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1998

University of Missouri School of Law

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Articles 1 - 30 of 97

Full-Text Articles in Law

Table Of Contents Nov 1998

Table Of Contents

Journal of Environmental and Sustainability Law

No abstract provided.


Defining The Limits Of Wetland Regulation Under The Cwa And The Commerce Clause. United States V. Wilson, Stephen S. Davis Nov 1998

Defining The Limits Of Wetland Regulation Under The Cwa And The Commerce Clause. United States V. Wilson, Stephen S. Davis

Journal of Environmental and Sustainability Law

No abstract provided.


Those Darn Little Bats: How The Endangered Species Act Halted Timber Salvage Harvests On National Forestland Once Again. Bensman V. United States Forest Service, Benjamin A. Joplin Nov 1998

Those Darn Little Bats: How The Endangered Species Act Halted Timber Salvage Harvests On National Forestland Once Again. Bensman V. United States Forest Service, Benjamin A. Joplin

Journal of Environmental and Sustainability Law

No abstract provided.


Case Summaries Nov 1998

Case Summaries

Journal of Environmental and Sustainability Law

No abstract provided.


Clean Water Act's Mens Rea Requirement: Establishing A Brighter Line Test. United States V. Sinskey, Douglas L. Mchoney Nov 1998

Clean Water Act's Mens Rea Requirement: Establishing A Brighter Line Test. United States V. Sinskey, Douglas L. Mchoney

Journal of Environmental and Sustainability Law

No abstract provided.


Global Economy And The Foreign Corrupt Practices Act: Some Facts Worth Knowing, J. Lee Johnson Nov 1998

Global Economy And The Foreign Corrupt Practices Act: Some Facts Worth Knowing, J. Lee Johnson

Missouri Law Review

No abstract provided.


Justice Blackmun, Franz Kafka, And Capital Punishment, Martha J. Dragich Nov 1998

Justice Blackmun, Franz Kafka, And Capital Punishment, Martha J. Dragich

Missouri Law Review

No abstract provided.


Don't Tell Me What To Say: Compelled Commercial Speech And The First Amendment, Nicole B. Casarez Nov 1998

Don't Tell Me What To Say: Compelled Commercial Speech And The First Amendment, Nicole B. Casarez

Missouri Law Review

No abstract provided.


Missouri Adds Suspenders To A Job Accomplished By A Belt: Application Of Fre 702 To Psychologists' Testimony On Medical Causation, Stacey A. Turley Nov 1998

Missouri Adds Suspenders To A Job Accomplished By A Belt: Application Of Fre 702 To Psychologists' Testimony On Medical Causation, Stacey A. Turley

Missouri Law Review

No abstract provided.


Why Proving Defendant's Motive With The Victim's State Of Mind Sometimes Makes Sense--Despite What Missouri Says, Robyn L. Anderson Nov 1998

Why Proving Defendant's Motive With The Victim's State Of Mind Sometimes Makes Sense--Despite What Missouri Says, Robyn L. Anderson

Missouri Law Review

No abstract provided.


Reporter's Shield Privilege Is Alive And Well In Missouri, The, Ryan S. Fehlig Nov 1998

Reporter's Shield Privilege Is Alive And Well In Missouri, The, Ryan S. Fehlig

Missouri Law Review

No abstract provided.


Are Schools Liable For Student-On-Student Sexual Harassment Under Title Ix, Meredith M. Todd Nov 1998

Are Schools Liable For Student-On-Student Sexual Harassment Under Title Ix, Meredith M. Todd

Missouri Law Review

No abstract provided.


Fiduciary Duties Of Officers And Directors Of Distressed Corporations, Royce De R. Barondes Oct 1998

Fiduciary Duties Of Officers And Directors Of Distressed Corporations, Royce De R. Barondes

Faculty Publications

This Article argues that this widely-accepted premise for analyzing the incentives created by various alternative structures of federal bankruptcy law is suspect.


Of Communists And Anti-Abortion Protestors: The Consequences Of Falling Into The Theoretical Abyss, Christina E. Wells Oct 1998

Of Communists And Anti-Abortion Protestors: The Consequences Of Falling Into The Theoretical Abyss, Christina E. Wells

Faculty Publications

Part I of this article briefly reviews the legal and social context of Dennis and Yates. Parts II and III similarly review Madsen and Schenck in order to show potential parallels to the earlier communist decisions. Part IV further examines both Madsen and Schenck, demonstrating that, from a doctrinal standpoint, they are far removed from the earlier communist cases. Finally, Part V explains how the Court in Madsen and Schenck actually contributed to misconceptions or manipulation of its opinions. Specifically, Part V examines the Madsen and Schenck Courts' approaches to three of the more difficult doctrinal issues facing them--prior restraint, …


Mortgage Drafting: Lessons From The Restatement Of Mortgages, Dale A. Whitman Oct 1998

Mortgage Drafting: Lessons From The Restatement Of Mortgages, Dale A. Whitman

Faculty Publications

The American Law Institute's adoption of the Restatement (Third) of Property: Mortgages may have significant impact on the negotiation and drafting of mortgages. Rather than merely reciting the prevailing case law, the Restatement proposes approaches the American Law Institute believes are desirable as a matter of sound policy. This Article highlights key areas in which the new Restatement may affect mortgage drafting and suggests useful techniques for mortgage drafters.


The Establishment Clause As A Structural Restraint On Governmental Power, Carl H. Esbeck Oct 1998

The Establishment Clause As A Structural Restraint On Governmental Power, Carl H. Esbeck

Faculty Publications

This Article inquires into whether the singular purpose of the Establishment Clause is to secure individual rights, as is conventionally believed, or whether its role is more properly understood as a structural restraint on governmental power. If the Clause is indeed structural in nature, then its task is to negate from the purview of civil governance all matters "respecting an establishment of religion." Conceptualizing the role of the Establishment Clause as either rights-securing or structural has profound consequences for the nation's constitutional settlement concerning the interrelationship of government and religion.


The Right Mix, Richard C. Reuben Oct 1998

The Right Mix, Richard C. Reuben

Faculty Publications

This edition of Dispute Resolution Magazine explores several aspects of the problem. It begins with a debate between Jean Sternlight and Theodore 0. Rogers over the propriety of mandatory predispute arbitration processes in the consumer and employment contexts, followed by a proposal by Terry Trantina for a "constructive compromise" regarding the general validity of arbitration agreements in contracts of adhesion.

This trio of essays is followed by articles on two major arbitration reform efforts. The first, by Thomas J. Stipanowich and J. Clark Kelso, discusses the rise of protocols and other industry standards intended to bring fairness to the arbitratica …


Volume 21, Issue 2 (Fall 1998) Oct 1998

Volume 21, Issue 2 (Fall 1998)

Transcript

No abstract provided.


Of Sinking And Escalating: A (Somewhat) New Look At Stare Decisis, Rafael Gely Oct 1998

Of Sinking And Escalating: A (Somewhat) New Look At Stare Decisis, Rafael Gely

Faculty Publications

This article explores the concept of stare decisis from the escalation of commitment perspective. I argue that the theory of escalation of commitment provides a powerful tool that can be used in our understanding of the application of stare decisis . The literature on the use of precedent is extensive; however, this Article develops a new way of looking at case law development and stare decisis . In particular, the Article contemplates stare decisis as a decision-making process and then considers the academic literature in order that we may gain some insight into that process.


Justice Blackmun, Franz Kafka, And Capital Punishment, Martha Dragich Oct 1998

Justice Blackmun, Franz Kafka, And Capital Punishment, Martha Dragich

Faculty Publications

The Article discusses the problem of judging death penalty cases, comparing Justice Blackmun's death penalty jurisprudence to the struggle of a character in Kafka's story. It focuses on three critical moments in the decisional process--hesitation, decision, and escape--and assesses Justice Blackmun's performance at each step. It concludes that although Justice Blackmun's views remained consistent throughout his judicial career, his death penalty legacy is equivocal, and in some important respects, unsatisfying.


Researching Cases On The Web, Douglas E. Abrams Aug 1998

Researching Cases On The Web, Douglas E. Abrams

Faculty Publications

No abstract provided.


Tribute To Professor Richard B. Tyler, William B. Fisch Jul 1998

Tribute To Professor Richard B. Tyler, William B. Fisch

Faculty Publications

Tribute to Professor Richard B. Tyler


Survey Of Domestic Mediator Qualifications And Suggestions For A Uniform Paradigm, A, Timothy Lohmar, Heidi Gryte, Amy Markel Jul 1998

Survey Of Domestic Mediator Qualifications And Suggestions For A Uniform Paradigm, A, Timothy Lohmar, Heidi Gryte, Amy Markel

Journal of Dispute Resolution

Plagued by the burdens of congestion in the family courts system, many jurisdictions have resorted to both court-connected and independent mediation referral as a means to relieve the hurdles of domestic litigation.' In efforts to ensure the quality of mediators to whom they refer cases, many states have resorted to statutory provisions which prescribe certain criteria which domestic mediators must meet. What has evolved is a variety of domestic mediator skills, personal qualities, and knowledge standards incorporated by jurisdictions throughout the United States. This note will attempt to identify the predominant themes recurrent in states ordaining statutory domestic mediator qualifications, …


Understanding Congressional Reform: Lessons From The Seventies, Rafael Gely, Asghar Zardkoohi Jul 1998

Understanding Congressional Reform: Lessons From The Seventies, Rafael Gely, Asghar Zardkoohi

Faculty Publications

The purpose of this article is to examine voting behavior of representatives when faced with dual constraints (constituents back home and the leadership) as compared to one constraint (constituents back home). An ambitious goal of the study would have been to examine the effects of both sets of reforms. However, there are two reasons for not using the 1995 reforms in our empirical examinations. First, not enough time has passed to fully observe the effect of term limits on voting behavior. Second, and more importantly, the leadership, whose power it was to impose a constraint on a representative's promotional opportunities, …


Fallacy Of Duffield V. Robertson And Rosenberg V. Merrill Lynch: The Continuing Viability Of Mandatory Pre-Dispute Title Vii Arbitration Agreements In The Post-Civil Rights Act Of 1991 Era, The, Kristen Decker, William Krizner Jul 1998

Fallacy Of Duffield V. Robertson And Rosenberg V. Merrill Lynch: The Continuing Viability Of Mandatory Pre-Dispute Title Vii Arbitration Agreements In The Post-Civil Rights Act Of 1991 Era, The, Kristen Decker, William Krizner

Journal of Dispute Resolution

Two recent decisions, one in the Ninth Circuit and one in a Massachusetts District Court, have erroneously held that mandatory Title VII pre-dispute arbitration clauses are unenforceable under the Civil Rights Act of 1991.' A statutory construction analysis of the 1991 Civil Rights Act demonstrates that Congress did not intend to abolish the use of such clauses. Instead, Congress intended to support the use of mandatory pre-dispute arbitration as a valid and useful forum for the resolution of disputes arising under Title VII of the Civil Rights Act of 1964. The purpose of the following Article is twofold. First, this …


Employment Protection And Domestic Violence: Addressing Abuse In The Labor Grievance Process, Jennifer Atterbury Jul 1998

Employment Protection And Domestic Violence: Addressing Abuse In The Labor Grievance Process, Jennifer Atterbury

Journal of Dispute Resolution

The effects of domestic violence are not limited to the home environment. Its effects are felt in employment when abused employees are absent from work and when violent incidents erupt in the workplace. For example, a bruised employee might be too injured and embarrassed to attend work, or an estranged spouse might stalk and harass a victim on the job. Another issue arises in that employers often discipline victims of domestic violence for absenteeism and incidents of violence that occur in the workplace. Discipline of union members is governed by collective bargaining agreements and subject to the labor grievance process. …


Reining In The Manifest Disregard Of The Law Standard: The Key To Restoring Order To The Law Of Vacatur, Stephen L. Hayford Jul 1998

Reining In The Manifest Disregard Of The Law Standard: The Key To Restoring Order To The Law Of Vacatur, Stephen L. Hayford

Journal of Dispute Resolution

The thesis of this article is that if the "manifest disregard" of the law standard is either rejected as doctrinally unsound or somehow harmonized with Section 10(a) of the FAA in a manner that precludes judicial intrusion into the merits of commercial arbitration awards, the legitimacy of all of the remaining nonstatutory grounds for vacatur will be eviscerated. If those nonstatutory standards were eliminated, the law of vacatur would be restored to the simple, straightforward standards articulated by Congress in Section 10(a) of the FAA


Utilitarian Analysis Of The Objectives Of Criminal Plea Negotiation And Negotiation Strategy Choice, Joseph W. Vanover Jul 1998

Utilitarian Analysis Of The Objectives Of Criminal Plea Negotiation And Negotiation Strategy Choice, Joseph W. Vanover

Journal of Dispute Resolution

This article examines the repercussions of choosing a negotiating style for the present criminal case on the actions of opposing counsel in future cases. It scrutinizes the criminal plea negotiating process from the perspective of both a prosecuting attorney and a defense attorney. It analyzes this process using two philosophical theories: act utilitarianism and rule utilitarianism.


Recent Developments: The Uniform Arbitration Act, Benjamin K. Byrd, Mondonna L. Ghasedi, Robert J. Steintjes, Michelle Trant Jul 1998

Recent Developments: The Uniform Arbitration Act, Benjamin K. Byrd, Mondonna L. Ghasedi, Robert J. Steintjes, Michelle Trant

Journal of Dispute Resolution

This Article is an overview of recent court decisions that interpret state versions of the Uniform Arbitration Act ("U.A.A.").' Arbitration statutes patterned after the U.A.A. have been adopted by thirty-four states and the District of Columbia.' The goal of this project is to promote uniformity in the interpretation of the U.A.A. by articulating the underlying policies and rationales of recent court decisions interpreting the U.A.A.


Eleventh Circuit Adopts Manifest Disregard Of The Law As A Non-Statutory Ground For Vacating An Arbitration Award - Montes V. Shearson Lehman Brothers, Inc., The, Daniel S. Cohen Jul 1998

Eleventh Circuit Adopts Manifest Disregard Of The Law As A Non-Statutory Ground For Vacating An Arbitration Award - Montes V. Shearson Lehman Brothers, Inc., The, Daniel S. Cohen

Journal of Dispute Resolution

When parties agree to resolve disputes through arbitration, they expect the resolution to be binding and final. There are a few situations, however, where a court will be willing to intervene and vacate the arbitration board's award. The Eleventh Circuit Court of Appeals, in Montes v. Shearson Lehman Brothers, Inc., recognized that manifest disregard of the law by an arbitrator is a reason to abandon the arbitrator's ruling and remand the case to a new arbitration board. The court established that when it can be shown that the arbitrator knew the law and expressly ignored it, his decision will not …