Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 30 of 112

Full-Text Articles in Law

Table Of Contents Nov 2009

Table Of Contents

Journal of Environmental and Sustainability Law

No abstract provided.


Genetically Modified Insects: Why Do We Need Them And How Will They Be Regulated?, Michael J. Donovan Nov 2009

Genetically Modified Insects: Why Do We Need Them And How Will They Be Regulated?, Michael J. Donovan

Journal of Environmental and Sustainability Law

No abstract provided.


Injury In Fact, Then And Now (And Never Again): Summers V. Earth Island Institute And The Need For Change In Environmental Standing Law , Cassandra Barnum Nov 2009

Injury In Fact, Then And Now (And Never Again): Summers V. Earth Island Institute And The Need For Change In Environmental Standing Law , Cassandra Barnum

Journal of Environmental and Sustainability Law

No abstract provided.


Solar Energy Policy In Canada: An Overview Of Recent Legislative And Community-Based Trends Toward A Coherent Renewable Energy Sustainability Framework , Kamaal R. Zaida Nov 2009

Solar Energy Policy In Canada: An Overview Of Recent Legislative And Community-Based Trends Toward A Coherent Renewable Energy Sustainability Framework , Kamaal R. Zaida

Journal of Environmental and Sustainability Law

No abstract provided.


It's Called Manufacturing: A Closer Look At Missouri's Groundwater Law. Citizens For Ground Water Protection V. Porter, Brian Hamilton Nov 2009

It's Called Manufacturing: A Closer Look At Missouri's Groundwater Law. Citizens For Ground Water Protection V. Porter, Brian Hamilton

Journal of Environmental and Sustainability Law

No abstract provided.


The Controversial Cormorant: The Second Circuit Defers To Agency Interpretation. Fund For Animals V. Kempthorne, Abbie Hesse Rothermich Nov 2009

The Controversial Cormorant: The Second Circuit Defers To Agency Interpretation. Fund For Animals V. Kempthorne, Abbie Hesse Rothermich

Journal of Environmental and Sustainability Law

No abstract provided.


Can We Drill Now?: The Ninth Circuit's View On Filing Environmental Impact Statements. Alaska Wilderness League V. Kempthorne, Nicole Hutson Nov 2009

Can We Drill Now?: The Ninth Circuit's View On Filing Environmental Impact Statements. Alaska Wilderness League V. Kempthorne, Nicole Hutson

Journal of Environmental and Sustainability Law

No abstract provided.


Fight For Your Right: Nebraska's Bifurcated Water Rights System Leads To Disputes Over Appropriation Determinations. Upper Big Blue Natural Resources District V. State Department Of Natural Resources, Chelsea R. Mitchell Nov 2009

Fight For Your Right: Nebraska's Bifurcated Water Rights System Leads To Disputes Over Appropriation Determinations. Upper Big Blue Natural Resources District V. State Department Of Natural Resources, Chelsea R. Mitchell

Journal of Environmental and Sustainability Law

No abstract provided.


Title Page Nov 2009

Title Page

Journal of Environmental and Sustainability Law

No abstract provided.


Environmental Law Updates Nov 2009

Environmental Law Updates

Journal of Environmental and Sustainability Law

No abstract provided.


Hostile Takeover: The State Of Missouri, The St. Louis School District, And The Struggle For Quality Education In The Inner-City, Justin D. Smith Nov 2009

Hostile Takeover: The State Of Missouri, The St. Louis School District, And The Struggle For Quality Education In The Inner-City, Justin D. Smith

Missouri Law Review

Missouri has been home to many of the landmark moments in the struggle for racial equality. The Missouri Compromise saved the Union; almost four decades later, the determination that Missouri slave Dred Scott was mere property split the Union. During the Civil War that followed, more battles and skirmishes took place in Missouri than in any other state outside of Virginia and Tennessee. After the Civil War Amendments abolished slavery and guaranteed every person equal protection of the law, the United States Supreme Court allowed a Jefferson City, Missouri, inn to refuse service to blacks. The Court later relied upon …


Seconds Anyone: Using The Missouri Svp Law To Punish After Time Served, Rachel Woodell Hill Nov 2009

Seconds Anyone: Using The Missouri Svp Law To Punish After Time Served, Rachel Woodell Hill

Missouri Law Review

In 2006, amendments to the Missouri SVP Law took effect, lowering the state's burden of proof and changing the status under which rehabilitated individuals were permitted to rejoin society. These seemingly minor changes had enormous consequences, causing the constitutionality of the entire Missouri SVP scheme to be called into question. In the recent case, In re Care and Treatment of Van Orden, the Missouri Supreme Court addressed these concerns and found the amended scheme constitutional. However, in doing so, Missouri's highest court has effectively transformed what was once a remedial measure into a punitive sanction, under the veil of the …


Too Much Risk: The Impact Of Class Action Lawsuits On Claims Made Insurance Policies, Sean A. Smith Nov 2009

Too Much Risk: The Impact Of Class Action Lawsuits On Claims Made Insurance Policies, Sean A. Smith

Missouri Law Review

The dispute between H & R Block and its excess policy insurers presented the United States Court of Appeals for the Eighth Circuit with an issue of national first impression: does the existence of a series of class action lawsuits prior to the enactment of a claims made insurance policy make it reasonably foreseeable that similar future claims will be filed? 14 The Eighth Circuit's ultimate decision in H & R Block, Inc. v. American International Specialty Lines Insurance Co. will impact insurance coverage of major corporations nationally, in both the narrow context of the upcoming wave of lawsuits against …


Recipe For Bias: An Empirical Look At The Interplay Between Institutional Incentives And Bounded Rationality In Prosecutorial Decision Making, A, Barbara O'Brien Nov 2009

Recipe For Bias: An Empirical Look At The Interplay Between Institutional Incentives And Bounded Rationality In Prosecutorial Decision Making, A, Barbara O'Brien

Missouri Law Review

Prosecutors wield tremendous power, which is kept in check by a set of unique ethical obligations. In explaining why prosecutors sometimes fail to honor these multiple and arguably divergent obligations, scholars tend to fall into two schools of thought. The first schoolfocuses upon institutional incentives that promote abuses ofpower. These scholars implicitly treat the prosecutor as a rational actor who decides whether to comply with a rule based on an assessment of the expected costs and benefits of doing so. The second school focuses upon bounded human rationality, drawing on the teachings of cognitive science to argue that prosecutors transgress …


Why Doctors Shouldn't Practice Law: The American Medical Association's Misdiagnosis Of Physician Non-Complete Causes, Robert Steinbuch Nov 2009

Why Doctors Shouldn't Practice Law: The American Medical Association's Misdiagnosis Of Physician Non-Complete Causes, Robert Steinbuch

Missouri Law Review

This Article proposes that the AMA adopt rules governing restrictive covenants for doctors similar to those already adopted by the ABA for attorneys. The ABA's current rules allow for restrictive covenants in a limited number of situations - including restrictive covenants incident to the sale of a law practice - but specifically prohibit restrictive covenants as a condition to an employment agreement. The ABA's approach is nuanced and equitable. Both the underlying rationales and practical effects of the ABA's current rules governing non-compete clauses in the legal profession serve as persuasive justifications for adopting the same rules in the medical …


Hundred-Years War: The Ongoing Battle Between Courts And Agencies Over The Right To Interpret Federal Law, The, Nancy M. Modesitt Nov 2009

Hundred-Years War: The Ongoing Battle Between Courts And Agencies Over The Right To Interpret Federal Law, The, Nancy M. Modesitt

Missouri Law Review

Since the Supreme Court's 1984 Chevron decision, the primary responsibility for interpreting federal statutes has increasingly resided with federal agencies in the first instance rather than with the federal courts. In 2005, the Court reinforced this approach by deciding National Telecommunications Ass'n v. Brand X Internet Services, which legitimized the agency practice of interpreting federal statutes in a manner contrary to the federal courts' established interpretation, so long as the agency interpretation is entitled to deference under the well-established Chevron standard. In essence, agencies are free to disregard federal court precedent in these circumstances. This Article analyzes the question left …


Table Of Contents - Issue 4 Nov 2009

Table Of Contents - Issue 4

Missouri Law Review

Table of Contents - Issue 4


Missouri Eminent Domain Reforms Of 2006 Good Faith Negotiation Requirement: Cities Can Use Illegitimate Appraisals Under Kansas City V. Ku, The, Jeremy T. Cranford Nov 2009

Missouri Eminent Domain Reforms Of 2006 Good Faith Negotiation Requirement: Cities Can Use Illegitimate Appraisals Under Kansas City V. Ku, The, Jeremy T. Cranford

Missouri Law Review

This Article argues that the holding of the Western District contravenes decades of Missouri statutory construction law, undermines significant public policy considerations, and indirectly implicates the Missouri constitutional guarantee of "just compensation" for takings by furthering a system of undercompensation. This Article speculates as to the potential policy reasons for such a holding and, finding only the considerations of judicial economy and condemnation proceeding efficiency (time and expense to the condemnor, the burden of which passes to taxpayers), this Article argues that such considerations must yield to the property interests clearly protected by the language of the Missouri legislature


Misuse Of Reasonable Royalty Damages As A Patent Infringement Deterrent, The, Brian J. Love Nov 2009

Misuse Of Reasonable Royalty Damages As A Patent Infringement Deterrent, The, Brian J. Love

Missouri Law Review

This Article studies the Federal Circuit's use of excessive reasonable royalty awards as a patent infringement deterrent. I argue against this practice, explaining that, properly viewed in context of the patent system as a whole, distorting the reasonable royalty measure of damages is an unnecessary and ineffective means of ensuring an optimal level of reward for inventors and deterrence for infringers. First, I introduce cases in which the Federal Circuit and other courts following its lead have awarded punitive reasonable royalty awards and explain the Federal Circuit's professed rationale for doing so. Next, I demonstrate that this practice makes little …


Not Taking Care Of Business: State Responds To The Employee Free Choice Act, Preemption, And The Nlra, Mega Maskery Luecke Nov 2009

Not Taking Care Of Business: State Responds To The Employee Free Choice Act, Preemption, And The Nlra, Mega Maskery Luecke

Missouri Law Review

In 2009, Senator Ted Kennedy (D-MA) and Representative George Miller (D-CA) introduced legislation in their respective chambers that would significantly change how workers form unions under the National Labor Relations Act (NLRA). Under the current process, at least thirty percent of a company's employees must first sign cards that accompany a petition requesting union representation, after which the employees or the employer can ask the National Labor Relations Board (NLRB) to hold a secret ballot election to poll employees on the issue of whether a majority wants to be represented by a union. If passed, the Employee Free Choice Act …


Collaboration: The Future Of Governance, Philip J. Harter Jul 2009

Collaboration: The Future Of Governance, Philip J. Harter

Journal of Dispute Resolution

The thesis of this paper is that collaboration-the public and private spheres working together while recognizing the legitimate role of each-should play a major role in making these important decisions. Can collaboration diminish the rancor? Certainly not on its own, but it can lead people to recognize that others are listening and trying to reach appropriate decisions. That alone has powerful political consequences.' Should the procedures described here be used for all public decisions? Of course not. But they should be considered for major ones precisely because they are effective, and a form of collaboration-a recognition that others have important …


Table Of Contents - Issue 2 Jul 2009

Table Of Contents - Issue 2

Journal of Dispute Resolution

No abstract provided.


Administrative Law And Culture For The U.S. Collaborative Governance State, David H. Rosenbloomn, Mei Jen Hung Jul 2009

Administrative Law And Culture For The U.S. Collaborative Governance State, David H. Rosenbloomn, Mei Jen Hung

Journal of Dispute Resolution

During the 1980s and 1990s, collaborative governance emerged as a potentially new global paradigm for public administration. It comes in many forms. However, its essence is governmental reliance on nongovernmental entities for the delivery of public services and constraints. Simply put, collaborative governance calls on government to focus on "steering" while relying on third parties to do the "rowing." In the United States, collaborative government is not new in kind-the federal government relied on contractors to convey the mail from the early days of the republic. Rather it is new in scope, accounting for billions of dollars and millions of …


Collaborative Governance: Emerging Practices And The Incomplete Legal Framework For Public And Stakeholder Voice, Lisa Blomgran Bingham Jul 2009

Collaborative Governance: Emerging Practices And The Incomplete Legal Framework For Public And Stakeholder Voice, Lisa Blomgran Bingham

Journal of Dispute Resolution

This article describes the broad range of processes through which citizens and stakeholders collaborate to make, implement, and enforce public policy. First, it briefly reviews collaborative and new governance. Second, it describes deliberative democracy; collaborative public or network management; and appropriate dispute resolution in the policy process. These three separate fields are part of a single phenomenon, namely the changing nature of citizen and stakeholder voice in governance. Third, it describes how these new forms of participation operate across the policy continuum. Fourth, it briefly reviews existing legal infrastructure for collaborative governance primarily from the perspective of federal administrative law. …


Some Thoughts On Judicial Review And Collaborative Governance, Michael Herz Jul 2009

Some Thoughts On Judicial Review And Collaborative Governance, Michael Herz

Journal of Dispute Resolution

A, perhaps the, central and never-to-be-resolved debate in American administrative law concerns this: to what extent should agencies be left to their own devices? Were the answer "completely," then there would be no such thing as administrative law. There would be administrative lore, and administrative practice, and administrative culture, and administrative functions. But administrative law consists of the doctrines, statutes, and regulations that limit agency discretion and subject agencies to various forms of oversight.


Participation In Governance From A Comparative Perspective: Citizen Involvement In Telecommunications And Electricity In The United Kingdom, France And Sweden, Dorit Rabinstein Reiss Jul 2009

Participation In Governance From A Comparative Perspective: Citizen Involvement In Telecommunications And Electricity In The United Kingdom, France And Sweden, Dorit Rabinstein Reiss

Journal of Dispute Resolution

Since the goal is to compare the European experiments with those adopted in the United States, the paper is structured around that comparison. This part introduces the issues and the methodology. Part II provides a brief description of the case studies, addressing similarities and differences among the European countries. Part III then discusses several mechanisms considered necessary to participation in the United States that have been rejected by the agencies in the European countries. Part IV describes the parallels, though it also points out differences between the countries individually, as well as between them and the United States collectively. Part …


When Precedent Wears Thin: The Missouri Supreme Court Clarifies An Issue Of Ambiguity Affecting The Arbitrability Of Wrongful Death Claims, Ashley Brittain Jul 2009

When Precedent Wears Thin: The Missouri Supreme Court Clarifies An Issue Of Ambiguity Affecting The Arbitrability Of Wrongful Death Claims, Ashley Brittain

Journal of Dispute Resolution

The issue before the Missouri Supreme Court in Lawrence H was whether an arbitration agreement signed on behalf of a nursing home resident is binding on plaintiffs in a wrongful death action against the nursing home. Beverly Manor argued that the court's decision in Burns "undercut" the cases holding that a wrongful death claim is a new and independent cause of action. However, the court disagreed that the Burns decision overturned such precedent. The court admitted that the language of Burns may seem to create ambiguity about whether wrongful death is a derivative claim but clarified that the Burns holding …


Failure To Object: Tribal Waiver Of Immunity By Participation In Arbitration, Christopher Mcmillin Jul 2009

Failure To Object: Tribal Waiver Of Immunity By Participation In Arbitration, Christopher Mcmillin

Journal of Dispute Resolution

In Oglala Sioux Tribe v. C & W Enterprises, Inc. (Oglala), the U.S. Court of Appeals for the Eighth Circuit dealt with whether a tribe's affirmative participation in the arbitration process waived its sovereign immunity as to arbitration and enforcement of an arbitration award in state court. Previously, courts have maintained that the existence of an arbitration clause in a commercial contract was sufficient to waive tribal immunity, but they relied on the explicit wording of the agreement itself. In the instant decision, this precedent applied to three construction contracts that contained an explicit choice of law provision, but the …


Consistent With Inconsistency: The Sixth Circuit Keeps Manifest Disregard After Hall Street, John C. Steffens Jul 2009

Consistent With Inconsistency: The Sixth Circuit Keeps Manifest Disregard After Hall Street, John C. Steffens

Journal of Dispute Resolution

For over half a century, courts have used the doctrine of manifest disregard as a ground for vacating arbitration awards. However, the Supreme Court's ruling in Hall Street Associates. v. Mattel raised questions among lower courts regarding the viability of the doctrine after the Hall Street decision. Today, many lower courts differ in their application of the doctrine. Some courts claim that the Hall Street decision has ended the viability of manifest disregard. Others claim that the doctrine lives on as an interpretation of section 10 of the Federal Arbitration Act (FAA),5 despite the Supreme Court's ruling in Hall Street.


When Procedure Moonlights As Reason, There Is Nothing Left To Abuse, Matthew E. Terry Jul 2009

When Procedure Moonlights As Reason, There Is Nothing Left To Abuse, Matthew E. Terry

Journal of Dispute Resolution

In Greenstreet v. Social Security Administration, when the Federal Circuit Court of Appeals could not discern exactly what basis upon which an arbitrator acted, it leapt past any presumption in favor of the arbitrator's discretion and found that what an arbitrator did not do was an abuse of his decision-making volition, just as an act beyond his prescriptive powers would have been an abuse of discretion. So, in attempting to weed out the arbitrariness in the arbitration processes that decide workplace punishments, the court heaped needless and unreasoned process squarely into the arbitrator's path, thereby greatly lessening the amount of …