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Articles 1 - 30 of 38
Full-Text Articles in Law
Plea Best Not Taken: Why Criminal Defendants Should Avoid The Alford Plea, A, Bryan H. Ward
Plea Best Not Taken: Why Criminal Defendants Should Avoid The Alford Plea, A, Bryan H. Ward
Missouri Law Review
After examining the North Carolina v. Alford decision in detail, this Article will first look at the broad arguments in favor of this type of plea. This Article will then focus on the body of case law dealing with the Alford plea and its effect on sentencing, probation and parole. While examining these cases this Article will also focus on the variety of arguments offered by criminal defendants who contend that it is impermissible to require an Alford-type defendant to express remorse for the offense or admit to the offense in any other context. This Article will conclude by reevaluating …
Having Failed To Defend, An Insurer Can Still Argue Lack Of Coverage - Royal Insurance Co. Of America V. Kirksville College Of Osteopathic Medicine, Inc., Matthew Towns
Missouri Law Review
This Note explores the consequences of an insurer’s breach of the duty to defend under Missouri case law. It also examines the theories applied in other states in support of the position that a breach of the duty to defend entails loss of the right to argue lack of coverage. The Note concludes that the holding in Royal insurance Co. of America v. Kirksville College of Osteopathic Medicine, Inc. resolved a burgeoning controversy by clarifying insurers’ rights to an extent unknown in other jurisdictions.
Drop The Shoe: A Law Of Personal Jurisdiction, Douglas D. Mcfarland
Drop The Shoe: A Law Of Personal Jurisdiction, Douglas D. Mcfarland
Missouri Law Review
Personal jurisdiction standards outlined in International Shoe Co. v. Washington have proven to be inadequate. This Article begins in Part II with an examination of the origins of the International Shoe minimum contacts test, and then in Part III analyzes and critiques the opinion and the test. Part IV looks at later Supreme Court cases that attempt to refine and apply the test, and Part V looks at the same pattern for other federal courts and state courts. These Parts lead to the conclusion that the minimum contacts test should be abandoned in favor of a new law for personal …
Class Actions And Ex Parte Communications: Can We Talk, Douglas R. Richmond
Class Actions And Ex Parte Communications: Can We Talk, Douglas R. Richmond
Missouri Law Review
The subject of ex parte communications with class members is a murky one. Here the rules of civil procedure and professional responsibility overlap as in no other area, and case law is relatively scarce. Insofar as class actions are litigated in federal courts, another problem is that many of the decisions on this subject are district court decisions, which lack precedential force. In sum, lawyers’ need for guidance in this area is significant and seems destined to grow in importance as class action litigation continues to spread.
Ada's Reasonable Accommodation Requirement And Innocent Third Parties, The, Alex B. Long
Ada's Reasonable Accommodation Requirement And Innocent Third Parties, The, Alex B. Long
Missouri Law Review
Applying the Americans with Disabilities Act had proven to be a difficult challenge. This Article suggests that the most effective and equitable method of dealing with many of the most difficult accommodation issues is to focus on the effect that providing an accommodation would have on other employees.
Understanding The Difference Between The Right To Subrogation And Assignment Of An Inusrance Claim - Keisker V. Farmer, Jennifer A. Bueler
Understanding The Difference Between The Right To Subrogation And Assignment Of An Inusrance Claim - Keisker V. Farmer, Jennifer A. Bueler
Missouri Law Review
Trinity Universal Insurance Company wrote a policy that did not expressly create an assignment of its policyholder’s future claims and, as a result, recovered only a fraction of the amount it paid to the policyholder. Had Trinity carefully drafted its policy to create an assignment of the insured’s claims, it might have recovered the entire amount from those responsible for the damages. For this reason, insurance companies need to understand the difference between assignment and subrogation. Furthermore, insured individuals need to understand this distinction so that they are aware of their own rights and obligations.
Coping With Cafos: How Much Notice Must A Citizen Give - Community Ass'n For Restoration Of The Environment V. Henry Bosma Dairy, Martin A. Miller
Coping With Cafos: How Much Notice Must A Citizen Give - Community Ass'n For Restoration Of The Environment V. Henry Bosma Dairy, Martin A. Miller
Missouri Law Review
In the context of reviewing Community Ass’n for Restoration of the Environment v. Henry Bosma Dairy, this Note focuses on what constitutes sufficient notice and suggests how citizen groups should handle additional violations discovered after suit has been filed. Although the Ninth Circuit had previously taken a fairly strict approach in interpreting notice requirement, Bosma Dairy indicates a shift toward a more forgiving approach by allowing the plaintiff to include certain non-noticed violations in its lawsuit. This urges the continued movement away from a rigid and formalistic approach.
We Didn't Know Any Better Defense: The Eighth Circuit's View Of Qualified Immunity For Jail Officers Who Detain Arrestees - Hill V. Mckinley, The, William E. Roberts
We Didn't Know Any Better Defense: The Eighth Circuit's View Of Qualified Immunity For Jail Officers Who Detain Arrestees - Hill V. Mckinley, The, William E. Roberts
Missouri Law Review
The Supreme Court has imparted the old common-law immunity to law-enforcement officers in actions for violations of constitutional rights. Defendants no longer have to stand trial on a federal claim for damages based on their unconstitutional actions unless a court has previously established with sufficient clarity and particularity that such actions are indeed a constitutional violation. Through examination of Hill v. McKinley, this Note argues that "qualified immunity" is beginning to be extended beyond its intended use.
Blakely And Missouri's Grandparent Visitation Statute: An Abridgment Of Parents' Constitutional Rights - Blakely V. Blakely, Michael Hamlin
Blakely And Missouri's Grandparent Visitation Statute: An Abridgment Of Parents' Constitutional Rights - Blakely V. Blakely, Michael Hamlin
Missouri Law Review
Universally, states have enacted statutes granting nonparental parties, specifically grandparents, the right to petition courts for visitation of minor children. However, the states differ significantly in the manner in which they grant these parties that right. A recent United States Supreme Court decision, Troxel v. Granville, addressed the issue of the constitutionality of nonparental visitation statutes. Unfortunately, the Court failed to provide much clarity to the states in deciding constitutional challenges to these statutes. The Note explores the analysis employed by the Missouri Supreme Court in Blakely v. Blakely and argues that Missouri’s grandparent visitation statute is unconstitutional.
Community Standards Of Utah And The Amish Country Rule The World Wide Web - Ashcroft V. Aclu, The, Matthew Towns
Community Standards Of Utah And The Amish Country Rule The World Wide Web - Ashcroft V. Aclu, The, Matthew Towns
Missouri Law Review
Challengers of the Child Online Protection Act, a recently enacted federal law prohibiting the posting of materials harmful to children on the Internet, contended that regional community standards should not govern such a broad-based medium. The United States Supreme Court held, however, that the statutory language mandating application of regional community standards in judging Internet content did not run contrary to the First Amendment. This Note supports the continued use of the Miller obscenity test, including its community standards criteria, but endorses the position taken by the concurring Justices that, in the case the Internet, the test should apply national …
I'Ll Take That: Legal And Public Policy Problems Raised By Statutes That Require Punitive Damages Awards To Be Shared With The State, Victor E. Schwartz, Mark A. Behrens, Cary Silverman
I'Ll Take That: Legal And Public Policy Problems Raised By Statutes That Require Punitive Damages Awards To Be Shared With The State, Victor E. Schwartz, Mark A. Behrens, Cary Silverman
Missouri Law Review
This Article will provide a brief review of the purpose and history of punitive damages. It will then examine the various reforms adopted by the states, with a particular focus on "split-recovery" laws that require punitive damages recoveries to be shared with the state or a state-specified fund. This Article explains that such laws may actually fuel, rather than curb, punitive damages awards. The Article also explains that these laws are ethically and constitutionally problematic. This Article concludes that states seeking to reform their punitive damages laws would be better served by (1) adopting a heightened burden of proof and …
Liberal Hegemony - School Vouchers And The Future Of The Race, Harry G. Hutchison
Liberal Hegemony - School Vouchers And The Future Of The Race, Harry G. Hutchison
Missouri Law Review
This Article examines the school voucher debate. Because “the causes of poverty within the black community are both structural and behavioral,” and because the available evidence provides an inferential connection between education and poverty, I contend that the reigning legal and political theory as embedded in, and as explicated by the constitutional jurisprudence of the Zelman dissenters, and as exemplified by other commentators, fails to address adequately racial disparity and neglects to consider adequately the victims of the current public school hegemony. Hence, the legitimacy of much of the current opposition to school vouchers remains indefensible form an outsider perspective.
Trust Me, I'M A Judge: Why Binding Judicial Notice Of Jurisdictional Facts Violates The Right To Jury Trial, William M. Carter Jr.
Trust Me, I'M A Judge: Why Binding Judicial Notice Of Jurisdictional Facts Violates The Right To Jury Trial, William M. Carter Jr.
Missouri Law Review
This Article contends that the predominant practice of federal courts of completely removing the jurisdictional element from the jury violates the Sixth Amendment right to jury trial and Rule 201. Part II of this Article discusses the problems raised by binding judicial notice of the jurisdictional element of federal criminal offenses. Part III gives an overview of the factual, constitutional, and statutory prerequisites for land to fall within the special territorial jurisdiction of the United States. Part IV briefly describes the circumstances in which courts may properly take judicial notice under Rule 201. Part V discusses the requirements for judicial …
Continuation Of The Tracing Doctrine: Giving Aftermarket Purchasers Standing Under Section 11 Of The Securities Act Of 1933 - Lee V. Ernst & (And) Young, Llp, The, Robert L. Ortbals Jr.
Continuation Of The Tracing Doctrine: Giving Aftermarket Purchasers Standing Under Section 11 Of The Securities Act Of 1933 - Lee V. Ernst & (And) Young, Llp, The, Robert L. Ortbals Jr.
Missouri Law Review
Prior to Gustafson v. Alloyd Co., courts had interpreted Section 11 of the Securities Act of 1933 to apply both to purchasers of IPOs and to aftermarket purchasers who could "trace" their purchases to reliance on a defective initial registration statement. The Gustafson decision has brought into question the viability of the tracing doctrine given the noted purpose behind the 1933 Act. This Note examines evolution of the tracing doctrine and the impact that Gustafson has and will have on that doctrine.
Wrestling With The Effects Of Title Ix: Is It Time To Adopt New Measures Of Compliance For University Athletic Programs - Chalenor V. University Of North Dakota, Jeffrey H. Smith
Wrestling With The Effects Of Title Ix: Is It Time To Adopt New Measures Of Compliance For University Athletic Programs - Chalenor V. University Of North Dakota, Jeffrey H. Smith
Missouri Law Review
The Court of Appeals for the Eighth Circuit, following the Department of Education’s policy interpretation and other circuit courts of appeals, held that the University of North Dakota did not violate the men’s wrestling team members’ and recruits’ rights under Title IX when it eliminated the men’s varsity wrestling program. The circuit courts of appeals outside the Eighth Circuit had held that eliminating an athletic progam of an over-represented gender to make athletic opportunities between genders substantially proportionate was a satisfactory means of compliance with Title IX. The Eighth Circuit Court of Appeals reviewed these holdings in developing its opinion. …
Missouri Supreme Court Clarifies: Siding With Business Owners In Negligent Security Actions May Have Been Wrong All Along - L.A.C. V. Ward Parkway Shopping Center Co., L.P., Josephine M. Pottebaum
Missouri Supreme Court Clarifies: Siding With Business Owners In Negligent Security Actions May Have Been Wrong All Along - L.A.C. V. Ward Parkway Shopping Center Co., L.P., Josephine M. Pottebaum
Missouri Law Review
Fear of criminal attack is a fact of life for most people, so they do their best to take preventative measures to protect themselves and those they love. Thus, while most parents would never allow their children to spend an evening in a dark alley with their friends, most parents do feel comfortable dropping their children off at a shopping mall for the night to socialize, ship, or watch movies. Parents to this because they find comfort in knowing that their children will be indoors in a will-lit area in the midst of other shoppers, storekeepers, and security. The atmosphere …
Prove All Things And Holf Fast That Which Is Good: The Missouri Supreme Court Redraws The Line Between Plain Error And Ineffective Assistance Of Counsel - Deck V. State, Thomas L. Azar Jr.
Prove All Things And Holf Fast That Which Is Good: The Missouri Supreme Court Redraws The Line Between Plain Error And Ineffective Assistance Of Counsel - Deck V. State, Thomas L. Azar Jr.
Missouri Law Review
Few challenges to a judicial determination are as disruptive as a criminal defendant’s allegation of ineffective assistance of counsel. Discovering the truth behind such an allegation is extremely difficult, owing both to the distorting effect of hindsight and the near impossibility of discovering the full extent of any damage caused by defense counsel’s alleged errors. This Note examines the genesis of the confusion concerning the current standard for granting post-conviction relief due to ineffective assistance of counsel and the Missouri Supreme Court’s most recent effort to clarify that standard in Deck v. State.
Misguided Federalism, Peter J. Henning
Misguided Federalism, Peter J. Henning
Missouri Law Review
Federalism has moved to the forefront of constitutional analysis in recent years as a narrow majority of the Supreme Court has begun to rein in congressional assertions of authority to legislate in areas viewed as beyond the constitutional grant of power to the federal government. One means of curtailing congressional authority is by enforcing limits on the Commerce Clause, perhaps the broadest of Congress’s regulatory powers. In United States v. Lopez, the Court sent a “constitutional wake-up call” making clear that it would no longer acquiesce in every congressional enactment purportedly adopted as an exercise of the commerce power when …
Compacts, Cartels, And Congressional Consent, Michael S. Greve
Compacts, Cartels, And Congressional Consent, Michael S. Greve
Missouri Law Review
Compacts, Cartels, and Congressional Consent argues that U.S. Steel Corp. v. Multistate Tax Commission was wrongly decided. Congressional “negatives,” including the Compact Clause invert the default rule for constitutionally suspect classes of state laws. Whereas ordinary state laws are permitted to go into (and remain in) effect unless and until Congress or the courts exercise their authority under the Supremacy Clause to state agreements that encroach on federal supremacy—which are unlawful in any event—the Supreme court has re-inverted the constitutional presumption and emptied the Compact Clause of all content. This Article explains the forgotten constitutional logic and wisdom of the …
Affair To Remember: Further Refinement Of The Prosecutor's Duty To Disclose Exculpatory Evidence - State V. White, An, Michael E. Gardner
Affair To Remember: Further Refinement Of The Prosecutor's Duty To Disclose Exculpatory Evidence - State V. White, An, Michael E. Gardner
Missouri Law Review
Numerous decisions by the United States Supreme Court make clear that a defendant in a criminal trial is constitutionally entitled to disclosure of exculpatory evidence in the possession of the prosecution if there is a reasonable probability that the evidence would affect the outcome of the trial. Nevertheless, prosecutors frequently fail to disclose such evidence. Such failure is attributable to a lack of incentive for prosecutors to disclose potentially exculpatory evidence. This problem could be largely solved by more stringent enforcement of the states’ respective rules of professional conduct. In State v. White, the Missouri Court of Appeals for the …
Stop In The Name Of That Checkpoint: Sacrificing Our Fourth Amendment Right In Order To Prevent Criminal Activity - State V. Mack, Kathryn L. Howard
Stop In The Name Of That Checkpoint: Sacrificing Our Fourth Amendment Right In Order To Prevent Criminal Activity - State V. Mack, Kathryn L. Howard
Missouri Law Review
With the recent escalation of terrorist attacks against the United States, the prevention of crime in general has become a top priority for most American. A question arises, however, as to what sacrifices to our personal liberties we have to make to effectively prevent criminal activity? As indicated by Missouri Supreme Court’s holding in State v. Mack, the answer may very well be sacrificing our coveted Fourth Amendment right to be free from unreasonable searches and seizures. The United States Supreme Court declared drug checkpoints illegal because they were pursuing general crime control purposes, but Mack seems to find a …
Trouble With Daubert-Kumho: Reconsidering The Supreme Court's Philosophy Of Science, The, David Crump
Trouble With Daubert-Kumho: Reconsidering The Supreme Court's Philosophy Of Science, The, David Crump
Missouri Law Review
This Article begins with a brief exploration of the philosophy of science that is laid out in the Daubert, Joiner, and Kumho cases. It then proceeds to examine the question, “what is science”? A related section considers the disadvantages and ironic results of the Daubert-Kumho definition of science. Next, the Article considers the characteristics of a good scientific theory or model. It compares the resulting criteria to those set out in Daubert and its progeny and shows how the Supreme Court’s philosophy can produce dubious consequences. A final section sets out the conclusions, which include the possibility that the Supreme …
Peer Dialogue: The How And What Of Appropriate Validation Under Daubert: Reconsidering The Treatment Of Einstein And Freud, Edward J. Imwinkelried
Peer Dialogue: The How And What Of Appropriate Validation Under Daubert: Reconsidering The Treatment Of Einstein And Freud, Edward J. Imwinkelried
Missouri Law Review
In its landmark decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court announced that the trial judge must play a gatekeeping or screening role in deciding whether proffered expert testimony constitutes sufficiently reliable “scientific . . . knowledge” to qualify for admission under Federal Rule of Evidence 702. The Court declared that the proponent of the testimony must lay a foundation establishing “appropriate validation” for the expert’s underlying theory or technique. In order to intelligently assess the adequacy of a validation foundation, the trial judge must address two questions: what must be validated, and how should it be …
Peer Dialogue: The Quagmire Of Scientific Expert Testimony: Crumping The Supreme Court's Style, Paul R. Rice
Peer Dialogue: The Quagmire Of Scientific Expert Testimony: Crumping The Supreme Court's Style, Paul R. Rice
Missouri Law Review
the Article argues in support of Professor Crump's critique of the Supreme Court of the United States's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc. and Kumho Tire Co v. Carmichael. Judges are unsuited to the task of evaluating scientific inquiry and should refrain from trying to do so. When evaluating the admissibility of evidence, the courts should use a logical relevance test.
Are Security Deposits Security Interests - The Proper Scope Of Article 9 And Statutory Interpretation In Consumer Class Actions, R. Wilson Freyermuth
Are Security Deposits Security Interests - The Proper Scope Of Article 9 And Statutory Interpretation In Consumer Class Actions, R. Wilson Freyermuth
Missouri Law Review
Part I of this article critiques this strand of decisions (referred to collectively throughout the article as the "security deposit cases") and demonstrates that the cases rest upon a flawed understanding of Article 9's scope provisions. In these cases, courts have borrowed landlord-tenant law's traditional distinction between a "debt" and a "pledge"-a distinction used in landlord-tenant law to justify a baseline rule under which title to a security deposit passes entirely to the landlord, with the landlord having no positive duty to invest the deposit or pay interest to the tenant. As Part I explains, the security deposit cases wrongly …