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Articles 1321 - 1350 of 3741
Full-Text Articles in Law
Tort Claims Against Gun Manufacturers For Crime-Related Injuries: Defining A Suitable Role For The Tort System In Regulating The Firearms Industry, Timothy D. Lytton
Tort Claims Against Gun Manufacturers For Crime-Related Injuries: Defining A Suitable Role For The Tort System In Regulating The Firearms Industry, Timothy D. Lytton
Missouri Law Review
Gun violence is a serious problem in the United States. For many years, in order to decrease gun violence, the sale and possession of firearms has been regulated by statute.' This Article argues that tort claims against gun manufacturers can complement legislative efforts to regulate the firearms industry and can thereby make a modest contribution to decreasing gun violence. The Article does not, however, endorse attempts to impose restrictions on the firearms industry by using tort litigation as a substitute for legislation.
Union-Negotiated Waivers Of An Employee's Federal Forum Rights To Statutory Claims: Are They An Effective Means To Exclusivity, Robert M. Smith
Union-Negotiated Waivers Of An Employee's Federal Forum Rights To Statutory Claims: Are They An Effective Means To Exclusivity, Robert M. Smith
Missouri Law Review
Virtually every collective bargaining agreement provides for the use of labor arbitration in the event that the employer, and the union representing the employee, are unable to reach a mutually agreeable result.' However, even after Wright v. Universal Maritime Service Corp.,3 it remains unclear whether an agreement to arbitrate can require arbitration to be an individual employee's exclusive forum for federal statutory claims. This Note analyzes the United States Supreme Court holding in Wright, and also analyzes both the case law leading up to the Court's decision, and the existing split among the federal circuits as to whether union-negotiated waivers …
Speak Softly And Carry A Big Commerce Clause: General Motors Corp. V. Director Of Revenue, Bryan D. Lemoine
Speak Softly And Carry A Big Commerce Clause: General Motors Corp. V. Director Of Revenue, Bryan D. Lemoine
Missouri Law Review
The effect of General Motors Corp. v. Director of Revenue ("GM Corp.") may well spread beyond the confines of the Missouri state line. Because the case applies United States Supreme Court precedent to a new constitutional problem, other states may look to it for aid in interpreting similar statutory provisions. There has, after all, been both judicial and scholarly debate concerning how strictly the Commerce Clause should be interpreted with regard to tax incentives and benefits.2 GM Corp. makes clear that the debate is over in Missouri. The Commerce Clause will function as a sword for Missouri courts to prevent …
Here's Your Burrito And Watch Your Back: Does Missouri Really Want To Hold Businesses Liable For Attacks On Patrons, Timothy A. Reuschel
Here's Your Burrito And Watch Your Back: Does Missouri Really Want To Hold Businesses Liable For Attacks On Patrons, Timothy A. Reuschel
Missouri Law Review
In the late 1980s, Missouri altered a longstanding common law rule and found that businesses sometimes owe a duty to their patrons to protect against or warn about criminal attacks by third parties.' This new rule generally applies when a business has experienced prior incidents that are reasonably recent and similar to the attack in question.3 In Stroot v. Taco Bell Corp., the Missouri Court of Appeals for the Eastern District of Missouri upheld a summary judgment entered in favor of a business for an attack that occurred in the business's parking lot even though the victim alleged that prior …
Study Of Subrogation Mostly In Letter Of Credit And Other Abstract Obligation Transactions, A, John F. Dolan
Study Of Subrogation Mostly In Letter Of Credit And Other Abstract Obligation Transactions, A, John F. Dolan
Missouri Law Review
While efficiency analysis would leave the loss on the erring bank, the revised version of Article 5 of the Uniform Commercial Code ("Revised Article 5") includes a provision granting subrogation to letter of credit issuers as if they were sureties.2 Some commentators view this statutory provision as a surefire source of subrogation for the banks. This Article mounts an argument to the contrary. Because subrogation is an equitable remedy resting on an unjust enrichment standard,3 this Article contends that bank issuers must make an unjust enrichment case before they can avail themselves of the subrogation remedy, even under Revised Article …
Health Insurer's Use Of Genetic Information: A Missouri Perspective On A Changing Regulatory Landscape , Robert H. Jerry Ii
Health Insurer's Use Of Genetic Information: A Missouri Perspective On A Changing Regulatory Landscape , Robert H. Jerry Ii
Missouri Law Review
At the dawn of the new millennium, the mysteries of the human genome' are being revealed: A working draft of ninety percent of the human genome sequence is expected to be completed by mid-2000, five years ahead of schedule.2 Few endeavors in human history have promised so much while causing so much concern.
Attorneys Beware: Obtaining Credit Reports On Opposing Party May Lead To Punitive Damages, Matthew S. Criscimagna
Attorneys Beware: Obtaining Credit Reports On Opposing Party May Lead To Punitive Damages, Matthew S. Criscimagna
Missouri Law Review
Knowledge is power, and a credit report is a great way to obtain knowledge. An attorney could gain useful information from a credit report when preparing for litigation, especially in determining who to sue or whether to sue. However, under the Fair Credit Reporting Act ("ECRA" or "Act"), an attorney may face punitive damages if he or she uses a credit report in a manner that is not authorized by the FCRA. This is exactly what happened to an Arkansas attorney who, while aggressively representing her clients, obtained credit reports on the opposing party. She could have avoided the imposed …
Common Law Misappropriation In The Digital Era, Dale P. Olson
Common Law Misappropriation In The Digital Era, Dale P. Olson
Missouri Law Review
Information is often valuable and when publicly disclosed may be difficult to protect or control.' Such information, whether in the form of data or a product configuration, unless it can be exploited while keeping it secret,2 is accordingly susceptible to copying by competitors absent legal protection. The law, however, has not provided a framework that supplements the armamentarium of federal intellectual property law3 because the protection authorized by federal constitutional limits also thrust works into the public domain. The evolving technological developments which permit the effectively instantaneous transmission of information, as well as the inexpensive copying of trade values in …
Clean Water Act Compliance Audit Program For Pork Producers: How Was Such An Agreement Between Epa And The National Pork Producers Reached , Anita K. Chancey
Clean Water Act Compliance Audit Program For Pork Producers: How Was Such An Agreement Between Epa And The National Pork Producers Reached , Anita K. Chancey
Missouri Law Review
A recent agreement between the Environmental Protection Agency and the National Pork Producers Council puts into place a voluntary inspection program that may lead to reduced fines for pork producers who report and correct Clean Water Act violations This agreement represents the first of its kind between an agriculture group and the Environmental Protection Agency.2 This Article explores the background that led to the agreement. The evolution from small family farming to large corporate livestock production, along with the environmental concerns such evolution has produced, is traced. The next section lays out some of the federal and state statutory and …
Premises Liability: The Disappearance Of The Open And Obvious Doctrine, Ann K. Dittmeier
Premises Liability: The Disappearance Of The Open And Obvious Doctrine, Ann K. Dittmeier
Missouri Law Review
In the past, landowners were sovereign over their land, and they were immune from liability for accidents that occurred on their land.2 One doctrine that reflects this limited liability is the open and obvious rule, which states that landowners have no duty of care to protect someone on their premises from an open and obvious condition The traditional rule has recently been modified in many jurisdictions to disallow a landowner from asserting an open and obvious condition as a complete defense.4 The modified version holds occupiers liable if they reasonably could have anticipated that the invitee would encounter the danger …
Assessing The Best Interests Of The Child: Missouri Declares That A Homosexual Parent Is Not Ipso Facto Unfit For Custody, Heidi C. Doerhoff
Assessing The Best Interests Of The Child: Missouri Declares That A Homosexual Parent Is Not Ipso Facto Unfit For Custody, Heidi C. Doerhoff
Missouri Law Review
In formal child custody disputes, the voices of those at the center of the controversy, the children, are rarely heard.Their parents, who otherwise are presumed to act in their best interests, battle one another in legal proceedings that reward the parent who more persuasively portrays the deficiencies of the other's parenting skills. Because the children, especially the very young, have no adequate basis for making judgments about their long-term well-being, the state acts asparenspatriae while their parents are adversaries.Through its laws and decision makers, the state attempts to ensure that the final custody arrangement is guided by the best interests …
Missouri's Mystifying Doctrine Of Sovereign Immunity: The Imposition Of Duty Under The Dangerous Condition Exception, Stacy L. Nagel
Missouri's Mystifying Doctrine Of Sovereign Immunity: The Imposition Of Duty Under The Dangerous Condition Exception, Stacy L. Nagel
Missouri Law Review
In Missouri, the doctrine of sovereign immunity has been plagued with confusion. Much of this confusion has resulted from wrangling between the Missouri Supreme Court and the legislature. Statutes offering little guidance have been developed, and hard to reconcile cases have been produced. Perhaps nowhere is this confusion more evident than in the area of tort liability under the "dangerous condition" exception to sovereign immunity. Martin v. Missouri Highway & Transportation Department is a prime example of the bewilderment bred by Missouri's statute of sovereign immunity and particularly the "dangerous condition" exception. The Martin court discusses the conditions under which …
Successive Torts Resulting In A Single, Indivisible Injury: Plaintiffs, Prepare To Prove The Impossible, Michael J. Kleffner
Successive Torts Resulting In A Single, Indivisible Injury: Plaintiffs, Prepare To Prove The Impossible, Michael J. Kleffner
Missouri Law Review
In most lawsuits, plaintiffs' medical experts can accurately allocate plaintiffs' injuries to a specific, causal factor. In some instances, however, two events may combine to cause an injury that is incapable of rational apportionment, even by the most learned medical expert. In such a case, the indivisible injury doctrine may relieve a plaintiff of the difficult burden of proving which tortfeasor caused her injuries. The indivisible injury doctrine, however, does not benefit all plaintiffs who have suffered an injury that cannot be apportioned. As illustrated by the instant case, certain plaintiffs must prove the impossible, namely, which tortfeasor caused their …
Switched At The Fertility Clinic: Determining Maternal Rights When A Child Is Born From Stolen Or Misdelivered Genetic Material, Alice M. Noble-Allgire
Switched At The Fertility Clinic: Determining Maternal Rights When A Child Is Born From Stolen Or Misdelivered Genetic Material, Alice M. Noble-Allgire
Missouri Law Review
In the beginning, they were one of the happy statistics from a California fertility clinic. Among the twenty percent of infertile couples whose treatments resulted in a successful pregnancy,1 they were doubly blessed, in fact, with twins.' Six years later, however, a letter in the mailbox turned their lives upside down. Although apologetic in tone, the letter suggested that the unthinkable had occurred and requested that the twins be submitted for genetic testing to determine whether they were born from another woman's eggs.3
Caveat Vendor: Sellers Of Real Estate Now Need To Beware Of Misrepresentations About The Condition Of Property, Timothy A. Reuschel
Caveat Vendor: Sellers Of Real Estate Now Need To Beware Of Misrepresentations About The Condition Of Property, Timothy A. Reuschel
Missouri Law Review
The common law approach to disclosure of latent defects in real property was caveat emptor, which meant sellers had no duty to disclose latent defects to purchasers.2 Most modem courts have mitigated the harshness of the doctrine by adopting a system that mandates disclosure by a seller of any latent defect3 material to the purchaser's decision to buy the property and whose existence is known by the seller. Droz v. Trump highlights a growing trend among a number of Missouri courts willing to further narrow the seller protections of caveat emptor in favor of protecting innocent purchasers of real property. …
When Your Rival Becomes Your Dance Partner: Mary Carter Agreements In Missouri Courts, Thomas G. Pirmantgen
When Your Rival Becomes Your Dance Partner: Mary Carter Agreements In Missouri Courts, Thomas G. Pirmantgen
Missouri Law Review
Mary Carter agreements2 occur when a plaintiff asserting liability against joint tortfeasors 3 enters into a settlement agreement with less than all of the defendants. The settling defendant, who remains a party at trial, obtains the possibility of offsetting her financial exposure depending on how much money the plaintiff recovers from the other defendants. These agreements pose a potential threat to the adversarial nature of the trial process. This threat is especially severe when the trier of fact is not apprised of the agreement.4 Although maintaining the adversarial character of judicial proceedings is a public policy deserving of protection, 5 …
Penalty Box Or Jury Box--Deciding Where Professional Sports Tough Guys Should Go, Heidi C. Doerhoff
Penalty Box Or Jury Box--Deciding Where Professional Sports Tough Guys Should Go, Heidi C. Doerhoff
Missouri Law Review
To those unfamiliar with the customs of professional hockey, observing a referee stand by while players drop their gloves and duke it out can be a disconcerting experience. Even more disconcerting is watching last week's highlights illustrate in slow-motion detail the bone-crushing force with which one player slams another into the boards. The professional hockey fan, however, knows that acts like these are the byproducts of a fast and furious game that recognizes physical intimidation as a legitimate strategy.2 In McKichan v. St. Louis Hockey Club,3 the Missouri Court of Appeals for the Eastern District of Missouri ruled that severe …
Business Records Exception To The Hearsay Rule--New Is Not Necessarily Better, The, Sidney Kwestel
Business Records Exception To The Hearsay Rule--New Is Not Necessarily Better, The, Sidney Kwestel
Missouri Law Review
Among the most significant exceptions to the hearsay rule is the business records exception.' With roots in the common law,2 it is based on the premise that records made in the regular course of business are sufficiently reliable to justify admitting them as proof of the matters asserted in them without the safeguard of cross examination.3 Widespread acceptance of a codified business records exception followed a 1927 study4 that proposed such a statute (the Model Act)' and urged its passage by everyjurisdiction.6 Congress,7 as well as several
Life Insurance As Security For A Debt And The Applicability Of The Rule Against Wager Contracts, John M. Limbaugh
Life Insurance As Security For A Debt And The Applicability Of The Rule Against Wager Contracts, John M. Limbaugh
Missouri Law Review
Every jurisdiction has a rule against wager contracts, developed to discourage speculation in human life and attendant moral hazard.2 In the life insurance context, the rule in Missouri prohibiting wager contracts applies only "where a policy is taken out by, and premiums paid by, a person who has no insurable interest in the life of the insured, or when a policy has been assigned for speculative purposes."3 The Missouri Supreme Court, in Estate of Bean v. Hazel, correctly limited the creditor's recovery on the debtor's life insurance policy to the amount of the debt, plus interest. However, in doing so, …
Changing Interpretations Of The Establishment Clause: Financial Support Of Religious Schools, Bryan D. Lemoine
Changing Interpretations Of The Establishment Clause: Financial Support Of Religious Schools, Bryan D. Lemoine
Missouri Law Review
In Wolman v. Walter, Justice Stevens voiced concem that the "'high and impregnable' wall between church and state, has been reduced to a 'blurred, indistinct, and variable barrier.' 2 The court had sacrificed predictability for flexibility? While this may be true in some areas of Establishment Clause jurisprudence, it is no longer true in cases involving benefits to religious organizations. If the programs equally benefit both secular and "similarly situated" religious organizations, there is no violation of the Establishment Clause.4 Jackson v. Benson is an expression of this view. The Wisconsin Supreme Court, in upholding a program designed to provide …
Case Against Plea Bargaining Child Sexual Abuse Charges: Deja Vu All Over Again, The, Peter T. Wendel
Case Against Plea Bargaining Child Sexual Abuse Charges: Deja Vu All Over Again, The, Peter T. Wendel
Missouri Law Review
There are few people in this world more despicable than child molesters.' I never dreamed that I would ever represent someone accused of such a heinous act.2 Like most lawyers, I went to law school to "save the world," or at least to try to make it a better place. But there really aren't many "save the world" cases out there, and they're usually pro bono. As a relatively young, debt laden attorney, I quickly realized that my chances of getting a "save the world" case were slim to none. That didn't mean I had to accept an accused child …
Lenders And Land, Ann M. Burkhart
Lenders And Land, Ann M. Burkhart
Missouri Law Review
Using land to secure loans has been a particularly durable human institution. Mortgages' have existed since antiquity,2 primarily because land generally retains its value and is permanent and immovable. In societies with largely nonmonetary economies, such as feudal England, land also has been particularly valued as a source of livelihood and of power. Therefore, land has been and continues to be desirable security for loans. To retain its utility throughout the centuries, the mortgage necessarily has evolved to reflect changing legal and economic conditions. As is to be expected, the modem American mortgage creates some very different rights and liabilities …
Message To Criminal Defendants--Waive At Your Own Risk: The Eight Circuit Enforces Waivers Of Appellate Rights, The, Ginger K. Gooch
Message To Criminal Defendants--Waive At Your Own Risk: The Eight Circuit Enforces Waivers Of Appellate Rights, The, Ginger K. Gooch
Missouri Law Review
"The right to appeal at least once without obtaining prior court approval is nearly universal. [A]lthough its origins are neither constitutional nor ancient, the right has become, in a word, sacrosanct., 2 Likewise, the criminal defendant's right to utilize appellate rights as a bargaining chip meets with widespread acceptance; nearly every circuit allows criminal defendants to waive their rights to appeal in conjunction with plea bargain agreements.3 The circuits disagree, however, concerning whether a defendant's waiver of appellate rights remains valid if a district court judge fails to explicitly discuss the waiver with the defendant during a Rule 11 colloquy4 …
Credit Opportunities, Race, And Presumptions: Does The Mcdonnell Douglas Framework Apply In Fair Lending Cases, Richard A. Hill
Credit Opportunities, Race, And Presumptions: Does The Mcdonnell Douglas Framework Apply In Fair Lending Cases, Richard A. Hill
Missouri Law Review
Congress has recognized that "[i]n a credit oriented society such as ours, impediments to sources of credit based on extraneous factors such as race, color, religion, age, sex, marital status, and the like, have a deleterious effect on both the individual victims of discrimination, and on the economy as a whole."2 Minority borrowers feel the impact of credit discrimination. "They make me feel like I was wasting my time. Like I wasn't worthy of being a home owner."3 Lenders often do not realize what they have done. "The discrimination in mortgage lending with which I've become familiar is not necessarily …
Bifurcations Of Consciousness: The Elimination Of The Self-Induced Intoxication Excuse, Derrick Augustus Carter
Bifurcations Of Consciousness: The Elimination Of The Self-Induced Intoxication Excuse, Derrick Augustus Carter
Missouri Law Review
In early American and English common law, intoxication evidence did not excuse or mitigate criminal behavior.! Any person who destroyed his or her volition through intoxication was equally as culpable as a sober person for the legal consequences of a self-induced vice.2 Voluntary drunkenness aggravated, rather than reduced, criminal liability
Narrow Application Of Buckley V. Valeo: Is Campaign Finance Reform Possible In The Eighth Circuit, The, Matthew S. Criscimagna
Narrow Application Of Buckley V. Valeo: Is Campaign Finance Reform Possible In The Eighth Circuit, The, Matthew S. Criscimagna
Missouri Law Review
Federal campaign finance reform has been a hot topic as of late, from the recent debates of the McCain-Feingold bill in Congress to the investigation of alleged violations in connection with the 1996 presidential election. The issue of campaign finance reform is of equal importance on the state level. A majority of states have been reforming their campaign finance laws since 1990.2 However, these reforms have not avoided constitutional challenges. The Eighth Circuit has been particularly harsh when reviewing challenges to state campaign finance reform. This has led to a limited number of alternatives for the states to employ when …
What Happened To The Equity In Equitable Subrogation, Robert M. Smith
What Happened To The Equity In Equitable Subrogation, Robert M. Smith
Missouri Law Review
The doctrine of equitable subrogation provides courts with a vehicle to allow a lending institution that has paid off an existing loan to take the original lending institution's place in priority status. 2 While the doctrine appears quite simple, courts have been remarkably inconsistent in their approaches to allowing equitable subrogation claims. This Note discusses the various approaches taken by courts today, and more importantly, analyzes Missouri's current approach as affirmed most recently in Metnor Financial, Inc. v. Landoll Corporation.