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Congratulations to the following students for being chosen to publish with UMKC Law Review this Fall.
Emily Bittiker, The Borderlands of copyright: the Useful-Article Doctrine in light of Star Athletica v. Varsity Brands. Faculty Advisor: Professor Holman
Jennifer Cacchio, What You Don’t Know Can Hurt You: The Legal Risk of Peering Into the Gene Pool with Direct-to-Consumer Genetic Testing. Faculty Advisor: Professor AK
Robert Hoeven, Kansas Public School Funding: Problems and Possible Solutions. Faculty Advisor: Professor Wiseman
Courtney Ruby, Let It Grow. Faculty Advisor: Professor Holman
Diane Plantz, The Patient Safety and Quality Improvement Act: A Total Eclipse. Faculty Advisor: Professor Levit
Jonathan Brown, The Modern Foreign Commerce Clause: U.S. v. Baston and Extraterritorial Sex Trafficking Statutes. Faculty Advisor: Professor Cantu
Congratulations to the newly named 2018-2019 UMKC Law Review Executive Board!
“[T]here are questions of law of fact common to the class…” In 2011, the Supreme Court ruled that a class of 1.5 million class members, spanning all fifty states, did not meet the required commonality quoted above. The Court ruled that commonality required plaintiffs to establish that all class members suffered the same injury. The Court interpreted the above quotation to require potential members’ claims have a common contention capable of resolution among the entire class. This means “determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” The Court went on to quote a law review article that stated,
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.
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.
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 …
A Sour Note in the Same Old Song: Determining and Protecting Ownership Rights in the Digital Age By Cory VanDyke
“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 …
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
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.
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 …
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 …