Mississippi College School of Law
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CONSTITUTIONAL STANDOFF: AN EXAMPLE OF PRACTICAL DIFFICULTY IN MISSISSIPPI VENUE RULES
Get PDFMississippi’s legislature and judiciary have been locked in a constitutional standoff over procedural rulemaking power for decades. In an article describing the history of the conflict, author William H. Page has predicted that the situation will inevitably lead to “practical difficulties” down the road. Years later, given ongoing conflicts among various aspects of civil procedure in Mississippi, that prediction is beginning to appear prescient. A prime example has developed in Mississippi’s venue rules.
This Comment has three goals. First, it seeks to resurface Page’s discussion of the “constitutional standoff.”3 Second, it describes how Page was likely correct in predicting that practical difficulties would arise down the road and provides an example in the form of present conflicts between Mississippi venue rules. Finally, it discusses potential solutions to the narrow issue of venue, ultimately concluding that a more cooperative process between the legislature and the judiciary is needed to prevent similar problems from arising in the future.
Part II of this article provides (1) a brief recitation of how the constitutional standoff between the two branches came about, (2) a short history of Mississippi’s venue rules, (3) an explanation of how the standoff has potentially led to a practical difficulty in satisfying venue requirements, and (4) an explanation of the foundational concepts and federal model of venue to provide context for the analysis. Part III describes how Mississippi’s venue rules present practical difficulties; this includes the narrow issue of venue, the broad issue of the constitutional standoff, and potential answers to these problems. Part IV will conclude with final thoughts and a proposed solution to this longstanding problem
GET YOUR HEAD IN THE GAME: GAMIFYING THE BAR EXAMINATION
Get PDFDuring a recent administration of the bar examination, I observed the following: a student who had a child ten days before the exam passed; a student on law review failed; a student whose predictors indicated he should fail the bar exam passed; two students who were in the library every day studying failed. Even though these folks were all taking the same exam, their outcomes varied dramatically, and there did not seem to be a common variable that predicted whether they would pass or fail. My first inclination was to throw up my hands in frustration and chalk it up to the fact that every student’s situation is unique.
I was satisfied to shrug and mutter, “what can you do?,” until I came across a podcast on Coach Nick Saban. Saban is a successful college football coach at the University of Alabama.2 As I listened to the podcast, I realized that the bar exam experience is very similar to a football team’s preparation for a championship game. The stakes are high, the preparation is intense and condensed, each individual bar taker will either win (pass) or lose (fail), and there are points assigned based on how well the performer does.
I wondered whether the tools that assist championship teams could also assist bar takers in their quest to pass the bar examination. Thinking back to the students who passed the bar exam when statistics or circumstances predicted they would not and to those who failed even though all outside indicators pointed to them passing, I realized there was something that the passers and the failers (unfortunately) had in common, but it was not predictors or grades. The passers dedicated themselves to a process to pass the bar. They not only studied, they studied the right way. For those who failed the bar exam, there was inevitably something missing—it could have been time spent on the bar exam or it might have been the failure to be in the right state of mind as they were studying.
My goal in this article is to draw from sports psychology and Coach Saban’s idea of “The Process” to help those taking (or retaking) the bar exam reach their full potential and pass. Success on the bar exam requires dedication and the right state of mind. I hope this article helps bar takers get in the passing mindset by giving some concrete steps to enhance study habits. To do this, Part I discusses how sports psychology is relevant to bar exam prep. Part II, the central portion of the article, describes the elements of the Process and how they relate to bar prep. Part III discusses how college athletes are different from those taking a bar examination and how developing self-discipline is crucial to bar exam success. Part IV emphasizes the importance of keeping life in balance while committing to the Process
ABLE BUT UNWILLING TO WORK: WHY THE CURRENT STATE OF WORKERS’ COMPENSATION LAW IN MISSISSIPPI DETERS WORKERS FROM RETURNING TO WORK AS SOON AS THEY ARE PHYSICALLY ABLE
Get PDFIn 2019, the National Safety Council estimated that the total economic cost of work-related deaths and injuries in the United States was 1,600 per worker. Therefore, any time a worker is injured on the job, the overarching goal for both the employer and the employee should be for the worker to return to work as soon as is safely possible to help mitigate the economic loss to both the company and society as a whole, right?
Employers suffer both direct and indirect costs when a worker suffers a work-related death or injury and is forced to miss time from work. Direct costs are those covered by workers’ compensation insurance. Indirect costs are all uninsured additional costs associated with an accident. Indirect costs can be two to ten times more expensive than direct costs to an employer. Additionally, indirect costs are uninsured and come directly from the employer’s pocket.7 A few examples of indirect costs are productive time lost by an injured worker, time to hire or train a worker to replace the injured worker until they return to work, and reduced morale among employees.8 These are all indirect costs that can be mitigated by having an injured worker return to work as soon as it is safely possible.
Additionally, studies have shown that returning to work is beneficial to the physical and mental health of an injured worker.9 Despite all of these reasons for having an injured worker return to work as soon as is safely possible, a recent change in the Workers’ Compensation law in Mississippi has discouraged injured workers from returning to work as soon as they are cleared by a doctor. Instead, the law forces the injured worker to wait until they reach maximum medical improvement before returning to work if the worker is to have any hope of receiving permanent disability benefits.
The reason for this absurdity is found in a recent Mississippi Supreme Court decision. The court applied a rebuttable presumption that an injured worker suffered no loss of wage-earning capacity when she returned to work at the same (or greater) pay she received before the injury even though she had not reached maximum medical improvement. Historically, this presumption had only been applied after an injured worker reached maximum medical improvement and healing was complete. Currently, a worker who has been medically cleared to return to work need not do so until he reaches maximum medical improvement if he wishes to receive permanent disability benefits (if the need for such benefits arises). If that injured worker returns to work, he will automatically be presumed to have suffered no loss of wage-earning capacity and will be saddled with the burden of proof to show rebutted evidence.
This Comment will analyze and discuss the rebuttable presumption in Mississippi Workers’ Compensation law that an injured worker who returns to work at the same position with the same (or greater) pay as before his or her workplace-related injury has suffered no loss of wage-earning capacity. Specifically, this Comment will explain why this presumption should only be applicable if the injured worker returns to work after he or she has reached maximum medical improvement. Section II will provide a background to this rebuttable presumption as well as on Workers’ Compensation law in Mississippi. Section III will discuss why the rebuttable presumption should only be applied if the worker returns to work after he or she has reached maximum medical improvement
THE CLEAN WATER ACT: WADING BACK INTO MUDDY INTERPRETATIONS
Get PDF“Fresh water: everything that lives on land, animal or plant, depends upon it.” A necessity to our very livelihood, our nation’s waters must be protected. As concern grows over Earth’s stability, and environmental issues in particular, clean water has been at the forefront of this Gordian knot. To mitigate our nation’s impact on water cleanliness, state organizations, environmental activists, and the Environmental Protection Agency have joined forces in an effort to create and enforce environmental protection.
These water quality efforts, however, have not come without struggle. The creation, enforcement, and efficiency of legislation to mitigate water pollution in certain water systems can only be described as subpar. The vague language in the Clean Water Act (CWA) and its interpretation is at the heart of these shortcomings. The CWA generally requires a federal permit known as a National Pollutant Discharge Elimination System (NPDES). Those who discharge pollutants directly into navigable waters are undisputedly required to have this permit. However, nonpoint sources—traditional regulatory authority governed by the states—have occasioned much dispute over the extent of these regulations.
The Supreme Court’s 6-3 decision in Hawaii Wildlife Fund v. County of Maui reinterpreted the CWA to require a NPDES permit for pollutant discharges into groundwater, a nonpoint source. This new test undermines states\u27 authorities in water quality control over nonpoint sources and creates practical problems such as defining and applying the test to regulated entities. Justice Breyer’s decision to interpret the text in the broader context of the Act leads to speculation about Congressional intent that would not have occurred if the Supreme Court had adhered to the plain language in the text. Furthermore, Breyer\u27s reading not only misinterprets the intentions of Congress by undermining traditional state authority over groundwater, but it also raises many practical issues such as a lack of guidance on how the test should be applied and to whom it applies.
Part I of this Note, as discussed above, explains how and why the Supreme Court’s new test contravenes Congressional intention. Part II will discuss the facts and procedural history of Hawaii Wildlife Fund v. County of Maui. Part III will explore the relevant background and history of the law that governed and shaped this case and the CWA upon which it was based. Part IV will discuss the substances of the instant case. Part V will analyze the Supreme Court’s conduct in misinterpreting the intentions of Congress and undermining the traditional authority of the states in groundwater regulation. Part V will also highlight the practical problems that the new test creates for courts by comparing the ruling to another Supreme Court case, Rapanos v. United States. Finally, Part V will show that although it reached a majority opinion, Hawaii could still be overturned by a change in the Court’s composition. Part VI will conclude by summarizing the ways in which Justice Breyer’s new test fails to reflect the intent of Congress, the other issues it causes, and its future applicability to environmental cases
