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Articles 1261 - 1290 of 3741
Full-Text Articles in Law
Adr And The Federal Government: Not Such Strange Bedfellows After All, Daniel Marcus, Jeffrey M. Senger
Adr And The Federal Government: Not Such Strange Bedfellows After All, Daniel Marcus, Jeffrey M. Senger
Missouri Law Review
These remarks focus on the Federal Government's use of ADR. The Department of Justice, as the nation's most prolific litigator, can benefit greatly from the effective use of ADR. What factors limit its use and how it has been implemented are discussed below.
Hobson's Choice: Ensuring Open Government Or Conserving Government Funds, A, Michele L. Mekel
Hobson's Choice: Ensuring Open Government Or Conserving Government Funds, A, Michele L. Mekel
Missouri Law Review
In Hemeyer v. KRCG-TV, a case that arose when the Cole County Sheriff filed suit seeking a judicial determination supporting closure of a videotape of a legislator’s booking on drunk driving charges, the Missouri Supreme Court reiterated the public policy statement of openness that is part of the state’s Sunshine Law. To give broad effect to the policy of openness, as prescribed in the Sunshine Law, the court interpreted a component of the Sunshine Law’s remedial provision, Missouri Revised Statutes Section 610.027.5 (“Subsection 5”), liberally against the Cole county Sheriff. As a result of its liberal construction of Subsection 5, …
Confusion In The Realm Of Taxpayer Standing: The State Of State Taxpayer Standing In The Eighth Circuit, Richard M. Elias
Confusion In The Realm Of Taxpayer Standing: The State Of State Taxpayer Standing In The Eighth Circuit, Richard M. Elias
Missouri Law Review
In Tarsney v. O’Keefe, the United States Court of Appeals for the Eighth Circuit dismissed a claim for lack of standing brought by Minnesota state taxpayers challenging a state program that provided abortions for indigent women. In so doing, the Eighth Circuit applied the holding of Flast v. Cohen, the United States Supreme Court case that narrowly limited federal taxpayer standing. The Eighth Circuit, however, erred in relying on Flast, as that case applies only to federal taxpayer standing, not state taxpayers. The court should have interpreted and applied the holding of Doremus v. Board of Education of Borough of …
Tribute To Governor Mel Carnahan, A, Kenneth D. Dean
Tribute To Governor Mel Carnahan, A, Kenneth D. Dean
Missouri Law Review
No abstract provided.
Consumer Discrimination: The Limitations Of Federal Civil Rights Protection, Deseriee A. Kennedy
Consumer Discrimination: The Limitations Of Federal Civil Rights Protection, Deseriee A. Kennedy
Missouri Law Review
This Article argues that consumer discrimination is symptomatic of the myriad ways in which racism has become subtly muted and infused into everyday interaction. This “everyday racism,” while carried out and experienced by individuals, is a result of social and institutional policies and, therefore, it represents a fusion of both individual and institutional racism. Despite the ubiquity of the experience, courts have been reluctant to directly address the harms that result from being the target of racial profiling in consumer setting using pre-trial dismissals and an unduly constricted reading of the Civil Rights Act to reject plaintiffs’ claims. The courts …
Resuscitating Professionalism: Self-Regulation In The Medical Marketplace, Gail B. Agrawal
Resuscitating Professionalism: Self-Regulation In The Medical Marketplace, Gail B. Agrawal
Missouri Law Review
This Article contends that market failures and the inherent limitation of an economic model to regulate health care delivery warrant a reexamination of physician self-regulation as a means to address the necessity of and concerns about health care spending controls. Although physicians, like all market participants, will respond to economic incentives, the standards for professional conduct adopted through self-regulatory mechanisms are an additional, important, and overlooked determinant of physician conduct. They can be used to achieve results that evade both market forces and command-and-control legislation. These standard, however, have not kept up-to-date with the new market demands on physicians. If …
Deadly Trap Or Reasonable Danger: What Standard Of Care Applies To Non-Electrical Injuries From Power Lines, Brett A. Emison
Deadly Trap Or Reasonable Danger: What Standard Of Care Applies To Non-Electrical Injuries From Power Lines, Brett A. Emison
Missouri Law Review
Missouri demands “the highest degree of care regarding dangerous instrumentalities because of the great risk of injury or death.” However, Missouri also has held that only ordinary care is required when, in a suit against an electric utility, the injury was not caused by the “the inherently dangerous properties of electricity.” This Note examines the struggles faced by a divided court in determining which standard to apply when these holdings conflict.
In The Wake Of Heins: Break Out Your Rulers Missouri It's Time To Measure Your Levees, Blake J. Pryor
In The Wake Of Heins: Break Out Your Rulers Missouri It's Time To Measure Your Levees, Blake J. Pryor
Missouri Law Review
Following the trend in other states, Missouri recently adopted the comparative reasonableness rule for cases involving the diversion of surface water and groundwater. The rule of reasonableness allows a landowner to make reasonable use of the land even though water drainage and flow is altered, as long as the use does not cause unreasonable harm. Missouri’s change to the reasonableness rule from the common-enemy doctrine has yielded favorable results for plaintiffs seeking damages for improper water disposal, but the rule’s initial adoption has left courts with wide latitude in how it should be interpreted. In the last decade, courts have …
How Secure Are You--The Effects Of Perfection And Non-Perfection Under Article 9 Of The Uniform Commercial Code, Cory L. Collins
How Secure Are You--The Effects Of Perfection And Non-Perfection Under Article 9 Of The Uniform Commercial Code, Cory L. Collins
Missouri Law Review
Article 9 of the Uniform Commercial Code’s approach to multi-state transactions leaves much to be desired. The recently proposed Revision will significantly alter the approach taken for multi-state transactions. The Revision’s approach is not only easier to understand, but it also provides significantly more certainty to the secured party that it was filed in the proper location and thereby perfected it security interest. The approach taken by the Revision is a vast improvement over the Code and should be embraced by the Missouri legislature, borrowers, lenders, and practitioners.
Touchdown--A Victory For Injured Fans At Sporting Events, Stefan A. Mallen
Touchdown--A Victory For Injured Fans At Sporting Events, Stefan A. Mallen
Missouri Law Review
When fans attend sporting events, they usually do so at their own peril. Fans are expected to assume the known risks of flying baseballs, hockey pucks, or footballs. In fact, Judge Cardozo once summarized this situation by saying, “the timorous may stay at home.” While sports fans generally assume the risk of liability from acts by players that send balls flying into the stands, the question arises as to the liability of stadium owners for injuries caused when one fan injures another fan after a player has sent a ball into the crowd. In Hayden v. University of Notre Dame, …
When Will The Smoke Clear: Application Of Waiver And Estoppel In Missouri Insurance Law, Jeremy P. Brummond
When Will The Smoke Clear: Application Of Waiver And Estoppel In Missouri Insurance Law, Jeremy P. Brummond
Missouri Law Review
This Article examines the Missouri Supreme Court’s decision in Shahan v. Shahan. What is interesting about the court’s decision is the approach the court used to achieve the desired result. In insurance law, generally, a court cannot use the doctrines of waiver and estoppel to create coverage where coverage did not previously exist under the express terms of the insurance policy. The court in Shahan, notwithstanding Missouri’s adherence to the majority approach, underwent an analysis of a rule that was based on waiver and estoppel despite the fact that a favorable ruling for the insured would contradict the general principle …
Preemption Of Local Governments' Authority To Limit Wireless Phone Service Is A Tough Cell Under The Telecommunications Act, Jennifer A. Floyd
Preemption Of Local Governments' Authority To Limit Wireless Phone Service Is A Tough Cell Under The Telecommunications Act, Jennifer A. Floyd
Missouri Law Review
This Note focuses on the substantive limitation of Section 332(c)(7)(B) of the Telecommunications Act which prevents local government from unreasonably discriminating among providers and from prohibiting the provision of service in decisions regarding the placement, construction, and modification of personal wireless facilities. Courts have addressed claims of unreasonable discrimination and prohibition of provision of service with a variety of results. Competing interpretations of the TCA have blurred the function and power of state and local governments in deciding whether to approve personal wireless service applications for construction or modification of towers. Spring Spectrum, L.P. v. Willoth provides a consumer-centered interpretation …
Daddy, Will You Buy Me A College Education--Children Of Divorce And The Constitutional Implications Of Noncustodial Parents Providing For Higher Education, Lindsay E. Cohen
Daddy, Will You Buy Me A College Education--Children Of Divorce And The Constitutional Implications Of Noncustodial Parents Providing For Higher Education, Lindsay E. Cohen
Missouri Law Review
It is not surprising that in an age when obtaining a college education has become increasingly popular and necessary, litigation involving the responsibility of parents to pay for or contribute to the costs of their child’s college education has also increased. This Note discusses the controversial issues of whether a parent has such an obligation and whether this obligation extends to noncustodial divorced parents. The results of much of the litigation throughout the United States on this topic vary greatly depending on the facts and circumstances of each case. In order to fully comprehend the current litigation involving noncustodial divorced …
High Schools And The First Amendment: The Eighth Circuit Leaves Students' Rights At The Schoolhouse Gate, Lynn S. Brackman
High Schools And The First Amendment: The Eighth Circuit Leaves Students' Rights At The Schoolhouse Gate, Lynn S. Brackman
Missouri Law Review
Teenagers straddle that fine line between childhood and adulthood, at times putting both feet on one side of the line, only to jump to the other side on another day. As parents, lawmakers, and scholars struggle to figure out just how much adult responsibility teens should be allowed, teens continue to push for new freedoms. All this maneuvering often results in conflict, especially in secondary schools, where the struggle is perhaps the most pronounced. One focus of the conflict occurring in schools has been whether the First Amendment covers students once they enter the educational setting. In order to teach …
Beyond Campaign Finance: The First Amendment Implications Of Nixon V. Shrink Missouri Goverment Pac, Christina E. Wells
Beyond Campaign Finance: The First Amendment Implications Of Nixon V. Shrink Missouri Goverment Pac, Christina E. Wells
Missouri Law Review
Part I of this Essay discusses legal background, focusing first on the Court's decision in Buckley and then on the Shrink litigation. Part II itemizes Shrink's flaws, ultimately concludng that those flaws cannot be attributed solely to Buckley. Finally, Part III examines the Court's standards of scrutiny in First Amendment cases and argues that Shrink results at least in part from flaws found in those standards.
Antidiscrimination Laws And The First Amendment, David E. Bernstein
Antidiscrimination Laws And The First Amendment, David E. Bernstein
Missouri Law Review
Part I of this Article discusses the development of Supreme Court doctrine regarding First Amendment challenges to the enforcement of antidiscrimination laws. Part II discusses attempted justifications by courts and academics for applying the toothless compelling interest test in conflicts between the First Amendment and antidiscrimination laws. Rationales have ranged from Congress’ purported intent to eradicate discrimination by passing Title VII of the 1964 Civil Rights Act to the anti-caste attributes of the Reconstructions Amendments. All of these arguments fail. Also examined is the threat reliance on the compelling interest test posed to the rights of speech, expressive association, and …
Expiating The Sins Of Yoder And Smith: Toward A Unified Theory Of First Amendment Exemptions From Neutral Laws Of General Applicability, Brian A. Freeman
Expiating The Sins Of Yoder And Smith: Toward A Unified Theory Of First Amendment Exemptions From Neutral Laws Of General Applicability, Brian A. Freeman
Missouri Law Review
This Article explores the extent to which the Constitution requires exemptions from neutral laws of general applicability in order to protect the free exercise of religion. Part I sets forth the current Supreme Court jurisprudence in this area, focusing on the most recent cases, which suggest that only laws that are not neutral or generally applicable are subject to strict scrutiny; otherwise, the majority believes that neutral generally applicable laws are subject to rational basis review. Part I also includes a discussion of analogous First Amendment freedom of expression cases, especially the “expressive conduct” cases, in which the court uses …
Introduction: The Difficult First Amendment, Christina E. Wells
Introduction: The Difficult First Amendment, Christina E. Wells
Missouri Law Review
The First Amendment looks easy. After all, its proscriptions are expressed in fewer than forty-five words. It further embodies a concept elegant in its simplicity: "Everyone has the right to say what they believe and to believe what they want." Yet even a superficial glance at modern Supreme Court jurisprudence reveals that, from its inception, the First Amendment was never easy. DEspite the Amendment's express mandate that Congress "make no law," the Court has never inerpreted it as an absolute. Instead, the court has embarked upon a delicate and sometimes treacherous balancing act attemping to determine when free speech or …
Cumulative Subject Index For Volumes 64-65
Employer Prerogative And Employee Rights: The Never-Ending Tug-Of-War, Henry L. Chambers Jr.
Employer Prerogative And Employee Rights: The Never-Ending Tug-Of-War, Henry L. Chambers Jr.
Missouri Law Review
Where there are employees and employers, there will be employment relationships in need of mending. That reality is enough to guarantee that employment law will always be a warm, if not hot, area of the law. The article and notes on employment law in this issue demonstrate that the development of employment law continues apace.
Must We Talk About That Reasonable Accommodation--The Eighth Circuit Says Yes, But Is The Answer Reasonable , Jill S. Kingsbury
Must We Talk About That Reasonable Accommodation--The Eighth Circuit Says Yes, But Is The Answer Reasonable , Jill S. Kingsbury
Missouri Law Review
The Americans with Disabilities Act (ADA) has been hailed by advocates for persons with disabilities as the most important civil rights act passed since 1964, and as the “Emancipation Proclamation” for Americans with disabilities. Critics of the ADA “cast the law as overly broad, difficult to interpret, inefficient, and as a preferential treatment initiative.” Other question whether the law’s economic benefits outweigh its administrative costs. Empirical data also suggests that “the ADA’s track record in improving employment opportunities for individuals with disabilities appears dismal.” Aggravating the problem, and contrary to the media’s portrayal of the ADA as a windfall statute …
Has Wright Line Gone Wrong--Why Pretext Can Be Sufficient To Prove Discrimination Under The National Labor Relations Act, Michael J. Hayes
Has Wright Line Gone Wrong--Why Pretext Can Be Sufficient To Prove Discrimination Under The National Labor Relations Act, Michael J. Hayes
Missouri Law Review
Every year in the United States, thousands of employees are illegally fired for joining or supporting unions. These employees must bring their claims to the National Labor Relations Board (the “Board”), which applies its famous Wright Line standard to decide thousands of discrimination cases each year. Probably the most common issue in labor discrimination cases is “pretext.” In virtually every case, an employer claims that it fired an employee not for an illegal antiunion motive, but for a legitimate business reason. The pretext issue arises when the evidence shows that the legitimate reason asserted by the employer was most likely …
New Provision For Tolling The Limitations Periods For Seeking Tax Refunds: Its History, Operation And Policy, And Suggestions For Reform, The, Bruce A. Mcgovern
New Provision For Tolling The Limitations Periods For Seeking Tax Refunds: Its History, Operation And Policy, And Suggestions For Reform, The, Bruce A. Mcgovern
Missouri Law Review
This Article examines a provision of the Internal Revenue Code that Congress enacted in 1998 that suspends the running of the limitations periods that apply to claims for tax refunds. The provision suspends the limitations periods when a taxpayer is "financially disabled," which is defined as being unable to manage one's financial affairs due to a sufficiently severe, medically determinable physical or mental impairment. Congress enacted this provision in response to a series of cases that culminated in a decision of the United States Supreme Court in which the Court held that courts could not equitably suspend, or "toll," the …
Dancing Around Employment At-Will: Can Fraud Provide Plaintiffs A Way To Hold Their Employers Liable, James E. Meadows
Dancing Around Employment At-Will: Can Fraud Provide Plaintiffs A Way To Hold Their Employers Liable, James E. Meadows
Missouri Law Review
For over a century, the employment at-will doctrine has formed an important part of American jurisprudence. The doctrine, and what some see as its potentially harsh results, have received strong criticism. In some states, courts have used their ability to modify the common law to alter the employment at-will doctrine by creating exceptions based on public policy, the use of employee handbooks, and face-to-face statements by managers that imply a promise of employment. The Missouri Court of Appeals for the Eastern District of Missouri recently gave discharged employees a new way to avoid the almost absolute bar of the employment …
Breaking Down The Boundaries Of Malpractice Law, Philip G. Peters Jr.
Breaking Down The Boundaries Of Malpractice Law, Philip G. Peters Jr.
Missouri Law Review
Historically, courts have treated professional malpractice cases as unique. When disputes that would otherwise have been governed by tort rules of general application have arisen in the context of medical treatment, courts have routinely constructed special rules for the resolution of those disputes. Recent evidence suggests that this penchant for special rules may be weakening and that malpractice law may be slowly melting back into the sea of tort doctrine. The three Missouri health care la cases noted in this issue are the latest evidence that courts today are more willing to resolve medical negligence actions using tort rules of …