Digital Commons Network^™

A Message For Law Students To Prepare Themselves For Legal Practice, John Lande

Faculty Blogs

This post includes suggestions to help plan self-directed learning to supplement what students learn in law school. It recommends that students (1) appreciate the values and limitations of the law, (2) recognize the “hidden curriculum” in law school, (3) understand that “thinking like a lawyer” really is about helping clients achieve their goals, (4) develop a strategic plan for their education, (5) compile a portfolio, (6) take clinical, externship, and practice courses, (7) interview practitioners, and (8) join the ABA and other bar and professional associations.

Study Finds That Law Schools Fail To Prepare Students To Work With Clients And Negotiate, John Lande

Faculty Blogs

This post provides excerpts from the Building a Better Bar study about new law school graduates’ unmet instructional needs. The study found that new lawyers were “woefully unprepared” to work with clients. They had difficulty (1) communicating with clients, (2) managing expectations, (3) breaking bad news, (4) coping with difficult clients, (5) negotiating with counterparts and clients, and (5) understanding the “big picture” of client matters.

Amicus Curiae Briefs: A Message From The 7th Circuit, Douglas E. Abrams

Faculty Publications

Like other brief writers, the amicus brief’s writer must heed the court’s rules of practice and procedure, including rules that prescribe a brief’s maximum page length. But a brief writer can meet the court’s circumstances and expectations without going to the max. A few months before he ascended to the Supreme Court bench in 1943, D.C. Circuit Judge Wiley B. Rutledge advised advocates to strike a balance by being “as brief as one can be consistent with adequate and clear presentation of his case."

An amicus’ prudent approach to concise brief writing is to adapt the advice delivered by opera …

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

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 …

Distorted Drug Patents, Erika Lietzan

Faculty Publications

Drug patents are distorted. Unlike most other inventors, drug inventors must complete years of testing to the government’s specifications and seek government approval to commercialize their inventions. All the while, the patent term runs. When a drug inventor finally launches a medicine that embodies the invention, only a fraction of the patent life remains. And yet, conventional wisdom holds — and empirical studies show — that patent life is essential to innovation in the pharmaceutical industry, perhaps more so than any other inventive industry. Congress tried to do something about this in 1984, authorizing the Patent and Trademark Office to …

Vaccine Hesitancy: Experimentalism As Regulatory Opportunity, Ana Santos Rutschman, Timothy L. Wiemken

The Business, Entrepreneurship & Tax Law Review

This issue on patient innovation has prompted us to explore problems related to departures from official vaccination schedules. Vaccine confidence has been plummeting across the world. In this essay, we argue that a more granular understanding of vaccine hesitancy—and ultimately a more finely tuned regulatory framework—is needed to reflect the current behavioral heterogeneity among indicated patients who choose to forego or delay administration of recommended vaccines. In particular, we focus on a phenomenon we term “vaccine staggering:” a departure from vaccination schedules in the form of delays in receiving one or more vaccines, which is motivated by the desire to …

A Delicate Balance: Limiting Consolidation In Agricultural Seed Markets Without Stifling Innovation, Justin Brickey

The Business, Entrepreneurship & Tax Law Review

Agricultural seed markets have experienced significant consolidation over the past fifty years, apparently driven by private investment in research and development (“R&D”) made profitable through extensive intellectual property protections. The current intellectual property law regime on plants allows an innovator to obtain a wide variety of protections on new plant varieties, whether created through natural breeding processes or genetic engineering. Investment has paid off and the United States has experienced significant benefits through increased productivity, meaning we produce significantly more food today without using more land than our grandparents. However, agricultural markets deserve, and are often given, unique consideration because …

No Pay No Play: Not Okay? Analyzing The Constitutionality Of Missouri’S No Pay No Play Statute Following Jiles V. Schuster Co., Jorell Kuttenkuler

The Business, Entrepreneurship & Tax Law Review

This article analyzes the effects of Jiles v. Schuster Co. by looking at the case governing the decision, Watts v. Lester E. Cox Med. Ctrs. Evidence suggests Missouri has not historically upheld the “inviolate” right to a jury determination of damages, as established in that case, and thus casts doubt on the final decision reached in Watts v. Lester E. Cox Med. Ctrs. In Watts, the Supreme Court of Missouri found that statutory caps on non-economic damages stemming from medical malpractice were unconstitutional. Recent cases, such as Jiles, support the conclusion that the No Pay No Play statute falls within …

Batna May Be Less Important Than You Think – And Teach, John M. Lande

Faculty Blogs

When bargaining in the shadow of the law, the expected court outcome (aka BATNA value) is only part of the more important consideration for negotiators – their bottom lines.

After Espinoza: What's Left Of The Establishment Clause?, Carl H. Esbeck

Faculty Publications

Consistent with the Establishment Clause, the Supreme Court had permitted the government to fund public and private K-12 schools, so long as any direct aid was not diverted to an explicitly religious purpose. In Espinoza v. Montana Dept. of Rev., the Court held that when there is a government program with a secular purpose, such as education, the Free Exercise Clause requires that the program be available without regard to religion. Clearly the Religion Clauses have undergone a major transformation since the days of no parochial school aid whatsoever in the 1970s and 80s. So, it bears asking: What …

Greenwashing No More: The Case For Stronger Regulation Of Environmental Marketing, Robin M. Rotman, Chloe J. Gossett, Hope D. Goldman

Faculty Publications

Fraudulent and deceptive environmental claims in marketing (sometimes called “greenwashing”) are a persistent problem in the United States, despite nearly thirty years of efforts by the Federal Trade Commission (FTC) to prevent it. This Essay focuses on a recent trend in greenwashing - fraudulent “organic” claims for nonagricultural products, such as home goods and personal care products. We offer three recommendations. First, we suggest ways that the FTC can strengthen its oversight of “organic” claims for nonagricultural products and improve coordination with the USDA. Second, we argue for inclusion of guidelines for “organic” claims in the next revision of the …

The Reception Of Collective Actions In Europe: Reconstructing The Mental Process Of A Legal Transplantation, Csongor István Nagy

Journal of Dispute Resolution

No abstract provided.

A Break In The Cycle: Applying Adr Principles To Inner–Prison Conflicts, Eli Dodge

Journal of Dispute Resolution

No abstract provided.

Reasons To Avoid The Anchor: Negotiation In Patent Prosecution, Kevin Johnston

Journal of Dispute Resolution

No abstract provided.

The Limits Of Antitrust In The 21st Century, Thomas A. Lambert

Faculty Publications

Antitrust is having a moment. Commentators and policymakers, both progressive and conservative, are calling for increased antitrust enforcement to address all manner of social ills. From technology platforms' power over speech and encroachments on user privacy to wage stagnation in more concentrated labor markets, to competition softening from ever-larger index funds, to growing income inequality, reduced innovation, and threats to democracy itself - the list of maladies for which antitrust has been proposed as a remedy goes on and on.

This Article revisits The Limits of Antitrust in light of the current antitrust moment. Part I describes the central components …

Chemtrails And Solar Geoengineers: Governing Online Conspiracy Theory Misinformation, Charles R. Corbett

Missouri Law Review

This Article assesses legal obstacles to regulating chemtrail misinformation and proposes responses that work within prevailing norms and laws governing online speech. It explains how chemtrail content complicates public deliberation on solar geoengineering and, by extension, hurts the legitimacy of research activities. It also sharpens the general contributions of misinformation scholarship by applying them specifically to chemtrail content. It concludes with recommendations on how to limit chemtrail misinformation’s spread and impact. Reckoning with climate change, geoengineering, and online misinformation is a multigenerational project. Legal and policy analysis must accordingly adopt a long-time horizon when devising regulatory responses.

Indoctrination And Social Influence As A Defense To Crime: Are We Responsible For Who We Are?, Paul H. Robinson, Lindsay Holcomb

Missouri Law Review

A patriotic prisoner of war is brainwashed by his North Korean captors into refusing repatriation and undertaking treasonous anti-American propaganda for the communist regime. Despite the general abhorrence of treason in time of war, the American public opposes criminal liability for such indoctrinated soldiers, yet existing criminal law provides no defense or mitigation because, at the time of the offense, the indoctrinated offender suffers no cognitive or control dysfunction, no mental or emotional impairment, and no external or internal compulsion. Rather, he was acting purely in the exercise of free of will, albeit based upon beliefs and values that he …

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 For Blood: The Expansion Of Exigent Circumstances And Erosion Of The Fourth Amendment, Tyler M. Ludwig

Missouri Law Review

The Fourth Amendment of the United States Constitution requires police officers to obtain a warrant before conducting a search of an individual. However, doing so is not always possible, and courts have created exceptions to this requirement in order to deal with pragmatic limitations. The need for these exceptions has often been presented to the United States Supreme Court in the context of obtaining blood alcohol concentration (“BAC”) tests from drivers suspected of driving under the influence. In Mitchell v. Wisconsin, the Supreme Court dealt with a new problem in this area: drawing blood from a suspected drunk driver who …

On The Effort To Discover And Eliminate Offshore Tax Abuse, Christian Hodgson

The Business, Entrepreneurship & Tax Law Review

The practice of tax evasion includes dumping money into secretive offshore accounts to shield financial assets from discovery. U.S. taxpayers have used jurisdictions with low tax rates and secretive banking practices to store unreported financial assets. If the taxpayer chose not to report foreign assets, the existence of these accounts often remained undetected by the U.S. The uncollected taxes from these accounts was a justification for congressional action. The ability of the wealthy to take advantage of tax evasion and avoidance could be contributing to wealth inequality. The congressional response to offshore tax evasion includes the Bank Secrecy Act of …

Cleaning Up And Cashing Out: Using Financial Incentives To Increase Missourians Use Of Solar Energy And Decrease Missouri’S Dependence On Imported Coal, Douglas Mann

The Business, Entrepreneurship & Tax Law Review

Climate change is one of the biggest threats to the human species. Unlike other historical threats to species, this threat is caused by humans themselves. Climate change (a product of a rise in average global temperature due to carbon emissions) is causing extreme weather patterns, droughts, mass migrations, among other catastrophic consequences. The state of Missouri is particularly guilty of carbon emissions. Missouri has one of the dirtiest energy grids in the nations. If Missouri residents were to switch from fossil fuel-generated electricity to residential solar energy systems, there could be a drastic reduction in Missouri’s carbon footprint. The Missouri …

No Cap: Analyzing The Kansas Supreme Court’S Decision To Overturn Caps On Non-Economic Damages In Hilburn V. Enerpipe Ltd., Raymond T. Rhatican

The Business, Entrepreneurship & Tax Law Review

In the summer of 2019, the Kansas Supreme Court ruled that the state legislature’s cap on non-economic damages violated the state constitution’s right to trial by jury. In doing so, the Kansas high court overturned its own precedent in Miller v. Johnson, finding that the “inviolate” right to trial by jury is not subject to legislative meddling. Kansas also joined several other states, including Missouri, in rejecting a strained fact-law distinction employed by most states which uphold such caps in the face of right to jury challenges against the backdrop of “inviolate” constitutional language. There is little to no “rational …

Tax Ethics And Legal Indeterminacy, Bret N. Bogenschneider

The Business, Entrepreneurship & Tax Law Review

The modern framework of professional tax ethics is often given in reference to famous quotations of Justice Oliver Wendell Holmes or Judge Learned Hand. The common quote from Holmes is that “the very meaning of a line in the law is that you may intentionally go as close to it as you can if you do not pass it”; Hand’s quote is that “there is nothing sinister in so arranging affairs as to keep taxes as low as possible . . . [a taxpayer] is not bound to choose that pattern which will best pay the Treasury; there is not …

A Little Overlap Never Hurt Anyone: Overlapping Ip Rights And Oracle Am., Inc. V. Google Llc, Evan Weidner

The Business, Entrepreneurship & Tax Law Review

Intellectual property (“IP”) protections have traditionally been mutually exclusive; an innovator who obtains one type of protection could not obtain another on the same invention. Though the possibility of overlapping IP rights has changed substantially over the years, the general opinion remained one of disapproval until recently. In Oracle Am., Inc. v. Google LLC, the Federal Circuit voiced approval of overlapping IP rights. This article examines the history of overlapping IP rights and advocates that the Federal Circuit’s acceptance of such an overlap is the proper standard.

The Right Of Reattribution, Brian L. Frye

The Business, Entrepreneurship & Tax Law Review

In some countries, copyright gives authors a “right to withdraw” works they disapprove. While the United States has no right to withdraw, it does have a practical equivalent. Authors can simply stop publishing a work, and refuse to allow anyone else to publish it. Of course, existing copies will still circulate. Still, restricting the supply of a work can still help reduce its public profile. After all, out of sight, out of mind. But there’s a problem. The whole purpose of copyright is to encourage authors to create works of authorship for the public to consume. Indeed, the government uses …

The Nagoya Protocol And The Legal Structure Of Global Biogenomic Research, Sam F. Halabi, Michelle Rourke, Gian Luca Burci, Rebecca Katz

Faculty Publications

As life sciences technologies have advanced, so too has the potential for these international collaborations to lead to breakthrough medicines, enhance food security, and protect ecological systems. The linchpin of this progress is the development of high throughput genetic sequencing technologies. Researchers are now able to generate and compare large stretches of DNA - 1 million bases or more - from different sources quickly and inexpensively. Such comparisons can yield massive amounts of information about the role of inheritance in susceptibility to infection and illness as well as responses to environmental influences. In addition, the ability to sequence genomes more …

The Emerging Statutory Proximate Cause Doctrine, Sandra F. Sperino

Faculty Publications

The year 2011 marked the birth of a new idea. The United States decided Staub v. Proctor Hospital and for the first time invoked common law proximate cause in the context of federal employment discrimination law. It is rare in jurisprudence to be present at the birth of an idea and then see that idea develop over its first decade. This Article charts the emerging proximate cause doctrine from its early days as a baby doctrine. Now, the doctrine is pre-adolescent, with all of the changes and turmoil that phrase entails.

Early Access To Unapproved Medicines In The United States And France, Erika Lietzan

Faculty Publications

In 2018, President Trump signed a federal "right to try" law, claiming that it would give desperately ill patients earlier access to unapproved medicines, by allowing the patient, doctor, and drug company to arrange for access without federal oversight. Critics of the law argued that it would not meaningfully increase access to experimental medicines, because federal oversight was not the obstacle in the first place. And they were correct. U.S. law already permitted companies to provide terminally ill patients with early access to unapproved medicines. The problem was instead that companies did not take advantage of this option. This Article …

Use Of Multiple Stream Temperature Logger Models Can Alter Conclusions, Robin M. Rotman, Joanna B. Whittier, Jacob T. Westhoff, Craig P. Paukert

Faculty Publications

Remote temperature loggers are often used to measure water temperatures for ecological studies and by regulatory agencies to determine whether water quality standards are being maintained. Equipment specifications are often given a cursory review in the methods; however, the effect of temperature logger model is rarely addressed in the discussion. In a laboratory environment, we compared measurements from three models of temperature loggers at 5 to 40 °C to better understand the utility of these devices. Mean water temperatures recorded by logger models differed statistically even for those with similar accuracy specifications, but were still within manufacturer accuracy specifications. Maximum …