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Articles 1 - 30 of 133
Full-Text Articles in Law
The True Value Of A Law Degree, Or, Why Did Thurgood Marshall Go To Law School?, R. Lawrence Dessem, Gregory M. Stein
The True Value Of A Law Degree, Or, Why Did Thurgood Marshall Go To Law School?, R. Lawrence Dessem, Gregory M. Stein
Faculty Publications
There has been vigorous debate in recent months over whether a law degree is a worthwhile investment. Much of this discussion has focused on whether the economic costs of obtaining a degree pay off over a lawyer’s career. This conversation has largely overlooked the many non-economic benefits of a law degree. In this essay, we seek to re-introduce several non-economic factors back into this important dialogue. We suggest that prospective law school applicants would be wise to consider these non-economic factors in addition to economic ones.
Preferences Are Public Rights, Brook E. Gotberg
Preferences Are Public Rights, Brook E. Gotberg
Faculty Publications
In the wake of the Supreme Court’s decision in Stern v. Marshall, there is widespread uncertainty as to what other proceedings may constitutionally fall within a bankruptcy court’s core jurisdiction. Supreme Court jurisprudence has been cryptic regarding the constitutional limitations of non-Article III courts, but the Court has identified a "public rights exception" to the general rule that the judicial power must be exercised only by judges with life tenure and salary protection. This public rights exception has not yet been explicitly extended to a bankruptcy proceeding, but the reasoning of the Court strongly suggests that a trustee’s motion to …
Symposium: Bombshell Or Babystep - The Ramifications Of Miller V. Alabama For Sentencing Law And Juvenile Crime Policy: Symposium Foreword, Paul J. Litton
Symposium: Bombshell Or Babystep - The Ramifications Of Miller V. Alabama For Sentencing Law And Juvenile Crime Policy: Symposium Foreword, Paul J. Litton
Missouri Law Review
Part II of this Foreword briefly addresses one open constitutional question in the wake of Miller: in light of its rationale, is juvenile LWOP – whether mandatory or the result of an individualized sentencing process – constitutionally permissible? I argue that the Miller opinion itself is incoherent insofar as it permits juvenile LWOP as a constitutionally viable sentence. Part III provides a short synopsis of the controversy among Justices regarding the proper methodology for Eighth Amendment proportionality analyses. Then, with particular attention to the authors’ different takes on Miller’s implications for methodology, Part III provides a guide to the symposium …
Userra Oxymoron: Termination As A Valid Reemployment Position, The, Breanna Hance
Userra Oxymoron: Termination As A Valid Reemployment Position, The, Breanna Hance
Missouri Law Review
This Note assesses Milhauser’s impact on reemployment claims under USERRA. Part II begins with an analysis of the facts and holding of the case. Next, Part III synthesizes the background of USERRA, provides an overview of the statute, and introduces the escalator principle. Part IV outlines the court’s rationale in deciding Milhauser. Finally, Part V discusses the impact of Milhauser on USERRA reemployment claims. This Note argues that: (1) the court’s reliance on USERRA regulation § 1002.194 was misplaced because the court’s interpretation presents a conflict between two sections of the statute and creates burden of proof issues; (2) the …
We The People: A Needed Reform Of State Initiative And Referendum Procedures, Nicholas R. Theodore
We The People: A Needed Reform Of State Initiative And Referendum Procedures, Nicholas R. Theodore
Missouri Law Review
Part II of this Comment begins by detailing the history of the ballot initiative and referendum in the United States. Part III next details the different types of initiatives and referenda commonly used in the United States. Part IV discusses the merits of the ballot initiative, discussing both benefits and disadvantages. Part V gives an overview of various state approaches to initiative procedures. Part VI introduces some of the various procedural shortfalls in the initiative process. Part VII discusses Missouri common law and how the courts have helped shape Missouri’s law in the initiative process. Part VIII examines Brown v. …
Juvenile Lifers And Judicial Overrreach: A Curmedgeonly Meditation On Miller V. Alabama, Frank O. Bowman Iii
Juvenile Lifers And Judicial Overrreach: A Curmedgeonly Meditation On Miller V. Alabama, Frank O. Bowman Iii
Missouri Law Review
This Article focuses very little on the implications of Miller and Graham for the population they most directly affect – juvenile offenders previously eligible for sentences of life without parole – and more on the implications of the Court’s reasoning in Miller and Graham for sentencing generally. However gratifying the results of Miller and Graham may be as sentencing policy, they are troubling as a constitutional matter both because they are badly theorized and because they are two strands of a web of decisions in which the Court has consistently used doubtful constitutional interpretations to transfer power over criminal justice …
Precedent As A Policy Map: What Miller V. Alabama Tells Us About Emerging Adults And The Direction Of Contemporary Youth Services, Clark M. Peters
Precedent As A Policy Map: What Miller V. Alabama Tells Us About Emerging Adults And The Direction Of Contemporary Youth Services, Clark M. Peters
Missouri Law Review
To illuminate the role that Miller plays with regard to the wider realm of youth policy, I will employ the analytic approach of Professor John Kingdon, whose influential book Agendas, Alternatives, and Public Policies (Agendas) provides a framework for understanding how ideas move from mere proposals to effectuated policy. His approach emerges from the pluralist tradition, which emphasizes government processes and the role of political influence in affecting policy choices. In posing Kingdon’s central question – “How does an idea’s time come?” – to the Miller decision, this Article employs Kingdon’s theoretical framework in two ways. First, Kingdon’s framework is …
Bargaining With Bite: Missouri High Court's Constitutional Holdings Alter Public Sector Labor Law, Peter W. Bay
Bargaining With Bite: Missouri High Court's Constitutional Holdings Alter Public Sector Labor Law, Peter W. Bay
Missouri Law Review
Collective bargaining – negotiations over working conditions between an employer and representatives of their employees – appeared as early as 1891 as labor unions arose in response to the Industrial Revolution. Collective bargaining in private industry was recognized in 1935 by the National Labor Relations Act but was considered prohibited in the public sector. In 1945, the state of Missouri ratified its constitution, which included article 1, section 29, a provision protecting employee collective bargaining rights. That provision, however, was quickly interpreted by courts as applying only to private employees, and thus, public employees had little power to negotiate employment …
Other Missouri Model: Systemic Juvenile Injustice In The Show-Me State, The, Mae C. Quinn
Other Missouri Model: Systemic Juvenile Injustice In The Show-Me State, The, Mae C. Quinn
Missouri Law Review
Part II of this Article examines some of the most well-known claims about the Missouri Model of juvenile justice, clarifying that the positive press to date actually describes only one small component of the larger juvenile justice structure: Missouri’s system of residential correction for state-placed adjudicated youth. And while that system has much to admire and replicate, it also has room for improvement In Part III, this Article fills in what has been left out of most public and press stories about Missouri’s larger youth justice system. That is, despite mostly glowing media accounts, Missouri’s at-risk youth are poorly served …
Where The Judiciary Prosecutes In Front Of Itself: Missouri's Unconstitutional Juvenile Court Structure, Josh Gupta-Kagan
Where The Judiciary Prosecutes In Front Of Itself: Missouri's Unconstitutional Juvenile Court Structure, Josh Gupta-Kagan
Missouri Law Review
Part II will describe the juvenile officer’s unique role in Missouri law, and explain how this role makes Missouri an outlier within the United States. Part III will argue that the juvenile officer’s prosecutorial discretion violates the separation of powers required by the Missouri Constitution and informed by the U.S. Constitution. Part IV will describe the real world harms that flow from this violation, with a particular focus on the harms in child abuse and neglect cases. Part V will outline potential policy solutions to this problem.
Miller V. Alabama: What It Is, What It May Be, And What It Is Not, Nancy Gertner
Miller V. Alabama: What It Is, What It May Be, And What It Is Not, Nancy Gertner
Missouri Law Review
In Miller v. Alabama, the Supreme Court of the United States, in a five to four opinion written by Justice Elena Kagan, held that mandatory life imprisonment without parole for defendants convicted of murder who were under age eighteen at the time of their crimes violated the Eighth Amendment to the United States Constitution. The decision raises a host of important questions that the University of Missouri School of Law’s recent symposium ably addressed. Is Miller a watershed opinion, prefiguring a new era of substantive Eighth Amendment jurisprudence that would apply to other imprisonment sentences across offender and offense categories? …
Eighth Amendment Differentness, William W. Berry Iii
Eighth Amendment Differentness, William W. Berry Iii
Missouri Law Review
Part II of the Article provides the context for the Miller case, outlining the theoretical underpinnings of the Court’s Eighth Amendment jurisprudence. Part III describes the Court’s “different” jurisprudence, linking the concept of “juveniles are different” to the Court’s longstanding view that “death is different.” In Part IV, the Article demonstrates how the two possible interpretations of the Court’s statement in Miller that “juveniles are different” – as a character-based form of differentness and, in the case of juvenile LWOP, as a punishment-based form of differentness – create distinct theoretical bases for broadening the scope of the Eighth Amendment. Finally, …
Mill(Er)Ing Mandatory Minimums: What Federal Lawmakers Should Take From Miller V. Alabama, Mary Price
Mill(Er)Ing Mandatory Minimums: What Federal Lawmakers Should Take From Miller V. Alabama, Mary Price
Missouri Law Review
In this Article, I make the case that, while the robust proportionality principles informing Miller and similar cases are unlikely to translate into the end of mandatory minimum sentencing by way of the Eighth Amendment (at least anytime soon), embracing sentencing proportionality is the key for lawmakers who are – or should be – addressing the unsustainable growth in the federal prison population as a distinct threat to public safety. Politicians who support mandatory minimums have been immune over the years to the many reasoned arguments about how unjust those sentences are and what costs they pose to families and …
Cure For Collusive Settlements: The Case For A Per Se Prohibition On Pay-For-Delay Agreements In Pharmaceutical Patent Litigation, A , Michael Owens
Cure For Collusive Settlements: The Case For A Per Se Prohibition On Pay-For-Delay Agreements In Pharmaceutical Patent Litigation, A , Michael Owens
Missouri Law Review
This Comment will examine how the particulars of the Hatch-Waxman Act, the regulatory scheme that governs generic competition in pharmaceutical industry, gives rise to reverse settlements in infringement litigation; review existing analysis of the pay for delay problem in judicial decisions, in academic commentary, and amongst antitrust enforcement bodies; and finally, draw upon a decision theoretic framework to propose per se illegality as the appropriate antitrust rule for pay-for-delay settlements.
Not Just Kid Stuff - Extending Graham And Miller To Adults, Michael M. O'Hear
Not Just Kid Stuff - Extending Graham And Miller To Adults, Michael M. O'Hear
Missouri Law Review
Part II more fully unpacks the central jurisprudential values that animate Graham and Miller. By reference to these values, Part III explains how Graham and Miller may be reconciled with Harmelin and Ewing. Finally, Part IV discusses the application of Graham and Miller to one particular category of adult offenders – those sentenced under the three-strikes provision of 21 U.S.C. § 841(b)(1)(A) – and concludes that at least some of these offenders may have viable Eighth Amendment claims
The Project That Hurts Your Head: Simple Project Management For The Innovating Law Librarian, Cynthia Bassett, Resa Kerns
The Project That Hurts Your Head: Simple Project Management For The Innovating Law Librarian, Cynthia Bassett, Resa Kerns
Faculty Publications
Today’s law librarians are working to increase the value we add to our organizations as well as our visibility. To do this, we have taken on sophisticated projects, often involving multiple partners. The need has never been greater to grow and hone our project management skills. Using the case studies of a website redesign project involving multiple departments and the implementation of an institutional repository, we will explore the overall project life cycle. This session will provide tools for common pitfalls such as losing energy and focus, troubles balancing long term goals with short term needs, and the triple whammy …
Volume 37, Issue 2 (Fall 2013)
Symposium Foreword: Bombshell Or Baby Step? The Ramifications Of Miller V. Alabama For Sentencing Law And Juvenile Crime Policy, Paul J. Litton
Symposium Foreword: Bombshell Or Baby Step? The Ramifications Of Miller V. Alabama For Sentencing Law And Juvenile Crime Policy, Paul J. Litton
Faculty Publications
This short essay, which serves as the Symposium Foreword, argues that the rationale of Miller is incoherent insofar as it permits juvenile LWOP sentences and that the Court misidentifies the foundational principle of Roper. First, in banning mandatory juvenile LWOP sentences, the Court invokes Woodson, which bans mandatory death sentences. The Court maintains that Woodson, from its capital jurisprudence, applies because juvenile LWOP is “akin to the death penalty” for juveniles. But if the Court’s capital jurisprudence is binding based on that equivalence, Roper should imply that juvenile LWOP, like the death penalty, is unconstitutional for juveniles. This essay briefly …
Lessons From Teaching Students To Negotiate Like A Lawyer, John M. Lande
Lessons From Teaching Students To Negotiate Like A Lawyer, John M. Lande
Faculty Publications
This article reports my observations from teaching those courses and offers suggestions for future efforts to improve legal education. My experience supports the (1) focus on negotiation in a wide range of situations in addition to the final resolution of disputes and transactions, (2) addition of "ordinary legal negotiation" to the two traditional theories of negotiation, and (3) use of multi-stage simulations in addition to traditional single-stage simulations. These approaches were critical in providing students with a more realistic understanding of negotiation. This article also describes experiments with other teaching techniques in my courses.
Constitutional Conundrums In Arbitration: Book Review Of Arbitration And The Constitution, S. I. Strong
Constitutional Conundrums In Arbitration: Book Review Of Arbitration And The Constitution, S. I. Strong
Faculty Publications
The combination of arbitration and constitutional law is the topic of Professor Peter Rutledge's new book, and the focus of this review essay, which will consider, among other things, whether these two subjects are compatible.
Sovereign Debt And The Three And A Half Minute Transaction: What Sticky Boilerplate Reveals About Contract Law And Practice, Andrea Boyack
Sovereign Debt And The Three And A Half Minute Transaction: What Sticky Boilerplate Reveals About Contract Law And Practice, Andrea Boyack
Faculty Publications
The Three and a Half Minute Transaction: Boilerplate and the Limits of Contractual Design, by Mitu Gulati and Robert E. Scott, is a cautionary tale about modern legal practice where the protagonist is the standard sovereign debt contract. The book discloses an undeniable flaw in sovereign bond boilerplate (the widely used pari passu clause) that, in spite of expensive, sophisticated lawyering, perpetuates a risky disconnect between party intent and contract terms. The fact that boilerplate terms persist even in elite sovereign-lending practices suggests that the problem of over-reliance on standard form language is ubiquitous.When contract terms diverge from client risk …
George Orwell’S Classic Essay On Writing: The Best Style “Handbook” For Lawyers And Judges (Part I), Douglas E. Abrams
George Orwell’S Classic Essay On Writing: The Best Style “Handbook” For Lawyers And Judges (Part I), Douglas E. Abrams
Faculty Publications
No abstract provided.
Scholarship Repository Launch Prezi, Cynthia W. Bassett
Scholarship Repository Launch Prezi, Cynthia W. Bassett
Faculty Publications
This Prezi was used as a presentation to introduce the University of Missouri School of Law Scholarship Repository to the faculty and students of the school.
Scholarship Repository Launch Brochure, Cynthia W. Bassett
Scholarship Repository Launch Brochure, Cynthia W. Bassett
Faculty Publications
This brochure is introduces the University of Missouri School of Law Scholarship Repository to the faculty and students of the school. It outlines the services provided by the library in support of the Repository and our plans for its continued growth.
A Primer On Criminal Child Abuse And Neglect Law, Douglas E. Abrams
A Primer On Criminal Child Abuse And Neglect Law, Douglas E. Abrams
Faculty Publications
No abstract provided.
Waiving Goodbye To Arbitration: Factoring Prejudice When A Party Delays Assertion Of Its Contractual Right To Arbitrate: Elliot V. Kb Home N.C., Inc., Kristen Sanocki
Waiving Goodbye To Arbitration: Factoring Prejudice When A Party Delays Assertion Of Its Contractual Right To Arbitrate: Elliot V. Kb Home N.C., Inc., Kristen Sanocki
Journal of Dispute Resolution
This note addresses the lawsuit described above, Elliott v. KB Home N.C., Inc., concerning whether KB Home waived its contractual right to arbitration by waiting three years to assert that right, which ultimately prejudiced a class of plaintiffs pursuing litigation against it. After examining how North Carolina courts decide whether to compel arbitration, this note will analyze the four-factor test North Carolina courts use to determine whether a party has sat on its right to arbitrate for too long, subjecting itself to waiver of arbitration. Finally, this note contends that North Carolina's four-factor test, as opposed to a bright-line rule, …
Article 9 And The Characterization And Treatment Of Tenant Security Deposits, R. Wilson Freyermuth, William H. Henning
Article 9 And The Characterization And Treatment Of Tenant Security Deposits, R. Wilson Freyermuth, William H. Henning
Faculty Publications
Each day, thousands of lessees enter into contracts under which they lease either real or personal property. Under the majority of these contracts, the lessee agrees to pay (and does pay) a "security deposit" to the lessor. The lessor typically agrees to refund the deposit at the conclusion of the lease term if the lessee fully performs its obligations under the lease contract. Is Article 9 relevant to this transaction? Has the lessor taken a "security interest" in the lessee's property to secure the lessee's obligations under the lease contract?
In Part I, we highlight two opinions representative of the …
Plagiarism In Lawyers’ Written Advocacy (Part Ii), Douglas E. Abrams
Plagiarism In Lawyers’ Written Advocacy (Part Ii), Douglas E. Abrams
Faculty Publications
No abstract provided.
Correcting A Flaw In The Arbitration Fairness Act, Imre Stephen Szalai
Correcting A Flaw In The Arbitration Fairness Act, Imre Stephen Szalai
Journal of Dispute Resolution
The proposed Arbitration Fairness Act of 2013 will ban courts from enforcing arbitration agreements in the employment and consumer contexts. This law will protect America's employees and consumers by keeping the courthouse door open to critical civil rights, employment, and consumer protection litigation. However, the proposed Arbitration Fairness Act suffers from a subtle flaw: it is uncertain whether the law will apply to the states. This flaw, which arises from one of the greatest constitutional errors the Supreme Court has ever made, must be corrected in order to provide the broadest protection to millions of American employees and consumers, and …