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Nightmare on High Street: The Haunting Effects of Voluntary Arbitration in Nursing Home Administration
Get PDF“Ring…Ring…Ring…” It is one o’clock in the morning. The buzz of your phone wakes you from your sleep. You roll over and check to see who could be calling at this hour. You do not recognize the number, but you answer anyway. The words racing from the voice on the other end of the line are too horrific to be true, but they are. Your dreams suddenly turn into a real-life nightmare as you learn that your loved one waits in a hospital room, fighting for their life. You rush to their bedside. You are with them when they die. “How could this happen?” A nursing home is supposed to be a place of safety. Yet the mysterious nature of your loved one’s injuries leaves you with more questions than answers. Perplexed by the circumstances surrounding their death, you hire a lawyer. While the investigation reveals significant negligence by the nursing home, it also reveals a signed voluntary arbitration agreement. The agreement holds your signature. At the time, you assumed that it was just another piece of paper required for admission. Now, with one pen stroke, your loved one’s most fundamental guarantee, the right to a civil jury trial, has disappeared
Boot-Strapping Trans-Discrimination Claims to Sex: Band-Aiding the Discrimination of Transgender People
Get PDFR.M.A. was discriminated against merely because he identified as a male. He was denied use of basic school facilities that are available to all other boys his age. Under some federal and state laws, R.M.A. would be fully protected from such discrimination. In Missouri, however, transgender individuals are not expressly recognized as a protected class. Thus, until Missouri establishes safeguards for people who are discriminated against because of their transgender identity, R.M.A. and other transgender children must couch their claims as discrimination on the basis of “sex.
Partnership Taxation and the Paycheck Protection Program: Understanding Existing Guidance and How to Resolve Outstanding Issues
Get PDFWhen Congress established the Paycheck Protection Program as part of the response effort to the COVID-19 pandemic, it failed to anticipate the multiple tax uncertainties that resulted from tax-exempt loan forgiveness. Despite further legislation addressing various concerns, guidance by the Internal Revenue Service has been complex and confusing in some areas and wholly lacking in others. This article identifies tax issues raised by the Paycheck Protection Program, explains the existing IRS guidance, and suggests a framework for future guidance regarding the sale of a partnership interest
RESOURCES FOR USING REAL PRACTICE SYSTEMS MATERIALS IN TEACHING
Get PDFThis post describes how faculty can use ideas and materials from the Real Practice Systems Project to help students get realistic understandings of practice. Although the project has generally focused on the systems that mediators develop and use, it can be adapted to understand the perspectives of lawyers acting as advocates in mediation, negotiators, and in legal practice generally. In addition to requiring or recommending that students read publications about real practice systems, faculty could assign students to write papers such as (1) a Stone Soup interview of a practitioner, (2) a description of students’ actual system in simulated or real case(s) in their courses, or (3) a description of students’ desired system after they graduate. This post includes templates for assignments that faculty could tailor to their courses
How You Can Build a Mediation Model to Optimize Your Own Cases
Get PDFDescription of why formal mediation models, such as the facilitative and evaluative models, are incomplete and often misleading. Mediators constantly must answer the question “What do I do now?”, and the formal models don’t help in most situations. Lande suggests how mediators can develop their own, unique mediation models, relying in part on the work of psychologists Kenneth Kressel, Daniel Kahneman, and Amos Tversky
Shestowsky’s Study Supports Value of Lawyers’ Early Education of Clients About Their Procedural Options
Get PDFThis post summarizes parts of Donna Shestowsky’s study on parties’ expectations about the process used to resolve their cases. She writes, “Our findings suggest the value of educating litigants about legal procedures, helping them develop realistic expectations for what each procedure can entail for their situation, and helping them make informed decisions about whether to attend their procedures. . . . Our results suggest how important it is for lawyers to educate their clients about each of their procedural options. Effective education and managing client expectations might lead to the formation of attitudes that reflect realistic expectations, and, in turn, lead to post-resolution assessments that reflect early impressions.
Going Concerns and Environmental Concerns: Mitigating Climate Change through Bankruptcy Reform
Get PDFThis article examines how legislative reforms to the Bankruptcy Code could mitigate the effects of climate change, speed the adoption of renewable energy, and contribute to U.S. compliance with the Paris Agreement of 2015. It analyzes the benefits derived by the fossil fuel industry from Chapter 11, which allows extractive firms to survive boom-and-bust cycles caused by volatile oil and gas prices. Insolvent polluters are preserved as going concerns during price collapses, only to resume and expand production as prices recover.This article proposes novel legislative reforms to the Bankruptcy Code that would require insolvent fossil fuel producers to liquidate under Chapter 7 rather than reorganize under Chapter 11. These proposed reforms would also mandate the appointment of an environmental trustee and the consideration of the public interest during liquidation proceedings. The public interest would weigh in favor of reserving certain assets for climate remediation rather than selling them to other extractive firms on behalf of creditors.Anticipating the objection that climate policy is a non-bankruptcy matter that should accordingly be resolved outside of bankruptcy, I explore models for these proposals in existing insolvency law: the Securities Investor Protection Act, the history of reorganizations in the railroad industry, and the administration of mass tort cases. Under SIPA, stockbrokers are required to liquidate rather than reorganize to protect the investing public. In railroad bankruptcies, special trustees and judicial consideration of the public interest have long been required, primarily due to the historical significance of railroads to the U.S. economy. And the bankruptcy system has converted entities that caused mass torts into those that mitigate past harms. The special treatment of critical industries in bankruptcy to advance key societal goals, as proposed here, is thus consistent with existing law. This article concludes that bankruptcy reform has a role to play in addressing the climate emergency
What’s Next?: Missouri’s Medicaid Expansion after Doyle v. Tidball
Get PDFFor Autumn Stultza, a single mother suffering from severe tonsil stones, Melinda Hille, a Type 1 Diabetic forced to choose between eating and paying for medication, Stephanie Doyle, a mother of three unable to afford her eczema medications, and approximately 275,000 other Missourians, August 10, 2021 was a good day. More than a decade after the enactment of the Affordable Care Act and just over a year since Missourians voted to expand Medicaid, Missourians ages 19 to 65 making under 138% of the federal poverty level became officially eligible for Medicaid coverage through the state’s MO HealthNet program. Their excitement, however, may be short-lived
Missouri’s Hangover: Wine-ing about Direct-to-Consumer Prohibition
Get PDF“[W]ine,” Thomas Jefferson once said, “[is] a necessary of life with me.” The French Ambassador turned president spent well over $365,000 in today’s currency on imported wines during his eight-year tenure as president of the United States. The intoxicating rights once afforded to Jefferson, as a drafter of the Constitution, have shifted throughout history with the passing of the Eighteenth and Twenty-First Amendments
