Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 30 of 52
Full-Text Articles in Law
Muddied Waters: A Review Of Joint Venture Jurisprudence In Missouri, Colin W. Byrd
Muddied Waters: A Review Of Joint Venture Jurisprudence In Missouri, Colin W. Byrd
Missouri Law Review
Nearly four decades ago, the Supreme Court of Missouri issued an opinion that continues to generate confusion on what constitutes a joint venture. Johnson v. Pacific Intermountain Express Co. not only distorted the elements required to establish a joint venture but also provided for the business organization’s wrongful creation by operation of law through implication.1 Upon this shaky foundation, corporate law jurisprudence in Missouri has grappled for decades with the same essential questions of what constitutes a joint venture and how this species of partnership may come into existence.
Gutting Bivens: How The Supreme Court Shielded Federal Officials From Constitutional Litigation, Alexander J. Lindvall
Gutting Bivens: How The Supreme Court Shielded Federal Officials From Constitutional Litigation, Alexander J. Lindvall
Missouri Law Review
“No man in this country is so high that he is above the law. . . . All officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it. . . . [And the] Courts of justice are established, not only to decide upon the controverted rights of the citizens as against each other, but also upon rights in controversy between them and the government.” —United States v. Lee (1882)
The Smokescreen Problem In Abortion Jurisprudence: How The Undue Burden Standard And Long-Term Legislative Tactics Allow Courts To Turn A Blind Eye To True Legislative Intent, Lucy Downing
Missouri Law Review
The issue of abortion has been passionately debated in this country for many years. For decades, our legal system has recognized that legitimate interests in the subject lie with both women and the State.1 From the time the right of free choice was found to be granted by our Constitution in Roe v. Wade, however, the legal standard with which to assess these competing interests has been a source of debate and confusion.2 Abortion is undoubtedly an issue that implicates deeply rooted moral considerations for many people, but the United States Supreme Court has carefully undertaken the responsibility of formulating …
The Public Policy Argument Against Trademark Licensee Estoppel And Naked Licensing, James B. Astrachan
The Public Policy Argument Against Trademark Licensee Estoppel And Naked Licensing, James B. Astrachan
Missouri Law Review
Federal courts have sometimes applied the doctrine of licensee estoppel to prohibit a trademark licensee from challenging its licensor’s rights to the licensed mark, particularly where the licensor has failed to establish and monitor quality control and the licensee contends that abandonment has occurred. This Article examines the history of licensee estoppel and those cases on which courts have and have not enforced licensee estoppel; often on the grounds that enforcing licensee estoppel would not serve the public policy of protecting consumers from deceitful practices. This Article also compares trademark licensee estoppel to patent licensee estoppel and recognize that courts …
A Comprehensive Consideration Of The Structural-Error Doctrine, Zachary L. Henderson
A Comprehensive Consideration Of The Structural-Error Doctrine, Zachary L. Henderson
Missouri Law Review
Court proceedings are rarely perfect – far from it. Errors happen regularly before and during litigation, and when they do, courts must decide how to handle them. Gone are the days when a typo might demand a new trial: many errors – typos certainly, but also much more serious mistakes – are regularly deemed harmless by the court, meaning those errors had no prejudicial effect on the outcome of the case (and so do not warrant a new trial). Yet even after the development of the harmless-error doctrine in the early part of the twentieth century, errors involving constitutional rights …
Terminating The Parental Rights Of Mothers With Disabilities: An Empirical Legal Analysis, Robyn M. Powell, Susan L. Parish, Monika Mitra, Michael Waterstone, Stephen Fournier
Terminating The Parental Rights Of Mothers With Disabilities: An Empirical Legal Analysis, Robyn M. Powell, Susan L. Parish, Monika Mitra, Michael Waterstone, Stephen Fournier
Missouri Law Review
A sizable body of scholarship indicates parents with disabilities – including physical, intellectual, psychiatric, and sensory disabilities – experience pervasive inequities that threaten their fundamental right to parenthood. In particular, compared to nondisabled parents, parents with disabilities are overrepresented in the child welfare system, receive inadequate family preservation and reunification services, and have disproportionate rates of termination of parental rights. Despite extensive legal and social science scholarship, however, there are no empirical analyses of judicial opinions to identify factors that predict termination of parental rights in cases involving parents with disabilities.
Show Me Your Id: Missouri Voter Identification Laws And The Right To Vote, Tyler M. Ludwig
Show Me Your Id: Missouri Voter Identification Laws And The Right To Vote, Tyler M. Ludwig
Missouri Law Review
Nearly fifteen years ago, the Supreme Court of Missouri held that “the right to vote is fundamental to Missouri citizens” and is afforded protections against voter identification requirements beyond what is provided by the United States Constitution.1 Since that time, state lawmakers have made numerous attempts to impose more stringent voter identification requirements.2 In Priorities USA v. State, the Supreme Court of Missouri struck down the latest of those attempts for unconstitutionally infringing upon the right to vote.3 Part II of this Note examines the facts and holding of that case. Part III examines the history, critiques, and challenges of …
“Alternative Method Required” And The Injection Of Imaginary Language Into The Missouri Constitution, Calla M. Mears
“Alternative Method Required” And The Injection Of Imaginary Language Into The Missouri Constitution, Calla M. Mears
Missouri Law Review
Mike Kehoe was appointed to Lieutenant Governor of Missouri in 2018 after Michael Parson became Governor of Missouri following the resignation of Eric Greitens.1 A lawsuit raising interesting questions about the constitutional process for filling public office vacancies quickly followed the appointment of Lieutenant Governor Kehoe.2 Article IV, Section 4 of the Missouri Constitution states: “The governor shall fill all vacancies in public offices unless otherwise provided by law, and his appointees shall serve until their successors are duly elected or appointed and qualified.”3 First, what exactly does the phrase “unless otherwise provided by law” mean in the context of …
No Holds Barred: The Use Of Restrictive Behavioral Intervention In Missouri Public Schools, Claire Hawley
No Holds Barred: The Use Of Restrictive Behavioral Intervention In Missouri Public Schools, Claire Hawley
Missouri Law Review
While students in public school still retain certain constitutional rights, these rights are not coextensive to those of adults in other settings. This is largely due to the traditional deference in American jurisprudence to school officials on decisions of student discipline. This deference is generally understood to reflect the uniquely difficult nature of student discipline, which involves the delicate balancing of students’ constitutional right to a public education with their right to a safe learning environment.
Greening The Old New Deal: Strengthening Rural Electric Cooperative Supports And Oversight To Combat Climate Change, Gabriel Pacyniak
Greening The Old New Deal: Strengthening Rural Electric Cooperative Supports And Oversight To Combat Climate Change, Gabriel Pacyniak
Missouri Law Review
New Deal cooperatives succeeded in electrifying rural America when for-profit utilities would not. Today, however, rural electric cooperatives are lagging behind when it comes to meeting the challenge of climate change. Cooperatives have collectively been slower to embrace the shift to low-carbon electricity than for-profit and municipal utilities and have served as a drag on state and federal clean energy and climate policies. This is partially because of the structural differences between cooperatives and other utilities, but also because of a weak and underdetermined federal and state regulatory structure. A few cooperatives in Colorado and New Mexico are seeking to …
The Diminishing Dominion Of Expert Opinion: Missouri’S Imposition Of The Ultimate Issue Rule, Michael S. Figenshau
The Diminishing Dominion Of Expert Opinion: Missouri’S Imposition Of The Ultimate Issue Rule, Michael S. Figenshau
Missouri Law Review
In August 2017, the Missouri General Assembly amended its expert testimony statute, Section 490.065. The newly-enacted Section 490.065.2(3)(b) states, “In a criminal case, an expert witness shall not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.” Section 490.065.2(3)(b) is identical to Federal Rule of Evidence 704(b) (“Rule 704(b)”). This change is significant because issues in criminal cases, such as deliberation with respect to homicide and the affirmative defense of insanity, …
Twenty-Nine Photographs And The Deterioration Of The Missouri Relevance Rule, Luke A. Hawley
Twenty-Nine Photographs And The Deterioration Of The Missouri Relevance Rule, Luke A. Hawley
Missouri Law Review
Courts generally prohibit the admission of unfairly prejudicial evidence. The idea is that jurors should not be shown evidence if it has a substantially greater likelihood of prejudicing the jurors against the defendant than it does of helping them determine the facts of the case. Barring objections on other evidentiary grounds, if a piece of evidence provides substantially more probative than prejudicial value, the evidence can be shown to the jury. For decades, Missouri courts have limited the admissibility of unfairly prejudicial evidence. While federal courts are governed by the Federal Rules of Evidence, Missouri is one of the few …
Out Of ‘Site: Can Government Officials Block Their Constituents On Social Media?, Lindsey Wilkerson
Out Of ‘Site: Can Government Officials Block Their Constituents On Social Media?, Lindsey Wilkerson
Missouri Law Review
Social media has revolutionized the way people communicate and created new questions about what is considered free speech. Part of this trend is how government officials – ranging from small town mayors to the President of the United States – are using social media websites like Facebook and Twitter. Many social media websites provide the ability for users to block others from seeing their posts, which can create controversy for government officials. If a government official blocks a constituent, courts usually examine whether the official was operating his or her social media account for either personal or governmental purposes. If …
Remorse In Parole Hearings: An Elusive Concept With Concrete Consequences, Nicole Bronnimann
Remorse In Parole Hearings: An Elusive Concept With Concrete Consequences, Nicole Bronnimann
Missouri Law Review
Remorse is a profound and complicated emotion and it is one that is evaluated in a surprising number of legal contexts. One particularly high-stakes evaluation of remorse occurs in the context of discretionary parole, when a parole board is deciding whether to release an inmate back to the community. This Article explains the arguments justifying the evaluation of remorse in parole hearings, evaluates how remorse is directly and indirectly incorporated into a typical parole hearing, presents legal and psychological research about the effect that the presence or absence of remorse may have on parole commissioners’ judgment of inmates’ culpability and …
Unregistered Complaints, Christine Suzanne Davik
Unregistered Complaints, Christine Suzanne Davik
Missouri Law Review
In March, the U.S. Supreme Court handed down its highly-anticipated decision in Fourth Estate Public Benefit Corporation v. Wall-Street.com, LLC, which resolved a split among U.S. Courts of Appeals concerning the point in time when a copyright owner is first able to file suit against an alleged infringer. While at first glance this case may merely appear to be a simple issue of statutory interpretation, namely whether it is upon application for registration or once a determination has been made on registration by the U.S. Copyright Office, this Article argues this decision is a clarion call for a much-needed amendment …
Big Sports Have Big Environmental And Social Consequences, Gina S. Warren
Big Sports Have Big Environmental And Social Consequences, Gina S. Warren
Missouri Law Review
Big sporting events result in significant and long-lasting environmental and social consequences for host cities and their residents. This Article discusses the spectrum of harms including environmental degradation, excess energy consumption, sidestepping the rule of law, and social segregation through eviction. It outlines the current inefficient, or nonexistent, legal framework available to address these harms and analyzes how this lack of legal framework results in host cities relinquishing local control and oversight to event organizers. It then draws upon the social license literature and recommends host cities establish a solid legal framework prior to an event to reduce the emergency …
Risk Of Choking To Death On One’S Own Blood Is Not Cruel And Unusual Punishment, Calla M. Mears
Risk Of Choking To Death On One’S Own Blood Is Not Cruel And Unusual Punishment, Calla M. Mears
Missouri Law Review
Missouri began executing inmates in 1810 by hanging Peter Johnson, a man accused of murder. Since Johnson’s execution, Missouri executed 374 inmates between 1810 and 2019. Hanging was the most common method of execution in Missouri until 1936. Lethal gas was first used in Missouri in 1937 and became the most common execution method until 1987, when lethal injection took over as the predominant method.
Consent Decrees As Emergent Environmental Law, Tracy Hester
Consent Decrees As Emergent Environmental Law, Tracy Hester
Missouri Law Review
Consent decrees – the unheralded workhorses of regulatory law – play a critical role in environmental law. The bulk of major environmental disputes at the federal level are resolved through consent decrees lodged under judicial supervision, and key federal environmental statutes and policies directly require settling parties to use consent decrees to resolve their claims. These proposed decrees, however, typically receive only a restrained judicial review that does not yield a formal judicial opinion on the full merits of the agreement. Parties, in fact, will frequently insist that the decree will not involve an admission of liability or any conclusions …