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Articles 61 - 90 of 122
Full-Text Articles in Law
Getting The Faith: Why Business Lawyers And Executives Believe In Mediation, John M. Lande
Getting The Faith: Why Business Lawyers And Executives Believe In Mediation, John M. Lande
Faculty Publications
Do you believe in mediation? That may seem like an odd question. Normally one thinks of ‘believing in‘ (or having faith in) things like magic, God, or the market. These are typically things that are beyond verifiable human knowledge (such as magic and God) and/or deeply held values (such as whether the market is a better mechanism than government for managing the flow of goods and services). At first blush, one might not think that mediation would fall into either category. There have been numerous empirical studies about many different aspects of mediation, so one can confidently say, for example, …
Erisa's Quantity Vs. Quality Doctrine: The Eighth Circuit Limits Recovery Against An Hmo By Completely Preempting State Law, Jeremy P. Brummond
Erisa's Quantity Vs. Quality Doctrine: The Eighth Circuit Limits Recovery Against An Hmo By Completely Preempting State Law, Jeremy P. Brummond
Missouri Law Review
Health Maintenance Organizations ("HMOs") were developed to facilitate the provision of effective care at low prices to plan members. To attain this purpose, HMOs have been required to act as both providers who administer care and gatekeepers who can deny access to care.3 The Employee Retirement Income Security Act ("ERISA"), praised as "the greatest development in the life of the American Worker since Social Security,"4 regulates plans administered by IMOs. Congress has stated explicitly that ERISA was enacted to promote the interests of employees and their beneficiaries in employee benefit plans.5 In drafting ERISA, Congress sought to protect plan beneficiaries …
Rule Of Law(Yers), The, Robert F. Cochran Jr.
Rule Of Law(Yers), The, Robert F. Cochran Jr.
Missouri Law Review
In recent years, several lawyers and law professors have written books about the decline of ethical behavior in the legal profession.' They have found that lawyers are more adversarial, less civil, less honest, less concerned with justice, and less happy than in the past.2 Associates are less loyal to firms, and firms are less loyal to associates. 3 Many lawyers lament what the profession has become. They wonder whether they do a good thing. "Can I be a lawyer and a good person?" "Do lawyers add to the misery of the world?"
Indirect Purchaser Doctrine: Antecedent Transaction, The, Jill S. Kingsbury
Indirect Purchaser Doctrine: Antecedent Transaction, The, Jill S. Kingsbury
Missouri Law Review
Section Four of the Clayton Act,2 the treble-damage action provision of the federal antitrust laws, was intended to foster and encourage competition by allowing private enforcement of the antitrust laws. The ever-present threat of a private action for treble-damages serves as a deterrent to anyone contemplating business activities in violation of the antitrust laws and offers the possibility of compensation to victims injured by anti-competitive activities.3 The Supreme Court's decision in illinois Brick Co. v. lllinois4 defined the reach of the trebledamage provision by holding that only direct purchasers of illegally monopolized products or services have standing to sue under …
Excluding The Exclusionary Rule In Driver's License Suspension And Revocation Hearings, Michele L. Hornish
Excluding The Exclusionary Rule In Driver's License Suspension And Revocation Hearings, Michele L. Hornish
Missouri Law Review
The exclusionary rule is a "judicially created remedy designed to safeguard Fourth Amendment rights," which provides for the suppression of primary and derivative evidence obtained from an illegal search. While often applied in criminal cases, in United States v. Calandra,3 the United States Supreme Court utilized a balancing test to determine whether to apply the rule in non-criminal contexts.4 Suppression of evidence in accordance with the exclusionary rule in both criminal and non-criminal cases has been criticized in many circles,5 with the debate recently resurfacing after the Supreme Court declined to apply the rule in administrative parole revocation proceedings.6 That …
Choice Of A New Generation: Can An Advertisement Create A Binding Contract, The, Lindsay E. Cohen
Choice Of A New Generation: Can An Advertisement Create A Binding Contract, The, Lindsay E. Cohen
Missouri Law Review
Merchants who advertise their products generally intend to deal according to the terms of their advertisements. For the most part, "Dealers of Goods" are happy to receive offers induced by their advertisements.2 This would account for why there are relatively few cases concerning whether advertisements can create binding contracts. Only in unusual circumstances does a consumer seek to establish that an offer was made by an advertisement, which if accepted would create a contract.3 This Note evaluates one such unusual circumstance, and the options a court faces in resolving that type of a disagreement.
Who Should Control The Decision To Call A Witness: Respecting A Criminal Defendant's Tactical Choices, Rodney J. Uphoff
Who Should Control The Decision To Call A Witness: Respecting A Criminal Defendant's Tactical Choices, Rodney J. Uphoff
Faculty Publications
A law student approached me not long ago to discuss a problem he had encountered while helping to prepare a criminal case for retrial. The defendant's first trial ended with a hung jury. The defendant, Steven Brown, now faced a second trial on the same misdemeanor charge of assaulting a police officer. Although the defendant still wanted to go to trial, Brown told defense counsel that he did not want his elderly father to have to testify again. From defense counsel's standpoint, the father's testimony was critical because he was the only witness corroborating the defendant's version of the event. …
Fear Of Law: Thoughts On Fear Of Judging And The State Of The Federal Sentencing Guidelines (Sentencing Symposium), Frank O. Bowman Iii
Fear Of Law: Thoughts On Fear Of Judging And The State Of The Federal Sentencing Guidelines (Sentencing Symposium), Frank O. Bowman Iii
Faculty Publications
To understand Fear of Judging and the debate over the Federal Sentencing Guidelines requires some familiarity with the sentencing reform movement that led to the adoption of the Federal Sentencing Guidelines in 1987, as well as at least a rudimentary grasp of the structure of the Guidelines themselves. For those readers who require an introduction to both subjects, the next section of this Article attempts to provide one. Those already familiar with the Guidelines and their history can skip to Section III, where the discussion of Fear of Judging begins in earnest.
Statutory Interpretation, Property Rights, And Boundaries: The Nature And Limits Of Protection In Trademark Dilution, Trade Dress, And Product Configuration Cases, Gary Myers
Faculty Publications
This article, however, takes the view that the basic landscape in trademark law is unlikely to change in the near future. Congress has only recently enacted the Trademark Dilution Act, and there seems to be little movement to amend it dramatically, let alone repeal it. There have been several recently enacted amendments to the Lanham Act addressing functionality that make great sense and are consistent with the principles suggested here, as will be discussed below. Moreover, the Supreme Court in Two Pesos, Qualitex, Park ‘n’ Fly, and Samara has recently set forth rules that will allow trade dress claims to …
Volume 23, Issue 1 (Spring 2000)
Partial Privatization Of Social Security: Assessing Its Effect On Women, Minorities, And Lower-Income Workers, Kathryn L. Moore
Partial Privatization Of Social Security: Assessing Its Effect On Women, Minorities, And Lower-Income Workers, Kathryn L. Moore
Missouri Law Review
This Article explains why partial privatization would likely have a disproportionately adverse effect on the benefits of three specific subpopulations: women, minorities, and lower-income workers. The Article focuses on these three groups principally because they are at a heightened risk of poverty in old age.' Since one of the fundamental purposes of Social Security is to provide for progressive redistribution to lift the elderly out of poverty, policymakers should be (and are)' concerned with how Social Security reform would likely affect these subpopulations.' Of course, not all women and minorities are at heightened risk of poverty in old age.' s …
What You Know About And Don't Deal With Can Cost You: A School District's Potential Liability For Student-On-Student Sexual Harassment, Monica D. Hutchinson
What You Know About And Don't Deal With Can Cost You: A School District's Potential Liability For Student-On-Student Sexual Harassment, Monica D. Hutchinson
Missouri Law Review
The first national study of sexual harassment in public schools indicated that eighty-five percent of girls and seventy-six percent of boys in grades eight through eleven have experienced sexual harassment; seventy-nine percent of those reporting sexual harassment said that other students were the perpetrators.' With so many students being harassed, it is no wonder that some of them have turned to teachers, principals, and parents to remedy the problem. However, what should a child and her parent do when a principal responds by asking, "Why is [your daughter] the only one complaining?, 3 or when a teacher says, "Boys will …
The Case Against Private Disparate Impact Suits, Thom Lambert
The Case Against Private Disparate Impact Suits, Thom Lambert
Faculty Publications
This article argues that the Third Circuit, and the courts that have implicitly approved private disparate impact suits, have erred in construing Title VI to permit private plaintiffs to sue federally funded entities for discrimination based on disparate impact alone. From a policy standpoint, permitting private disparate impact suits is a bad idea, for the threat of such suits will lead to deterrence of actions and decisions that have incidental disparate effects but are, on the whole, good.
Coverage Denials In Erisa Plans: Assessing The Federal Legislative Solution, Karen A. Jordan
Coverage Denials In Erisa Plans: Assessing The Federal Legislative Solution, Karen A. Jordan
Missouri Law Review
Whether patients who obtain their health coverage through private employment ought to be able to sue managed care plans for injuries resulting from coverage denials has been a significant health policy issue for years. The debate became more intense as recent judgments against major managed care plans highlighted the inequity caused by the preemption provisions in federal employment law
Nursing Home Residents And The New California Health Care Decisions Law, David M. English, Rebecca C. Morgan
Nursing Home Residents And The New California Health Care Decisions Law, David M. English, Rebecca C. Morgan
Faculty Publications
This article explores issues involving advance directives made by nursing home residents, both prior to and during their stay in a facility, including the frequency of making directives, the reasons why residents fail to make directives, and the reasons why facilities often fail to honor them. Specifically, this article examines these issues in light of the 1999 California Health Care Decisions Law, effective July 1, 2000, and focuses on how this new statute can be used to empower nursing home residents, and adults more generally, to take control of decisions regarding their own health care.
Adequacy Of Disclosure Of Restrictions On Flipping Ipo Securities, Royce De R. Barondes
Adequacy Of Disclosure Of Restrictions On Flipping Ipo Securities, Royce De R. Barondes
Faculty Publications
This Article examines the implications of this practice under the disclosure obligations imposed by federal securities laws and concludes that the current disclosure is materially misleading, particularly in light of the failure to disclose the selective application of the penalties. Moreover, the selective application of the penalties casts significant doubt on whether these offerings can be considered “fixed price” offerings, which would mean that cursory disclosure of the practice would not suffice.
A Judicious Solution: The Criminal Law Committee Draft Redefinition Of The Loss Concept In Economic Crime Sentencing, Frank O. Bowman Iii
A Judicious Solution: The Criminal Law Committee Draft Redefinition Of The Loss Concept In Economic Crime Sentencing, Frank O. Bowman Iii
Faculty Publications
In December 1999, the United States Sentencing Commission (Commission), an institution that had been in suspended animation for over a year with all seven voting seats vacant, fluttered its eyelids and came back to life. An agreement between the Senate and the White House produced seven new Commissioners: five sitting federal judges, the former General Counsel of the Commission, and a law professor. The new group began work immediately, making itself accessible in meetings with lawyers and judges around the country, exuding an air of intelligence and collegiality, and dispensing in short order with a backlog of amendments to the …
Completing The Sentencing Revolution: Reconsidering Sentencing Procedure In The Guidelines Era, Frank O. Bowman Iii
Completing The Sentencing Revolution: Reconsidering Sentencing Procedure In The Guidelines Era, Frank O. Bowman Iii
Faculty Publications
The central innovation of the guidelines sentencing revolution has been the creation of a regime in which facts other than those required for conviction have necessary consequences at sentencing. In days of yore, judges mulling a sentence were entitled to receive information from virtually any source on virtually any subject, but they were never obliged to pass public judgment on the truth or falsity of what they heard because no finding of fact could constrain their discretion to set a sentence anywhere within the boundaries set by statutory maxima and minima. No more. The project of the original United States …
The Quiet Demise Of Deference To Custom: Malpractice Law At The Millenium, Philip G. Peters Jr.
The Quiet Demise Of Deference To Custom: Malpractice Law At The Millenium, Philip G. Peters Jr.
Faculty Publications
According to conventional wisdom, tort law allows physicians to set their own standard of care. While defendants in ordinary tort actions are expected to exercise reasonable care under the circumstances, physicians traditionally have needed only to conform to the customs of their peers. However, judicial deference to physician customs is eroding. Gradually, quietly and relentlessly, state courts are withdrawing this legal privilege. Already, a dozen states have expressly rejected deference to medical customs and another nine, although not directly addressing the role of custom, have rephrased their standard of care in terms of the reasonable physician, rather than compliance with …
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 …
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.
Is There A Uniform Trust Act In Your Future, David M. English
Is There A Uniform Trust Act In Your Future, David M. English
Faculty Publications
The National Conference of Commissioners on Uniform State Laws (NCCUSL) is close to completing the first comprehensive attempt at the national level to codify the law of trusts-the Uniform Trust Act (Act). This article describes the reasons for the Act and many of its provisions. The Act is scheduled for final reading and approval by NCCUSL during the summer of 2000, meaning that states may begin enacting the Act in its final form in their 2001 legislative sessions. This article is based on the draft discussed at NCCUSL's 1999 annual meeting.
The Insurer's Right To Reimbursement Of Defense Costs, Robert H. Jerry Ii
The Insurer's Right To Reimbursement Of Defense Costs, Robert H. Jerry Ii
Faculty Publications
This Article examines the theoretical justification for the insurer's asserted right to reimbursement of defense costs incurred in defending noncovered claims. Part I sketches some details about the duty to defend which are necessary prerequisites to exploring any claim to a right of reimbursement. Part II discusses the rationale offered by most courts and commentators for recognizing the right to reimbursement: under the law of restitution, the insurer who defends a noncovered claim bestows a benefit on the policyholder which, in justice, ought to be returned. This Part concludes that a reasoned argument can be made in support of the …
Toward More Sophisticated Mediation Theory, John M. Lande
Toward More Sophisticated Mediation Theory, John M. Lande
Faculty Publications
In the lead article in this symposium, Professor Jeffrey Stempel provides a very thoughtful analysis of the mediation field. He focuses on the debate over facilitative and evaluative mediation and he is critical of many of the arguments made by proponents of facilitative mediation. I have expressed some similar concerns, and I generally agree with his analysis (with a quibble here and there). I do think that the facilitation-evaluation debate has been productive (though admittedly wearisome), and that proponents of facilitative mediation deserve more credit than he gives them in his article.
Polygraph Evidence: Where Are We Now, Michael J. Ligons
Polygraph Evidence: Where Are We Now, Michael J. Ligons
Missouri Law Review
Polygraph evidence has been the pariah of the courtroom since the adoption of the "general acceptance" test for the admission of scientific evidence in Frye v. United States.' While the Frye court's decision to exclude lie detector evidence was correctly based upon the state of polygraph technology at that time, many courts have subsequently failed to recognize the many advances in polygraphy and have excluded test results without further consideration.2 Indeed, polygraph evidence seems to be considered by courts, in practice if not in actual theory, to be sui generis. Recent trends toward the recognition of polygraph evidence as having …
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 …