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Foreword, Marcia L. Mccormick

Saint Louis University Law Journal

This volume of the Saint Louis University Law Journal contains a number of terrific articles by participants in the 2024 symposium cosponsored by the Journal and the William C. Wefel Center for Employment Law at Saint Louis University. The topic, Revisiting Religion in the Struggle for Workplace Justice, grew, in part, out of twin, somewhat dialectic motivations of mine: frustration and hope. My own research over the last several years has been focused on ways that people are marginalized because of their sex, gender, and sexuality, particularly through growing claims that religion requires the ability to exclude, to contribute …

The Curious Case Of Religious Accommodation, Dallan F. Flake

Saint Louis University Law Journal

The COVID-19 pandemic sparked newfound interest in—and scrutiny of—religious accommodation law due to the proliferation of lawsuits by workers who sought exemptions from their employers’ vaccine mandates. This piece contributes to the burgeoning conversation around workplace religious accommodations by examining the evolution of the law from its origin in 1972 to the present. The law’s development has not followed a straight line, but rather is marked by triumphs and defeats, advances and setbacks, that defy conventional explanation. If the topsy-turvy development of religious accommodation law has taught us anything, it is to expect the unexpected. But what seems clear is …

Whose Labor Law Do We Follow? St. Louis’S Jesuits And Labor Justice, Ken Homan

Saint Louis University Law Journal

In this essay, Br. Ken Homan, SJ explores how Jesuits in St. Louis varyingly referred to Natural Law and statutory law when addressing questions of labor rights and justice. Homan provides three categories of engagement before turning to the present-day relationships between mission-oriented institutions, workers, and the state. Homan argues that all three parties are at their best and can avoid state-religion entanglement when they actively seek to promote worker justice.

Felons In Possession: Rejecting The Third Circuit And Its Application Of Bruen, Morgan Schmidt

Saint Louis University Law Journal

The Supreme Court’s 2022 decision striking down a New York public carry law has triggered widespread legal challenges to gun regulations across the United States. Among the most contested statutes is 18 U.S.C. § 922(g)(1), the federal felon-in-possession law, a crucial tool for the Department of Justice in restricting firearm access. Recent rulings from the Third and Eighth Circuits have resulted in a legal split regarding the constitutionality of this provision, raising uncertainty about its future enforceability. This note examines the historical and legal foundations of § 922(g)(1), the implications of New York State Rifle & Pistol Association v. Bruen …

Drawing On The Christian Tradition As A Source For The Renewal Of Labor Law Theory, Alvin Velazquez

Saint Louis University Law Journal

Does the Christian tradition have anything to offer to legal theorists exploring the renewal of labor law from its ossified framework? This Essay argues that the Christian tradition has much to offer. There are streams within the Christian intellectual tradition that offer a third way between a “naked public square” of legal thought that refuses to look at religion as a source of ideas for constructing law and Christian nationalism. Schools of theological inquiry within the Christian tradition such as the Theology of the Social Gospel, Catholic Social Teaching, and Liberation Theology draw on the “Sermon on the Mount” for …

Muslim American Workers, Faith And Labor Organizing, Chaumtoli Huq

Saint Louis University Law Journal

Islam is one of the fastest-growing religions in the U.S. Muslim-Americans are racially, ethnically and theologically diverse and are a politically engaged constituency. It is a community experiencing immense economic insecurity alongside political vulnerability due to discrimination, which make them inclined to labor organizing. Despite these demographic changes, the U.S. labor movement is not addressing this growing faith-based community. In this article, I discuss three examples of successful labor organizing interventions led by Muslim-American workers or where Muslim-Americans were actively engaged which have resulted in positive gains for all workers. They are: (1) New York Taxi Workers Alliance (NYTWA) Post …

Kill ‘Em With Lies: The False Narrative Of The American Execution Laboratory, Danica Howell

Saint Louis University Law Journal

The Supreme Court’s narrative regarding capital punishment, in keeping with the laboratories of democracy theory, boasts the consistent development of more humane methods of execution. Contrary to the Court’s narrative, however, states are not driven by the desire to create humane execution; they are merely striving to keep state-sanctioned killing alive. Examination reveals that execution methods are adopted on best guess and are retained without post-adoption verification of their effectiveness, humanity or painlessness. As abolitionist ideals close in on capital punishment, legislative shortcuts, willful ignorance, and secrecy allow new methods to propagate. As those tactics begin to fail, states resort …

The Value Of A Statistical Life: From Skin In The Game To Vision Zero, Michael C. Duff

Saint Louis University Law Journal

This essay discusses justice issues surrounding occupational safety and health and assesses the ethical legitimacy of regulatory cost benefit analysis when the costs in question involve the risks and realization of workplace injury and fatalities. The current “value of a statistical life” for legal-regulatory purposes is 13.1 million dollars. Economists claim that this figure does not “really” represent an attempt to value any particular life. But the obvious purpose of even calculating the number is to provide a statistical justification for saying “no” to rules requiring safer work.

The moral-ethical dilemma of work related injury and death remains a central …

Inaugural Adr And Social Entrepreneurship Course, Helen M.E. Winter, Harshit Rathore

Saint Louis University Law Journal

This article examines the innovative integration of Alternative Dispute Resolution (ADR) principles with social entrepreneurship, focusing on how this combination can be used to address significant societal challenges. The article highlights a course designed specifically for law students, which provides a comprehensive understanding of ADR mechanisms such as mediation, negotiation, and system design, while also encouraging students to develop entrepreneurial solutions to real-world conflicts. Inspired by the nonprofit organization R3solute, which trains refugees and locals as peer mediators, the article explores how students are equipped to create ADR-centered ventures that offer sustainable resolutions to social problems.

The article discusses the …

Masthead

Saint Louis University Law Journal

No abstract provided.

Table Of Contents

Saint Louis University Law Journal

No abstract provided.

Opening Space For Negotiation Reflection In Law Practice, Katrina Lee

Saint Louis University Law Journal

Critical to negotiations learning and skills-building, reflection is an enduring feature of law school negotiations courses. At the same time, anti-reflection forces in law practice persist. Lawyers face demanding work environments that compel them to make seemingly impossible choices among advancing their careers, maintaining mental and emotional health, and continuing to learn and grow. The time for slowing down and reflecting can be excruciatingly hard to come by. Technology in negotiations may also obscure the need or opportunities for reflection. This Article highlights the importance of negotiation reflection and the longstanding and emerging challenges to creating and maintaining a lawyer’s …

Pracademically Speaking: Incorporating Real-World Legal Practice Into The Dispute Resolution Curriculum, Debra Berman, Denise Peterson

Saint Louis University Law Journal

Bridging the gap between traditional dispute resolution pedagogy and the realities of practice has been a major point of discussion within the legal academy for some time. Professors want to equip students with the dispute resolution knowledge and skills that will allow them to thrive as attorneys. At the same time, the dynamics and time constraints within traditional dispute resolution courses can create many obstacles to doing so. In this article, Professors Berman and Peterson provide tangible recommendations for designing dispute resolution courses that maximize practice-readiness. They address options for course structure, class format, skills building, and various methodologies professors …

Integration Of Mediation Skills As Required By The Nextgen Bar Exam, Christine Rollins

Saint Louis University Law Journal

The National Conference of Bar Examiners (“NCBE”) developed the NextGen Bar Exam to more actively test a broad range of foundational lawyering skills. The timing of the rollout will take several years with the final adoption date in 2028. The formatting of the questions will change, and the “Integrated Questions Set,” where examinees answer a series of questions about a given scenario, seems to be the hallmark of innovation. The NextGen Bar Exam will also include a performance task where examinees will draft a memorandum, legal brief, letter, or similar document. Faculty striving to adapt to the new assessment requirements …

Novel Ways Of Creating Experiential Adr Problems, Lieutenant Colonel Taren E. Wellman, Katherine Simpson, Richard Bales

Saint Louis University Law Journal

In legal education, experiential learning has become a vital tool for equipping students with the practical skills necessary for success in Alternative Dispute Resolution (ADR). This article explores three innovative methods for creating dynamic and realistic ADR problems: engaging teaching fellows to develop negotiation simulations, leveraging international LL.M. students to craft cross-cultural hypotheticals, and using artificial intelligence to generate customized exercises efficiently. Each approach offers unique benefits, from fostering deeper student investment in problem design to promoting comparative legal understanding and streamlining the creation of tailored learning experiences. By integrating these methods, educators can enhance student engagement, bridge the gap …

Humanizing The Law: Building Better Lawyers Through Mediation Coursework, Simone A. Haberstock

Saint Louis University Law Journal

Many students enter law school with the goal of helping others. Traditional law school classes do not help students develop empathy and an understanding of client needs and interests. This paper argues that mediation training in law school helps students improve their understanding of the human experience of litigants involved in legal disputes and builds important empathic, relational, conflict resolution, and problem-solving skills. These skills not only help students connect with and understand their clients better but can promote the self-awareness and self-care necessary for students to become healthier and happier practicing attorneys. This results in students who are more …

Teaching Foundational Mediation Principles In A First-Year Lawyering Skills Program, Pamela V. Keller

Saint Louis University Law Journal

This article asserts that foundational mediation principles and skills can successfully be taught in a first-year lawyering skills program. At the University of Kansas School of Law, we have included an instructional mediation module in our first-year course for many years. The module contains substantive instruction on alternative dispute resolution, active learning exercises, a mediation simulation, and a reflective oral report. Our module could be adapted to other first-year courses or to upper-level experiential and doctrinal courses. This article explains the learning goals of our mediation module and the module’s various components in detail. It explains the module’s many benefits …

Peer Feedback Skills: A Negotiation Teaching Imperative, Lieutenant Colonel Taren E. Wellman

Saint Louis University Law Journal

Critical feedback, especially among peers, is difficult to give well but can be taught. Alternative Dispute Resolution (ADR) and Negotiations teachers can not only teach negotiation and facilitation skills affecting substantive outcomes but also equip students with the confidence and competence to engage well with critical feedback—a skill readily transferrable into any conflict resolution context. In this study, the author engaged a classroom intervention designed to improve peer feedback quality in an undergraduate negotiation course. The intervention included increasing transparency of what makes effective feedback and supplying a video recording of students’ negotiation performance prior to engaging in peer feedback, …

The Case For Contingent Regulatory Sunsets, Jeffrey D. Manns

Indiana Law Journal

Cost-benefit analysis is at the core of regulatory impact analysis for every proposed rule or regulation and is designed to be a structural constraint on the administrative state. The challenge is ex ante cost-benefit analysis necessarily rests on many assumptions, and much more information is available about a regulation’s impact after it has been implemented. But ex post cost-benefit analysis is ad hoc and infrequent in spite of efforts by numerous presidential administrations to promote regulatory lookbacks.

I propose institutionalizing “contingent regulatory sunsets” to ensure that rules and regulations have the positive impact in practice that administrative agencies intended. I …

Genetic Privacy, Ifeoma Ajunwa, Forrest Briscoe

Indiana Law Journal

The last decade has brought many technological advances to genetic testing. Increasingly, genetic testing, which was previously reserved for clinical or medical settings, has made its way to other spaces. Most significantly, we are now seeing the re-introduction of genetic testing to the workplace. Although the Genetic Information Nondiscrimination Act (GINA), which became law in 2009, would seemingly prohibit genetic testing in the workplace, genetic testing, as part of workplace wellness programs, is lawful under the aegis of the Affordable Care Act (ACA). This poses a threat to genetic privacy in the workplace. While some, like the actor Angelina Jolie, …

Cultural Cognition And The Thoughtful Judge, Jack Whiteley

Indiana Law Journal

That judges follow what the law is, and not what they wish it was, is a requirement of the rule of law. At the same time, scholars, lawyers, and judges often say that judges’ values influence their decisions. Connecting these two ideas has generated a conversation about the relationship between law, ideology, and politics.

Recently, part of this conversation has focused on a theory called cultural cognition. The theory offers an account of how people’s values shape how they interpret things without their noticing. People whose values tend toward hierarchy sometimes perceive facts differently than people whose values tend toward …

Public-Private Partnerships After Murthy V. Missouri, Danielle Keats Citron, Jeff Stautberg

Indiana Law Journal

This Essay considers the future of public-private collaboration in the wake of the Murthy v. Missouri litigation, which cast doubt on the constitutionality of information sharing between federal agencies and social media companies. The litigation has been a good and a bad teacher. On one hand, the lower court decisions made legible the risks to free expression, accountability, transparency, and intimate privacy posed by government-industry collaborations. On the other hand, the litigation chilled information sharing between federal agencies, state election officials, and social media companies at the moment that such collaboration could and should help protect against foreign malign influence …

Common Law Executive Privilege(S), Jonathan Shaub

Indiana Law Journal

There are few Supreme Court cases that enjoy as much widespread support as the unanimous decision in United States v. Nixon. The recent pitched battles between Congress and the executive branch have made apparent the vast disagreement between the two branches over access to information. But that disagreement does not extend to Nixon, the unquestioned jurisprudential foundation for the doctrine of executive privilege. Closer inspection shows, however, that this foundation is not a stable one, but one constructed from unnecessary, ill-considered dicta.

As this Article demonstrates, Nixon conflated the constitutional question about one branch’s power vis-à-vis another branch with an …

The Uptake Puzzle In Expungement Of Criminal Records, Jessica Steinberg, Elenore Wade

Indiana Law Journal

Expungement has an uptake problem. A recent explosion of state-level rights allows people with felony convictions to expunge their criminal record, but only one to six percent of eligible people avail themselves of the remedy. Expungement is a powerful policy tool that promotes social and economic reintegration. It also serves a dignitary purpose, allowing people with criminal records to unshackle themselves from past mistakes. One might assume people would rush to court to clear their records. That the opposite is occurring—and new laws are idling on the books—suggests that rights-creation in this space has not been efficacious. This demands a …

The Anti-Discriminatory Right To Travel, Noah Smith-Drelich

Indiana Law Journal

Travel rights and travel restrictions shape nearly every part of society, moderating where and how we go about our daily lives. Yet a central aspect of travel has gone largely unnoticed in the legal literature. Oppressive governments have routinely restricted free movement as a principal means of effectuating discrimination. And travel rights, as a result, have always had a strong anti-discriminatory valence. From the Magna Carta to Blackstone’s Commentaries to the Constitution itself, rights to travel have consistently emerged from struggles against discrimination.

This Article makes several independent but related contributions. First, the Constitution’s protections of travel have a strong …

Big Words, Questionable Legality: Constitutional Impediments To Restricting Birthright Citizenship, Kristin Hommel

Immigration Law Blog

This article analyzes the nuances of Trump's Day One executive order restricting the grant of birthright citizenship only to children whose parents possess either a green card or U.S. citizenship. The article discusses the constitutional impediments to this executive order, as well as prior caselaw and academic articles, positing that the executive order stands on rather shaky ground constitutionally.

Should Copyright Protect Racist Works? A Review Of Intellectual Property And Immorality: Against Protecting Harmful Creations Of The Mind By Ned Snow, Cathay Smith

Texas A&M Journal of Property Law

This Essay reviews Ned Snow’s provocative book, Intellectual Property and Immorality: Against Protecting Harmful Creations of the Mind, and critically examines the intersection of copyright law and morality. It explores the ethical dimensions of copyright protection and examines whether works which fail to advance societal progress, as defined by Snow, should be ineligible for copyright. Drawing parallels between pornography and offensive and racially insensitive classic children’s literature and films, this Essay considers the broader implications of denying copyright to immoral works, including the potential for increased dissemination of harmful content, the challenge of aligning copyright with evolving moral standards, …

Incentivizing Bad Behavior Through Copyright, Ned Snow

Texas A&M Journal of Property Law

This Essay comes in response to the comments of Professors Margaret Chon, Cathay Smith, and David Taylor as part of the Texas A&M Journal of Property Law’s Symposium featuring a discussion on my book Intellectual Property and Immorality: Against Protecting Harmful Creations of the Mind. In this Essay, I argue that the law should refrain from copyrighting pornographic content. This conclusion is based on a factual assumption and a moral principle. The factual assumption is that pornographic content is harmful to society. The moral principle is that applying law to incentivize harmful conduct undermines the effectiveness of law. My argument, …

Color Inside The Lines: Achieving Pharmaceutical Deal Certainty When The Courts Keep Redrawing The Ip Lines, James Farrington

Texas A&M Journal of Property Law

In The Genome Defense, Jorge Contreras vividly describes the story of how gene patents were challenged in Association for Molecular Pathology v. Myriad Genetics and the U.S. Supreme Court’s reversal of the USPTO’s long-standing practice of allowing patents on human genes. This Article examines how pharmaceutical companies navigate intellectual property challenges in the wake of the Myriad decision and other landmark cases that have redrawn the boundaries of patent-eligible subject matter. Drawing on the Author’s 35 years of experience in life science transactions, the Article analyzes three key strategies that pharmaceutical companies employ: (1) adapting their business and licensing …

From Myriad To Moderna: The Modern (Bio)Pharmaceutical Company, Ana Santos Rutschman

Texas A&M Journal of Property Law

This Article examines the emergence of two modern pharmaceutical companies: Myriad and Moderna. After providing a brief background on each company, this Article contrasts them across the following areas: the technologies they have brought to market; their location; their start-up stages and the role that venture capital played in catalyzing their evolution from start-ups to large corporate structures; their relationships with other entities in the private sector, in academia and in the public sector; and their intellectual property and licensing strategies.