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Table Of Book Reviews/Comments Nov 1992

Table Of Book Reviews/Comments

Missouri Law Review

Table of Book Reviews/Comments


Conditional Spending And The First Amendment: Maintaining The Commitment To Rational Liberal Dialogue, Donald L. Beschle Nov 1992

Conditional Spending And The First Amendment: Maintaining The Commitment To Rational Liberal Dialogue, Donald L. Beschle

Missouri Law Review

Questions concerning the constitutional validity of conditions placed on recipients of government funds have a long history,' but they recently have received greater attention as the types of constitutional concerns have changed. Earlier cases dealt with issues of federalism, and claims that conditions unduly limited states in the exercise of their reserved powers. As courts moved to a generally consistent position of deference to Congressional choices concerning the proper distribution of power between the states and the national government, challenges to conditional spending faded in both their significance and interest.' This Article maintains that the government must take and express …


Missouri Child Support Guidelines, Jennifer Clifton Ferguson Nov 1992

Missouri Child Support Guidelines, Jennifer Clifton Ferguson

Missouri Law Review

The Child Support Enforcement Amendments of 1984' and the Family Support Act of 1988, are designed to improve the adequacy, consistency, and collectability of child support awards. These two laws require states to develop specific guidelines providing a numerical formula for the determination of child support award amounts' and require that the guidelines be presumptive. Following the federal mandate, the Missouri Supreme Court enacted child support guidelines which have been mandatory since April 1, 1990.


New Standard For The Modification Of Consent Decrees, A, Paul S. Penticuff Nov 1992

New Standard For The Modification Of Consent Decrees, A, Paul S. Penticuff

Missouri Law Review

A common method of dispute resolution in institutional reform litigation is the consent decree. Although they are entered into voluntarily, consent decrees are sanctioned by courts in the same manner as other final judgments under Federal Rule of Civil Procedure 60(b) The consent decree has been used to avoid court-ordered remedies which do not adequately meet the needs of either party in the dispute. The traditional standard for the modification of such decrees is the "grievous wrong" standard.' By maintaining this rigorous standard, courts have guarded against modifications of consent decrees to bring order to the highly chaotic and controversial …


Hancock Amendment, User Fees, The Plain Meaning Rule, And An Invitation To Challenge Buechner V. Bond, The, Michael Atchison Nov 1992

Hancock Amendment, User Fees, The Plain Meaning Rule, And An Invitation To Challenge Buechner V. Bond, The, Michael Atchison

Missouri Law Review

In 1980, Missouri voters adopted an amendment to the Missouri Constitution. The amendment, commonly called the Hancock Amendment, limited the power of state and local governments to raise taxes by requiring voter approval for tax increases and by Placing a spending limit on the state government. One of the controversial issues has been whether fees charged for governmental services may be raised without a vote. Initially, the Missouri Supreme Court, employing the plain meaning rule, held that such fees could not be raised without voter consent. Keller v. Marion County Ambulance District, the subject of this Note, marks a welcome …


Index To Subjects Covered In Volume 56 Nov 1992

Index To Subjects Covered In Volume 56

Missouri Law Review

Index to Subjects Covered in Volume 58


Table Of Lead Articles/Essays Nov 1992

Table Of Lead Articles/Essays

Missouri Law Review

Table of Lead Articles/Essays


Table Of Notes Nov 1992

Table Of Notes

Missouri Law Review

Table of Notes


Sentencing Guidelines: Recommendations For Sentencing Reform, Barbara S. Barrett Nov 1992

Sentencing Guidelines: Recommendations For Sentencing Reform, Barbara S. Barrett

Missouri Law Review

For the last twenty years, much of the discussion about the criminal justice system has focused on criminal sentencing. Prior to 1970, the states and the federal government used indeterminate sentencing, a method whereby judges and parole boards exercised a great deal of discretion over the length of criminal sentences. This Article discusses the reasons why sentencing guidelines are the best way to achieve proportionality and uniformity in the sentencing of criminal offenders. Sentencing guidelines have been implemented in a number of states and the federal system, and, thus, the successes and failures of those reforms offer lessons for future …


Legislative Veto Of Administrative Rules In Missouri: A Constitutional Virus, Kenneth D. Dean Nov 1992

Legislative Veto Of Administrative Rules In Missouri: A Constitutional Virus, Kenneth D. Dean

Missouri Law Review

The last sixty years have witnessed an enormous growth at the federal and state levels in both the number and size of administrative bureaucracies.' Agencies have been created to implement and administer legislation passed by the Congress or state legislatures. The grant of rulemaking authority has been given to executive agencies because legislatures have often found themselves unable, or unwilling, to fine-tune laws addressing today's increasingly complex society. The fine-tuning has been left to administrative agencies, particularly where scientific, economic, or other expertise is needed to determine how the law should be implemented. The purpose of this Article is to …


Fifty Jurisdictions In Search Of A Standard: The Covenant Of Good Faith And Fair Dealing In The Employment Context, Monique C. Lillard Nov 1992

Fifty Jurisdictions In Search Of A Standard: The Covenant Of Good Faith And Fair Dealing In The Employment Context, Monique C. Lillard

Missouri Law Review

This Article examines what good faith and fair dealing mean in the workplace, particularly where the relationship between employer and employee is otherwise presumed to be "at will." The conclusion is that except in sporadic situations, the concept of good faith and fair dealing is too vague to be helpful to either party or even to the court. The good faith and fair dealing construct, as currently understood, should be abandoned in the employment context, as should the at will presumption. They should be replaced by legislative prohibition of termination absent good cause. The Model Employment Termination Act' is an …


Can A Change In Decision-Making Authority Be A Change With Respect To Voting, Aisha Ginwalla Nov 1992

Can A Change In Decision-Making Authority Be A Change With Respect To Voting, Aisha Ginwalla

Missouri Law Review

The Voting Rights Act of 1965 triggered profound changes in southern politics, providing the impetus for a revolution in minority voting rights. Despite the passage of the Fifteenth Amendment almost a hundred years before, African-Americans in most southern states could not effectively exercise the right to vote. Congress acted in response to this "long and sorry history" by passing the Voting Rights Act. Section 5, a key provision of the Act, targets particular southern states for federal scrutiny of their electoral practices. In Presley, the Court considered whether seemingly routine administrative decisions that resulted in a dilution of the authority …


Knocking Out Motor Vehicle Insurance Household Exclusions: Does The Financial Responsibility Law Cover All Bases, David A. Dick Nov 1992

Knocking Out Motor Vehicle Insurance Household Exclusions: Does The Financial Responsibility Law Cover All Bases, David A. Dick

Missouri Law Review

This Note discusses the issues presented by the conflicts between Missouri's Motor Vehicle Financial Responsibility Law, a legislative act intended to provide compensation for persons injured in vehicular accidents, and contractual exclusion clauses contained in motor vehicle liability insurance policies. A "household" or "family" exclusion clause, the type of liability insurance contract exclusion at issue in Halpin, typically states that no coverage exists for any obligation an insured may have to a member of the insured's family who is residing in the same household as the insured.' The household exclusion is designed to eliminate coverage when one family member's negligence …


Equitable Estoppel Against The Government - The Missouri Experience: Time To Rethink The Concept, Kenneth D. Dean Oct 1992

Equitable Estoppel Against The Government - The Missouri Experience: Time To Rethink The Concept, Kenneth D. Dean

Faculty Publications

The purpose of this article is to examine the Missouri cases to determine if there are patterns which provide guidance in understanding what constitutes “exceptional” circumstances or “manifest injustice,” to determine if there is a coherent theory underlying the application of the *68 doctrine, and, finally, to propose modifications to the traditional approach.


Fall 1992 Oct 1992

Fall 1992

Transcript

No abstract provided.


Volume 15, Issue 2 (Fall 1992) Oct 1992

Volume 15, Issue 2 (Fall 1992)

Transcript

No abstract provided.


Causation In Fact In Omission Cases, David A. Fischer Oct 1992

Causation In Fact In Omission Cases, David A. Fischer

Faculty Publications

This article analyzes the difficulties involved in attributing cause in fact in omission cases, and suggests possible resolutions. Part II discusses the basic concept of causation, and the distinction between acts and omissions. Part III discusses the particular problems that arise in applying causation principles in omission cases. Part IV then analyzes these problems from both corrective justice and economic analysis perspectives. Finally, the article suggests an approach for solving these complex issues.


The Upc And The New Durable Powers, David M. English Jul 1992

The Upc And The New Durable Powers, David M. English

Faculty Publications

This article thoroughly explores the escalation of interest in durable powers of attorney, with particular emphasis on health care powers and advance directives. The author focuses on durable power legislation influenced by the Unifomi Probate Code and health care power and advance directive statutes enacted in response to recent decisions dealing with the withholding or withdrawal of life-sustaining treatment.


Mediation Of Environmental Enforcement: Overcoming Inertia, Bruce Stiftel, Neil G. Sipe Jul 1992

Mediation Of Environmental Enforcement: Overcoming Inertia, Bruce Stiftel, Neil G. Sipe

Journal of Dispute Resolution

This Article aims to examine the claims for the usefulness of environmental mediation in the context of enforcement through consideration of two environmental enforcement cases processed by the Florida Department of Environmental Regulation (DER) during 1990-1991. Specifically outlined is a pilot mediation program designed to improve the resolution of the cases. Next, two DER cases are described and compared, in detail; the two cases are quite similar except that one underwent mediation and one did not. Finally, this Article draws conclusions about environmental enforcement dispute resolution processes. Particularly examined is the success of mediation at overcoming the reluctance of environmental …


Negotiating In Good Faith: Management's Obligation To Maintain The Status Quo During Collective Bargaining Under The Railway Labor Act - International Ass'n Of Machinists & Aerospace Workers V. Transportes Aereos Mercantiles Pan Americandos, S.A., Jay M. Dade Jul 1992

Negotiating In Good Faith: Management's Obligation To Maintain The Status Quo During Collective Bargaining Under The Railway Labor Act - International Ass'n Of Machinists & Aerospace Workers V. Transportes Aereos Mercantiles Pan Americandos, S.A., Jay M. Dade

Journal of Dispute Resolution

When an employer and employee-representative union engage in collective bargaining negotiations, their negotiating activities are covered under the auspices of the Railway Labor Act.2 The Act, particularly applicable today in the tumultuous airline industry, established a rather elaborate mechanism for negotiation, mediation, voluntary arbitration, and conciliation to avoid interruptions to interstate commerce, to protect employees' freedom of association with respect to labor unions, and to provide prompt and orderly dispute settlements. 3 Indispensable to this scheme, Section 152, First of the Act imposes a statutory obligation upon the parties to such negotiations to bargain in good faith.4 In International Ass …


Punitive Damages In New York Arbitration: Who Is Really Being Punished - Barbier V. Shearson Lehman Hutton, Inc. , Brian R. Hajicek Jul 1992

Punitive Damages In New York Arbitration: Who Is Really Being Punished - Barbier V. Shearson Lehman Hutton, Inc. , Brian R. Hajicek

Journal of Dispute Resolution

Promotion of settlement to reduce litigation is a well-established policy goal in our federal court system.2 However, when parties cannot resolve all of their disputes in alternative dispute resolution, this policy goal is undermined. In arbitration governed by the law of the state of New York, parties are generally unable to resolve all of their disputes in arbitration when punitive damages would be warranted. In most cases, the parties' dispute cannot be fully resolved where punitive damages would be available because an arbiter is not free to award punitive damages in arbitration under New York law. This is particularly troublesome …


Mediation And Joke Design: Resolving The Incongruities , John M. Cooley Jul 1992

Mediation And Joke Design: Resolving The Incongruities , John M. Cooley

Journal of Dispute Resolution

The purposes of this Article are: (1) to highlight some of these new discoveries; (2) to discuss their implications for mediators generally, particularly toward achieving super-optimum resolutions of conflict; (3) to explore the relationship of these discoveries to the brain's bilateral functions, creativity, and the process of humor and joke design; (4) to suggest techniques, based on joke design, for altering conflict frames of disputants; and (5) to suggest directions for further experimentation and research. Although the interrelationships among the separate topics presented here may not be immediately discernible, the seeming incongruities will be resolved in Part VIII


Twenty Years Later...Contractual Arbitration As Medical Malpractice Tort Reform, Maureen Dulen Jul 1992

Twenty Years Later...Contractual Arbitration As Medical Malpractice Tort Reform, Maureen Dulen

Journal of Dispute Resolution

Although there is minimal empirical data to support many of the conclusions, 4 the purported advantages and disadvantages of using private tort reform such as contractual arbitration are popular subjects of debate." This Comment will examine both the acceptance of and the use of private contract arbitration clauses in the medical malpractice legal arena.


Arbitration Clauses In Retainer Agreements: A Lawyer's License To Exploit The Client - Haynes V. Kuder, Mark G. Anderson Jul 1992

Arbitration Clauses In Retainer Agreements: A Lawyer's License To Exploit The Client - Haynes V. Kuder, Mark G. Anderson

Journal of Dispute Resolution

An attorney is in an influential and superior position to the client when negotiating fee contracts. Because of this position, an attorney has the opportunity to exploit his or her client. Consequently, courts view agreements between a lawyer and client rather suspiciously and apply a higher standard to these agreements. Furthermore, a lawyer is subject to ethical rules which require a lawyer to meet certain duties, including the duty to inform the client about matters regarding the representation! Because of the higher obligations imposed on an attorney when dealing with a client, any benefit of the doubt should go to …


Leading Horses To Water: May Courts Which Have The Power To Order Attendance At Mediation Also Require Good-Faith Negotiation - Decker V. Lindsay, Charles J. Mcpheeters Jul 1992

Leading Horses To Water: May Courts Which Have The Power To Order Attendance At Mediation Also Require Good-Faith Negotiation - Decker V. Lindsay, Charles J. Mcpheeters

Journal of Dispute Resolution

Settlement is a favorite of the law,4 and courts encourage it as a social good which may even outweigh other important policy considerations.5 Reasons for this favoritism include a desire to avoid the time-consuming uncertainty and cost of litigation,6 settlement's contributions to the efficient use of the court system,7 and a general wish for peaceful resolution of controversies.


Recent Developments: The Uniform Arbitration Act, Angela C. Cole, Nicole J. Cress, Kevin L. Fritz, Lori L. Green Jul 1992

Recent Developments: The Uniform Arbitration Act, Angela C. Cole, Nicole J. Cress, Kevin L. Fritz, Lori L. Green

Journal of Dispute Resolution

Arbitration, once viewed as an undesirable alternative to litigation, has become widely accepted as a viable and often superior cost-effective approach to resolving disputes. In 1955, the national Conference of Commissioners on Uniform State Laws proposed a Uniform Arbitration Act.' Currently, 35 jurisdictions have arbitration statutes patterned after the U. A.A..' What began as an article in the Missouri Law Review entitled Recent Developments: The Uniform Arbitration Act, has evolved into an annual survey of recent developments in case law interpreting state versions of the U.A.A.' This detailed update monitors the underlying principles and rationales that develop from recent decisions. …


Book Review Jul 1992

Book Review

Journal of Dispute Resolution

Getting Past No is an important companion to a previous book co-authored by William Ury. In 1981, Ury collaborated with Roger Fisher on a book entitled Getting to Yes, 3 which has sold more than two million copies and has become one of the most influential works on the subject of negotiation. Getting to Yes is a lucid, step-by-step guide for negotiating mutually satisfactory agreements. The authors labeled their approach "principled negotiation" and boiled it down to the following points: separate the people from the problem; focus on interests, not positions; generate a variety of possibilities before deciding what to …


Physician Willingness To Withhold Tube Feeding After Cruzan: An Empirical Study, Philip G. Peters Jr., John W. Ely, Steven C. Zweig Jun 1992

Physician Willingness To Withhold Tube Feeding After Cruzan: An Empirical Study, Philip G. Peters Jr., John W. Ely, Steven C. Zweig

Missouri Law Review

In Cruzan v. Hannon, the Missouri Supreme Court declined to let Nancy Cruzan's father discontinue her tube feedings. The court insisted on clear and convincing evidence of her wishes and was unsatisfied that proof of this kind had been presented in her case.' In addition, it refused to defer to her family or to consider her "quality of life." On June 25, 1990, the United States Supreme Court affirmed the Missouri Supreme Court's decision. Since Cruzan, public demand for living wills has exploded.


Controversial World Of Corporate Mergers And Acquisitions: A Critical Assessment, The, Perry V. Kalajian Jun 1992

Controversial World Of Corporate Mergers And Acquisitions: A Critical Assessment, The, Perry V. Kalajian

Missouri Law Review

The last decade has proven to be a landmark era in the area of corporate mergers and acquisitions.' Perhaps the most rapid development in this area has been in the growth of antitakeover devices to defend against unwanted, hostile takeover attempts. The most noteworthy of the devices developed has been the share purchase rights plan. Since its inception in 1983, the use of the share purchase rights plan, or "poison pill" as it is more commonly known, as a defensive mechanism against hostile tender offers has generated much controversy and debate in the legal and business communities. The purpose of …


In Defense Of Life: Enforcing The Bill Of Rights On Behalf Of Poor, Minority And Disadvantaged Persons Facing The Death Penalty, Stephen B. Bright Jun 1992

In Defense Of Life: Enforcing The Bill Of Rights On Behalf Of Poor, Minority And Disadvantaged Persons Facing The Death Penalty, Stephen B. Bright

Missouri Law Review

This Article is a lecture from Alder-Rosecan about the court's decision in Furman v. Georgia in which the death penalty as it had existed for 200 years in our country's history was found to be unconstitutionally applied.