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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 …


Politics Of Merit Selection, The, Brian T. Fitzpatrick Jun 2009

Politics Of Merit Selection, The, Brian T. Fitzpatrick

Missouri Law Review

In this Article, I undertake an evaluation of a method of judicial selection in use in many states that is known as "merit selection." The merit system is distinctive from the other systems of judicial selection in use today in the powerful role it accords lawyers and, in particular, state bar associations. Proponents of the merit system contend that it is superior to the other forms of judicial selection - elections or appointment by elected officials - because state bar associations are more likely to select judges on the basis of "merit" and less likely to select judges on the …


Do Retention Elections Work, G. Alan Tarr Jun 2009

Do Retention Elections Work, G. Alan Tarr

Missouri Law Review

During the twentieth century, judicial reformers attempting to depoliticize the selection of state court judges and increase respect for the courts advocated moving from competitive elections for judges to "merit selection" or - as it was initially known - the "Missouri Plan." During the 1960s and 1970s, these reformers enjoyed considerable success. Whereas in 1960 only three states - Alaska, Kansas, and Missouri - employed merit selection to choose state supreme court justices, by 1980 eighteen did so. Of course, adoption of merit selection did not altogether eliminate judicial elections, because judges appointed under merit selection are in most states …


Using Judicial Performance Evaluations To Supplement Inappropriate Voter Cues And Enhance Judicial Legitimacy, Penny J. White Jun 2009

Using Judicial Performance Evaluations To Supplement Inappropriate Voter Cues And Enhance Judicial Legitimacy, Penny J. White

Missouri Law Review

Justice John Paul Stevens once noted that "[i]t is the confidence in the men and women who administer justice that is the true backbone of the rule of law." This confidence gives legitimacy to courts at every level. But how is such confidence to be achieved and maintained? How do we instill trust and confidence in the judiciary in those members of the public with little knowledge of the court system or those who attain their knowledge from questionable sources? What kinds of information can be used to counterbalance the denigrating effect of judicial campaigns? This Article suggests that judicial …


Comments On The White, Caufield, And Tarr Articles, Duane Benton Jun 2009

Comments On The White, Caufield, And Tarr Articles, Duane Benton

Missouri Law Review

These three articles are valuable additions to the literature on retention elections. I am honored to comment, understanding I was chosen because I have survived merit selection (both as an applicant and as chair of the commission), a retention election, federal appointment, various roles in partisan elections, and an undergraduate political-science, voter-behavior education


Missouri Nonpartisan Court Plan: The Least Political Method Of Selecting High Quality Judges, The, Laura Denvir Stith, Jeremy Root Jun 2009

Missouri Nonpartisan Court Plan: The Least Political Method Of Selecting High Quality Judges, The, Laura Denvir Stith, Jeremy Root

Missouri Law Review

According to Justice Steven Breyer, "the reputation and the reality of the fairness and effectiveness of the American judicial system are in the hands of the states."1 In the laboratory of American democracy, each sovereign state has the freedom to design the method by which members of its judiciary are chosen. The unique history, culture and experiences of each state have led to the adoption of a variety of systems to select judges. These methods generally fall into one of three categories: contested election, political appointment, or merit selection.


Bench, The Bar, And Everyone Else: Some Questions About State Judicial Selection, The, Michael E. Debow Jun 2009

Bench, The Bar, And Everyone Else: Some Questions About State Judicial Selection, The, Michael E. Debow

Missouri Law Review

I am honored to be a part of this conference. I very much appreciate the hospitality of the law school, particularly the efforts of the Missouri Law Review staff. It has been a wonderful event. A wide range of views has been presented here, and I think that is a great credit to the people who organized the program. Just briefly, I am from Alabama, and I am not here to tell you what you should do in Missouri. That probably comes as a big relief. I became interested in this subject about fifteen years ago because of what was …


High Cost Of Low-Cost Workers: Missouri Enacts New Law Targeting Employers Of Unauthorized Workers, The, Michael B. Barnett Jun 2009

High Cost Of Low-Cost Workers: Missouri Enacts New Law Targeting Employers Of Unauthorized Workers, The, Michael B. Barnett

Missouri Law Review

This note seeks to explain Missouri's enactment of a law requiring use of E-Verify by certain employers, track recent developments that have made it more difficult to employ unauthorized workers, and advocate the position that this legislation will be upheld in the face of legal challenges. The following Section addresses federal immigration law and the subsequent creation of the E-Verify program. It also examines Missouri's recent enactment that requires some employers to enroll in the E-Verify program and provides stiff penalties for any entity that employs unauthorized workers. Section III considers recent cases out of Arizona, Oklahoma, and Missouri that …


There But For The Grace Of God Go I: The Right Of Cross-Examination In Social Security Disability Hearings, Bradley S. Dixon Jun 2009

There But For The Grace Of God Go I: The Right Of Cross-Examination In Social Security Disability Hearings, Bradley S. Dixon

Missouri Law Review

The Eighth Circuit directly addressed this issue in Passmore v. Astrue and joined the group of circuits that follow the "qualified right" approach, which maintains that a social security claimant does not have an absolute right to cross-examine reporting physicians. In doing so, however, the Eighth Circuit relied on long-held assumptions, and its judgment may warrant re-evaluation to ensure that the rights of social security claimants are best protected. The circuit split on this issue is reflective of competing values that are practically inevitable in light of the tension between efficiency and justice, and both approaches will be evaluated in …


Eighth Circuit Loosens The Grip Of The Bankruptcy Gag Rule, But Holds Attorneys To Advertising Disclosure Requirement, The, Bethany R. Findley Jun 2009

Eighth Circuit Loosens The Grip Of The Bankruptcy Gag Rule, But Holds Attorneys To Advertising Disclosure Requirement, The, Bethany R. Findley

Missouri Law Review

The Court of Appeals for the Eighth Circuit, in a case of first impression, struck down a provision of the 2005 bankruptcy reform law that prohibits attorneys from advising their clients to incur more debt in contemplation of filing for bankruptcy. At the same time, the court upheld a provision of the Bankruptcy Code that compels attorneys to include a specified disclosure within their bankruptcy-related advertisements. The court's rationale for striking down the Code's restriction on attorney advice was that its broad application restricted attorneys from rendering advice that in some situations would be entirely lawful and beneficial to their …


Fender Bender Lottery: Direct Victims And Bystanders In Recovery For The Negligent Infliction Of Emotional Distress, Josh Hill Jun 2009

Fender Bender Lottery: Direct Victims And Bystanders In Recovery For The Negligent Infliction Of Emotional Distress, Josh Hill

Missouri Law Review

Recovery for the negligent infliction of emotional distress has always been a hazy and constantly changing area of the law. Recovery for this tort has generally been premised upon shifting policy concerns. Historically, courts agreed with public policy declaring emotional distress too difficult to prove and too easy to fake and only allowed emotional distress that occurred in connection with a physical injury. This rule flourished and grew into acceptance across America. As the tort developed and scientific advances in authenticating the symptoms of emotional distress became more mainstream, the policy consideration shifted towards allowing recovery for emotional distress based …


Inadequacies Of Missouri Intestacy Law: Addressing The Rights Of Posthumously Conceived Children, The, Kimberly E. Naguit Jun 2009

Inadequacies Of Missouri Intestacy Law: Addressing The Rights Of Posthumously Conceived Children, The, Kimberly E. Naguit

Missouri Law Review

When Sergeant Dayne Darren Dhanoolal of Columbus, Georgia, died on March 31, 2008, while serving in Iraq, Kynesha Dhanoolal, his widow, hoped to be able to fulfill his expressed wish of having children.' She obtained a temporary restraining order in federal court to prevent the military from embalminp Sergeant Dhanoolal until someone extracted and froze samples of his sperm. Mrs. Dhanoolal planned to be artificially inseminated with the sperm as early as that summer. While this may sound like the stuff of science fiction, science and technology no longer limit human reproduction to the act of sexual intercourse. Couples today …


Table Of Contents - Issue 3 Jun 2009

Table Of Contents - Issue 3

Missouri Law Review

Table of Contents - Issue 3


Foreword, R. Lawrence Dessem Jun 2009

Foreword, R. Lawrence Dessem

Missouri Law Review

It is my great pleasure to introduce the Missouri Law Review's 2009 symposium: "Mulling Over the Missouri Plan: A Review of State Judicial Selection and Retention Systems." This has been a labor of love by the entire staff of the Missouri Law Review, and both the February 27 symposium and the written symposium that follows are a work product that should serve as a touchstone for scholars, policy-makers, and all members of the public who are interested in state judicial selection and retention systems and the current efforts to amend and extend those systems.


We Have Met The Special Interests, And We Are They, Michael R. Dimino Sr. Jun 2009

We Have Met The Special Interests, And We Are They, Michael R. Dimino Sr.

Missouri Law Review

I have two major points. First, because there is no such thing as a general interest, it makes no sense to speak of "special" interests. Second, judicial decisions make policy. In so doing, they benefit certain interests at the expense of others, whether judges are selected by elections, appointments, or some hybrid system. So, it should not be surprising that politics pervades the choice of judges under every system used or considered today. No selection system may be capable of eliminating the power of interest groups, but the selection system may determine which of those interests are benefited. As a …


Plea For Reality, A, Roy A. Schotland Jun 2009

Plea For Reality, A, Roy A. Schotland

Missouri Law Review

Thank you for the privilege and the pleasure of joining you, in the best possible state for any discussion of judicial selection and blessedly at a distinguished law school. For me, after twenty-five years of involvement in the judicial election scene and four weeks after retiring from teaching - but not, I hope, from continued involvement - this is a unique opportunity to share views, air questions, consider the ever-evolving changes and challenges, and speak bluntly on a few points. I treasure the friendships I have built with others similarly involved, and I hope that my comments, some of which …


Federal And State Judicial Selection In An Interest Group Perspective, Michael E. Solimine, Rafael Gely Jun 2009

Federal And State Judicial Selection In An Interest Group Perspective, Michael E. Solimine, Rafael Gely

Missouri Law Review

This Article proceeds as follows. In Part II, we summarize the model advanced by Landes and Posner. In Part III, we explore some of the criticisms that have been levied against their model, while in Part IV we raise some criticisms of our own and explore how later scholarship has addressed them. Part V concludes the article.


Parties, Interest Groups, And Systemic Change, Anthony Champagne Jun 2009

Parties, Interest Groups, And Systemic Change, Anthony Champagne

Missouri Law Review

If we are going to get from point A to B - if we are going to change a state system of judicial selection - what must be done? How does one get from a judicial election system to a merit-selection system? Generally it is going to take a state constitutional amendment to make the change. That is usually going to mean that a constitutional amendment must be approved by the legislature in order to be submitted to the people for a vote. To do this, key interest groups must be considered. The story of changing to merit selection is …


Shedding (Empirical) Light On Judicial Selection, Lee Epstein Jun 2009

Shedding (Empirical) Light On Judicial Selection, Lee Epstein

Missouri Law Review

Relative to commentators at Political Science and Economics meetings, the discussants at law conferences are generally quite kind, genteel even. They almost always say, "This is a really wonderful set of papers" - even if the papers are not so wonderful - or that they really learned a lot from the papers - even if they didn't. Happily, with regard to the three papers the organizers asked me to discuss,' I need not stretch the truth for purposes of collegiality. I really do think they are a wonderful set of papers and really did learn a lot


Reconciling The Judicial Ideal And The Democratic Impulse In Judicial Retention Elections, Rachel Paine Caufield Jun 2009

Reconciling The Judicial Ideal And The Democratic Impulse In Judicial Retention Elections, Rachel Paine Caufield

Missouri Law Review

It is hardly novel to suggest that judicial elections, including retention elections, illustrate profound and irreconcilable tensions in the American governmental scheme. The guiding political philosophy of liberal democracy dictates that judges be insulated from popular will and therefore remain free to adhere to the law, regardless of how unpopular such adherence may be. Complete independence would permit judges to be reckless in their use of the law as a tool of power. Complete accountability would render the rule of law, and the protections it affords to political minorities and others who lack political power, nonexistent. This elusive ideal of …


Essentials And Expendables Of The Missouri Plan, The, Sandra Day O'Connor Jun 2009

Essentials And Expendables Of The Missouri Plan, The, Sandra Day O'Connor

Missouri Law Review

This speech was presented by Sandra Day O'Connor at the University of Missouri School of Law on February 27, 2009. It is the 2009 Earl F. Nelson Lecture and was part of the symposium titled "Mulling over the Missouri Plan: A Review of State Judicial Selection and Retention Systems." The author has modified the speech and added citations for publication purposes