Law Commons^™

Family Treatment Courts In Rural Settings, Alissa Hendricks, John Lepage

UMKC Law Review

Missouri courts deal in hundreds of thousands of cases each year that involve money, property, and crime, but no category of cases is more important than those dealing with the safety and welfare of children. The collaborative model of family treatment courts was created out of the passion for this responsibility to children and to the families of this state.

Family treatment courts evolved from the adult drug court model, where collaborative efforts found success within the criminal justice system. Family treatment courts are now one of the most expansive improvements conducted in the judicial, child welfare, substance use disorder …

Legislating Courts, Michael Pollack

UMKC Law Review

Judges are ordinarily thought of as deciders of a specific sort: people who apply the rule of law to resolve disagreements between the parties appearing before them. But in every state, judges do far more. They are charged by state statutory or constitutional law with a range of quasi-administrative, quasi-legislative, and quasi-executive law enforcement functions. These roles raise a number of theoretical and practical concerns. In many states, though, legislatures have gone even further. They have either wholly delegated significant policymaking power to state court judges or have sat idle while those judges have assumed the mantle of functions that …

Problem-Solving Courts And The Outcome Oversight Gap, Erin R. Collins

UMKC Law Review

The creation of a specialized, “problem-solving” court is a ubiquitous response to the issues that plague our criminal legal system. The courts promise to address the factors believed to lead to repeated interactions with the system, such as addiction or mental illness, thereby reducing recidivism and saving money. And they do so effectively – at least according to their many proponents, who celebrate them as an example of a successful “evidence-based,” data-driven reform. But the actual data on their efficacy is underwhelming, inconclusive, or altogether lacking. So why do they persist?

This Article seeks to answer that question by scrutinizing …

Engaging The Base: Using Veterans Treatment Courts In Missouri To Address Core Issues, Evan Rodriguez

UMKC Law Review

With a per capita veteran population surpassing the national average, Missouri presents its veterans with unique challenges in their day-to-day lives. For example, nearly one-third of Missouri veterans are disabled, compared to one-sixth of civilians. The State established the Missouri Veterans Commission, which supports veterans and their families with the veteran-specific obstacles they face. To that end, Missouri offers the second highest number of veteran benefits of any state in the country.

Like all groups of people, some veterans will unfortunately enter the criminal justice system due to varying factors. Veterans Treatment Courts ("VTCs") originated to address veteran-specific reasons for …

Kansas City Municipal Court's Domestic Violence Court Programming, Courtney A. Wachal, Gerald Sorensen, Jenna Phelps, Nephateri Hill

UMKC Law Review

The Kansas City Municipal Domestic Violence Court identifies cases as domestic violence if they involve intimate partner violence, violations of protective order, interfamily violence, or cases where there is a child witness. This court manages a large caseload of domestic violence violations that vary widely in the severity of the charges and the levels of violence.

The Kansas City Municipal Domestic Violence Court has prioritized their probation resources by focusing services on those cases that are most in need of supervision and on those cases most likely to be receptive to services. This article will discuss The Compliance Docket and …

Housing Court: A Balancing Act, Todd Wilcher

UMKC Law Review

This article provides a general description of the Kansas City Municipal Court's Housing Court - its origin, jurisdiction, and process-and discusses the broader themes and competing interests at issue in its cases. Because detached single-family home cases take up most of the space on the dockets, the single-family home theme is a major thread in the fabric of this Article. At the same time, however-in the broader context of the municipal environment-every building, structure and open land is subject to building, zoning, and maintenance regulations. These regulations are pervasive in our modern society, and ensuring they are applied in a …

Iiaas And The Montreal Protocol: The Legal Minefield Inside The Most Successful Environmental Treaty In History, Jackson Elder

UMKC Law Review

The most successful environmental treaty in history might break international law's core principle, and it all depends on who you ask. International law consists of rules and principles relating to states, international organizations, and individuals. The source of all international law is the consent of nations, and each nation is governed by the treaties they consent to. Provisions that force states to behave according to its text and do not satisfy international law's traditional consent standard are consequential. As no term exists for these provisions currently, these clauses have been termed as international imposed axiomatic alterations ("IIAA"s). IIAAs, for this …

Building A Successful Team In A Problem-Solving Court: The Western District Of Missouri Model, Carie Allen, Stephen R. Bough, Lajuana Counts, Arthur Diaz, Jeffrey Mccarther, Katie Meister, James Parker

UMKC Law Review

Problem-solving courts work. We know that reentry programs and intensive supervision programs like drug courts are effective alternatives to incarceration that reduce recidivism. For example, the United States District Court for the Western District of Missouri's Reentry Court has an 85.7% success rate for graduates, meaning they complete their term of supervised release without any new charges. A reduction of recidivism means hefty savings of tax-payer dollars. More importantly, successful problem-solving courts mean people engage in their communities, raise families, work productive jobs, and pay taxes.

Courts and legislators and executive branches around the country are increasingly turning to problem …

Combating Substance Abuse And Violence In Jackson County, Missouri: A Public Health Approach To The "War On Drugs", Danielle Bukacheski, Grant Baker, Stephen R. Bough

UMKC Law Review

In 1989, Jackson County, Missouri, made history - voters passed the first tax solely dedicated to funding substance abuse prevention and treatment. Today, the COMmunity Backed Anti-Crime Tax ("COMBAT") continues to annually generate between $25 to $30 million that supports Jackson County courts, the Jackson County Prosecutor's Office, local law enforcement agencies, and nonprofit organizations focusing on prevention and treatment. COMBAT has achieved success through its de-emphasis on punitive law enforcement practices and emphasis on public health. Instead of focusing on the prosecution of drug-related offenses, COMBAT is leading a more holistic "War on Drugs" by funding community-based resources to …

Empirical Study Of The Role Of The Chinese Guiding Case System In Chinese Law, Dong Yan, Jeffrey E. Thomas

Faculty Works

No abstract provided.

Political Appointments And Outcomes In Federal District Courts, Ryan Hübert, Ryan W. Copus

Faculty Works

Using an original data set of around 70,000 civil rights cases heard by nearly 200 judges, we study the effect of presidential appointments to federal district courts. We provide the first causal estimates of whether lawsuits end differently depending on their assignment to either a Democratic or a Republican appointed judge. We show Republican appointees cause fewer settlements and more dismissals, favoring defendants by around 5 percentage points. We estimate a similarly sized effect for a sample of civil rights appeals heard in the Ninth Circuit, raising questions about the conventional wisdom that politics matters more at higher levels of …

Covid-19'S Impact On Families, Lawyers, And Courts: An Annotated Bibliography, Allen K. Rostron

Faculty Works

No abstract provided.

28 U.S.C. § 1331 Jurisdiction In The Roberts Court: A Rights-Inclusive Approach, Lumen N. Mulligan

Faculty Works

In this symposium piece, I argue that the Roberts Court, whether intentionally or not, is crafting a 28 U.S.C. § 1331 doctrine that is more solicitous of congressional control than the Supreme Court’s past body of jurisdictional law. Further, I contend that this movement toward greater congressional control is a positive step for the court. In making this argument, I review the foundations of the famous Holmes test for taking § 1331 jurisdiction and the legal positivist roots for that view. I discuss the six key Roberts Court cases that demonstrate a movement away from a simple Holmes test and …

Statistical Precedent: Allocating Judicial Attention, Ryan W. Copus

Faculty Works

Suffering from a well-covered “crisis of volume,” the United States Courts of Appeals have patched together an ad hoc system of triage in an effort to provide cases with sufficient attention. For example, only some cases are assigned to central staff, analyzed by law clerks, orally argued, debated over by judges, or decided in published opinions. The courts have evaded overt disaster by increasing the number of active, senior, and visiting judges, but the additional personnel poses its own demands on attention—judges must also pay attention to one another in order to coherently develop and apply the law. With too …

Bias On Trial: Toward An Open Discussion Of Racial Stereotypes In The Courtroom, Mikah K. Thompson

Faculty Works

In the 2017 case Pena-Rodriguez v. Colorado, the U.S. Supreme Court discussed several safeguards that are in place to assist the trial court in identifying racial bias among jurors. These safeguards include voir dire examination regarding racial bias, observation of juror demeanor and conduct that might demonstrate racial bias, reports of racially biased comments or actions by jurors during trial, and non-juror evidence of racial bias after trial. The Court acknowledged that these safeguards may be insufficient at times and therefore added a fifth one, holding that trial courts may review evidence suggesting that racial bias was a motivating factor …

Institutional Competence And Civil Rules Interpretation, Lumen N. Mulligan, Glen Staszewski

Faculty Works

No abstract provided.

The Disconnected Juror: Smart Devices And Juries In The Digital Age Of Litigation, Patrick C. Brayer

Faculty Works

As we progress toward a post-digital age of individuals becoming one with technology, the legal profession will encounter an increasing number of jurors who have never known life without the Internet, social media or mobile devices. At the same time an increasing number of citizens are becoming dependent on digital technology, state supreme courts, state trial judges, and federal judges from across the nation are banning and confiscating cell phones, tablets, and other devices of connection to prevent jurors from engaging in misconduct. This article illuminates the unintended consequences that arise when courts remove from a sitting juror an individual …

Supreme Court Asked To Consider Role Of Post-Filing Evidence In Assessing Obviousness Of Pharmaceutical Inventions, Christopher M. Holman

Faculty Works

On January 20, 2015, Bristol-Myers Squibb petitioned for certiorari in Bristol-Myers Squibb v. Teva Pharmaceutical, asking whether an assessment of obviousness should "consider post-filing evidence showing the actual differences between a patented invention and the prior art." The district court had found patent claims directed towards Entacavir (an anti-hepatitis drug) obvious in view of structural similarity between the drug and a prior art compound, in spite of the fact that the prior art compound was highly toxic and therefore not a viable candidate for use as a human drug. A Federal Circuit panel affirmed the district court's decision to disregard …

Gully And The Failure To Stake A 28 U.S.C. § 1331 'Claim', Lumen N. Mulligan

Faculty Works

In this piece, I argue that a return to Gully v. First National Bank in Meridian as an approach to 28 U.S.C. § 1331 jurisdiction is ill-conceived. In a recent thoughtful article, Professor Simona Grossi draws heavily upon the traditions of the legal process school’s approach to federal courts jurisprudence to support just such a resurrection of Gully as the lodestar for § 1331 doctrine. While embracing a return to the legal process school, I argue first that the Gully view — read as a call for judges simply to select sufficiently important matters, in relation to plaintiff’s case in …

Minding The Court: Enhancing The Decision-Making Process, Pamela Casey, Kevin Burke, Steve Leben

Faculty Works

A compelling and growing body of research from the fields of cognitive psychology and neuroscience provides important insights about how we process information and make decisions. This research has great potential significance for judges, who spend much of their time making decisions of great importance to others. For most judges, this research literature is not part of their judicial education. This article reviews cutting edge research about decision making and discusses its implications for helping judges and those who work with them produce fair processes and just outcomes. It builds on a 2007 American Judges Association paper that encouraged judges …

Asking The First Question: Reframing Bivens After Minneci, Alexander A. Reinert, Lumen N. Mulligan

Faculty Works

In Minneci v. Pollard, decided in January 2012, the Supreme Court refused to recognize a Bivens v. Six Unknown Federal Narcotics Agents suit against employees of a privately run federal prison because state tort law provided an alternative remedy, thereby adding a federalism twist to what had been strictly a separation-of-powers debate. In this Article, we show why this new state-law focus is misguided. We first trace the Court’s prior alternative-remedies-to-Bivens holdings, illustrating that this history is one narrowly focused on separation of powers at the federal level. Minneci’s break with this tradition raises several concerns. On a doctrinal level, …

Deconstructing Antisocial Personality Disorder And Psychopathy: Guidelines-Based Approach To Prejudicial Psychiatric Labels, Kathleen Wayland, Sean O'Brien

Faculty Works

Prejudicial psychiatric labels such as antisocial personality disorder and psychopathy have an inherently prejudicial effect on courts and juries, particularly in cases involving the death penalty. This article explains how and why these labels are inherently aggravating, and also discusses the mental health literature indicating that they are subjective, unreliable and non-scientific. The authors conclude that no competent defense lawyer would pursue a mitigation case based on such a damaging and scientifically questionable psychiatric label. Further, a proper life history investigation conducted in accordance with the ABA Guidelines on the Appointment and Performance of Defense Counsel in Death Penalty Cases …

The Supreme Court’S Regulation Of Civil Procedure: Lessons From Administrative Law, Lumen N. Mulligan, Glen Staszewski

Faculty Works

In this Article, we argue that the Supreme Court should route most Federal Rules of Civil Procedure issues through the notice-and-comment rulemaking process of the Civil Rules Advisory Committee instead of issuing judgments in adjudications, unless the case can be resolved solely through the deployment of traditional tools of statutory construction. While we are not the first to express a preference for rulemaking on civil procedure issues, we advance the position in four significant ways. First, we argue that the Supreme Court in the civil procedure arena is vested with powers analogous to most administrative agencies. Second, building upon this …

An Expectation Of Empathy, Steve Leben

Faculty Works

No abstract provided.

Clear Rules - Not Necessarily Simple Or Accessible Ones, Lumen N. Mulligan

Faculty Works

In The Complexity of Jurisdictional Clarity, 97 VA. L. REV. 1 (2011), Professor Dodson argues that the traditional call for clear and simple rules über alles in subject matter jurisdiction is misplaced. In this response essay, I begin by arguing that Dodson, while offering many valuable insights, does not adequately distinguish between the separate notions of simplicity, clarity, and accessibility. Second, I note that crafting a clarity enhancing rule, even if complex and inaccessible, may be a more promising endeavor than the search for a regime that is at once clear, simple and accessible. In the third section, I contend …

No Good Deed Goes Unpublished: Precedent-Stripping And The Need For A New Prophylactic Rule, Edward Cantu

Faculty Works

This paper addresses the “open secret” that federal appellate courts often strip their opinions of precedential value as a means to forgo fair, principled and/or thorough adjudication of issues raised in appeals. Is there a basis in contemporary constitutional doctrine for a presumption that appellants suffer constitutional injury when courts dispose of their appeals using non-precedential opinions? The author answers “yes.” The argument centers on case law establishing so-called “constitutional prophylactic rules,” which work to “overprotect” a given core right - that is, to create a presumption of constitutional injury without proof of it - when such is the only …

Did The Madisonian Compromise Survive Detention At Guantanamo?, Lumen N. Mulligan

Faculty Works

In this essay, I take up the Court’s less heralded second holding in Boumediene v. Bush - that a federal habeas court must have the institutional capacity to find facts, which in Boumediene itself meant that a federal district court must be available to the petitioners. Although this has gone largely unnoticed, I contend that this holding is inconsistent with the Madisonian Compromise - the standard view that the Constitution does not require jurisdiction in any federal court, except the Supreme Court. In fact, it appears that the Court adopted Justice Story’s position that the Constitution requires vesting of jurisdiction …

Federal Courts Not Federal Tribunals, Lumen N. Mulligan

Faculty Works

The Court has employed inferred-cause-of-action doctrine to foster the rights of individuals, from injured workers to female college applicants to defrauded investors and targets of racial discrimination. Although the question of whether the federal courts ought to infer causes of action from federal statutes is an old chestnut in the federal-courts field, a new basis for barring such a practice has arisen, requiring fresh attention to the Court's inferred-cause-of-action doctrine. This new position asserts that inferring a cause of action is not merely poor judicial policy but extra-jurisdictional under either 28 U.S.C. - 1331 or Article III. Borrowing a phrase …

Batson, Empowerment And New Jury Models: The Case For ‘Open Inquiry’, Patrick C. Brayer

Faculty Works

This 2009 article recommends the practice technique of “open inquiry,” which encourages attorneys and courts to ask jurors to openly identify their race, gender, and ethnicity during voir dire for purposes of appellate review under Batson v. Kentucky and related holdings. An open inquiry helps protect the rights of all jurors to sit. It thus creates a greater chance that juries are more diverse and promotes more voices and experiences during deliberation. The open inquiry method also promotes individual juror participation and increases the group's receptiveness toward individual voices during deliberations. Most importantly, open inquiry forces practitioners to rethink how …

A Unified Theory Of 28 U.S.C. Section 1331 Jurisdiction, Lumen N. Mulligan

Faculty Works

Title 28, section 1331 of the United States Code provides the jurisdictional grounding for the majority of cases heard in the federal courts, yet it is not well understood. The predominant view holds that section 1331 doctrine both lacks a focus upon congressional intent and is internally inconsistent. I seek to counter both these assumptions by re-contextualizing the Court's section 1331 jurisprudence in terms of the contemporary judicial usage of right (i.e., clear, mandatory obligations capable of judicial enforcement) and cause of action (i.e., permission to vindicate a right in court). In conducting this reinterpretation, I argue that section 1331 …