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Full-Text Articles in Law

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 ...


Private Concerns Of Private Plaintiffs: Revisiting A Problematic Defamation Category, Nat Stern Jun 2000

Private Concerns Of Private Plaintiffs: Revisiting A Problematic Defamation Category, Nat Stern

Missouri Law Review

Part I of the Article traces the route to the Court's decision to add the public/private concern inquiry to the complex4 body of defamation doctrine, as well as the potential impact of this distinction beyond the context in which it was first promulgated. Part II reviews courts' efforts to categorize defamatory speech in a rational way, seeking to demonstrate that this goal has inevitably eluded them. From a broader perspective, Part III examines the Court's longstanding ambivalence toward elevating speech of a presumably public nature over other expression. Against this backdrop, the Court's decision to distinguish ...


Not-So-Candid Camera, Please: Law Enforcement Officers Violate The Fourth Amendment When The Media Tags Along , Lynn S. Brackman Jun 2000

Not-So-Candid Camera, Please: Law Enforcement Officers Violate The Fourth Amendment When The Media Tags Along , Lynn S. Brackman

Missouri Law Review

The proliferation of television shows such as "Cops" evidences how common it has become for members of the media to accompany law enforcement officers while they perform their daily duties. This recent proliferation has sparked questions as to when the media's involvement in law enforcement impinges on an individual's constitutional rights. The federal courts of appeals have disagreed over whether the Fourth Amendment is violated when the media tags along with law enforcement officers executing a warrant in a private home. In Wilson v. Layne and Hanlon v. Berger, the United States Supreme Court settled the debate over ...


Bump, Set, Spiked: Determining Whether The National Collegiate Athletic Association Is A Recipient Of Federal Funds Under Title Ix, Matthew P. Hamner Jun 2000

Bump, Set, Spiked: Determining Whether The National Collegiate Athletic Association Is A Recipient Of Federal Funds Under Title Ix, Matthew P. Hamner

Missouri Law Review

Since the enactment of the Education Amendments of 1972, a major issue facing the National Collegiate Athletic Association ("NCAA") and its member schools has been the applicability of Title IX of the Amendments to those organizations. Title IX provides that no organization that operates educational programs may discriminate on the basis of sex if that program receives federal financial assistance Like many other federal antidiscrimination acts, the main debate under Title IX involves when a particular organization can be deemed to be "receiving" federal financial assistance. While the majority of NCAA member schools receive federal funds, the NCAA as an ...


Innovation Or Illegitimacy: Remedial Receivership In Tinsley V. Kemp Public Housing Litigation, Carolyn Hoecker Luedtke Jun 2000

Innovation Or Illegitimacy: Remedial Receivership In Tinsley V. Kemp Public Housing Litigation, Carolyn Hoecker Luedtke

Missouri Law Review

Through an analysis of Tinsley v. Kemp,' a decade-long institutional reform case aimed at changing Kansas City, Missouri public housing, this Article engages in a case study focused on the receivership remedy in practice. Part I chronicles the decade of litigation and remedial results that turned around the troubled Kansas City Housing Authority ("Housing Authority"). Part II examines the efficacy and legitimacy of court displacement of government actors in the context of institutional reform litigation and compares receivership to other remedial alternatives. Part IMI concludes that while receivership has unique attributes, it is not a wholly extraordinary remedial measure. It ...


Participatory Rulemaking In State Government: A Managed Care Success Story, Thomas D. Bixby Jun 2000

Participatory Rulemaking In State Government: A Managed Care Success Story, Thomas D. Bixby

Missouri Law Review

In June 1997, the Missouri Department of Insurance ("DOI") was presented with a massive undertaking: implementation of Senate Substitute for Senate Committee Substitute for House Substitute for House Committee Substitute for House Bill 335 ("HB 335"). The bill enacted sweeping reforms of the managed health care system, incorporating "some of the strongest consumer protections in the country." Prior to 1997, the DOI's authority over managed care, and hence its expertise, was limited. Furthermore, the bill contained a variety of controversial and complex issues, so implementation of the legislation was certain to be difficult both politically and technically. This Comment ...


Missouri's Workers' Compensation Law: Expanding The Definitions Of Medical Treatment And Medical Necessity, Jean M. Guignon Jun 2000

Missouri's Workers' Compensation Law: Expanding The Definitions Of Medical Treatment And Medical Necessity, Jean M. Guignon

Missouri Law Review

The purpose of workers' compensation law is to relieve society from the burden of providing support to workers injured on the job by shifting the burden onto the employer. With advances in medical technology, Missouri courts have struggled to define "medical treatment' and "medical necessity" for the purpose of compensating injured workers. The Missouri Court of Appeals for the Western District of Missouri in Mickey v. City Wide Maintenance addressed the situation when a worker could recover for a service not explicitly covered under the definition of "medical treatment." The court found that a specially equipped van was "medical treatment ...


High Profile Cases In A Technological Age, Susan Webber Wright Jun 2000

High Profile Cases In A Technological Age, Susan Webber Wright

Missouri Law Review

What I will try to describe this afternoon is the confluence of these two developments: the increased interest in courts, particularly the high-profile case, and the development and spread of sophisticated technology. As a social and public institution, the courts are obligated to address public demands not only by providing a forum for the administration of justice, but also by providing the means by which interested members of the public can observe court proceedings and gain access to public documents. I will describe some of the things courts are doing to respond to these demands. Next, I will try to ...


Indirect Purchaser Doctrine: Antecedent Transaction, The, Jill S. Kingsbury Apr 2000

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 ...


Partial Privatization Of Social Security: Assessing Its Effect On Women, Minorities, And Lower-Income Workers, Kathryn L. Moore Apr 2000

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 ...


Coverage Denials In Erisa Plans: Assessing The Federal Legislative Solution, Karen A. Jordan Apr 2000

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


Erisa's Quantity Vs. Quality Doctrine: The Eighth Circuit Limits Recovery Against An Hmo By Completely Preempting State Law, Jeremy P. Brummond Apr 2000

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 ...


Choice Of A New Generation: Can An Advertisement Create A Binding Contract, The, Lindsay E. Cohen Apr 2000

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.


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 Apr 2000

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 ...


Excluding The Exclusionary Rule In Driver's License Suspension And Revocation Hearings, Michele L. Hornish Apr 2000

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 ...


Rule Of Law(Yers), The, Robert F. Cochran Jr. Apr 2000

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?"


Title Page Jan 2000

Title Page

Missouri Law Review

No abstract provided.


Polygraph Evidence: Where Are We Now, Michael J. Ligons Jan 2000

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 ...


Table Of Contents--Issue 4 Jan 2000

Table Of Contents--Issue 4

Missouri Law Review

No abstract provided.


Errata Index To Volume 65 Jan 2000

Errata Index To Volume 65

Missouri Law Review

No abstract provided.


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 Jan 2000

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.