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“Heads I Win, Tails You Lose”: The End Of Employers’ Exploitation Of The Federal Arbitration Waiver Prejudice Requirement, Peyton E. Rosencrants
“Heads I Win, Tails You Lose”: The End Of Employers’ Exploitation Of The Federal Arbitration Waiver Prejudice Requirement, Peyton E. Rosencrants
Missouri Law Review
On its face, an arbitration agreement suggests a straightforward process: should a dispute between the parties subject to the agreement arise, the dispute will be resolved through arbitration rather than litigation. But sometimes the parties do not follow this seemingly predetermined path. For example, many employers include mandatory, boilerplate arbitration agreements as conditions of employment. As is often the case, what happens when an employee sues her employer without knowledge of the contract’s arbitration clause? What if the employer allows the lawsuit to proceed for several months before it decides that it would fare better before an arbitrator? Must a …
Osha And Public Health In An Emergency And A Culture War, Richard R. Carlson
Osha And Public Health In An Emergency And A Culture War, Richard R. Carlson
Missouri Law Review
The approval of COVID-19 vaccinations for working age Americans in early 2021 offered a welcome release from oppressive non-vaccination safety measures. Group activities including normal employment operations became possible with a greatly reduced risk of serious illness and death. However, escape from the virus and non-vaccination measures was limited by widespread resistance to vaccination. OSHA became one of a handful of federal government offices that adopted rules to motivate more people to accept vaccination as the best way to protect themselves, protect their families, and escape the oppression of non-vaccination measures. OSHA, which regulates private sector “occupational” health, issued an …
The Exclusionary Rule And Judicial Integrity: An Empirical Study Of Public Perceptions Of The Exclusionary Rule, Matthew D. Kim
The Exclusionary Rule And Judicial Integrity: An Empirical Study Of Public Perceptions Of The Exclusionary Rule, Matthew D. Kim
Missouri Law Review
Fourth Amendment violations call upon courts to resolve the difficult question of who will benefit from past misconduct—the factually guilty defendant or the overreaching government. Either way, courts are forced to punish the misdeed of one actor and allow the other to profit from its misconduct, potentially undermining the public’s trust in the courts. The Supreme Court opined that suppressing unlawfully obtained evidence through the exclusionary rule deters police misconduct and better preserves judicial integrity. However, with the recent discrediting of the police deterrence rationale and the growing belief that the suppression of probative evidence instead undermines judicial integrity, the …
Reforming Qualified-Immunity Appeals, Bryan Lammon
Reforming Qualified-Immunity Appeals, Bryan Lammon
Missouri Law Review
The Supreme Court held in Mitchell v. Forsyth that defendants have a right to immediately appeal from the denial of immunity. This right to appeal alone is enough to halt any progress in civil-rights litigation and add complexity to a case, and defendants can use these appeals to wear down plaintiffs. But appeals from the denial of qualified immunity—or simply “qualified-immunity appeals”—are worse than some seem to realize. In the 35 years since Mitchell, the federal courts have steadily expanded the scope and availability of these appeals. The courts have also undermined (or let defendants undermine) the limits on those …
A Confusing Clarification: How The Bad-Faith Exception In 28 U.S.C. § 1446(C) Costs More Than It Is Worth, Tate Cooper
A Confusing Clarification: How The Bad-Faith Exception In 28 U.S.C. § 1446(C) Costs More Than It Is Worth, Tate Cooper
Missouri Law Review
It matters where a case is heard. Venue and jurisdiction are not solely dry, esoteric matters—they impact the course of litigation and litigants’ rights. In general, plaintiffs prefer to litigate in state court, while defendants prefer federal court. Unfortunately for defendants, federal courts have limited jurisdiction. To remove an action from state to federal court, defendants must plausibly characterize an action as fitting within a particular jurisdictional grant. As attentive civil procedure students remember from World-Wide Volkswagen Corp. v. Woodson, defendants go to extraordinary lengths to avoid plaintiff-friendly jurisdictions.
Show-Me The Money: Outdated Solicitation Laws Expose Municipalities To Liability, Jessica Davis
Show-Me The Money: Outdated Solicitation Laws Expose Municipalities To Liability, Jessica Davis
Missouri Law Review
On any given night, roughly half a million people in the United States are homeless. In Missouri alone, approximately 6,500 people are homeless on any given day. Homeless populations create health, safety, and financial complications for municipalities. A strategy used by many municipalities to control these complications is the passage of ordinances restricting the actions of homeless populations. Commonly, these laws restrict solicitation, colloquially known as panhandling. Some laws ban panhandling altogether. While panhandling ordinances may have been a feasible solution in the past, a recent United States Supreme Court decision, Reed v. Town of Gilbert, has rendered many of …
Section 230 Of The Communications Decency Act Of 1996: The Antiquated Law In Need Of Reform, Katherine Mediavilla
Section 230 Of The Communications Decency Act Of 1996: The Antiquated Law In Need Of Reform, Katherine Mediavilla
Missouri Law Review
Imagine a world without the information sharing-giants of Facebook, YouTube, Instagram, TikTok, Twitter, or Reddit. It is nearly impossible to go a day without some type of exposure to content created, published, and shared on such platforms. A world without these platforms would bear a striking resemblance to the world in 1996, when Congress passed the Communications Decency Act (“CDA”). The CDA, often referred to as “the 26 words that made the internet,” states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content …
Religious Organizations In Missouri Continue To Escape Liability In Negligence Actions Involving Abuse Of Children Under The Guise Of The First Amendment, Rachel M. Taylor
Religious Organizations In Missouri Continue To Escape Liability In Negligence Actions Involving Abuse Of Children Under The Guise Of The First Amendment, Rachel M. Taylor
Missouri Law Review
“Church allowed abuse by priest for years” was the headline of the Boston Globe on Sunday, January 6, 2002. Reporters at the Boston Globe exposed the truth about the horrendous decades of child sexual abuse at the hands of Catholic priests in the Boston area. This story launched the Catholic Church’s secrets into public view and helped unravel the pattern of abuse perpetuated by its leaders for decades. The abuse, however, was not limited to the city of Boston—or even just the United States. Claims of sexual abuse spanned the globe. Thousands of priests have been accused, and the Catholic …
Symposium: The Two Impeachments Of Donald J. Trump Foreward: Requiem For Impeachment?, Frank O. Bowman Iii
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
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
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
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 …
Be Careful What You Wish For: Impeachment In The Trump Era, Gene Healy
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
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.”
Impeachment And Trial After Officials Leave Office, Michael W. Mcconnell
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 …
The Constitutional (And Political) Safeguards Against Impeachment, Victoria Nourse
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
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
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, …
Ending Political Discrimination In The Workplace, Craig R. Senn
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.