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Masthead Jun 2022

Masthead

Missouri Law Review

No abstract provided.


Impeachment And Trial After Officials Leave Office, Michael W. Mcconnell Jun 2022

Impeachment And Trial After Officials Leave Office, Michael W. Mcconnell

Missouri Law Review

The second impeachment of President Donald J. Trump raised an important and unresolved question: May Presidents and other federal officers be impeached or tried on impeachments after they have left office? Most Democrats argued that former officers can be both impeached and tried; most Republicans argued that former officers can neither be impeached nor tried. Trump himself was impeached while still in office and tried – and acquitted – after he left office. This is the sort of question that could easily arise again, in connection with presidents and other officers of either party, and it needs an answer that …


Be Careful What You Wish For: Impeachment In The Trump Era, Gene Healy Jun 2022

Be Careful What You Wish For: Impeachment In The Trump Era, Gene Healy

Missouri Law Review

Having now gotten some distance and perspective on the head-spinning Trump presidency, what have we learned about the way presidential impeachments are likely to work in the future?


Impeachment And Its Discontents, Brian C. Kalt Jun 2022

Impeachment And Its Discontents, Brian C. Kalt

Missouri Law Review

What purpose do presidential impeachments serve if the Senate does not convict? Should impeachment be attempted at all if there is no chance of conviction? These questions remind me of the old joke in which someone is asked whether he believes in infant baptism. He replies, “Believe in it? Heck, I’ve actually seen it done.”


Faculty List Jun 2022

Faculty List

Missouri Law Review

No abstract provided.


Copyright Jun 2022

Copyright

Missouri Law Review

No abstract provided.


Table Of Contents Jun 2022

Table Of Contents

Missouri Law Review

No abstract provided.


Symposium: The Two Impeachments Of Donald J. Trump Foreward: Requiem For Impeachment?, Frank O. Bowman Iii Jun 2022

Symposium: The Two Impeachments Of Donald J. Trump Foreward: Requiem For Impeachment?, Frank O. Bowman Iii

Missouri Law Review

Impeachment was inserted into the Constitution of the United States as a tool of national self-preservation. Although its most common use has been as a quotidian house-cleaning device for dispensing with corrupt or egregiously unsuitable federal judges otherwise unfireable due to life tenure, the American framers conceived impeachment’s real and essential function to be the ejection and permanent electoral disqualification of any president who proved grievously unfit or exhibited a dangerous disposition to autocracy.


First Keynote Address: The Two Impeachments Of Donald J. Trump, Congressman Jamie Raskin Jun 2022

First Keynote Address: The Two Impeachments Of Donald J. Trump, Congressman Jamie Raskin

Missouri Law Review

I believe that violation of the Emoluments Clauses was the original sin of the Trump Administration, and it began essentially on the first day of Trump in office when he said he was not going to give up his more than 150 businesses. He was not going to stop doing business with foreign governments, and he was not taking any pledge about refusing to take money from the federal government. The Foreign Emoluments Clause states that no president, no federal official, may accept presents or emoluments – which are payments – offices or titles of any kind whatsoever from a …


Second Keynote Address: The Two Impeachments Of Donald J. Trump, Senator Richard Durbin Jun 2022

Second Keynote Address: The Two Impeachments Of Donald J. Trump, Senator Richard Durbin

Missouri Law Review

It was just two years ago this month that the Senate acquitted President Trump in the first impeachment trial, and one year ago this week, he was acquitted in the second trial for inciting an insurrection against the government of the United States. Now, in the first trial, Republican Senators voted to prohibit the trial managers, the actual prosecutors, from subpoenaing any witnesses or documents. They won because they were in the majority. Before both trials, enough Republican Senators, known as jurors, announced that they had already made up their minds to acquit the President—that the not-guilty verdicts were essentially …


How Impeachment Works, Michael J. Gerhardt Jun 2022

How Impeachment Works, Michael J. Gerhardt

Missouri Law Review

Presidential impeachments test nearly everyone. Whereas constitutional adjudication largely tests the limits and powers of governmental institutions, presidential impeachments do that and more. They test whether and how members of Congress may fulfill their oaths to do “impartial justice according to the laws and Constitution of the United States;” whether, or to what extent, presidents have abused their powers; how well the American public and media understand the stakes and issues involved in the impeachment process; and to what extent Article III courts refrain from reviewing any aspect of impeachment trials. A popular concern for most observers and commentators during …


The Constitutional (And Political) Safeguards Against Impeachment, Victoria Nourse Jun 2022

The Constitutional (And Political) Safeguards Against Impeachment, Victoria Nourse

Missouri Law Review

Will the Trump impeachments inspire a flurry of future presidential impeachments? Will the second Trump impeachment, which occurred after the President left office, spur impeachments of lesser, former government officials? These and other questions emerged during the 2022 Missouri Law Review Symposium and on the Senate floor during the Trump impeachment trials. I have argued that we can make an educated prognosis about these possibilities based on constitutional structure. I called this argument the “political safeguards” of impeachment in my recent book, The Impeachments of Donald Trump: An Introduction to Constitutional Argument. What I called political safeguards, invoking the great …


Impeachment In A System Of Checks And Balances, Keith E. Whittington Jun 2022

Impeachment In A System Of Checks And Balances, Keith E. Whittington

Missouri Law Review

Measured by any yardstick, it is hard to think that the first impeachment of President Donald Trump was particularly successful. But there are important broader questions raised particularly by the first Trump impeachment that have significance for how we think about the impeachment power moving forward. If future impeachment efforts are to be more successful, or even useful, Congress will have to understand the nature of the constitutional task that it is undertaking.


What’S Next?: Missouri’S Medicaid Expansion After Doyle V. Tidball, Jayke Simsheuser Jun 2022

What’S Next?: Missouri’S Medicaid Expansion After Doyle V. Tidball, Jayke Simsheuser

Missouri Law Review

For 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, …


Time For A New Shoe? Making Sense Of Specific Jurisdiction, Jessica Hylton Apr 2022

Time For A New Shoe? Making Sense Of Specific Jurisdiction, Jessica Hylton

Missouri Law Review

Many of us can likely recall the uncomfortable feeling of a shoe that just does not fit. Whether too big or too small, it no longer offers the protection it was designed to provide and risks only pain and injury. Either way, it is time for a new shoe. Personal jurisdiction has its own shoe. In the groundbreaking case of International Shoe Co. v. Washington, the Supreme Court of the United States set out the necessary principles for a court to exercise personal jurisdiction over a defendant. These principles have endured for nearly 100 years. However, recent expansions on personal …


Faculty List Apr 2022

Faculty List

Missouri Law Review

No abstract provided.


Masthead Apr 2022

Masthead

Missouri Law Review

No abstract provided.


Ending Political Discrimination In The Workplace, Craig R. Senn Apr 2022

Ending Political Discrimination In The Workplace, Craig R. Senn

Missouri Law Review

Currently, a significant disparity exists in workplace legal protections for an employee’s political affiliation. On one hand, public sector (federal, state, or local government) employees enjoy a bevy of protections. For example, twenty million state and local government employees rely on the First Amendment (and 42 U.S.C. § 1983) to guard against workplace discrimination based on political affiliation. Over two million federal government civil service employees lean on the Civil Service Reform Act of 1978 (CSRA) to provide that same protection.


Unconstitutional State Special Laws: Is Rational Basis Review The Rational Solution?, Chloe Slusher Apr 2022

Unconstitutional State Special Laws: Is Rational Basis Review The Rational Solution?, Chloe Slusher

Missouri Law Review

For centuries, scholars, judges, and lawmakers have argued over the role of the judiciary in striking down laws created by a democratically elected legislature. This problem has come to be known as the “Countermajoritarian Difficulty.” The famous Carolene Products footnote offers one widely accepted answer to the Countermajoritarian Difficulty. It stipulates that the judiciary should only invalidate laws that violate fundamental rights specified in the Constitution, disadvantage discrete or insular minorities, or undermine the political process. This approach promised judicial deference and allowed the legislature to create economic regulations. Debates on this subject typically involve federal courts. However, the Supreme …


Born-Again Rfra: Will The Military Backslide On Its Religious Conversion?, Michael Berry, Antony Barone Kolenc Apr 2022

Born-Again Rfra: Will The Military Backslide On Its Religious Conversion?, Michael Berry, Antony Barone Kolenc

Missouri Law Review

This Article details the importance of religious freedom in the United States and its armed forces, as well as the unfortunate history of non-accommodation that has plagued the Department of Defense (DoD) until recent years. It reviews the jurisprudence surrounding military service member free-exercise claims before and after the landmark Religious Freedom Restoration Act (RFRA) of 1993, and it analyzes how courts have addressed those claims within the military. It proposes an analysis for handing religious accommodation claims under RFRA in the military, and examines a series of hypotheticals that demonstrate the issues the DoD must confront and accommodate if …


Taking The Fight Out Of Fighting Words On The Doctrine’S Eightieth Anniversary: What “N” Word Litigation Today Reveals About Assumptions, Flaws And Goals Of A First Amendment Principle In Disarray, Clay Calvert Apr 2022

Taking The Fight Out Of Fighting Words On The Doctrine’S Eightieth Anniversary: What “N” Word Litigation Today Reveals About Assumptions, Flaws And Goals Of A First Amendment Principle In Disarray, Clay Calvert

Missouri Law Review

Analyzing a trio of recent rulings involving usage of the “N” word by white people directed at Black individuals, this Article explores problems with the United States Supreme Court’s fighting words doctrine on its eightieth anniversary. In the process of examining these cases and the troubles they illuminate, including the doctrine’s dubious reliance on racial and gender-based stereotypes, this Article calls for the Supreme Court to do more than merely refine its amorphous contours that lower courts now are fleshing out for themselves. Specifically, this Article contends that the Court must reconsider the foundational goals that animate this aging, often-criticized …


Copyright Apr 2022

Copyright

Missouri Law Review

No abstract provided.


Table Of Contents Apr 2022

Table Of Contents

Missouri Law Review

No abstract provided.


Valuing The Vulnerable: A Proposed Approach To Cyclical Competency, Kirsten Pryde Apr 2022

Valuing The Vulnerable: A Proposed Approach To Cyclical Competency, Kirsten Pryde

Missouri Law Review

The competency evaluation system in the United States is in crisis. The criminal justice system has long recognized that a criminal defendant has a right to a fair trial, and being competent to stand trial is a necessary component of that right. Mental illness is increasingly prevalent in our inmate population, and while mental illness and incompetence are not synonymous, the two are often correlated. Unsurprisingly then, competency evaluation requests have skyrocketed in recent years. But importantly, competency is not static. Cycles of compensation and decompensation may require a defendant to go through the competency evaluation system multiple times before …


Children Sentenced To Die In Prison: Why A Lifetime Behind Bars Is No Longer Justified For Juvenile Offenders, Logan Moore Apr 2022

Children Sentenced To Die In Prison: Why A Lifetime Behind Bars Is No Longer Justified For Juvenile Offenders, Logan Moore

Missouri Law Review

Brett Jones turned fifteen years old the summer before he was set to start high school. Twenty-three days later, he was arrested and charged as an adult. Now, he will spend the rest of his life behind bars. In the United States, a fifteen-year-old child cannot legally vote, drink alcohol, or – in most states – drive a car without adult supervision. That same fifteen-year-old, however, who is not considered responsible enough to buy a ticket to an R-rated movie, may be sentenced to life in prison without the opportunity for parole (“LWOP”). Not only is the United States the …


Pool Houses And Public Policy: The Uncollectability Of Contractual Attorney Fees In Missouri, Evan Miller Apr 2022

Pool Houses And Public Policy: The Uncollectability Of Contractual Attorney Fees In Missouri, Evan Miller

Missouri Law Review

Homeowners associations (“HOAs”) are a foundational piece of life in the United States for people of all socioeconomic backgrounds. These planned communities provide stable living arrangements that many homeowners desire, and protect buyers’ expectations of a neighborhood’s character. Despite the ostensibly beneficial goals of HOAs, they have generated substantial controversy. Columbia, Missouri, was the backdrop of a garden-variety HOA dispute between Ajay Aggarwal and Megha Garg (“the Homeowners”) and the Arrowhead Lake Estates Homeowners Association (“Arrowhead”). The Homeowners submitted a plan for several outdoor improvements but failed to include a small shed that would cover pool equipment. After a trial …


Missouri’S New Green Standard Or Gray Area? What Facts And Evidence Missouri Courts Must Consider In Summary Judgment Motions Green V. Fotoohighiam, 606 S.W.3d 113 (Mo. 2020) (En Banc)., Clayton A. Voss Jan 2022

Missouri’S New Green Standard Or Gray Area? What Facts And Evidence Missouri Courts Must Consider In Summary Judgment Motions Green V. Fotoohighiam, 606 S.W.3d 113 (Mo. 2020) (En Banc)., Clayton A. Voss

Missouri Law Review

Over the past three decades, it has become routine for Missouri litigators to cite ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp. as Missouri’s summary judgment standard. It has remained one of the Supreme Court of Missouri’s most cited opinions regarding summary judgment despite revisions to Missouri Rule of Civil Procedure 74.04(c)(1)–(2) in 1994 – one year after ITT interpreted and applied the previous version of the rule. In August 2020, the Supreme Court of Missouri revised ITT’s outdated guidance on what constitutes the record upon which trial courts must rely when deciding motions for summary judgment. Green v. …


The Sword And The Shield: The Benefits Of Opinion Letters By Employment And Labor Agencies, Keith E. Sonderling, Bradford J. Kelley Jan 2022

The Sword And The Shield: The Benefits Of Opinion Letters By Employment And Labor Agencies, Keith E. Sonderling, Bradford J. Kelley

Missouri Law Review

Opinion letters are a highly beneficial vehicle for federal and state agencies to provide meaningful guidance for courts, businesses, workers, unions, trade groups, practitioners, advocacy groups, and the public at large. This Article examines the benefits and criticisms of opinion letters issued by employment and labor agencies. For more than seventy years the Department of Labor (“DOL”) provided employers, workers, and others with guidance regarding the interpretation and application of the Fair Labor Standards Act and related regulations through opinion letters. Indeed, opinion letters have been issued during both Democratic and Republican administrations. Unfortunately, in more recent years, opinion letters …


Masthead Jan 2022

Masthead

Missouri Law Review

No abstract provided.


Giving Up The Ghost In The Machine: Emergency Cellphone Tracking Under 18 U.S.C. § 2702(C)(4) Is A Search, Andrew Guinan Jan 2022

Giving Up The Ghost In The Machine: Emergency Cellphone Tracking Under 18 U.S.C. § 2702(C)(4) Is A Search, Andrew Guinan

Missouri Law Review

In the post-September 11th world, our judiciary has been forced to confront the truth that “all free peoples have had to balance the demands of liberty with the demands of security.” This tension is not new, and in the past, “we Americans have been able to plant our flag well down the spectrum towards liberty.” Recently, however, the interception of electronic communications and other data by local, state, and federal law-enforcement authorities has emerged as a central point in the debate. While many Americans might be willing to endure some degree of intrusion under the threat of national terrorism, the …