No Fault Means No Benefits: “Misconduct” as Defined by Missouri’s Employment Security Law by Zachary J. Cloutier
Paul works for Nee’s Auto Shop, a local automobile service center. Nee’s Auto Shop hired Paul a few months ago for a seasonal position as a customer service associate, because Nee’s Auto Shop is especially busy during the holiday season. After demonstrating a strong work ethic and an aptitude for the position, Nee’s Auto Shop offered Paul full-time employment, which Paul gladly accepted. Paul’s duties include all initial tasks relevant to repairs, such as drafting work orders and assisting the Shop’s customers.
Three years later, Paul still works for Nee’s Auto Shop. Like previous years, the holiday season brings increased business. However, unlike previous years, Nee’s Auto Shop did not hire additional, seasonal employees. As a result, Paul is responsible for handling an ever-increasing workload and is struggling to maintain the shop’s books. Paul fails to charge a group of customers for parts and services, including a customer that Nee’s Auto Shop knows to be Paul’s close friend. Despite the mistake, Nee’s Auto Shop has a very successful holiday season and fails to notice any billing discrepancies.
Three months after Paul’s billing error, Nee’s Auto Shop reviews its past work orders in preparation to file its taxes, and notices a discrepancy in its billing records. The Shop’s owner tracks the customer data to work orders originated by Paul and concludes Paul failed to bill the customers at the shop’s expense. Soon thereafter, the owner confronts Paul about the billing errors. Paul denies knowledge of them and claims that he would never purposefully failed to bill a customer. But, the owner is unsatisfied with Paul’s denial and believes Paul did not charge the customers so that his friend could receive free repairs. The owner also knows his unemployment tax rate will increase if he arbitrarily discharges Paul. To protect his company’s interests, the owner finds an obscure company rule prohibiting preferential billing and discharges Paul citing the billing rule as his basis.
Affirmative Action and the Struggle Against Systematic Oppression: How Race-Based Admissions are not a Threat to America by Linda Adeniji
In June 1965, President Lyndon B. Johnson delivered the commencement address at Howard University, where he said:
Freedom is not enough . . . You do not take a person, who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘you are free to compete with all the others,’ and still justly believe that you have been completely fair. Thus it is not enough just to open the gates of opportunity.
President Johnson delivered this speech as formal discrimination came to an end in the 1960s with the passage of The Civil Rights Act and as many African-Americans were still confronted with informal and debilitating discrimination. As a result, Affirmative Action was born, giving preferences to African-Americans in higher education admissions and hiring practices, and igniting a fierce debate over the constitutionality of such policies that continues today.
Opponents of Affirmative Action argue that such consideration of race in the admission and hiring of African-Americans violates the Equal Protection Clause of the Constitution.
Over the years, celebrities and individuals have advocated to “Free Tibet,” such as Sharon Stone’s scandalous suggestion that the 2008 Sichuan earthquake was a result of “bad karma” due to Chinese mistreating the Tibetans. Such individuals are referring to the Tibet Autonomous Region (“TAR”) within China when chanting “Free Tibet” or commenting on the mistreatment of Tibetans. The Central Tibetan Administration (“CTA”) does not receive as much attention even though it may be considered a free, independent state for Tibetans.
In 1949, the People’s Liberation Army of China entered the area now known as the TAR. The CTA was established in 1959 by His Holiness the Fourteenth Dalai Lama and about eighty thousand Tibetans who fled the TAR because they disagreed with Chinese rule. The CTA went on to establish a government in Dharamsala, India for Tibetans.
A Comparison of Kansas and Missouri Health Care Grievance Procedures, and the Need for a Unified Process at the Federal Level by Zhiyuan Liao
People purchase health insurance for the purpose of managing unexpected economic loss resulted from medical sufferings. In today’s medical field, many patients and physicians feel frustrated and powerless when a Managed Care Organization (“MCO”) refuses to pay for treatment, often because the insurer is playing a game of denial, delay and deceit to help the company avoid issuing big outgoing paychecks. Allegedly, private insurers are making payment decisions rather than medical decisions. This creates an issue because the denial of insurance coverage is often equivalent to a denial of medical care to the patient. The beneficiaries, of course, can always visit a different doctor not covered by the insurance policy if the insurer denies their claims, but this would be at the beneficiaries’ own cost, and most people cannot afford the huge expense.
Comparative Adoption Approaches of Missouri and Kansas: Termination of Parental Rights and Equitable Adoptions by Najmeh Mahmoudjafari
At the very least, there is one thing that unifies the states on their adoption policies: it is encouraged. The battles are in the details. Kansas and Missouri are wonderful examples of how two states can differ in their adoption policies, albeit having similar geographic and demographic make-ups. This note will discuss two key differences between Missouri and Kansas adoption laws: (1) the termination of parental rights during an adoption and (2) the use of equitable adoptions. The purpose of this note is to show that, arguably, Missouri has a better approach to the analysis of terminating parental rights; however, in regards to equitable adoption, Kansas has a more plausible argument against equitable adoption.
Over the last twenty-years, public support for legalizing medical and recreational marijuana use has increased substantially, leading to a growing number of states enacting marijuana laws that clash with federal drug law. Increasing opposition to federal marijuana prohibition has become a popular topic of debate across America. An aspect of the marijuana debate of lesser notoriety however, is the multiple failed efforts to change the Schedule I status of marijuana through the drug classification provisions of the Controlled Substances Act (CSA).
This note looks at that process with a narrow focus on the classification scheme for determining the abuse potential of a drug. Part I briefly discusses the CSA’s classification of drugs and describes the evidence the DEA relies on for assessing AP of a drug. Part II then presents a more in depth evaluation of this evidence and argues that removal of marijuana from the CSA is proper, as it does not meet the requirements for inclusion in any of the schedules.
Ending the War on Death and Embracing End-of-Life Quality Concerns: The Affordable Care Act’s Failure to Address End-of-Life Health Care by Leah Miyamoto
The war on death has not yet been won. Everyone, so far, has died and the American way of death is expensive. Although death is guaranteed for every human being, end-of-life costs for Americans can be high and often do little to improve the quality of death and dying. With 52.3 million beneficiaries adding up to $583 billion in health care expenditures in 2013 alone, Medicare faces the seemingly impossible feat of creating a sustainable health care system. Medicare’s high financial burden stems from America’s inability to balance the expensive, rapidly increasing advances in medicine with the need to embrace death thereby improving end-of-life care.
Although the US spends the most money per capita for total care after age 65, we rank poorly in comparison to the rest of the world in end-of-life quality. The international community has developed creative solutions to improve accessibility to end-of-life care with scarce resources, even in developing countries.
Review Can Wait: Orders Denying Pro Se Plaintiffs’ Requests for the Assistance of Council Should Only be Reviewed After Final Judgments by Nicholas Draper
Two correctional officers sprayed Kevin Ward with pepper spray during an altercation in which Ward refused to comply with orders. The correctional officers sprayed Ward, a prisoner at the South Central Correctional Center in Licking, Missouri, multiple times, initially when Ward refused to allow the officers to place him in handcuffs and again after a nurse determined Ward could endure more pepper spray.
Ward filed suit one month after the incident in the United States District Court for the Western District of Missouri. Ward alleged that the two correctional officers and the nurse violated his civil rights by using excessive force and by failing to provide him with medical care. Ward filed his complaint pro se, or without the assistance of a lawyer, and asked the trial court for appointed counsel three different times. There is no “constitutional or statutory right to appointed counsel” in civil cases. Nevertheless, Ward requested the assistance of counsel because he said he needed “counsel to assist with preparing his case for trial” and that he could not “litigate his case without professional assistance.” The district court denied each request. Ward appealed the denial to the United States Court of Appeals for the 8th Circuit.
House Bill 2117, signed by Kansas Governor Sam Brownback on May 22, 2012, calls for significant tax cuts to boost the economy and encourage businesses to move to Kansas.
The bill makes two significant changes regarding income taxes. It lowers individual income tax rates, and it provides deductions that eliminate income taxes on non-wage business operating income for businesses taxed as pass-through entities. These businesses (including LLC’s, S corporations, partnerships, farms, and sole proprietorships) are generally taxed on the income “passed through” to the tax return of the business owner, and thus taxed under the individual income tax.
Business owners usually pay themselves a salary taxed as wage income on their income tax return. Additional profit above and beyond the business’s cost of doing business is reported as one of several forms of business income on the business owner’s tax return (federal tax Schedules C, E, and F) and also taxed under the personal income tax. The Kansas House Bill 2117 exempts this non-wage income from taxation, a change that will eliminate income tax on 191,000 businesses.
The 2012 presidential election was the most expensive election in U.S. history. The Federal Election Committee reported that the election cost approximately $7 billion. Ellen Weintraub, the FEC Chairwoman stated that candidates spent an estimated $3.2 billion, political parties spent $2 billion, and political action committees another $2.1 billion. Observers of the election coverage undoubtedly recognized that the media often spent countless (and expensive) amounts of national airtime on seemingly far-fetched election topics that had little to do with the candidates’ policies or positions on issues. Donald Trump frequently graced the populace with his interviews with various media outlets that were aimed at garnering support for the proposition that President Barack Obama was possibly not a natural born citizen of the United States and therefore ineligible for the office of the presidency. This “birther” movement gained so much popularity, that in 2011, 25% of Americans believed the President Obama was not a natural-born citizen. While this distraction kept many people busy, another large portion of the election coverage was dedicated to Governor Mitt Romney’s release of his federal tax returns.
Mechanic’s Liens in Missouri and Kansas: Why Building in Kansas is Better for Business than Building in Missouri by Anna Connelly
Imagine the following hypothetical: Dan wants to build a larger commercial property in the Kansas City area that he projects will be one of the largest shopping and entertainment districts by the time the work on the property is finished. The project is a complicated one that will take at least five years to build and will cost well over $100 million to complete.
Dan is the CEO of XYZ commercial development company (XYZ) in Kansas City and the first thing he does is consult with his team of developers to get each person’s thoughts on the project. His team likes Dan’s initial idea. The company decides to move forward with the research phase of the development. … Read the full text …
Racist Racism: Complicating Whiteness Through the Privilege and Discrimination of Westerners in Japan by Dagmar Rita Myslinska
With no anti-discrimination legislation, strong Confucian-inspired in- group mentality, and a belief in their mono-ethnicity, Japan is marred by a culture of widespread discrimination. Although it has ratified the International Convention for the Elimination of All Forms of Racial Discrimination, and guarantees equality in its Constitution, all those who differ from the closely circumscribed norm are excluded culturally, and legally. Whites’ position in this milieu is complicated because of the West’s unique historical relationship with Japan, and due to the perception of white global dominance. Although admired and arguably privileged over other outsiders, Caucasians are nevertheless mocked and discriminated against—openly, frequently, and with impunity. The concept of racism, as funneled through critical race theory’s (“CRT”) reliance on homogeneous white privilege, lacks dialectic space to address their experiences of discrimination. Yet both CRT analytical tools and desire for praxis, and Confucian respect for human dignity have much to offer in expanding discrimination discourse, exposing the concept of racism as Western-centric, supporting equality, and giving voice to victims who do not fit the victim norm. In the process, this enlarged theoretical and analytical space can help alleviate Japan’s labor shortage, prompting multi-faceted reforms, and achieving true Confucian harmony and democracy. I propose to create new discourse, situated within expanded CRT and whiteness studies, while providing analytical coverage to a group of Caucasians rarely mentioned in popular or scholarly literature. Definitions of “the other” and “white privilege” need to move away from monolithic notions of race and power, which are white-centric and racist themselves.
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
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 …
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
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
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
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
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
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 …