Building Accord Between Museums and Tribes: NAGPRA in Practice by James Breckenridge

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The 1990 approval of the Native American Graves Protection and Repatriation Act (NAGPRA), brought sweeping changes to the legal framework that governs the control, acquisition, and study of Native American remains and artifacts.  The rights and obligations concerning these changed significantly for Native American peoples, federally funded museums, and art dealers, among others.  Principally, NAGPRA facilitates the repatriation of human remains and other objects of cultural heritage to Native American tribes that appropriately claim them, and it protects Native American and Native Hawaiian grave sites, including objects taken from them.  NAGPRA also provided an amendment to the United States Criminal Code that lays out punitive measures for those participating in profit driven transactions involving Native American cultural items protected by NAGPRA.  Correctly hailed by academicians and legislators as a cornerstone of human rights legislation in support of aboriginal peoples, NAGPRA is fulfilling the policy considerations enunciated by the legislators who backed the bill. … Read the full text …

Comparing Missouri’s Merchandising Practices Act with the Kansas Consumer Protection Act: A Look at These Laws’ Practical Applicability in Private Civil Actions by Charles Maxwell Simpson

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Consumer fraud is not an uncommon occurrence.  The FTC reported in 2007 that during a year-long study, 13.5 percent of American adults fell victim to fraud.  Despite laws created by the federal and state governments, this number remains too high.  The laws are intended to level the power inequality between consumer and seller inherent in modern market places.  While these laws all provide some benefit to consumers, they are not all created equal.  This comment examines differences for consumers between the Missouri Merchandising Practices Act and the Kansas Consumer Protection Act. … Read the full text …

Options for Employment Law Claims in Missouri and Kansas Courts by Amy D. Quinn

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A young woman named Sarah arrives at her appointment with an employment attorney in the Kansas City metropolitan area.  Her employer, a medium-sized company, is headquartered in Blue Springs, Missouri, but Sarah is one of many salespeople who make sales calls on both sides of the state line.  Her territory stretches from Topeka, Kansas, to Richmond, Missouri.  Over the past six months, Sarah’s supervisor has become increasingly inappropriate at their monthly meetings.  At a meeting three months ago over lunch at Bo Ling’s in Lenexa, Kansas, he asked Sarah to go to a late night concert with him and became enraged when she declined the invitation.  Last month, Sarah met the same supervisor for coffee in Kansas City, Missouri, to discuss her month’s sales, and he again asked her to see him socially, threatening a poor review if she did not “lighten up.”  She was terminated last week after being written up by this same supervisor for “poor work habits and a lack of interpersonal skills.”  She is consulting an attorney for advice on how to proceed in either getting her job back or suing her former employer for discrimination.   Because discriminatory acts occurred in both Missouri and Kansas, claims can potentially be filed in either state. … Read the full text …

Another Kansas City Border War: Why Eighth Circuit Law Regarding Selective Waiver of Attorney Client Privilege for Corporate Compliance in Government Investigations Trumps Tenth Circuit Law by Caroline M. Zuschek

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The marketing division of a company is at a trade show cocktail party in Kansas City. After five martinis, a representative of Company 1 lets it slip that his company is planning on dropping out of one market and raising prices in another. Also intoxicated, a representative of Company 2 says, “Well, if you do that…our company will likely drop the market in which you are raising prices, and will probably increase prices where you are withdrawing. It just makes sense…” Five months later after each company has withdrawn from one market and increased prices in the other, Company 1 launches a routine, internal self-audit conducted by counsel. During the investigation, the marketing employee mentions to counsel that he got a little tipsy at the last trade show and mentioned to his friends that the company would be withdrawing from market A and increasing prices in market B. The lawyer later discovers that the competitor company has increased their prices in market A, and withdrawn from market B, exactly as discussed at the trade show. Shortly thereafter, the Federal Trade Commission (FTC) launches an investigation on the loss of competition and the increase of prices in both markets. The corporation the attorney represents has strong internal ethics policies and wishes to disclose its findings to the FTC, but fears that disclosing such information to the government will result in litigation brought by the distributors who buy the corporation’s products. Can the lawyer make the disclosure to the FTC without waiving the attorney-client privilege that adheres to his communications with the marketing representative if such communications are sought by the distributors? … Read the full text …

Border Showdown: Why Kansas Should Reform Its Punitive Damages Statute to Even the Playing Field with Missouri by Sarah Lintecum

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Imagine this scenario.1 A young girl is driving home from work late at night. She stops in traffic at a stoplight. While waiting, she notices a black truck rapidly approaching her from behind. Anticipating a collision, she tries to get out of the way, but it is too late. The truck slams into the back of her car, forcing her car into the rear of the vehicle in front of her. She sustains severe injuries and is transported to the hospital. When a police officer asks the driver of the truck for his license and registration, he smells alcohol and marijuana smoke emanating from the truck. A search of the truck reveals a marijuana pipe, nineteen bags of marijuana, empty cans of alcoholic beverages, prescription bottles under the driver’s name, and a digital scale with residue on it. The driver admits to using both marijuana and cocaine just hours before the accident. Now, assume the girl lives in Kansas but the accident occurred in Missouri where the truck driver resides. The girl has a decision to make – should she file her case in Missouri or Kansas? As the law stands now, the choice is relatively easy. All else being equal, if she believes she can recover punitive damages for the truck driver’s wanton and reckless behavior, she should file in Missouri where the law is friendlier to recovery of punitive damages. … Read the full text …

Middle Ground in a Border War: Different Treatment of Juveniles in Missouri & Kansas by Brandi L. Kellam

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States for the purpose of treating juveniles accused of criminal misconduct differently than similarly situated adults.1 The systems were fashioned after the Chancery Court of Crime in England and intended to place the state “in the position of parens patriae” replacing the adversarial nature of normal criminal proceedings with “a paternal concern for the minor’s well-being.”2 Today states have adopted statutory systems for the treatment of those under the age of majority.3 Since their creation, these systems have been the subject of constant scrutiny and evolution. … Read the full text …

Advancement of Legal Expenses to Corporate Executives Under Missouri and Other Jurisdictions’ Law by Andrew Duncan

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In this comment, I intend to explore the concept of advancement, which is a contractual provision granting the right to advancement of legal fees and expenses by a corporation to a named party, usually an executive or high-level employee, with the employer footing the bill. This type of contractual agreement is explicitly authorized in Missouri by statute; however, Missouri courts have had precious few occasions to examine and construe the advancement law. In the few Missouri cases which have dealt with the issue, the courts have brought in decisions and reasoning from courts sitting in other jurisdictions, with particular emphasis on Delaware—the “capital” of corporate law in the United States. An exploration of Delaware and other foreign jurisdictions is necessary to supplement Missouri courts’ construction of both the advancement statute and contracts providing for advancement. Disputes over advancement often arise during shareholder derivative suits against corporate officers, as well as when the corporate employer sues a current or former corporate officer, thus raising the possibility of a corporation paying the legal expenses for its litigation opponent; these situations will be explored in this comment. Of particular interest is the question of whether a board of directors must first vote to approve the disbursement of advancement funds to an executive with whom the corporation is locked in legal battle, or whether an advancement guarantee to an employee (whether contained within an employment contract or a company’s bylaws) can override the express will of a board to deny advancement of such funds to its erstwhile employee. A further topic of discussion is whether a corporation’s claim of a violation by the former employee of his or her fiduciary duties by means of self-dealing can entitle a board to deny an advancement it otherwise would be contractually required to disburse to said employee. The distinction between advancement and indemnification will also be examined throughout this comment. … Read the full text …

The Difference Between Right and Wrong: How Missouri and Kansas Approach the Insanity Defense by Greg Doty

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On November 28, 2009, James Kraig Kahler, a former Columbia, Missouri city official, shot and killed his wife, her grandmother, and the couples’ two daughters in Burlingame, Kansas. At trial, Kahler’s defense counsel presented testimony that Kahler was severely depressed, “‘mentally overwhelmed’”, and “not able to control his behavior” at the time of the shooting. For instance, Kahler had discovered that “his wife was having a lesbian affair” and was seeking a divorce. He had also lost his job in Columbia, Missouri, and had moved to live with his parents in Topeka, Kansas, just weeks before the shooting. … Read the full text …

A Sour Note in the Same Old Song: Determining and Protecting Ownership Rights in the Digital Age By Cory VanDyke

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“One good thing about music, when it hits you feel no pain.”1 When this lyric was wailed by reggae legend Bob Marley in 1971, the music industry was very different than the one in which artists currently find themselves. Today, the music industry is almost synonymous with “pain” as an increase in illegal downloading has resulted in a large amount of financial loss and legal turmoil. From 2004 to 2009 alone, over thirty billion songs were illegally downloaded, resulting in an overall global market decline of approximately thirty one percent.2 In an effort to thwart digital piracy and protect their works, the recording industry has brought suits against over thirty-five thousand private individuals.3 Though litigation against individual consumers seems to be subsiding, a more important legal battle looms on the horizon due to a change in copyright law that took place nearly forty years ago.

The Copyright Act of 1976, which actually took effect in 1978, arguably gave many musicians the ability to reclaim copyrights in their original creations, starting thirty-five years after a grant of copyrights was made, effectively terminating any rights that the artists may have granted (e.g. to record companies) when their songs were first recorded.4 On … Read the full text …

Municipal Immunity for Discharge: Public Policy Not Serving Its Public By Chris R. Playter

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On June 28, 2011, the Missouri Supreme Court made its decision. It would not grant Jim Brooks’ Application for Transfer from the Missouri Court of Appeals. Public policy had been served.

Approximately three years earlier, Jim Brooks had been employed as a police officer for the City of Sugar Creek.1 While patrolling the city one night in his squad car, he witnessed a vehicle running a red light. After stopping the vehicle, Brooks administered a field sobriety test which the vehicle’s driver was unable to pass.2 From there, he placed the suspect under arrest and transported her back to police headquarters.3

Brooks followed procedure every step of the way as if second nature, unfettered by the suspect’s jabbering about her “close relationship with the Police Department” and her threats to arrange that his job be taken.4 This wasn’t the first time he had encountered such patter, and Brooks had been thoroughly prepared by his extensive training with the Academy to deal with a criminal who will say anything to be released. He could not listen to such nonsense. He had a job to do. He had a duty. Serve the public, protect its citizens, and get drunk drivers off the … Read the full text …

Preventing a Modern Day Cuyahoga: Missouri Should Apply the “Fishable/Swimmable” Water Quality Standard to All Unclassified Waters By Ted Weiss

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In June of 1969, a disturbing event occurred: the Cuyahoga River near Cleveland, Ohio caught fire, burning for more than two hours.1 As the story goes, flammable debris from a nearby steel mill was discharged directly into the river and pooled underneath a railroad truss bridge.2 A spark from a passing rail car ignited the material, setting the river ablaze with flames reaching up to five stories high.3 The Cuyahoga, like many of the nation’s navigable waterways at that time, had long been neglected.4 Industrial facilities and open sewers lining the river’s banks regularly discharged their untreated wastewater directly into river.5 Debris consisting of anything from tires to picnic benches clogged its waters.6 Oil slicks up to two inches thick, spanning the entire width of the river, were not unheard of.7 Through much of the early 20th century, the Cuyahoga was devoid of life, lacking the oxygen content necessary to support fish and many other aquatic species.8 Indeed, the Cuyahoga became so contaminated that it was widely thought of as one of the most polluted rivers in the country.9

The 1969 fire was not the first or even the most intense fire on the Cuyahoga,10 but it had a national … Read the full text …

The Effect of the 2010 Tax Act on Estate Planning With Retirement Plan Benefits By Russell E. Utter Jr.

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Estate planning attorneys have to take many factors into consideration when determining the best way to prepare a client’s estate plan. Many of the considerations are practical ones, such as who should act as a trustee under a trust or as an attorney-in-fact under a Durable Power of Attorney. Some are based upon the varying state laws, such as the amount of assets a surviving spouse is entitled to under an elective share, while others are based on tax implications, such as whether it is more beneficial economically to transfer property to children during lifetime or at death. Oftentimes, the most difficult issues for attorneys are the ones that concern taxation due to the complicated, ever-changing, and unpredictable nature of the tax code.1

At issue in this article are the planning considerations and tax implications that exist when retirement plan benefits make up part of a client’s assets. This article examines the 2010 Tax Act and how it has affected or is likely to affect estate planning decisions when a majority of a client’s assets consist of retirement plan benefits. Section II of this article will look at the transfer tax law prior to the enactment of the 2010 Tax … Read the full text …

Catch Me if You Can: The Race to Obtain Deemed Lawful Status By Jay Playter

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In mid-2005, Farmers Telephone of Riceville was a small, local telephone company serving the rural town of Riceville, Iowa.1 This small telephone company was struggling to maintain customers within its service areas as its traditional business customers migrated to larger, more-populated commercial districts.2 The company raced to update outdated technology, offered new and expanded services, and embarked on an extensive advertising campaign.3 Despite its best efforts, Farmers of Riceville only generated around 14 million minutes of telecommunications traffic for the entire year, amounting to approximately $74,253,000 in gross revenues.4

By January 2007, Farmers Telephone of Riceville was handling nearly 28 million minutes of telecommunications traffic per month.5 This boom in traffic was not the result of Farmers of Riceville dramatically expanding its service area or offering innovative technological services. Nor could the spectacular increase in minutes be attributed to an explosion in the population of Riceville.6 In fact, the increase in minutes was the result of Farmer’s provision of services to “customers”7 that did not even reside in Iowa.8 The enormous upsurge in minutes was a result of Farmer’s partnership with free conference calling companies and engaging in a practice known as “traffic pumping”9 within the telecommunications industry.10

Traffic pumping … Read the full text …

Uncertanties Surrounding Credit for Prior Teaching Experience Under Missouri’s Teacher Tenure Laws By Adam Henningsen

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Teaching has long been a popular choice for those seeking a second career. Although the Missouri Department of Elementary and Secondary Education does not keep statistics of the ages of newly hired teachers, in 2010 teachers over the age of 50 made up 18.2% of all the teachers in Missouri public schools.1 It is safe to assume that a decent number of these older teachers came to the profession later in life. Teaching is an attractive option for those seeking a second career for several reasons. Teaching may not be the highest paying career in the world, but the job provides attractive benefits, including a shortened work period and access to a magnificent retirement system. Teaching is also a sensible career option during an economic recession. Compulsory education laws guarantee that there will always be children to educate, no matter what the state of the economy.2 Perhaps the most appealing aspect of teaching for those concerned about the future is the job security the profession provides.

In Missouri, public school teachers receive job security by obtaining tenure status. Missouri’s Teacher Tenure Act, codified in Mo. Rev. Stat. §§ 168.102 to 168.130, provides that any teacher who has been employed as … Read the full text …

Cell Phone Warnings: Consumer Health Protection Versus Commercial Free Speech By Jennifer Brooks

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Growing up, I admired how my father always had the latest gadget or new toy. He loved all of the new inventions the 1980’s had to offer, but what he cherished the most was the invention of the mobile phone. In fact, he was one of the first people I knew to get a car phone in the late 1980’s – a DiamondTel phone, weighing just under five pounds. Next, he graduated to the Motorola StarTAC, the first “clam shell” phone, a style that later became known as the “flip phone.” Throughout my childhood, rarely was there a dinner or a car ride which was not interrupted by the inevitable ringing of his cell phone, making it a large part of our life: at least it was up until September 11, 2001. While that was a horrific day for many families and for our nation, my family experienced a completely unrelated and personal tragedy. My father was diagnosed with glioblastoma multiforme four, an advanced form of brain cancer. He had a tumor the size of a lemon located behind his right ear; the same side of his head he had been holding his various cell phones up to for almost fifteen … Read the full text …

Border Wars: An Introduction to the Series By Casey Tourtillott

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The line separating Kansas from Missouri has long been a source of conflict. Whether it be the historic battles between the Jayhawkers and the Bushwhackers, or the once-annual NCAA showdowns between the University of Missouri Tigers and the University of Kansas Jayhawks, the rivalry runs deep.

Geographically, the Kansas City metropolitan area touches both states. And for attorneys practicing law in the greater Kansas City area, the state line still carries heavy significance. It matters whether a case is filed in Missouri or Kansas, in either federal court or state court. It matters a great deal. In the state arena, the laws of the states differ at varying levels. In the federal arena, practitioners face not only distinct district courts, but also different federal circuits: the Missouri federal courts lie in the Eighth Circuit while the Kansas federal court lies in the Tenth. Each court has in place its own policies, procedures, and rules.

Are these differences important? Absolutely. They are critical. Plaintiffs’ counsel must recognize which state’s law is more beneficial for their clients so that if they have a choice, they can file in the more favorable court. And defense counsel should recognize that unique defenses may be … Read the full text …

“Climbing the Ladder” – The Path to a Great Legal Career By W. Perry Brandt

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Like Judge Ortrie Smith before me, I too wish to congratulate the staff and faculty advisors of the UMKC Law Review for establishing and promoting an internet publication. As I will discuss below, staying ahead of the curve and anticipating future developments in the world is essential to charting one’s career path. The Law Review is to be commended for taking this great legal publication into the 21st century.

A first glance at the title of this article likely evokes a cynical response of “Oh, here’s another tome on how to pursue selfish ambition and make a lot of money.” Well, it’s not. If success and money are a by-product of the advice given here, that indeed is an added benefit; however, as you will see, the thrust of this article will be how to develop your career in such a way that you achieve maximum professional growth and maximum professional fulfillment. My metaphor of “climbing the ladder” is simply intended as a description of how to approach the various stages of your career – indeed, it is all about mastering each rung of the ladder while always reaching for the next rung.

My starting premise is that law school does … Read the full text …

Satisfaction in the Law by Ortrie D. Smith

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I begin by congratulating the staff and faculty advisers of the UMKC Law Review. The idea of an internet publication is one whose time has come. Those associated with creating this first edition are commended for their prescience in seeing the future and rushing to greet it. I am pleased to be associated with visionaries.

My assigned topic could be called equanimity and the lawyer. I understand my assignment to be one of recounting personal experiences to the extent those experiences may help others find gratification and happiness in the practice of law. I embrace the opportunity for I have enjoyed a long and rewarding courtship with that jealous mistress.

The flirtation began in 1967. As a fourth-year student at the University of Missouri at Columbia I began to realize that my Bachelor of Arts Degree provided me no marketable skills. My studies centered primarily on history and English. In terms of career preparation, I might as well have remained in the bumper pit at the Leeds Chevrolet factory in Kansas City, Missouri, the last job I held before driving off to Columbia, Missouri in 1964.

As poor as those focus areas were as job qualifiers they were an excellent … Read the full text …

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