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Full-Text Articles in Law

Enforcing Environmental Regulations: Concentrated Animal Feeding Operations, Terence J. Centner Jun 2004

Enforcing Environmental Regulations: Concentrated Animal Feeding Operations, Terence J. Centner

Missouri Law Review

This Article argues that the revised federal provisions governing potential pollutants from concentrated animal feeding operations do little to advance administrative and enforcement efforts. While the new provisions offer significant improvements for identifying which animal feeding operations may be regulated as concentrated animal feeding operations, they do not address major enforcement issues. The government’s failure to administer and enforce existing regulations undermines efforts to regulate more animal feeding operations or to impose more comprehensive regulations. To achieve greater equity, and possible to augment the long-term viability of agriculture, the EPA must direct more attention to helping the state administer and …


Missouri's Interfacing Of The First Amendment And Right Of Publicity: Is The Predominant Purpose Test Really That Desirable, Michael S. Kruse Jun 2004

Missouri's Interfacing Of The First Amendment And Right Of Publicity: Is The Predominant Purpose Test Really That Desirable, Michael S. Kruse

Missouri Law Review

Many jurisdictions have struggled with the difficult question of how they should interface the interest of a celebrity in his or her right of publicity and the interest society holds in the freedom of artistic expression. The United States Supreme Court has not definitively addressed this issue, and, as a result, the approach to dealing with these types of First Amendment claims varies from jurisdiction to jurisdiction. This Note examines how the Missouri Supreme Court recently confronted this issue. To appreciate the court's analysis, it is important to understand the interests that the right of publicity seeks to protect and …


No Harm, No Rule: The Muddy Waters Of Agency Policy Statements And Judicial Review Under The Missouri Administrative Procedure Act, Christopher Pieper Jun 2004

No Harm, No Rule: The Muddy Waters Of Agency Policy Statements And Judicial Review Under The Missouri Administrative Procedure Act, Christopher Pieper

Missouri Law Review

The volume and variety of actions state and federal agencies take to implement a given regulatory scheme sometimes makes it difficult for courts to determine the difference between informal agency policy statements and formal agency rules. The Missouri Supreme Court dealt with this issue in the context of a challenge to a state agency’s implementation of the federal Clean Water Act. The court held that Missouri’s impaired waters list was an agency policy statement, rather than a rule, and that the challenge to the list was not ripe. This Note will examine the potential impact of the court’s decision on …


Eminent Domain Actions Targeting First Amendment Land Uses, Shelley Ross Saxer Jun 2004

Eminent Domain Actions Targeting First Amendment Land Uses, Shelley Ross Saxer

Missouri Law Review

This Article advocates that courts should distinguish between typical land use regulation and should impose stricter constitutional limitations on the eminent domain power. Under our current concept of public welfare the potential for government abuse of its eminent domain power is great. The government's attempt to eliminate an undersirable, but constitutionally protected, use from its community through condemnation must be carefully scrutinized to ensure that there is not an impermissible motive behind the action. Eminent domain actions targeting land uses protected by the First Amendment should be subject to heightened scrutiny.


Liberalizing The Mansfield Rule In Missouri: Making Sense Of The Extraneous Evidence Exception After Travis V. Stone, Jason R. Mudd Jun 2004

Liberalizing The Mansfield Rule In Missouri: Making Sense Of The Extraneous Evidence Exception After Travis V. Stone, Jason R. Mudd

Missouri Law Review

In Missouri, to obtain a new trial based on juror misconduct, a two step process must be used. First, admissible evidence of misconduct must be presented, and second, the evidence of misconduct must be sufficient to convince the trial court that the misconduct prejudiced a party. This Note examines the current status of Missouri law governing the first prong of this analysis: the admissibility of juror testimony offered to establish juror misconduct involving the gathering of extra-judicial evidence.


Missouri's Religious Freedom Restoration Act: A New Approach To The Cause Of Conscience, James A. Hanson Jun 2004

Missouri's Religious Freedom Restoration Act: A New Approach To The Cause Of Conscience, James A. Hanson

Missouri Law Review

This Law Summary will examine both the congressional and state efforts to buttress religious liberty guarantees. Of primary interest here is the most recent addition to this community: Missouri’s RFRA. After outlining the history and language of Missouri’s RFRA, this Summary will provide guidance for the interpretation and application of the statute in Missouri.


I Can't Get No Satisfaction: Missouri Requires Non-Settling Defendants To Plead And Prove Prior Settlements As An Affirmative Defense, Scott T. Jansen Jun 2004

I Can't Get No Satisfaction: Missouri Requires Non-Settling Defendants To Plead And Prove Prior Settlements As An Affirmative Defense, Scott T. Jansen

Missouri Law Review

This note examines the decision in Norman v. Wright in light of Sections 538.230 and 537.060 of the Missouri Revised Statutes. The court held that to obtain the credit afforded by Section 537.060, a defendant must plead the existence of a settlement as an affirmative defense. This holding is contrary to both common sense and, in the case of medical malpractice, to the Missouri Supreme Court's own prior directive.


Missouri Supreme Court Rules: Despite Change In Statute, Sleeping It Off Behind The Wheel Is Still Not An Option, Amanda Allen Miller Jun 2004

Missouri Supreme Court Rules: Despite Change In Statute, Sleeping It Off Behind The Wheel Is Still Not An Option, Amanda Allen Miller

Missouri Law Review

When one thinks of drunk driving, one usually imagines a person careening down the road, putting the lives of other motorists in danger. However, an intoxicated person may be subject to the same drunk driving sanctions simply by sitting, sleeping, or passing out in the driver’s seat after turning on the motor. In Cox v. Director of Revenue, the Missouri Supreme Court upheld a driver’s license revocation on just those facts, holding that when a driver is in a vehicle and the motor is running, there is probable cause to believe that he is “operating” the vehicle even if he …


Due Process Right To Privacy: The Supreme Court's Ultimate Trump Card, Jayne T. Woods Jun 2004

Due Process Right To Privacy: The Supreme Court's Ultimate Trump Card, Jayne T. Woods

Missouri Law Review

This article examines the progress of the Supreme Court’s jurisprudence on a right to privacy. In Lawrence v. Texas, the Court overruled its decision Bowers v. Hardwick where the Court had ended the incremental progression of right to privacy challenges to state policy initiatives concerning private conduct. Such challenges have had the effect of shifting policy without the consent of the legislatures.


New Voice For The Workplace: A Proposal For An American Works Councils Act, A, Stephen F. Befort Jun 2004

New Voice For The Workplace: A Proposal For An American Works Councils Act, A, Stephen F. Befort

Missouri Law Review

Part I of this Article introduces the notion of voice and summarizes the benefits of employee voice in the workplace. Part II provides and overview of how unions amplify employee voice and chronicles the decline of the American labor movement. In Part III, the Article explores various alternative voice mechanisms with particular reference to movement-initiated employee participation programs borrowed from Japan. Part IV analyzes Section 8(a)(2) of the National Labor Relations Act and discusses how that provision serves as a limitation on certain types of employee participation practices. Part V reviews various proposals that have been suggested as a means …


Game Of Hide And Seek In Bankruptcy: The Supreme Court Levels The Playing Field, The, Jennifer A. Davis Foster Apr 2004

Game Of Hide And Seek In Bankruptcy: The Supreme Court Levels The Playing Field, The, Jennifer A. Davis Foster

Missouri Law Review

Certain debts are categorically barred from discharge through bankruptcy. Debt for money obtained by fraud is one such category. In Archer v. Warner, the United States Supreme Court addressed the issue of whether a voluntary settlement agreement between the parties that generally released underlying fraud claims so changed the nature of the debt as to render it dischargeable in bankruptcy. This Note explores the analysis employed by the Court and argues that, in light of the Court’s precedent in this area and underlying purpose of the Code, the Court in Archer reached the correct conclusion.


Eulogies, Effigies, & (And) Erroneous Interpretations: Comparing Missouri's Child Protection System To Federal Law, Alexa Irene Pearson Apr 2004

Eulogies, Effigies, & (And) Erroneous Interpretations: Comparing Missouri's Child Protection System To Federal Law, Alexa Irene Pearson

Missouri Law Review

Recent developments within Missouri threaten to degrade the intent of the federal Adoption and Safe Families Act of 1997 and could cause further harm to a system that, while well-intentioned and supported by a laudable legislative scheme, continues to decay.


Untangling Eligibility Requirements Under The Individuals With Disabilities Education Act, Robert A. Garda Jr. Apr 2004

Untangling Eligibility Requirements Under The Individuals With Disabilities Education Act, Robert A. Garda Jr.

Missouri Law Review

This Article attempts to untangle the web of Individuals with Disabilities Education Act eligibility standards in order to determine who is entitled to its extensive benefits. The overriding question addressed is whether children passing from grade to grade may still be IDEA eligible. When the Supreme Court stated famously in Board of Education of the Hendrick Hudson Central School District v. Rowley that not every child passing from grade to grade is receiving a free appropriate public education under IDEA, it necessarily recognized a class of children who were IDEA eligible despite passing marks. Identifying the characteristics of these children …


Laying To Rest The Ecclesiastical Presumption Of Falsity: Why The Missouri Approved Instructions Should Include Falsity As An Element Of Defamation, J. Andrew Hirth Apr 2004

Laying To Rest The Ecclesiastical Presumption Of Falsity: Why The Missouri Approved Instructions Should Include Falsity As An Element Of Defamation, J. Andrew Hirth

Missouri Law Review

This Note explores the origens of the plaintiff's presumption of falsity and argues that, after Nazeri v. Missouri Valley College, the burden of proving falsity must be borne by the plaintiff in every case.


Prosecutor Circumvents The Sixth Amendment Right To Counsel With A Simple Wink And Nod, The, Daniel E. Kirsch Apr 2004

Prosecutor Circumvents The Sixth Amendment Right To Counsel With A Simple Wink And Nod, The, Daniel E. Kirsch

Missouri Law Review

This Note argues that the Eighth Circuit's decision in United States v. Johnson severely limits a defendant's protections against the government's intentional use of implicit, or "wink and nod," agreements with undercover informants to circumvent the right to counsel. Although the court's decision may further the interests of effective law enforcement, the resulting sacrifices of fair play in the adversarial justice system is too costly for society to bear.


Lawyers As Lawmakers: A Theory Of Lawyer Licensing, Larry E. Ribstein Apr 2004

Lawyers As Lawmakers: A Theory Of Lawyer Licensing, Larry E. Ribstein

Missouri Law Review

Existing explanation of lawyer licensing focusing on the need to ensure lawyer quality are unconvincing. A license to a practice is a dubious signal of quality, the licensing requirement restricts the availability of legal services, and state licensing is subject to political capture by lawyers. There criticisms of lawyer licensing laws are increasingly important as the current system is threatened by changes in the legal services market and increased federal regulation of the legal profession. It is, therefore, time to reexamine the theory underlying the state licensing system. This Article provides an alternative rational for state licensing requirements. Lawyer licensing …


Avoiding A Manifest Injustice: Missouri Decides Not To Execute The Actually Innocent, Ryan Edward Shaw Apr 2004

Avoiding A Manifest Injustice: Missouri Decides Not To Execute The Actually Innocent, Ryan Edward Shaw

Missouri Law Review

This Note will examine State ex rel. Amrine v Roper in light of the decision in Herrera and the subsequent cases; cases in which states made determination about state habeas relief in response to the ruling of the United State Supreme Court. In granting habeas relief to Amrine, the Missouri Supreme Court changed previous law that would have allowed Amrine to be executed despite having persuasive evidence of actual innocence.


Mediation And The Transformation Of American Labor Unions, Ann C. Hodges Apr 2004

Mediation And The Transformation Of American Labor Unions, Ann C. Hodges

Missouri Law Review

First, the Article analyzes the changes in the workplace that led to various proposals for reform. Then the Article looks at the potential for mediation of claims that do not arise out of the collective bargaining agreement, analyzing the possible benefits form the point of view of employers, employees and unions. Next, some of the issues and obstacles to mediation are reviewed. Ultimately, the Article concludes that the benefits of mediation outweigh the disadvantages and that in most collective bargaining relationships the obstacles should not prevent either negotiation of such provision or their successful use for at least some cases.


Dissent, Posner-Style: Judge Richard A. Posner's First Decade Of Dissenting Opinions, 1981-1991 - Toward An Aesthetics Of Judicial Dissenting Style, Robert F. Blomquist Jan 2004

Dissent, Posner-Style: Judge Richard A. Posner's First Decade Of Dissenting Opinions, 1981-1991 - Toward An Aesthetics Of Judicial Dissenting Style, Robert F. Blomquist

Missouri Law Review

The threefold purpose and structure of this Article is as follows. First, in Part II, before plunging into Judge Posner’s dissenting opinions, I search for a preliminary description of the praxis of modern American dissenting opinion style by drawing upon previous legal scholarship and examples of judicial dissents; this discussion will include an examination of some relevant scholarly writings on opinion style by Judge Rischard A. Posner himself. In Part III, I analyze the published dissenting opinions written by Judge Posner during 1981-1991, evaluating the stylistics of these dissents including his sophisticated use of rhetorical devises. Finally, in Part IV …


Two Heads Are Better Than One: Making A Case For The Either Party Viewpoint For Removal, Greta N. Hininger Jan 2004

Two Heads Are Better Than One: Making A Case For The Either Party Viewpoint For Removal, Greta N. Hininger

Missouri Law Review

Litigation is a game of strategy. Courts that value the amount in controversy solely by the plaintiff’s viewpoint encourage plaintiffs to engage in gamesmanship and forum shopping, which unfairly prejudices defendants. In light of the ambiguity of the removal statutes and the lack of clear precedent, the federal circuits have diverged in the debate over which viewpoints deserve consideration in removal actions. The three general approaches are to consider: (1) only the plaintiff’s viewpoint, (2) the viewpoint of the party seeking federal jurisdiction, and (3) the viewpoint of either party. This Law Summary suggests that the amount in controversy should …


Table Of Contents - Issue 2 Jan 2004

Table Of Contents - Issue 2

Missouri Law Review

No abstract provided.


Let In A Little Sunshine: Limiting Confidential Settlements In Missouri, Rhiana Sharp Jan 2004

Let In A Little Sunshine: Limiting Confidential Settlements In Missouri, Rhiana Sharp

Missouri Law Review

This Comment will first address the different ways that parties are able to keep secret information obtained during discovery and litigation. Next, it will address how different jurisdictions control public access, focusing specifically on the current laws and rules in Missouri. Finally, the Comment will suggest components of an ideal “sunshine in litigation” statute and how the law in Missouri currently compares to that ideal.


Disrespectful, Offensive, Boorish & (And) Decidedly Immature Behavior Is Not Sufficient To Meet The Requirements Of Title Vii , Melissa Null Jan 2004

Disrespectful, Offensive, Boorish & (And) Decidedly Immature Behavior Is Not Sufficient To Meet The Requirements Of Title Vii , Melissa Null

Missouri Law Review

The United States Supreme Court has stated that when considering whether conduct reaches the threshold of actionable sexual harassment it is necessary to look at the totality of the circumstances. The Equal Employment Opportunity Commission (“EEOC”) also advances this approach. However, a circuit split exists in applying the totality of the circumstances approach. One approach includes considering the work environment as part of the totality of the circumstances, while the other approach specifically reject considering whether the environment is blue-collar or professional. This Note explains that while the Eighth Circuit has not specifically adopted one approach, it seems apparent form …


Table Of Contents - Issue 1 Jan 2004

Table Of Contents - Issue 1

Missouri Law Review

No abstract provided.


Copyright Nonconsequentialism, David Mcgowan Jan 2004

Copyright Nonconsequentialism, David Mcgowan

Missouri Law Review

This Article explores the foundations of copyright law. It tries to explain why those who debate copyright often seem to talk past each other. I contend the problem is that copyright scholars pay too much attention to instrumental arguments, which are often indeterminate, and too little to the first principles that affect how one approaches copyright law.


Your Lips Are Moving...But The Words Aren't Clear: Dissecting The Presumption That Jurors Understand Instructions, Judith L. Ritter Jan 2004

Your Lips Are Moving...But The Words Aren't Clear: Dissecting The Presumption That Jurors Understand Instructions, Judith L. Ritter

Missouri Law Review

This Article examines and questions the jurisprudence that turns a blind eye to evidence that the jury instruction presumption, the assumption that juries understand their instructions, is ill-founded. While the presumption applies in any jury trial, the Article emphasizes the particular injustice associated with is application in criminal cases. Evidentiary presumption bases upon anything less violates an accused’s right to due process of law. Therefore, it is particularly troubling that in criminal cases, the presumption regarding the efficacy of crucial jury instructions remain baseless.


Table Of Contents - Issue 4 Jan 2004

Table Of Contents - Issue 4

Missouri Law Review

No abstract provided.


Table Of Contents - Issue 3 Jan 2004

Table Of Contents - Issue 3

Missouri Law Review

No abstract provided.


Accidental Death Insurance Coverage Of Drunk Drivers , Michael E. Gardner Jan 2004

Accidental Death Insurance Coverage Of Drunk Drivers , Michael E. Gardner

Missouri Law Review

Drunk driving causes the deaths of thousands of Americans each year. The drunk driver is often among those killed. This raises the questions of whether the beneficiaries of insured killed as a result of his own drunk driving can claim the proceeds of an accidental death and dismemberment insurance policy. The answer to this question depends on whether the drunk driver’s death is considered an “accident” for the first-party insurance coverage purposes. State and federal courts have largely split on this question. In Graddy v. Hartford Life Insurance Co., the United States District Court for the Eastern District of Missouri, …


Title Page Jan 2004

Title Page

Missouri Law Review

No abstract provided.