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Full-Text Articles in Law

Book Review: We The People: The Fourteenth Amendment And The Supreme Court, S. I. Strong Nov 2000

Book Review: We The People: The Fourteenth Amendment And The Supreme Court, S. I. Strong

Faculty Publications

Never one to shirk a challenge, Michael Perry has taken on the difficult task of investigating whether, as charged by a number of prominent social and legal commentators, "the modern Supreme Court, in the name of the Fourteenth Amendment [to the US Constitution], [has] usurped prerogatives and made choices that properly belong to the electorally accountable representatives of the American people," and if so, to what extent (p. 8). Perry makes no attempt to address every facet of Fourteenth Amendment doctrine, but instead focuses his discussion on some of the most controversial topics: racial segregation, affirmative action, discrimination on the ...


Has Wright Line Gone Wrong--Why Pretext Can Be Sufficient To Prove Discrimination Under The National Labor Relations Act, Michael J. Hayes Nov 2000

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 ...


Could Somebody Call A Doctor--On-Call Physicians And The Duty To Treat, Jane Drummond Nov 2000

Could Somebody Call A Doctor--On-Call Physicians And The Duty To Treat, Jane Drummond

Missouri Law Review

The law of negligence imposes few affirmative duties on actors in society. In the medical profession specifically, negligence law traditionally contains no requirement that a physician provide medical treatment to those in need absent an existing relationship between the doctor and patient. Yet there has long been the sense that doctors owe a higher duty to the public, and courts are finding ways to redefine the doctor-patient relationship to allow plaintiffs greater access to claims for a physician’s failure to render care. In Millard v. Corrado, the Missouri Court of Appeals for the Easter District of Missouri provides plaintiffs ...


Employer Prerogative And Employee Rights: The Never-Ending Tug-Of-War, Henry L. Chambers Jr. Nov 2000

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.


New Provision For Tolling The Limitations Periods For Seeking Tax Refunds: Its History, Operation And Policy, And Suggestions For Reform, The, Bruce A. Mcgovern Nov 2000

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 ...


Must We Talk About That Reasonable Accommodation--The Eighth Circuit Says Yes, But Is The Answer Reasonable , Jill S. Kingsbury Nov 2000

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 ...


Dancing Around Employment At-Will: Can Fraud Provide Plaintiffs A Way To Hold Their Employers Liable, James E. Meadows Nov 2000

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 ...


Mental-Mental Claims--Placing Limitations On Recovery Under Workers' Compensation For Day-To-Day Frustrations, Natalie D. Riley Nov 2000

Mental-Mental Claims--Placing Limitations On Recovery Under Workers' Compensation For Day-To-Day Frustrations, Natalie D. Riley

Missouri Law Review

No abstract provided.


Breaking Down The Boundaries Of Malpractice Law, Philip G. Peters Jr. Nov 2000

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 ...


Just What The Doctor Ordered--Or Was It: Missouri Pharmacists' Duty Of Care In The 21st Century, Michele L. Hornish Nov 2000

Just What The Doctor Ordered--Or Was It: Missouri Pharmacists' Duty Of Care In The 21st Century, Michele L. Hornish

Missouri Law Review

Recent studies have suggested that up to five percent of all prescriptions filled in hospitals contain errors. Medical commentators have expressed concern that this figure may be even higher for outpatient prescription. As a result of medication errors, patients suffer uncomfortable and even traumatic results in the form of “adverse drug events,” while the health care system incurs needless costs. These adverse drug events are normally preventable, and are considered to be a current problem by hospital administrators and doctors alike. Now, courts are beginning to recognize the problem, and have suggested a solution by adopting a heightened standard of ...


Learned Intermediary Doctrine In The Age Of Direct Consumer Advertising, The, Bradford B. Lear Nov 2000

Learned Intermediary Doctrine In The Age Of Direct Consumer Advertising, The, Bradford B. Lear

Missouri Law Review

Traditionally drug manufacturers have been excused from the general duty to warn consumers about the risks associated with their products by the learned intermediary doctrine. Though the doctrine has a sound grounding in public policy, drug companies have recently employed marketing strategies that undermine the usefulness of the learned intermediary rule. In Doe v. Alpha Therapeutic Corp., the Missouri Court of Appeals for the Eastern District of Missouri recently addressed whether the learned intermediary doctrine can be used as a defense when a drug company markets a product directly to consumers. This Note discusses the learned intermediary defense and its ...


A Form Letter From The Dean, R. Lawrence Dessem Oct 2000

A Form Letter From The Dean, R. Lawrence Dessem

Faculty Publications

A few years ago, in “A Form Letter to the Dean,” I offered the Journal's readers a template form letter which law school faculty could use to communicate with their deans. In the aftermath of that article's publication, I received letters, phone calls, and small explosive devices indicating that, mirabile dictu, a few people had actually read the article. Because I had never before had such a response to any of what I rather loosely refer to as my scholarship, I was encouraged to write a sequel. Hence the present piece. My current form letter is inspired by ...


The Business Lawyer As Terrorist Transaction Cost Engineer, Royce De R. Barondes Oct 2000

The Business Lawyer As Terrorist Transaction Cost Engineer, Royce De R. Barondes

Faculty Publications

Lawyers have garnered a reputation for being unreasonable and excessively contentious. This popular sentiment is embedded in our culture. If lawyers cannot change that perception, a second-best outcome (from the perspective of lawyers) would be the formation of an understanding that there is a reason why they appear to act unreasonably, that it can be desirable for lawyers to act in a way that initially appears to be unreasonable. This Article attempts to build a basis for that understanding in the context of lawyers participating in large commercial transactions.


Restricting Public Employees' Political Activities: Good Government Or Partisan Politics?, Rafael Gely, Timothy D. Chandler Oct 2000

Restricting Public Employees' Political Activities: Good Government Or Partisan Politics?, Rafael Gely, Timothy D. Chandler

Faculty Publications

The article starts by reviewing, in Part II, the history of the regulation of political activities by public employees, and in Part III, the regulation of patronage. Part IV develops the argument that both sets of regulations, although justified on different grounds, are better understood as political control mechanisms. Part V provides some empirical evidence for this argument by examining voting patterns on federal legislation restricting public employees' political activities. Part VI discusses the relationship of these laws to public sector unionization. Part VII concludes the article.


Bringing Structure To The Law Of Injunctions Against Expression, Christina E. Wells Oct 2000

Bringing Structure To The Law Of Injunctions Against Expression, Christina E. Wells

Faculty Publications

Part I of this Article reviews the Court's cases regarding injunctions against speech, focusing first on the increasing elevation of rhetoric (as opposed to analysis) in the Court's prior restraint decisions. Part I also reviews the Court's other decisions involving injunctions and demonstrates that they too contain little, if any, analysis concerning the appropriateness of injunctive relief against expression. Part II examines Madsen's interaction with the Court's previous decisions and discusses how Madsen furthers the incoherence of the Court's previous cases. Part III explains that content discrimination principles, although superficially attractive, are inappropriate with ...


Health Care Law: Breaking Down The Boundaries Of Malpractice Law, Philip G. Peters Jr. Oct 2000

Health Care Law: Breaking Down The Boundaries Of Malpractice Law, Philip G. Peters Jr.

Faculty Publications

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 law cases noted in this issue are the latest evidence that courts today are more willing to resolve medical negligence actions using tort rules of ...


Differentiating The Free Exercise And Establishment Clauses, Carl H. Esbeck Jul 2000

Differentiating The Free Exercise And Establishment Clauses, Carl H. Esbeck

Faculty Publications

The purpose of the Establishment Clause is not to safeguard individual religious rights. That is the role of the Free Exercise Clause, indeed its singular role. The purpose of the Establishment Clause, rather, is as a structural restraint on governmental power. Because of its structural character, the task of the Establishment Clause is to limit government from legislating or otherwise acting on any matter "respecting an establishment of religion." The powers that fall within the scope of the foregoing clause (denied to government, hence within the sole province of religion) and the powers outside this clause (hence, authority vested in ...


Case And Comment: Between The Baby And The Breast, S. I. Strong Jul 2000

Case And Comment: Between The Baby And The Breast, S. I. Strong

Faculty Publications

IN Re C (A CHILD) (HIV Test) [1999] 2 F.L.R. 1004, a local authority applied for a specific issue order to test a four-month-old baby girl for HIV. The mother of the child first tested positive for HIV in 1990, but adopted a highly sceptical stance towards generally accepted theories about HIV and AIDS, and refused conventional therapy for herself, preferring to rely on a healthy lifestyle as a prophylactic. The case arose when the baby's physician became aware not only that the mother was breastfeeding the child (despite the risk of transmission of HIV), but that ...


Editor's Observations: The 2001 Economic Crime Package: A Legislative History, Frank O. Bowman Iii Jul 2000

Editor's Observations: The 2001 Economic Crime Package: A Legislative History, Frank O. Bowman Iii

Faculty Publications

On April 6, 2001, the U.S. Sentencing Commission approved a group of amendments to guidelines governing the sentencing of economic crimes. These measures, collectively known to as the “economic crime package,” are the culmination of some six years of deliberations by both the Conaboy and Murphy Sentencing Commissions working together with interested outside groups such as the defense bar, the Justice Department, probation officers, and the Criminal Law Committee of the U.S. Judicial Conference, The package contains three basic components. First, the now-separate theft and fraud guidelines, Sections 2B1.1 and 2F1.1, will be consolidated into a ...


States Starting To Offer Legal Protection For Apology, Richard C. Reuben Jul 2000

States Starting To Offer Legal Protection For Apology, Richard C. Reuben

Faculty Publications

There is a small trend a-foot in the state legislatures, and a welcome one at that: Providing some legal protection for people who want to apologize for their role in a harm, but who are fearful because of the possibility that their apologies will later be used against them in legal proceedings.


Briefing Paper On Problems In Redefining "Loss" (U.S. Sentencing Commission Economic Crime Symposium), Frank O. Bowman Iii Jul 2000

Briefing Paper On Problems In Redefining "Loss" (U.S. Sentencing Commission Economic Crime Symposium), Frank O. Bowman Iii

Faculty Publications

On October 12-13, 2000, the U.S. Sentencing Commission sponsored its Third Symposium On Crime and Punishment in the United States: Federal Sentencing Policy for Economic Crimes and New Technology Offenses. The afternoon of the first day of the meeting was devoted to discussing the concept of “loss” as a measurement of defendant culpability and offense seriousness. The conferees were divided into small groups to discuss discrete sub-issues relating to “loss” and its place in sentencing economic crimes under the Guidelines. Following the small group discussions, the discussion leaders (“facilitators”) addressed a plenary session of the conference to report on ...


Mediating Citizen Complaints Against The Police: An Exploratory Study , Samuel Walker, Carol Archbold Jul 2000

Mediating Citizen Complaints Against The Police: An Exploratory Study , Samuel Walker, Carol Archbold

Journal of Dispute Resolution

This article examines the subject of mediating citizen complaints against the police. It reviews the history of citizen complaints, presents data on existing police complaint mediation programs, and discusses the potential contributions of mediation to police accountability.


Toward More Sophisticated Mediation Theory, John Lande Jul 2000

Toward More Sophisticated Mediation Theory, John Lande

Journal of Dispute Resolution

Some of these benefits are due to the particular arguments of facilitation proponents, while others involve a general development of the field resulting from the debate. The first benefit is that facilitation proponents have highlighted how mediation can promote many important values such as party self-determination, and they have cautioned about risks of unfairness created by mediator evaluation as described in Part III. Second, the facilitation-evaluation debate has stimulated a better appreciation of the appropriateness of these techniques in different types of cases, as described in Part IV. Third, the debate has contributed to reducing ill-considered evaluation practice, as discussed ...


Identifying Real Dichotomies Underlying The False Dichotomy: Twenty-First Century Mediation In An Eclectic Regime, Jeffrey W. Stemple Jul 2000

Identifying Real Dichotomies Underlying The False Dichotomy: Twenty-First Century Mediation In An Eclectic Regime, Jeffrey W. Stemple

Journal of Dispute Resolution

Preparation for the University of Missouri's lecture on dispute resolution and consideration of commentary prompted additional thoughts on the issue and a more refined perspective on the issue of facilitation-versus-evaluation and its role in the continued development of modem ADR. Rather than attempt to fine-tune a completed article, this reply will address the additional perspectives as well as note points of distinct conflict or quibble with commentators. First, this reply provides some additional assessment framing the facilitative-evaluative debate as well as a modified brief in support of the legitimacy of some elements of evaluation in the eclectic mediation that ...


Evaluation And Facilitation: Moving Past Either/Or, Richard Birke Jul 2000

Evaluation And Facilitation: Moving Past Either/Or, Richard Birke

Journal of Dispute Resolution

In this essay, I argue that there is no such thing as a purely facilitative mediation of a legal dispute. Neither is there such a thing as a purely evaluative mediation of a legal dispute. Mediation of legal disputes is, by its nature, always facilitative and evaluative. The evaluative-facilitative divide is an artificial artifact of history. Following this introduction, I offer a brief description of the development of the field of legal mediation, and I attempt to place the Riskin grid in historical context. I then hope to push the debate toward a new moment, one in which all mediation ...


Adr: An Eclectic Array Of Processes, Rather Than One Eclectic Process, Lela P, Love Jul 2000

Adr: An Eclectic Array Of Processes, Rather Than One Eclectic Process, Lela P, Love

Journal of Dispute Resolution

The thesis of this essay is that when mediators try to resolve a controversy by providing their analysis fo the legal - or other- merits, they are providing the service that judges, arbitrators and neutral experts provide. In essence, such endeavors use the neutral's judgment, award or opinion to determine or jump-start a resolution. That add-on activity to mediation should be called by its proper name. This essay will not review the many reasons that a single neutral combining the roles of facilitator and evaluator is problematic, since that has been done extensively elsewhere.' Instead, in part one, we highlight ...


Facilitative Mediator Responds, A, Zena Zumeta Jul 2000

Facilitative Mediator Responds, A, Zena Zumeta

Journal of Dispute Resolution

I appreciate the thoughtfulness and conclusions of Professor Jeffrey Stempel in his article. His title, "The Inevitability of the Eclectic," seems completely right to me. Most mediators I know who have had training in mediation are more eclectic than squarely in one camp or another. They use techniques that are geared both to their own personalities and to the needs of the case. This, indeed, is a level of sophistication that is a heartening indication of the maturity of the field of mediation. However, there are many points in Stempel's argument that I disagree with, including some of his ...


Faithful, Gary L. Gill-Austern Jul 2000

Faithful, Gary L. Gill-Austern

Journal of Dispute Resolution

The term "facilitative mediation" reminds me of the term "Old Testament." As we Jews from time to time have reminded Christians, the Jewish people call their canon the Tanakh, or, in English, the Hebrew Scriptures. That the same thirty-nine books - Genesis, Exodus, and so on - are labeled "Old Testament" by others indicates that another (later) religious community believes that an event occurred that requires what came before to be interpreted through the prism of an intervening event or reality. For Christians, this is expressed in the New Testament. Returning, then, to the current discussion, it takes a partisan of "evaluative ...


Employees Beware: Signing Arbitration Agreements May Limit Your Remedies In Suits Filed By The Eeoc - Equal Employment Opportunity Commission V. Waffle House, Inc., Sarah Baxter Jul 2000

Employees Beware: Signing Arbitration Agreements May Limit Your Remedies In Suits Filed By The Eeoc - Equal Employment Opportunity Commission V. Waffle House, Inc., Sarah Baxter

Journal of Dispute Resolution

Arbitration is used regularly to settle employment disputes, and federal policy supports these agreements between private parties. Federal statutes, however, also grant the Equal Employment Opportunity Commission the authority to pursue employment discrimination claims in court. These claims do more than vindicate the rights of individuals, they also safeguard the public interest in ending employment discrimination. A conflict may arise between these two policies when employees sign agreements to submit statutory discrimination claims to arbitration. This Note examines the split of authority on the issue of whether the Equal Employment Opportunity Commission should be permitted to seek money damages on ...


Recent Developments: The Uniform Arbitration Act, S. Owen Griffin, Kelli Hopkins, Scot L. Wiggins, Emily Woodward Jul 2000

Recent Developments: The Uniform Arbitration Act, S. Owen Griffin, Kelli Hopkins, Scot L. Wiggins, Emily Woodward

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?