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Full-Text Articles in Law
Race And The Cycles Of Constitutional Time, Jack M. Balkin
Race And The Cycles Of Constitutional Time, Jack M. Balkin
Missouri Law Review
The Cycles of Constitutional Time argues that we can understand American constitutional development in terms of three kinds of cycles. The first is the rise and fall of regimes featuring dominant political parties. The second is a very long cycle of polarization and depolarization that stretches from the Civil War through the present. The third cycle is a series of episodes of constitutional rot and constitutional renewal.
Some Linear Thoughts On A Cyclical Vision, Frank O. Bowman Iii
Some Linear Thoughts On A Cyclical Vision, Frank O. Bowman Iii
Missouri Law Review
I am honored to have been included in this Symposium on Jack Balkin’s new book, The Cycles of Constitutional Time. Professor Balkin is a giant in the legal academy and a public intellectual of the first rank. Here, as elsewhere, he has written a book that combines careful study of American history and constitutionalism with lucid, propulsive prose. The other contributors to this Symposium are themselves a Who’s Who in constitutional law, history, and political science. I am not sure I quite belong in this exalted company. Even though I have written about some specialized – if sometimes topical – …
Democratic Culture And Democratic Shocks: The Limits Of Constitutional Cycles, Jonathan Gienapp
Democratic Culture And Democratic Shocks: The Limits Of Constitutional Cycles, Jonathan Gienapp
Missouri Law Review
In his new book, The Cycles of Constitutional Time, Jack Balkin achieves something remarkable. He paints an unflinchingly grim portrait of modern American politics that is at once brutally honest about the dire state of our predicament while also somehow brimming with optimism and hope. In that regard, it is Balkinsian to its core – sober and trenchant in its analysis, yet buoyant in its outlook. Not many people could have written a book like this. And we should be grateful that he has. At a time like this, when it feels like the democratic sun is ever more likely …
Exhuming Brutus: Constitutional Rot And Cyclical Calls For Court Reform, Amanda Hollis-Brusky
Exhuming Brutus: Constitutional Rot And Cyclical Calls For Court Reform, Amanda Hollis-Brusky
Missouri Law Review
Once upon a time, in the late eighteenth and early nineteenth centuries, the phrase “judicial independence” struck fear into the hearts of many Americans, especially those associated with the Anti-Federalist movement. Robert Yates, for example, writing under the pseudonym “Brutus,” wrote with horror of the proposed independence of the judiciary: [The Constitution has] made the judges independent, in the fullest sense of the word. There is no power above them, to controul any of their decisions. There is no authority that can remove them, and they cannot be controuled by the laws of the legislature. In short, they are independent …
Compromising Trust, Lynn Mie Itagaki
Compromising Trust, Lynn Mie Itagaki
Missouri Law Review
Public distrust erodes the efficiency and productivity of our economy, government, and society. It accelerates and amplifies weaknesses in our democratic political infrastructure alongside business relationships and social interactions in mutually reinforcing ways. Determining how to cultivate public trust depends on definitions of “the public”: to whom the government and its officials are accountable. Given the history of the United States as a White settler colonial state, its dependence on African chattel slavery, and its continuing racist xenophobia, “the public” is a frustratingly elastic term. For marginalized populations, public trust might vary in intensity over the past centuries since the …
The Myth Of Eternal Return And The Politics Of Judicial Review, Samuel Moyn
The Myth Of Eternal Return And The Politics Of Judicial Review, Samuel Moyn
Missouri Law Review
Constitutionalism is an ancient idea, albeit one long associated with the form of regimes in general rather than self-governance under written charters that lay down fundamental law. As such, constitutionalism began its life linked to “dreary cyclical” stories of rise and decline, improvement and decadence, splendor and ruin. In doing so, it repurposed archaic thinking from even earlier to descry the direction of constitutional politics. But modern constitutionalism, especially the neo-providentialist form that many Americans have learned to associate with self-governance under a written document, is not the same as the archaic or the ancient. It works with a dualism …
Missouri Workers’ Compensation Enhanced Benefits For Mesothelioma Victims: Too Crispy Or Too Chewy?, Grace Hambuchen
Missouri Workers’ Compensation Enhanced Benefits For Mesothelioma Victims: Too Crispy Or Too Chewy?, Grace Hambuchen
Missouri Law Review
One of the most polarizing debates in history surrounds the best chocolate chip cookie recipe. With all controversial, highly opinionated topics, certain parties, or sides, arise. Some argue the ideal cookie is soft and chewy, while others opt for the crispy and crunchy. However, most dedicated cookie enthusiasts argue the objectively best cookie is a compromise – soft in the middle with a slight crunch on the edges. Baking involves precision. If too much or too little of a simple ingredient is added, the entire cookie changes. The cookie might be “fine,” and still edible, but it is not the …
A Contractual Dilemma: Where Arbitration Agreements And Delegation Provisions Collide, Trent H. Hamoud
A Contractual Dilemma: Where Arbitration Agreements And Delegation Provisions Collide, Trent H. Hamoud
Missouri Law Review
Interpretation of arbitration agreements continues to present unique and challenging issues in Missouri law. Arbitration is a mainstay of the wider field of alternative dispute resolution, seeking to merge the competing interests of would-be litigants in a speedier, less expensive, less formalized environment. Delegation provisions, however, serve as an additional analytical hurdle in determining when and what disputes can be rightfully sent to arbitration. At first glance, a seemingly irreconcilable dilemma is presented. Must assent to the arbitration agreement, and thus the delegation provision, exist before the dispute will be sent to arbitration? Or is the simple appearance of a …
Indirect Initiative And Unpopular Referendum In Missouri, Gunnar Johanson
Indirect Initiative And Unpopular Referendum In Missouri, Gunnar Johanson
Missouri Law Review
Most governments in the United States operate as a representative democracy through elected officials. Over time, advocates have successfully reformed many of our institutions to give citizens themselves more power through direct democracy. The direct election of United States Senators, the presidential primary, recall, the direct initiative, and popular referendum are all developments in the governments of the United States that place power directly in the hands of voters. Direct initiatives and popular referendums, specifically, are lingering evidence of the Progressive Era of the 1900s. Like most reforms of that time, proponents of direct initiative and popular referendum believed it …
Meaningful Access: True Equality Or Frightening Reality?, Mackenzie L. Stout
Meaningful Access: True Equality Or Frightening Reality?, Mackenzie L. Stout
Missouri Law Review
“It’s too good to be true” summarizes the decision in Childress v. Fox Associates, LLC. The Childress court admirably aimed to create a more accessible society for individuals with disabilities but may have unintentionally created the exact opposite. Courts require public accommodations to provide “meaningful access” to individuals with disabilities in order to comply with the Americans with Disabilities Act (“ADA”). However, “meaningful access” is an unclear, evolving standard. The Childress decision strayed from precedent by heightening the standard for meaningful access to a level equal to identical access. While this heightened standard strives for the goal of true equality, …
Two Steps Forward, One Step…Back? Missouri Legislature Targets Rise In Violent Crime, Sarah Walters
Two Steps Forward, One Step…Back? Missouri Legislature Targets Rise In Violent Crime, Sarah Walters
Missouri Law Review
In May 2020, the Missouri Legislature passed Senate Bill 600, a controversial crime bill which made modifications to a handful of criminal provisions in an effort to tackle the violent crime plaguing the state’s largest cities. According to Senator Tony Luetkemeyer, the bill’s sponsor, inspiration for the legislation stemmed from an August 2019 USA Today report ranking Kansas City and St. Louis as the fifth- and first-most-dangerous cities in the country, respectively, and Springfield as the twelfth-most-dangerous. In a similar USA Today report ranking the most dangerous states, Missouri broke the top ten, coming in at number eight overall, with …
No-Poach, No Precedent: How Doj’S Aggressive Stance On Criminalizing Labor Market Agreements Runs Counter To Antitrust Jurisprudence, Noelle Mack
Missouri Law Review
When non-law-abiding citizens wonder whether their conduct is subject to criminal penalties, most turn to state and federal criminal statutes for guidance. Under antitrust law, potential wrongdoers must look to the Sherman Act – a broad “charter of freedom” requiring an unusual level of interpretation by federal courts. Reflecting Congress’ belief that “competition is the best method of allocating resources in a free market,” the Sherman Act simply outlaws “every contract, combination, or conspiracy in restraint of trade or commerce.” The drafters of the Sherman Act could have delineated specific categories of proscribed conduct such as bid-rigging, price-fixing, or entering …
Cock-Eyed Optimist Meets Chicken Little: Jack Balkin On The American Future, Sanford Levinson
Cock-Eyed Optimist Meets Chicken Little: Jack Balkin On The American Future, Sanford Levinson
Missouri Law Review
Given that we are close friends and the co-authors of some twenty articles and a book, Democracy and Dysfunction, it is not surprising that I think very highly of and agree with much of Jack Balkin’s new book, The Cycles of Constitutional Time. I read it in two sittings; it is a real pageturner, written with brio as Jack presents a remarkably comprehensive overview of what he discerns as various cycles in American politics (importantly including the Supreme Court and the development of constitutional doctrine) from the beginning of the new national government in 1789 to the present. It is …
The New Mmpa Standard: One Step Forward Or Two Steps Back?, Jacob Adamson
The New Mmpa Standard: One Step Forward Or Two Steps Back?, Jacob Adamson
The Business, Entrepreneurship & Tax Law Review
In the summer of 2020, Missouri legislators passed a law that drastically reduced consumer protections in Missouri.1 SB-591 amended – and effectively gutted – the protections of the Missouri Merchandising Practices Act (MMPA). The MMPA was the primary method of relief for Missouri consumers who have fallen victim to fraudulent behavior. The freshly gutted MMPA has distinct parallels to the inadequacies of common law fraud. Wronged consumers now face higher burdens of proof, minimal awards, and an uphill battle to seek redress when they have been wronged. This article examines the law’s progression from inadequate remedies under common law fraud …
How Stricter E-Cigarette Regulations Will Keep The Traditional Cigarette In Power, Tyler Manuel
How Stricter E-Cigarette Regulations Will Keep The Traditional Cigarette In Power, Tyler Manuel
The Business, Entrepreneurship & Tax Law Review
First harvested for export in 1612, tobacco has remained a large, and controversial, part of the United States’ identity. In 1966, 42.6% of the American population smoked cigarettes. Currently, cigarette usage rate is around 14%, its lowest rate ever. Even with this sharp decline, cigarettes remain the number one cause of preventable deaths in the United States resulting in approximately 480,000 deaths per year. Nicotine, the active ingredient in tobacco, is an addictive drug, and many treatments exist for those attempting to quit. Recent studies have shown, however, that electronic nicotine delivery systems, more commonly known as “vapes” or “e-cigarettes”, …
Table Of Contents
The Business, Entrepreneurship & Tax Law Review
No abstract provided.
The Risks Of Relying On Direct-To-Consumer Genetic Testing Service Agreements To Protect Genetic Information, Brennan Canuteson
The Risks Of Relying On Direct-To-Consumer Genetic Testing Service Agreements To Protect Genetic Information, Brennan Canuteson
The Business, Entrepreneurship & Tax Law Review
A consumer’s unique genetic code is their most intimate piece of personal data. Many federal laws concerning the privacy and nondiscrimination of health data are outdated, and most are related to healthcare providers instead of commercial services. To ensure that direct-to-consumer (“DTC”) genetic testing companies do not misuse a consumer’s unique genetic code, consumers rely on contractual agreements to protect their genetic information. DTC contractual protections are insufficient for several reasons: (1) consumers may not understand or read the agreement, (2) the company can modify the privacy statement, (3) the company could breach the agreement, and (4) new DTC companies …
Note From Editor
The Business, Entrepreneurship & Tax Law Review
No abstract provided.
Form Over Function: The Case For Employing The Arbitrary And Capricious Standard In Reviewing Top-Hat Plan Denials Of Benefits, Sam Taddeo
The Business, Entrepreneurship & Tax Law Review
The Supreme Court held in Firestone Tire & Rubber Co. v. Bruch that the review of administrators’ decisions to deny benefits under ERISA-qualified plans must be accorded a non-deferential, de novo standard of review. But what about top-hat plans? A top-hat plan is a type of nonqualified deferred compensation plan designed to avoid key ERISA provisions, including ERISA’s fiduciary provisions. In the decades since Firestone, this question has remained unanswered. What has occurred is a rift among the appellate courts, centered around a split between the Third and Seventh Circuits. This article addresses the dilemma and advocates for the implementation …
Don’T Break The Internet: § 230 And Its Role Within Today’S Modern Internet Era, Lauren Rundall
Don’T Break The Internet: § 230 And Its Role Within Today’S Modern Internet Era, Lauren Rundall
The Business, Entrepreneurship & Tax Law Review
Section 230 of the Communications Decency Act has faced increasing political opposition as the law has become a fixture of recent public discussion. Proponents of § 230 applaud the law for shaping the modern internet into the expansive, open platform for public dialogue that we know today. Opponents, however, critique the law for its blanket immunity provided to internet platforms, which allows internet platforms to exert editorial control without fear of liability. Many have considered whether § 230 provides internet platforms with too much power to shape the content people consume. If it does, how can the law be changed …
Supplemental Environmental Projects: Dojs March 2020 Policy Showed The Downfalls Of A Ban, Madeline Mckernan
Supplemental Environmental Projects: Dojs March 2020 Policy Showed The Downfalls Of A Ban, Madeline Mckernan
The Business, Entrepreneurship & Tax Law Review
In March of 2020, the Department of Justice (“DOJ”) adopted a policy that bars the use of supplemental environmental projects (“SEPs”) in settlements of environmental enforcement suits. A ban on SEPs can drastically impact both companies and the environment. The DOJ repeatedly rolled back the use of SEPs during the Trump Administration, but President Biden reversed the ban placed on SEPs in March 2020 under the previous administration. SEPs have long been used in environmental enforcement suits and have been extremely useful in the settlement process by giving companies more options when entering into settlement agreements, making settlements easier for …
Regulations In Alcohol Advertising: Scrutiny Applied To Commercial Speech, John M. Middleton
Regulations In Alcohol Advertising: Scrutiny Applied To Commercial Speech, John M. Middleton
The Business, Entrepreneurship & Tax Law Review
There is a circuit split between the U.S. Court of Appeals for the Eighth and Ninth circuits concerning the level of scrutiny to apply to the regulation of alcohol advertising. The regulatory framework for the alcohol industry has a long and evolving history. Since our country’s founding, alcohol has had a strong presence in Ameri-can life, and it continues to enjoy a flourishing market. Knowing the alcohol industry’s history is important to understanding the current circuit split. The Twenty-First Amendment repealed Prohibition and gave states the power to regulate alcohol according to their own standards. The protections granted by the …
Hiring And Training Competent Title Ix Hearing Officers, Ben Trachtenberg
Hiring And Training Competent Title Ix Hearing Officers, Ben Trachtenberg
Missouri Law Review
American colleges and universities are not ready to comply with new Title IX regulations concerning campus hearings. Regulations released in May 2020 by the U.S. Department of Education, effective in August 2020, require that colleges and universities use hearing officers who are “trained on issues of relevance, including how to apply. . .rape shield provisions” and legal privileges. Institutions must conduct “a live hearing” at which the hearing officer “must permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility.” This “cross-examination … must be conducted directly, orally, …
Black Lawyers Of Missouri: 150 Years Of Progress And Promise, Willie J. Epps Jr.
Black Lawyers Of Missouri: 150 Years Of Progress And Promise, Willie J. Epps Jr.
Missouri Law Review
In this Article, Judge Epps amasses and orchestrates an unprecedented amount of information about Missouri’s Black lawyers from 1871 to 2021. As Missouri marks its bicentennial, and the sesquicentennial of the first Black lawyer admitted to practice here, this Article offers analysis and insights about the most well-known Black lawyers, including new details on many previously unknown Black lawyers. According to Judge Epps, the earliest of these legal pioneers courageously practiced law when Blacks had few or no rights under the Supreme Court’s interpretation of the Constitution, and de jure and de facto discrimination reigned in Missouri. His research shows …
Citizen Activist Or Professional Lobbyist? Eighth Circuit Decides That Political Activity Is “Lobbying” Only When Money Is Involved, Maddie Mcmillian Green
Citizen Activist Or Professional Lobbyist? Eighth Circuit Decides That Political Activity Is “Lobbying” Only When Money Is Involved, Maddie Mcmillian Green
Missouri Law Review
In determining the constitutionality of lobbyist registration laws, where do courts draw the line between lobbyists and politically active citizens? What is the difference between a citizen simply sharing their ideas with their elected officials and influencing them? In 2019, the United States Court of Appeals for the Eighth Circuit attempted to draw the line in Calzone v. Summers by holding that Missouri lobbyist registration laws violated the First Amendment as applied to an uncompensated lobbyist who incurred no expenditures relating to his lobbying efforts. This decision protects individuals who neither spend nor receive any money in connection with their …