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Articles 1 - 30 of 49
Full-Text Articles in Law
Other Disciplines, Methodologies, And Countries: Studying Courts And Crisis, Tracey E. George
Other Disciplines, Methodologies, And Countries: Studying Courts And Crisis, Tracey E. George
Missouri Law Review
The United States is at war: in Iraq, in Afghanistan, and against terrorism. This symposium asks the timely question: How do governments and their citizens respond to fear and risk in times of crisis? In the essay, I begin by framing the issue very briefly. I then argue that understanding this issue requires scholars to follow Epstein and Wells by looking to other disciplines, methodologies, and countries.
Defending Deference: A Response To Professors Epstein And Wells, Robert J. Pushaw Jr.
Defending Deference: A Response To Professors Epstein And Wells, Robert J. Pushaw Jr.
Missouri Law Review
This Note primarily seeks to challenge Professor Wells’s ideas contributed to the symposium. Specifically, the Constitution creates political and institutional structures that lead to strong executive-branch initiative in military affairs and fairly circumscribed judicial review. Constitutional considerations, as well as precedent, cast doubt on the viability of Wells’s “hard look” proposal and suggest that the Court will—should—continue its pattern of reviewing with deference wartime claims that the President has violated individual rights.
Questioning Deference, Christina E. Wells
Questioning Deference, Christina E. Wells
Missouri Law Review
Part I of this Article discusses executive branch actions in the crises discussed earlier and identifies a pattern of response to certain perceived threated. Part II assesses this historical pattern in light of a psychological understanding of risk assessment, concluding that the pattern is consistent with predictably skewed risk assessment. Part III discusses the psychology of accountability and the possibility that judicial review can serve as a mechanism of accountability and improve executive decision making.
Epa Oversight In Determining Best Available Control Technology: The Supreme Court Determines The Proper Scope Of Enforcement, Jennifer A. Davis Foster
Epa Oversight In Determining Best Available Control Technology: The Supreme Court Determines The Proper Scope Of Enforcement, Jennifer A. Davis Foster
Missouri Law Review
In Alaska Department of Environmental Conservation v. EPA, the Supreme Court addressed the issue of whether the EPA was authorized to bar construction of a new major emitting facility where it found the state permitting authority’s best available control technology (BACT) determination unreasonable. The Court held that, given the legislative history and plain language of the enforcement provisions contained in the Clean Air Act, the EPA reasonably believes that the state permitting authority has acted arbitrarily in determining BACT. This Note explores the analysis employed by the Court and argues that, in light of the underlying purpose of the PSD …
Foreword Symposium: Interdisciplinary Perspectives On Fear And Risk Perception In Times Of Democratic Crisis:, Christina E. Wells, Jennifer K. Robbennolt
Foreword Symposium: Interdisciplinary Perspectives On Fear And Risk Perception In Times Of Democratic Crisis:, Christina E. Wells, Jennifer K. Robbennolt
Missouri Law Review
The terrorists attacks on September 11, 2001, the implentation of the USA PATRIOT ACT, and the government's indefinite detention of "enemy combatants" have all sparked renewed interest in the balance between security and liberty in times of crisis. Recently, legal scholars have debated topics ranging from the constitutionality and wisdom of the government's responses to terror to the appropriate roles for institutional actors and the public in national security decisions. While these debates have contributed enormously to the public discussion that is the foundation of a democratic society, they have not completely captured the complexities of governmental responses to crisis. …
Encouraging Courage: Law's Response To Fear And Risk, William B. Fisch
Encouraging Courage: Law's Response To Fear And Risk, William B. Fisch
Missouri Law Review
No abstract provided.
Fear And Risk In Times Of Crisis: The Media's Challenge, Richard C. Reuben
Fear And Risk In Times Of Crisis: The Media's Challenge, Richard C. Reuben
Missouri Law Review
With five to ten minutes to comment at the very end of an intellectually exhilarating two-day symposium, I am quite frankly tempted to say "You know, they've all got a point," and leave it at that. But this has been an important discussion, and in this comment I'd like to at least try to make a small contribution to it.
What's Fear Got To Do With It - It's Affect We Need To Worry About, Paul Slovic
What's Fear Got To Do With It - It's Affect We Need To Worry About, Paul Slovic
Missouri Law Review
My objective in this paper is to provide psychological perspective on the challenges to rational decision making in the face of terrorism and other risk crisis. I shall begin with an introduction to the psychology of risk, highlighting the role of affect and its contribution to what may be called “risk as feeling.” I shall then address the need to educate and inform citizens about risks from terrorism and some of the particular challenges this entails.
Risk Realization, Emotion, And Policy Making, Chris Guthrie
Risk Realization, Emotion, And Policy Making, Chris Guthrie
Missouri Law Review
People are likely to overestimate the impact of negative life events on our enduring sense of well-being. If true, this empirical finding puts policy makers in an awkward position because they are generally called upon to make policy in anticipation of , rather than in response to, such events. Nonetheless, I will argue that policy makers should take into account our tendency to overestimate the emotional impact of such events.
Fear: A Story In Three Parts, Rachel F. Moran
Fear: A Story In Three Parts, Rachel F. Moran
Missouri Law Review
This article reflects on the story of Army PFC Jesse A. Givens. It is a story of fear in three parts. I hope to gain understanding of emotion as part of a private experience, and interpersonal communication, and a public event. As the story will show, fear can be defined in purely cognitive terms. Fear can also be defined as “cognition plus.” Argued here is that a purely cognitive approach is inadequate for a complete analysis of emotion’s role in collective decision-making. What seems critical is that proponents of both pure cognition and cognition plus move beyond definitions of emotion …
Eating The Poisonous Fruit: The Eighth Circuit Will Not Exclude Derivative Evidence From A Miranda Violation, Kerry F. Schonwald
Eating The Poisonous Fruit: The Eighth Circuit Will Not Exclude Derivative Evidence From A Miranda Violation, Kerry F. Schonwald
Missouri Law Review
Today almost anyone who has ever turned on a television is familiar with the four Miranda warnings. However, the general public is probably not aware of what happens when those rights are violated. In United States v. Villalba-Alvarado, the Eighth Circuit Court of Appeals joined the Third and Fourth Circuits in holding that the poisonous fruit doctrine does not apply to physical evidence derived from a Miranda violation.
Missouri's Requirements For Federal Habeas Corpus Review: An Analysis Of Exhaustion And Tolling Of Statutes Of Limitations, Aubree J. Jehle
Missouri's Requirements For Federal Habeas Corpus Review: An Analysis Of Exhaustion And Tolling Of Statutes Of Limitations, Aubree J. Jehle
Missouri Law Review
This summary contends that exclusion of discretionary review by the Missouri Supreme Court from the available list of remedies will not impart the statute of limitation for two reasons. First, in Missouri, the right to apply for discretionary transfer is guaranteed by the state constitution. If the statute of limitation for federal habeas corpus petitions were not tolled by a prisioner’s pending application for discretionary transfer, state prisoners would be forced unfairly to choose between state and federal constitutional rights. Second, the characterization of a particular state remedy as “extraordinary” for exhaustion purposes should not affect its character as “direct” …
Perceptions Of Terrorism And Disease Risks: A Cross-National Comparison, Neal Feigenson, Daniel Bailis, William Klein
Perceptions Of Terrorism And Disease Risks: A Cross-National Comparison, Neal Feigenson, Daniel Bailis, William Klein
Missouri Law Review
This article seeks to demonstrate why is important for policy makers to understand how people evaluate health and safety risks. This type of understanding is essential to communicate policy and to anticipate public reactions. Current events have caused many people across the globe to feel more at risk than previous generations, making this inquiry especially relevant.
Say Goodbye To Frye: Missouri Supreme Court Clarifies Standard For Admitting Expert Testimony In Civil And Administrative Cases, Jaime M. Nies
Say Goodbye To Frye: Missouri Supreme Court Clarifies Standard For Admitting Expert Testimony In Civil And Administrative Cases, Jaime M. Nies
Missouri Law Review
In State Board of Registration for the Healing Arts v. McDonagh, the Supreme Court of Missouri clarified the standard of admissibility for expert testimony in civil cases and administrative proceedings. This Note will examine the different standards that Missouri courts have applied and explore how the new McDonagh standard will impact Missouri courts.
War Fever Symposium:, Geoffrey R. Stone
War Fever Symposium:, Geoffrey R. Stone
Missouri Law Review
As Justice Robert Jackson observed more than half a century ago, “[i]t is easy, by giving way to the passion, intolerance and suspicion of wartime, to reduce our liberties to a shadow, often in answer to exaggerated claims of security.” Indeed, the United States has a long and unfortunate history of overreacting to the dangers of wartime. Again and again, Americans have allowed fear to the better of them. Some measure of fear, of course, is inevitable—even healthy—in time of war. Otherwise, it would be difficult, if not impossible, for a nation to make the sacrifices war demands. An essential …
Fear, Irrationality, And Risk Perception, Henry L. Chambers Jr.
Fear, Irrationality, And Risk Perception, Henry L. Chambers Jr.
Missouri Law Review
This brief commentary makes two points. The first is that fear can play multiple roles in any decision-making process. The second is that accurately determining whither reactions to fear are irrational is a complex task. Though neither point necessarily requires that symposium participants abandon their position, together they suggest that extreme care is necessary in developing policy prescriptions based on the claim that fear can trigger irrationality.
Two Mistakes Behavioralists Make: A Response To Professors Feigenson Et Al. And Professor Slovic, Thomas A. Lambert
Two Mistakes Behavioralists Make: A Response To Professors Feigenson Et Al. And Professor Slovic, Thomas A. Lambert
Missouri Law Review
This article provides a critique of Professors Feigenson and Slovic's submissions to the Interdisciplinary Perspectives on Fear and Risk Perception in Times of Democratic Crisis Symposium. Examined are two common mistakes that behaviorists make; 1) discounting the rational account too quickly and 2) reflexively advocating a governmental "fix."
Fragmented State, Pluralist Society: How Liberal Institutions Promote Fear, Corey Robin
Fragmented State, Pluralist Society: How Liberal Institutions Promote Fear, Corey Robin
Missouri Law Review
Fear can be used as an instrument of political repression. The purpose for using it is to target those whose actions or ideas pose a threat to established arrangements of power and authority. Repression is not aimed at ensuring laws are followed but that the powerful are obeyed. There has been a strong consensus among experts about the type of political structure that arouses repressive fear: a centralized unified state monopolizing the means of coercion. However, this is an over-simplification. The state is not the only entity capable of wielding the repressive powers of fear.
To Support And Defend The Constitution Of The United States Against All Enemies, Foreign And Domestic: Four Types Of Attorneys General And Wartime Stress, Betty Houchin Winfield
To Support And Defend The Constitution Of The United States Against All Enemies, Foreign And Domestic: Four Types Of Attorneys General And Wartime Stress, Betty Houchin Winfield
Missouri Law Review
War exacerbates the usual tensions between individual freedoms and national security. In such times, the United States frequently sacrifices its tradition of individual autonomy and deliberative debate for the security and unanimity of an autocratic, military-style government. Individual rights are often the first casualties of hastily enacted legal measures that expand executive power without regard to constitutional checks and balances. While the expansions have generated criticism and calls for greater government accountability, it is often difficult to determine who within the executive should be held accountable. As the President’s chief law enforcement officer, the Attorney General of the United States …
Missouri's Interfacing Of The First Amendment And Right Of Publicity: Is The Predominant Purpose Test Really That Desirable, Michael S. Kruse
Missouri's Interfacing Of The First Amendment And Right Of Publicity: Is The Predominant Purpose Test Really That Desirable, Michael S. Kruse
Missouri Law Review
Many jurisdictions have struggled with the difficult question of how they should interface the interest of a celebrity in his or her right of publicity and the interest society holds in the freedom of artistic expression. The United States Supreme Court has not definitively addressed this issue, and, as a result, the approach to dealing with these types of First Amendment claims varies from jurisdiction to jurisdiction. This Note examines how the Missouri Supreme Court recently confronted this issue. To appreciate the court's analysis, it is important to understand the interests that the right of publicity seeks to protect and …
No Harm, No Rule: The Muddy Waters Of Agency Policy Statements And Judicial Review Under The Missouri Administrative Procedure Act, Christopher Pieper
No Harm, No Rule: The Muddy Waters Of Agency Policy Statements And Judicial Review Under The Missouri Administrative Procedure Act, Christopher Pieper
Missouri Law Review
The volume and variety of actions state and federal agencies take to implement a given regulatory scheme sometimes makes it difficult for courts to determine the difference between informal agency policy statements and formal agency rules. The Missouri Supreme Court dealt with this issue in the context of a challenge to a state agency’s implementation of the federal Clean Water Act. The court held that Missouri’s impaired waters list was an agency policy statement, rather than a rule, and that the challenge to the list was not ripe. This Note will examine the potential impact of the court’s decision on …
Enforcing Environmental Regulations: Concentrated Animal Feeding Operations, Terence J. Centner
Enforcing Environmental Regulations: Concentrated Animal Feeding Operations, Terence J. Centner
Missouri Law Review
This Article argues that the revised federal provisions governing potential pollutants from concentrated animal feeding operations do little to advance administrative and enforcement efforts. While the new provisions offer significant improvements for identifying which animal feeding operations may be regulated as concentrated animal feeding operations, they do not address major enforcement issues. The government’s failure to administer and enforce existing regulations undermines efforts to regulate more animal feeding operations or to impose more comprehensive regulations. To achieve greater equity, and possible to augment the long-term viability of agriculture, the EPA must direct more attention to helping the state administer and …
I Can't Get No Satisfaction: Missouri Requires Non-Settling Defendants To Plead And Prove Prior Settlements As An Affirmative Defense, Scott T. Jansen
I Can't Get No Satisfaction: Missouri Requires Non-Settling Defendants To Plead And Prove Prior Settlements As An Affirmative Defense, Scott T. Jansen
Missouri Law Review
This note examines the decision in Norman v. Wright in light of Sections 538.230 and 537.060 of the Missouri Revised Statutes. The court held that to obtain the credit afforded by Section 537.060, a defendant must plead the existence of a settlement as an affirmative defense. This holding is contrary to both common sense and, in the case of medical malpractice, to the Missouri Supreme Court's own prior directive.
Due Process Right To Privacy: The Supreme Court's Ultimate Trump Card, Jayne T. Woods
Due Process Right To Privacy: The Supreme Court's Ultimate Trump Card, Jayne T. Woods
Missouri Law Review
This article examines the progress of the Supreme Court’s jurisprudence on a right to privacy. In Lawrence v. Texas, the Court overruled its decision Bowers v. Hardwick where the Court had ended the incremental progression of right to privacy challenges to state policy initiatives concerning private conduct. Such challenges have had the effect of shifting policy without the consent of the legislatures.
Missouri's Religious Freedom Restoration Act: A New Approach To The Cause Of Conscience, James A. Hanson
Missouri's Religious Freedom Restoration Act: A New Approach To The Cause Of Conscience, James A. Hanson
Missouri Law Review
This Law Summary will examine both the congressional and state efforts to buttress religious liberty guarantees. Of primary interest here is the most recent addition to this community: Missouri’s RFRA. After outlining the history and language of Missouri’s RFRA, this Summary will provide guidance for the interpretation and application of the statute in Missouri.
Missouri Supreme Court Rules: Despite Change In Statute, Sleeping It Off Behind The Wheel Is Still Not An Option, Amanda Allen Miller
Missouri Supreme Court Rules: Despite Change In Statute, Sleeping It Off Behind The Wheel Is Still Not An Option, Amanda Allen Miller
Missouri Law Review
When one thinks of drunk driving, one usually imagines a person careening down the road, putting the lives of other motorists in danger. However, an intoxicated person may be subject to the same drunk driving sanctions simply by sitting, sleeping, or passing out in the driver’s seat after turning on the motor. In Cox v. Director of Revenue, the Missouri Supreme Court upheld a driver’s license revocation on just those facts, holding that when a driver is in a vehicle and the motor is running, there is probable cause to believe that he is “operating” the vehicle even if he …
New Voice For The Workplace: A Proposal For An American Works Councils Act, A, Stephen F. Befort
New Voice For The Workplace: A Proposal For An American Works Councils Act, A, Stephen F. Befort
Missouri Law Review
Part I of this Article introduces the notion of voice and summarizes the benefits of employee voice in the workplace. Part II provides and overview of how unions amplify employee voice and chronicles the decline of the American labor movement. In Part III, the Article explores various alternative voice mechanisms with particular reference to movement-initiated employee participation programs borrowed from Japan. Part IV analyzes Section 8(a)(2) of the National Labor Relations Act and discusses how that provision serves as a limitation on certain types of employee participation practices. Part V reviews various proposals that have been suggested as a means …
Eminent Domain Actions Targeting First Amendment Land Uses, Shelley Ross Saxer
Eminent Domain Actions Targeting First Amendment Land Uses, Shelley Ross Saxer
Missouri Law Review
This Article advocates that courts should distinguish between typical land use regulation and should impose stricter constitutional limitations on the eminent domain power. Under our current concept of public welfare the potential for government abuse of its eminent domain power is great. The government's attempt to eliminate an undersirable, but constitutionally protected, use from its community through condemnation must be carefully scrutinized to ensure that there is not an impermissible motive behind the action. Eminent domain actions targeting land uses protected by the First Amendment should be subject to heightened scrutiny.
Liberalizing The Mansfield Rule In Missouri: Making Sense Of The Extraneous Evidence Exception After Travis V. Stone, Jason R. Mudd
Liberalizing The Mansfield Rule In Missouri: Making Sense Of The Extraneous Evidence Exception After Travis V. Stone, Jason R. Mudd
Missouri Law Review
In Missouri, to obtain a new trial based on juror misconduct, a two step process must be used. First, admissible evidence of misconduct must be presented, and second, the evidence of misconduct must be sufficient to convince the trial court that the misconduct prejudiced a party. This Note examines the current status of Missouri law governing the first prong of this analysis: the admissibility of juror testimony offered to establish juror misconduct involving the gathering of extra-judicial evidence.
Game Of Hide And Seek In Bankruptcy: The Supreme Court Levels The Playing Field, The, Jennifer A. Davis Foster
Game Of Hide And Seek In Bankruptcy: The Supreme Court Levels The Playing Field, The, Jennifer A. Davis Foster
Missouri Law Review
Certain debts are categorically barred from discharge through bankruptcy. Debt for money obtained by fraud is one such category. In Archer v. Warner, the United States Supreme Court addressed the issue of whether a voluntary settlement agreement between the parties that generally released underlying fraud claims so changed the nature of the debt as to render it dischargeable in bankruptcy. This Note explores the analysis employed by the Court and argues that, in light of the Court’s precedent in this area and underlying purpose of the Code, the Court in Archer reached the correct conclusion.