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Articles 841 - 870 of 3741
Full-Text Articles in Law
Ensuring The Ethical Representation Of Clients In The Face Of Excessive Caseloads, Peter A. Joy
Ensuring The Ethical Representation Of Clients In The Face Of Excessive Caseloads, Peter A. Joy
Missouri Law Review
This Article is divided into three substantive parts. First, I begin with a short discussion of the most important criminal justice right guaranteed to each of us under the Bill of Rights - the Sixth Amendment right to assistance of counsel. For most Americans, the right to counsel is obtained through indigent defense providers, and the quality of the representation is inextricably tied to three lesser known rights, or perhaps wishes, found in the Public Defender Bill of Rights: "[t]he right to meaningful, weighted caseload standards"; "[t]he right to judges who understand my [the public defender's] role in the [justice] …
Litigating The Ghost Of Gideon In Florida: Separation Of Powers As A Tool To Achieve Indigent Defense Reform, Wayne A. Logan
Litigating The Ghost Of Gideon In Florida: Separation Of Powers As A Tool To Achieve Indigent Defense Reform, Wayne A. Logan
Missouri Law Review
In this Article, I will discuss the Miami-Dade "excessive caseload" litigation, which continues to unfold in Florida's appellate courts. In doing so, I will offer some thoughts on the separation of powers implications of the aforementioned statute, which, other than a similar provision adopted in Coloradol7 that has gone unchallenged, stands alone in the nation.
Protecting The Innocent: Part Of The Solution For Inadequate Funding For Defenders, Not A Panacea For Targeting Justice, Robert P. Mosteller
Protecting The Innocent: Part Of The Solution For Inadequate Funding For Defenders, Not A Panacea For Targeting Justice, Robert P. Mosteller
Missouri Law Review
In this Article, I examine an important connection between society's concern with innocence - fueled by numerous wrongful convictions revealed by newly available DNA testing - and past and future progressive changes in criminal justice practices and policy. In Why Defense Attorneys Cannot, But Do, Care About Innocence (Caring About Innocence), I argued that, while the drive to protect the innocent has the potential to divide progressives in their support of indigent defense if targeting reforms only at the innocent is seen as possible, concern for innocence should instead drive a renewed effort to secure adequate funding for representing all …
Silencing The Rebel Yell: The Eighth Circuit Upholds A Public School's Ban On Confederate Flags, Lucinda Housley Luetkemeyer
Silencing The Rebel Yell: The Eighth Circuit Upholds A Public School's Ban On Confederate Flags, Lucinda Housley Luetkemeyer
Missouri Law Review
In 2009, the United States Court of Appeals for the Eighth Circuit heard for the first time a case challenging the constitutionality of a public school's ban on the display of Confederate flags. When the Eighth Circuit faced this situation in B. WA. v. Farmington R- 7 School District (B. WA. v. Farmington), it attempted to balance the competing interests of protecting students' free speech rights and avoiding future disruption and danger to the learning environment. In doing so, the court adhered to the reasoning established by its sister circuits and set a precedent within the Eighth Circuit that shifts …
Counselor, Stop Everything - Missouri's Venue Statutes Receive An Expansive Interpretation, Darin P. Shreves
Counselor, Stop Everything - Missouri's Venue Statutes Receive An Expansive Interpretation, Darin P. Shreves
Missouri Law Review
This Note seeks to place Nixon in the context of Missouri law in order to analyze the court's holding and its attendant consequences. First, this Note will review Missouri's venue law leading up to Nixon. Next, this Note will examine the court's reasoning, consider its interpretation of the newlyenacted venue provision of section 508.012, and explore the issues and implications arising from the decision. Finally, this Note will conclude that in order to mitigate Nixon's departure from the legislative goals of the Tort Reform Act, future courts will limit the decision's reach by failing to apply its reasoning beyond the …
Missouri's Public Defender Crisis: Shouldering The Burden Alone, Sean D. O'Brien
Missouri's Public Defender Crisis: Shouldering The Burden Alone, Sean D. O'Brien
Missouri Law Review
Though this Article criticizes the quality of defense provided by overburdened defenders, it is written with the hope that adequate resources may one day make it possible for them to perform their vital function effectively. Public defenders perform socially and legally significant work every day. They are not to blame when the conditions under which they labor make it impossible to do their jobs. To fix this broken system, Missouri must first understand the scope and roots of the problem. Part II of this Article discusses Missouri's reluctant implementation of right to counsel since Gideon v. Wainwright and the State's …
Epiphenomenal Indigent Defense, Darryl K. Brown
Epiphenomenal Indigent Defense, Darryl K. Brown
Missouri Law Review
There are some much-studied, recurring social events and behaviors that, although centrally important to public policy and social life, have proven intractable to explanation and prediction. As currently salient examples, consider stock market crashes and recessions. Economists cannot consistently see them coming nor explain them after the fact in consistent detail. Another example is crime rates, which rise, and in recent decades fall, without any discernable strong causal link to familiar variables such as employment or imprisonment rates. This Article describes why we can add state funding for indigent defense counsel to that list and what this conclusion means for …
Staking A Claim On The Building Blocks Of Life: Human Genetic Material Within The United States Patent System, Alex Osterlind
Staking A Claim On The Building Blocks Of Life: Human Genetic Material Within The United States Patent System, Alex Osterlind
Missouri Law Review
This Article examines the place, if any, of genes within the United States patent system by first providing a broad background of the United States patent system, including the foundational cases that have shaped the system. Further, this Article briefly describes human genes to explain how genetic material is viewed within the United States patent system. Subsequently, "gene patents" within the United States are explained. Building upon this milieu, the merits of arguments in opposition to gene patents are examined by focusing on the arguments presented in an ongoing suit filed by the American Civil Liberties Union (on behalf of …
Pretext In Peril, Natasha T. Martin
Pretext In Peril, Natasha T. Martin
Missouri Law Review
This Article addresses the connections among substance, procedure, and equality in the American workplace. Exploring the deepening struggle for plaintifs under Title VII of the Civil Rights Act of 1964, this Article seeks to add clarity to an enduring quandary - why does Title VII fail to combat the prejudicial disparate treatment it was designed to eradicate? This Article offers a critique of the hardships shouldered by plaintiffs in proving contemporary workplace discrimination. Challenging the seemingly unfettered discretion of the courts in evaluating claims of workplace bias, this Article pursues the interplay of procedural and substantive law to expose how …
Mental Retardation As A Bar To The Death Penalty: Who Bears The Burden Of Proof, James Gerard Eftink
Mental Retardation As A Bar To The Death Penalty: Who Bears The Burden Of Proof, James Gerard Eftink
Missouri Law Review
In holding that the execution of mentally retarded offenders is cruel and unusual punishment,' the instant court followed the current trend of other states. Even before the Supreme Court of the United States rendered its decision in Atkins, state legislatures around the country, including the Missouri legislature, had enacted laws prohibiting the execution of mentally retarded offenders.' Also, the Supreme Court of Missouri's holding that a defendant bears the burden of proving his mental retardation is consistent with the position taken by the vast majority of states. However, the court rendered its holding in the absence of any legislation placing …
Discrimination Redefined, Ann. C. Mcginley
Discrimination Redefined, Ann. C. Mcginley
Missouri Law Review
I agree with Professor Martin's premise that it has become increasingly difficult to prove disparate treatment, especially in light of courts' aggressive use of summary judgment. I argue in this essay that the courts' retrenchment in Title VII cases results from a narrow definition of discrimination that focuses on conscious, intentional discrimination. Increasingly social science research demonstrates that much disparate treatment occurs as a result of unconscious biases, but the courts' reluctance to consider this social science has led, in many cases, to a literal, narrow definition of"pretext." Moreover, I posit that the recent Supreme Court case of Ricci v. …
Anti-Discrimination Law In Peril, Trina Jones
Anti-Discrimination Law In Peril, Trina Jones
Missouri Law Review
In this short Essay, I explore the tendency of courts to summarily dismiss employment discrimination claims and consider whether the judicial skepticism, if not outright hostility, we are witnessing is limited to statutory actions under Title VII or is instead part of a broader movement against discrimination claims. In Part II, I suggest that between 1973, when McDonnell Douglas was decided, and 2009 societal beliefs about the prevalence of discrimination in the United States changed. In 1973, as the country emerged from the Jim Crow era, the presumption was one of widespread discrimination. Today, in so-called "post-racial" America, an opposite …
Corporations Beware: The Eighth Circuit Announces New Criteria For Parent Corporation Liability And Constructive Notice Of Harassment, Lawrence S. Hall
Corporations Beware: The Eighth Circuit Announces New Criteria For Parent Corporation Liability And Constructive Notice Of Harassment, Lawrence S. Hall
Missouri Law Review
In Sandoval v. American Building Maintenance Inc., the United States Court of Appeals for the Eighth Circuit announced two very important principles affecting corporations in regard to harassment liability. First, in looking at parent-subsidiary corporate relationships, the court re-established a four-factor test, which was vacated by the Eighth Circuit in 2007, that determines whether a parent corporation can be held liable for the acts of its subsidiaries. Second, when looking at a hostile work environment claim, the Eighth Circuit held that events involving harassment at multiple locations of which the defendant corporation was aware can be admitted to show that …
Money For Nothing And Your (Expenses) For Free - Federal Circuit Split On Vehicle Ownership Expense In Bapcpa Means Testing, Andrew J. Neumann
Money For Nothing And Your (Expenses) For Free - Federal Circuit Split On Vehicle Ownership Expense In Bapcpa Means Testing, Andrew J. Neumann
Missouri Law Review
This Note addresses an issue arising out of the poor draftsmanship that characterizes BAPCPA. In In re Washburn, the United States Court of Appeals for the Eighth Circuit considered an issue that already has spawned a split between the federal circuits - whether in applying the "means test" a debtor may claim a vehicle ownership expense based upon a vehicle that the debtor owns free and clear. The Eighth Circuit's decision allowing debtors to claim the expense follows decisions by the United States Court of Appeals for the Fifth and Seventh Circuits and puts the court in conflict with the …
Fundamental, But Not Fundamental Enough: Missouri's Balancing Test In The Area Of Parental Rights, Nichole Walsch
Fundamental, But Not Fundamental Enough: Missouri's Balancing Test In The Area Of Parental Rights, Nichole Walsch
Missouri Law Review
In Weigand, the petitioner argued that the statute infringed on his due process and equal protection rights to the care, custody and control of his child and that it violated the open courts provision of the Missouri Constitution. This Note argues that the "balancing-of-interests" test applied by the Supreme Court of Missouri does not give parental rights the heightened scrutiny they deserve. In addition, the balancing test is problematic because it is extremely subjective and leaves the decision of constitutionality entirely up to judicial discretion. This Note also suggests that the court failed to give full weight to the procedural …
Economics Perspective On The Exclusionary Rule And Deterrence, An, Michael D. Cicchini
Economics Perspective On The Exclusionary Rule And Deterrence, An, Michael D. Cicchini
Missouri Law Review
This Article will demonstrate that the exclusionary rule does not and cannot deter police misconduct. The reason is that the expected cost to the police of their own misconduct (p*C) is nearly always zero. More specifically, the probability that the evidence will be suppressed (p), even in cases of egregious police misconduct, is very close to zero. Additionally, even in the rare case that evidence is suppressed, the cost to the police of a lost conviction (C) is nearly always zero for several reasons: first, the police tend to value arrests, not convictions; second, even if they did value convictions, …
Contract Law, Party Sophistication And The New Formalism, Meredith R. Miller
Contract Law, Party Sophistication And The New Formalism, Meredith R. Miller
Missouri Law Review
Part II of this Article positions the discussion in a theoretical context and describes the significance of party sophistication as a compromise between formalist and realist concerns. Part III collects examples of settings in which courts have used party sophistication as a tool to organize the world of contracting parties and, with that, the applicable legal principles. For sophisticated parties, in answering a wide array of contract questions, courts employ a formalist approach. Part IV begins descriptively and addresses the general lack of meaningful assessment of party sophistication. Drawing upon the review of hundreds of cases, Part IV identifies what …
Pretext Without Context, D. Wendy Greene
Pretext Without Context, D. Wendy Greene
Missouri Law Review
First, this response addresses the lower courts' opinions in Ash v. Tyson Foods, Inc., as well as the Supreme Court's per curiam opinion in this case, which espouses a more contextualized analysis of pretext in race-based disparate treatment cases. Next, this response examines Holiness v. MooreHandley, Inc. and the acontextual, colorblind analysis the court applied. Each case illustrates the negative effects of courts analyzing pretext without context at different stages of race discrimination litigation: during post-trial phases in Ash v. Tyson Foods, Inc. and at the summary judgment stage in Holiness v. Moore-Handley, Inc. Ash v. Tyson Foods, Inc. and …
Ordinary Creativity In Patent Law: The Artist Within The Scientist, Amy L. Landers
Ordinary Creativity In Patent Law: The Artist Within The Scientist, Amy L. Landers
Missouri Law Review
Patent law is intended to promote the creativity of scientists and engineers. The system recognizes that the work of the individual is the engine that ultimately increases the state ofscientific knowledge. As economist Paul Romer recognized, "Technological advance comes from things that people do." Furthering creativity represents the constitutional, theoretical and doctrinal heart of patent law. Yet the field has not meaningfully evaluated the fundamental question of what creativity is. Using theories from psychology, sociology, history and the philosophy of science, this work examines and proposes how patent law can formulate a legal conception of creativity. To undertake this inquiry, …
Demise Of Arbitration Agreements In Long-Term Care Contracts, The, Laura K. Bailey
Demise Of Arbitration Agreements In Long-Term Care Contracts, The, Laura K. Bailey
Missouri Law Review
This Article argues that pre-dispute compulsory arbitration provisions in nursing home contracts should not be enforced and encourages the elimination of such clauses in long-term care contracts. This Article will lay out the historical background and development of arbitration and then will address the use of arbitration clauses in nursing home admission contracts. Finally, this Article will explore recent developments of arbitration law in long-term care contracts, both federally and in the state of Missouri, with particular attention given to the Supreme Court of Missouri's decision in Lawrence v. Beverly Manor.
Call To Police The Margins: The Eighth Circuit's Expansion Of Miranda's Public-Safety Exception, A, Bradley S. Dixon
Call To Police The Margins: The Eighth Circuit's Expansion Of Miranda's Public-Safety Exception, A, Bradley S. Dixon
Missouri Law Review
The right of every citizen against compulsory self-incrimination is a principle firmly embedded in the American justice system. The Supreme Court of the United States in Miranda v. Arizona, a decision that has established itself in the public consciousness, found the abuses of law enforcement so grave that the Court mandated certain prophylactic measures to protect Fifth Amendment rights. In doing so, the Court recognized that it was balancing the interest of protecting individuals' Fifth Amendment rights against the potential detrimental costs to effective law enforcement. In New York v. Quarles, the Supreme Court found a public policy exception to …
Context Of Ideology: Law, Politics, And Empirical Legal Scholarship, The, Carolyn Shapiro
Context Of Ideology: Law, Politics, And Empirical Legal Scholarship, The, Carolyn Shapiro
Missouri Law Review
In their confirmation hearings, Chief Justice Roberts and Justice Sotomayor both articulated a vision of the neutral judge who decides cases without resort to personal perspectives or opinions, in short, without ideology. At the other extreme, the dominant model ofjudicial decisionmaking in political science has long been the attitudinal model, which posits that the Justices' votes can be explained primarily as expressions of their personal policy preferences, with little or no role for law, legal reasoning, or legal doctrine. Many traditional legal scholars have criticized such scholarship for its insistence on the primacy of ideology in judicial decisionmaking, even as …
Myth Of The Level Playing Field: Knowledge, Affect, And Repetition In Public Debate, The, Jeremy N. Sheff
Myth Of The Level Playing Field: Knowledge, Affect, And Repetition In Public Debate, The, Jeremy N. Sheff
Missouri Law Review
The industrialization of the channels and scale of communication has led some well-meaning reformers to try to regulate the ability of powerful private actors to leverage economic inequality into political inequality, particularly in the area of campaign finance. Such reform efforts are ostensibly intended to further the deliberative democratic ideal of rational, informed public decisionmaking by preventing well-funded private interests from improperly influencing democratic debate and, by extension, political outcomes. This Article examines empiricalfindings in political science, psychology, and marketing and argues that, in the context of contemporary American society, the normative principles of deliberative democracy and formal equality operate …
Plaintiffs' Bar Cannot Enforce The Laws: Individual Reliance Issues Prevent Consumer Protection Classes In The Eighth Circuit, The, Michael B. Barnett
Plaintiffs' Bar Cannot Enforce The Laws: Individual Reliance Issues Prevent Consumer Protection Classes In The Eighth Circuit, The, Michael B. Barnett
Missouri Law Review
This Note will specifically consider the implications of In re St. Jude on class certification sought under the Missouri Merchandising Practices Act (MMPA) in federal court. Though Missouri case law does not require reliance to be shown to bring an individual action under the MMPA, federal courts likely would require a showing of causation in which common facts of reliance exist in the class context. This is true, in part, because of the similarities in the Missouri and Minnesota statutes. Further, even though the Supreme Court of Missouri is the final arbiter of Missouri law, the MMPA adopts the Federal …
Letting The Dead Bury The Dead: Missouri's Right Of Sepulcher Addresses The Modern Decedent's Wishes, Kimberly E. Naguit
Letting The Dead Bury The Dead: Missouri's Right Of Sepulcher Addresses The Modern Decedent's Wishes, Kimberly E. Naguit
Missouri Law Review
The right of sepulcher refers to "the right to choose and control the burial, cremation, or other final disposition of a dead human body. Until recently, the law for sepulcher in Missouri was based on the traditional family, giving a decedent's spouse, children, parents, and siblings highest priority - often even over the wishes of the decedent herself. A recent amendment to Missouri Revised Statute Section 194.119 now gives top priority for the right of sepulcher to "[a]n attorney in fact designated in a durable power of attorney wherein the deceased specifically granted the right of sepulcher over her body …
Missouri's Section 287.865.5 Proof Of Claim Filing Requirement: Are Injured Employees Getting A Fair Shake, Carrie B. Williamson
Missouri's Section 287.865.5 Proof Of Claim Filing Requirement: Are Injured Employees Getting A Fair Shake, Carrie B. Williamson
Missouri Law Review
This Article argues that Section 287.865.5's bankruptcy proof of claim filing requirement is bad law because it runs counter to the purposes of Missouri's workers' compensation system. It also reveals significant gaps found at the confluence of workers' compensation law and bankruptcy law and exacerbates cracks in the systems. The cracks in turn become traps for the unwary injured worker. Because of these problems, the Section 287.865.5 proof of claim filing requirement should be amended so that it operates more in harmony with federal bankruptcy law. This Article proposes several amendments to the statutory provisions pertaining to the proof of …
Hostile Takeover: The State Of Missouri, The St. Louis School District, And The Struggle For Quality Education In The Inner-City, Justin D. Smith
Hostile Takeover: The State Of Missouri, The St. Louis School District, And The Struggle For Quality Education In The Inner-City, Justin D. Smith
Missouri Law Review
Missouri has been home to many of the landmark moments in the struggle for racial equality. The Missouri Compromise saved the Union; almost four decades later, the determination that Missouri slave Dred Scott was mere property split the Union. During the Civil War that followed, more battles and skirmishes took place in Missouri than in any other state outside of Virginia and Tennessee. After the Civil War Amendments abolished slavery and guaranteed every person equal protection of the law, the United States Supreme Court allowed a Jefferson City, Missouri, inn to refuse service to blacks. The Court later relied upon …
Misuse Of Reasonable Royalty Damages As A Patent Infringement Deterrent, The, Brian J. Love
Misuse Of Reasonable Royalty Damages As A Patent Infringement Deterrent, The, Brian J. Love
Missouri Law Review
This Article studies the Federal Circuit's use of excessive reasonable royalty awards as a patent infringement deterrent. I argue against this practice, explaining that, properly viewed in context of the patent system as a whole, distorting the reasonable royalty measure of damages is an unnecessary and ineffective means of ensuring an optimal level of reward for inventors and deterrence for infringers. First, I introduce cases in which the Federal Circuit and other courts following its lead have awarded punitive reasonable royalty awards and explain the Federal Circuit's professed rationale for doing so. Next, I demonstrate that this practice makes little …