lawyers start with vague and tentative bottom lines, and they develop more precise and confident bottom lines as the case progresses. People typically are not candid with others – and sometimes even with themselves – about their real walkaway point (or “trip wire”) for ending negotiations. Indeed, “bottom line” claims are standard negotiation gambits using wildly inflated numbers that experienced negotiators and mediators routinely assume to be false.

Batna May Be Less Important Than You Think – And Teach, John M. Lande

Faculty Blogs

When bargaining in the shadow of the law, the expected court outcome (aka BATNA value) is only part of the more important consideration for negotiators – their bottom lines.

After Espinoza: What's Left Of The Establishment Clause?, Carl H. Esbeck

Faculty Publications

Consistent with the Establishment Clause, the Supreme Court had permitted the government to fund public and private K-12 schools, so long as any direct aid was not diverted to an explicitly religious purpose. In Espinoza v. Montana Dept. of Rev., the Court held that when there is a government program with a secular purpose, such as education, the Free Exercise Clause requires that the program be available without regard to religion. Clearly the Religion Clauses have undergone a major transformation since the days of no parochial school aid whatsoever in the 1970s and 80s. So, it bears asking: What …

Lira Videos, John Lande

Faculty Blogs

This post collects lots of videos of presentations I gave about LIRA.

Strategic Nonconformity, State Corporate Income Taxes, And The Tcja: Part Ii, David Gamage, Darien Shanske, Adam Thimmesch

Faculty Publications

States will soon be facing dire revenue needs because of COVID-19. This article is part of Project SAFE (State Action in Fiscal Emergencies), an academic effort to help states weather the fiscal crisis by providing policy recommendations

backed by research.1 As we have explained previously,2 in the absence of sufficient federal action, states should prioritize raising revenue through targeted taxes on economic actors that are best enduring the crisis, rather than cutting services needed to protect their economies or residents suffering more from the crisis. Here we focus on how states could raise revenue by rethinking whether and how to …

Batnas And The Emotional Pains From “Positional Negotiation", John M. Lande

Faculty Blogs

This post describes the role of BATNAs in the “positional negotiation” game, pains that it causes people in many roles, and some remedies to avoid and reduce these pains. In this “game,” each side seeks to maximize its outcome by starting with extreme positions and then making a series of counteroffers. Each side concocts stories justifying their positions but everyone knows that these stories are exaggerations at best and fibs at worst. If you gave truth serum to the lawyers, they would admit that they don’t really believe their own arguments.

But they do it because “everybody does it.” It’s …

Greenwashing No More: The Case For Stronger Regulation Of Environmental Marketing, Robin M. Rotman, Chloe J. Gossett, Hope D. Goldman

Faculty Publications

Fraudulent and deceptive environmental claims in marketing (sometimes called “greenwashing”) are a persistent problem in the United States, despite nearly thirty years of efforts by the Federal Trade Commission (FTC) to prevent it. This Essay focuses on a recent trend in greenwashing - fraudulent “organic” claims for nonagricultural products, such as home goods and personal care products. We offer three recommendations. First, we suggest ways that the FTC can strengthen its oversight of “organic” claims for nonagricultural products and improve coordination with the USDA. Second, we argue for inclusion of guidelines for “organic” claims in the next revision of the …

Mediation Of Investor–State Disputes: A Treaty Survey, Kun Fan

Journal of Dispute Resolution

No abstract provided.

Table Of Contents

Journal of Dispute Resolution

No abstract provided.

Comparative Law And International Dispute Resolution Processes: Looking Forward, Looking Back, S. I. Strong

Journal of Dispute Resolution

No abstract provided.

The Potential Role Of Adr In Ncaa Academic Fraud Cases, Katherine Ross

Journal of Dispute Resolution

No abstract provided.

International Dispute System Design: Shoals And Shifting Goals, Janet Martinez

Journal of Dispute Resolution

No abstract provided.

Faculty List

Journal of Dispute Resolution

No abstract provided.

Description

Journal of Dispute Resolution

No abstract provided.

International Arbitration As Comparative Law In Action, Joshua Karton

Journal of Dispute Resolution

No abstract provided.

The Reception Of Collective Actions In Europe: Reconstructing The Mental Process Of A Legal Transplantation, Csongor István Nagy

Journal of Dispute Resolution

No abstract provided.