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Articles 151 - 180 of 6826
Full-Text Articles in Law
The Race To Ban Race: Legal And Critical Arguments Against State Legislation To Ban Critical Race Theory In Higher Education, Vanessa Miller, Frank Fernandez, Neal H. Hutchens
The Race To Ban Race: Legal And Critical Arguments Against State Legislation To Ban Critical Race Theory In Higher Education, Vanessa Miller, Frank Fernandez, Neal H. Hutchens
Missouri Law Review
Anti-critical race theory bills have garnered national attention in the K-12 context. However, many critical race theory (“CRT”) bans also impact institutions of higher education. The bills seek to prohibit the teaching of ideas that include the premise that racism and sexism are pervasive in our society. Those opposing CRT believe its tenets promote anti-white racism, cultural division, and threaten the public institution of education. Scholars and educators have criticized anti- CRT bills for their mischaracterization of the use and tenets of CRT and related theories of scholarship. This Article argues that state anti- CRT laws and policies in higher …
Gubernatorial Influence In Merit-Based Judicial Selection: Kansas, Missouri, And Colorado, 2012–2021, Zachary Reger
Gubernatorial Influence In Merit-Based Judicial Selection: Kansas, Missouri, And Colorado, 2012–2021, Zachary Reger
Missouri Law Review
Many states use systems of merit-based judicial selection for supreme court appointments. Under “merit selection,” an independent commission screens judicial candidates before the governor makes a final appointment. Proponents of these systems claim that by limiting gubernatorial influence over the selection process, merit selection protects judicial independence from partisan intrusion. This study evaluates such claims by comparing the recent ideological voting behavior of judges appointed by Republican and Democratic governors in three states. Those states, Kansas, Missouri, and Colorado, use three different types of merit selection—bar-controlled, hybrid, and governor-controlled, respectively—that grant the governor varying degrees of influence over the judicial …
The Curious Case Of Tort Liability For A Defective Product That The Defendant Did Not Make, Sell, Or Distribute, Marin Roger Scordato
The Curious Case Of Tort Liability For A Defective Product That The Defendant Did Not Make, Sell, Or Distribute, Marin Roger Scordato
Missouri Law Review
Rarely does the United States Supreme Court consider and decide an issue of tort law, especially one that does not implicate any aspect of federal constitutional law. The problem of bare-metal equipment is just such an issue, taken up and addressed by the U.S. Supreme Court less than three years ago in the case of Air and Liquid Systems Corp. v. DeVries. Despite the Court’s opinion, the question continues to generate different responses from state courts and fails to enjoy much accord or consensus at the state-law level, where it has the greatest practical impact. The problem presented to the …
Temporary Access And Permanent Consequences: The Misapplication Of Takings Jurisprudence To State Regulations That Benefit The Public Welfare, Maria Ceriotti
Temporary Access And Permanent Consequences: The Misapplication Of Takings Jurisprudence To State Regulations That Benefit The Public Welfare, Maria Ceriotti
Missouri Law Review
In 1975, California enacted the Agricultural Labor Relations Act. The Act, along with many regulations to aid in its enforcement, came after years of infighting between property owners and agriculture workers for fair pay and better treatment. Deplorable conditions included hourly wages at $0.90/hour, inadequate working standards such as a lack of toilets and segregated housing, and poor treatment from the growers. Cesar Chavez organized what is now the United Farm Workers labor organization, which helps agriculture workers across the country collectively bargain and secure their rights, fair pay, and adequate working conditions.
Have Your Cake And Eat It Too (Unless You Are Danny Brock): The Irony Of Missouri’S Co-Employee Liability Statute, Taylor M. Harrington
Have Your Cake And Eat It Too (Unless You Are Danny Brock): The Irony Of Missouri’S Co-Employee Liability Statute, Taylor M. Harrington
Missouri Law Review
April 30, 2013, started like any other day for Danny Brock. Like each day before, he woke up, drove to work, and clocked in. A few hours later, he looked down to see his thumb completely detached from his hand, barely hanging on by the skin. When the injury occurred, Brock was following direct orders from his supervisor, Mark Edwards. Citing safety concerns, Brock opposed the request. But Edwards demanded that Brock proceed. Fearing loss of employment, Brock did as he was told. As predicted, injury ensued. Within seconds, Brock’s hand was crushed. Brock underwent three surgeries and sustained permanent …
Federal Common Law’S Long Shadow: Shedding Light On State Law Rights To Postpetition Default Interest, Evan Miller
Federal Common Law’S Long Shadow: Shedding Light On State Law Rights To Postpetition Default Interest, Evan Miller
Missouri Law Review
Historically, the law imposed harsh penalties on debtors who could not meet their obligations. One regime dismembered the debtor’s body and proportionally distributed it to creditors. Rejecting these draconian penalties, the United States Constitution empowered Congress to enact federal bankruptcy legislation. Bankruptcy laws in the United States helped the “unfortunate” debtor get a fresh start while providing creditors with “prompt and effectual” administration of the debtor’s unmet obligations. In order to accomplish these policy objectives, Congress granted equitable powers to bankruptcy courts. These powers allow bankruptcy courts to occasionally adjust parties’ rights under non- bankruptcy law and fairly distribute the …
The Right To Remain Silent. . . Sometimes: Why § 1983 Claims For Miranda Violations Are Necessary To Fifth Amendment Protection, Logan Moore
Missouri Law Review
The police arrive at your workplace and ask to speak with you. Feeling embarrassed and confused, you agree to accompany them to an isolated room to answer questions. As you pass by the concerned looks and accusatory whispers of your co-workers, you wonder to yourself, “what did I do?” Once in the room, the feeling of helplessness becomes insurmountable. The officers have blocked the exit and begin to vehemently accuse you of a crime. Although you adamantly deny any involvement in or knowledge of the crime, the officers seem prepared to keep you in the room until you make a …
All Aboard? Missouri Statute Risks Failing To Protect Consumers From Hidden Fees And Deceptive Practices Of Prominent Companies, Ethan E. Schroeder
All Aboard? Missouri Statute Risks Failing To Protect Consumers From Hidden Fees And Deceptive Practices Of Prominent Companies, Ethan E. Schroeder
Missouri Law Review
At some point, every consumer has bought something and then found themselves surprised by the hidden fees and countless documents that must be signed as part of the purchase. It may even lead to some level of buyer’s remorse. However, it is not often that buyer’s remorse gives rise to a class action lawsuit brought by over 100,000 consumers against an affiliate of one of Missouri’s largest private corporations. Consumers, such as Robert and Janet McKeage, are often forced to choose between holding retailers accountable for their deceitful practices or paying increased transaction costs when dealing with Missouri retailers. With …
Should The Federal Circuit Stand Down On Standing?, Avery J. Welker
Should The Federal Circuit Stand Down On Standing?, Avery J. Welker
Missouri Law Review
On March 11, 2020, the World Health Organization officially declared COVID-19 a pandemic, just ninety days after patients in Wuhan, China, began experiencing an unknown pneumonia-like illness.1 States rapidly responded, beginning shutdowns just a few days later.2 Amidst the early shutdown chaos, Moderna began human trials on its new COVID-19 vaccine.3 Moderna’s road to vaccine development was not without bumps, however, as the company launched a patent validity attack on another company’s technology it used while developing its vaccine. The dispute made its way to the Court of Appeals for the Federal Circuit, where the question focused on whether Moderna …
Using Real Practice Systems Resources In Practice, John M. Lande
Using Real Practice Systems Resources In Practice, John M. Lande
Faculty Blogs
This post describes how mediators can use ideas and materials from the Real Practice Systems Project to better understand and improve their own mediation systems. Mediators’ practice systems are the combination of factors affecting what they do before, during, and after mediation sessions. These systems include their routine procedures and strategies for dealing with recurring challenging situations. Trainers and mediation program administrators can use this to help mediators in their programs.
Resources For Using Real Practice Systems Materials In Teaching, John Lande
Resources For Using Real Practice Systems Materials In Teaching, John Lande
Faculty Blogs
This post describes how faculty can use ideas and materials from the Real Practice Systems Project to help students get realistic understandings of practice. Although the project has generally focused on the systems that mediators develop and use, it can be adapted to understand the perspectives of lawyers acting as advocates in mediation, negotiators, and in legal practice generally. In addition to requiring or recommending that students read publications about real practice systems, faculty could assign students to write papers such as (1) a Stone Soup interview of a practitioner, (2) a description of students’ actual system in simulated or …
Shifting The Central Paradigm To Dispute System Design, John Lande
Shifting The Central Paradigm To Dispute System Design, John Lande
Faculty Blogs
This post argues that instead of identifying our field as ADR, we should use dispute system design as our central theoretical framework. Although people often think of DSD as being used only in large organizations, individuals and small practice groups also handle streams of cases and can use these principles and techniques to improve their case management and dispute resolution procedures. DSD is about tailoring dispute systems to the needs of stakeholders, especially disputing parties. Good designs fit the stakeholders’ context and culture so that the dispute processes produce as much satisfaction of the parties’ procedural and substantive goals as …
Legal Citations: A Foundation Of Written Advocacy, Douglas E. Abrams
Legal Citations: A Foundation Of Written Advocacy, Douglas E. Abrams
Faculty Publications
The article advanced this formula for achieving effective appellate advocacy: “First, you seek to persuade the court of the merit of the client’s case, to create an emotional empathy for your position. Then you assist the court to reach a conclusion favorable to the client’s interest in terms of the analysis of the law and the procedural posture of the case.”
Houston, We Have A Problem In The Dispute Resolution Field, John M. Lande
Houston, We Have A Problem In The Dispute Resolution Field, John M. Lande
Faculty Blogs
Parties are supposed to actively participate in mediation (and other dispute resolution processes to some extent), and thus they need to understand what experts are saying. Lawyers representing clients in mediation especially need to understand the process to fulfill their ethical responsibility of competence. And certainly mediators should understand basic concepts of mediation.
Going Concerns And Environmental Concerns: Mitigating Climate Change Through Bankruptcy Reform, Alexander Gouzoules
Going Concerns And Environmental Concerns: Mitigating Climate Change Through Bankruptcy Reform, Alexander Gouzoules
Faculty Publications
This article examines how legislative reforms to the Bankruptcy Code could mitigate the effects of climate change, speed the adoption of renewable energy, and contribute to U.S. compliance with the Paris Agreement of 2015. It analyzes the benefits derived by the fossil fuel industry from Chapter 11, which allows extractive firms to survive boom-and-bust cycles caused by volatile oil and gas prices. Insolvent polluters are preserved as going concerns during price collapses, only to resume and expand production as prices recover.
This article proposes novel legislative reforms to the Bankruptcy Code that would require insolvent fossil fuel producers to liquidate …
Taxation And The Constitution, Reconsidered, David Gamage, John R. Brooks
Taxation And The Constitution, Reconsidered, David Gamage, John R. Brooks
Faculty Publications
Our current income tax is unable to address growing concentrations of financial wealth and resulting economic inequality. But reforms to address these problems—such as a wealth tax or an income tax on unrealized capital gains—are stymied by fears of unconstitutionality. The basic claim is that wealth taxes and similar reforms are “direct taxes” under the Apportionment Clauses of the Constitution, and since apportionment is not feasible, these taxes are impossible. But this claim is wrong.
This Article shows that there is in fact a long history of federal taxes similar to wealth taxes—both apportioned and uniform—and a well-developed constitutional tax …
From Sherman To Shut Down – Understanding Antitrust Legislation Targeting Big Tech, Dayna L. Linneman
From Sherman To Shut Down – Understanding Antitrust Legislation Targeting Big Tech, Dayna L. Linneman
The Business, Entrepreneurship & Tax Law Review
Beginning in the late 19th and 20th centuries and extending into present day, United States antitrust legislation has sought to safeguard consumers and maintain fair competition among businesses. While the purpose of antitrust legislation has always been to encourage free market principles, changing technologies within re-cent decades, as well as the rise of so-called “Big Tech”, has disrupted the “traditional” business landscape. This article begins with a general history of antitrust legislation within the United States in an effort to provide context regarding legislators’ recent push for legislation targeting Big Tech giants. In analyzing recent antitrust legislation, this article provides …
Cross-Border Data Transfers: A Balancing Act Through Federal Law, Joshua M. Wilson
Cross-Border Data Transfers: A Balancing Act Through Federal Law, Joshua M. Wilson
The Business, Entrepreneurship & Tax Law Review
Throughout the digital age, corporations have collected, used, and stored individuals’ digital information to efficiently market to consumers and expand their business. In fact, not only do retail companies rely on data, but also farmers, financial institutions, health services, and other businesses heavily depend on one’s in-formation. Despite the importance and necessity of data, the U.S. has failed to establish a comprehensive federal law addressing data issues. Many countries with developed or developing economies, however, have established laws related to data, a company’s usage of such data, and other data-related issues. A key obstacle plaguing U.S. businesses in terms of …
Using International Human Rights Law To Address Hunger In The U.S., R. Denisse CóRdova Montes
Using International Human Rights Law To Address Hunger In The U.S., R. Denisse CóRdova Montes
The Business, Entrepreneurship & Tax Law Review
International human rights law recognizes a right to adequate food. The International Covenant on Economic, Social and Cultural Rights (“ICESCR”) upholds “the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing, and housing, and to the continuous improvement of living conditions.” The right is further enumerated in international law through additional conventions and standards and is continuously being interpreted and analyzed by United Nations (“U.N.”) expert bodies. The United States (“U.S.”), though a signatory to several international human rights conventions, including the ICESCR, has not ratified any convention that would make …
Chapter 11 Bankruptcy & Corporate Accountability: How Large Economic Players Use Reorganization As A Liability Shield, Luke J. Doherty
Chapter 11 Bankruptcy & Corporate Accountability: How Large Economic Players Use Reorganization As A Liability Shield, Luke J. Doherty
The Business, Entrepreneurship & Tax Law Review
Corporate reorganization, also known as Chapter 11 of the Bankruptcy Code (“the Code”), operates under the premise that, in certain circumstances, an insolvent business entity is better equipped to repay its debts if kept “alive” rather than “dead.” In such a case, the entity maintains operations but reorganizes its assets as a means to repay creditors. Today, however, this needed tool has provided some of the country’s largest economic players with a sort of liability shield, allowing them to avoid substantial legal accountability, particularly in tort. Non-debtor release forms, which shield corporate officers from corporate conduct, courts’ liberal use of …
Not For Sale: Why Congress Should Act To Counter The Trend Of Massive Corporate Acquisitions Of Real Estate, Stephen George
Not For Sale: Why Congress Should Act To Counter The Trend Of Massive Corporate Acquisitions Of Real Estate, Stephen George
The Business, Entrepreneurship & Tax Law Review
The concept that property ownership is a right of the American people has been a bedrock principle of the United States ever since its founding. Property ownership was regarded by the Founding Fathers as an essential right for the American people to truly be independent and free. Throughout the United States’ history, property ownership has remained a core principle of American society, from being one of the natural rights that set the foundation of the nation, to form the most critical components of the “American Dream” through the 20th century and into the present. However, the prospects of owning property …
Trouble In Paradise: Puerto Rico's Routine Exclusion From Federal Benefit Programs As A Result Of The Alien-Citizen Paradox, Katerina Martínez Vélez
Trouble In Paradise: Puerto Rico's Routine Exclusion From Federal Benefit Programs As A Result Of The Alien-Citizen Paradox, Katerina Martínez Vélez
The Business, Entrepreneurship & Tax Law Review
Puerto Ricans are United States citizens by birthright. The island itself is neither a state nor an independent country, but rather, a territory of the United States. As a territory, Puerto Rico holds a unique tax status, and its residents are exempt from some federal and income taxes. Regardless, Puerto Ricans contribute significantly to the federal treasury by paying customs taxes, federal commodity taxes, and all payroll taxes (also known as FICA taxes), which include Social Security, Medicare, and Unemployment Compensation. Yet, its residents are still subject to discrimination on the basis of residency. In this article, I will explore …
Table Of Contents
The Business, Entrepreneurship & Tax Law Review
No abstract provided.
Proposition 12 And A New Paradigm For Federal Law: Toward More Humane And Ethical Farm Animal Practices In California And The U.S., Valerie J. Watnick
Proposition 12 And A New Paradigm For Federal Law: Toward More Humane And Ethical Farm Animal Practices In California And The U.S., Valerie J. Watnick
The Business, Entrepreneurship & Tax Law Review
This paper explores California’s Proposition 12, a ballot measure designed to im-prove factory farmed animal welfare and marginally, the conditions for those who work on such farms. The Proposition bans cruelty in farm animal confinement within California and calls for specific space requirements. Proposition 12 also re-quires that animals raised outside the state and sold within the state comply with the more humane housing standards in the law. Based on a recent ruling upholding Proposition 12 by the U.S. Court of Appeals for the Ninth Circuit and the introduction of multiple other state laws banning the most inhumane practices in …
The Ultimate Congressional Workaround: Why Businesses Should Advocate The Return Of A Robust And Originalist Nondelegation Doctrine After Nfib V. Osha And Biden V. Missouri, Tyler A. Dodd
The Business, Entrepreneurship & Tax Law Review
At the height of the COVID-19 pandemic, the Biden administration looked for a way to stop the spread of the virus. To stop the spread, the Biden administration announced a COVID-19 vaccine mandate for all businesses with over 100 employees and for all healthcare facilities receiving funds from the Center for Medicare and Medicaid Services (“CMS”). OSHA and CMS would administer the mandates, respectively. The agencies needed to administer the vaccine mandate because Congress failed to enact a mandate, and the agencies had broad and indefinite regulatory power in enacting public health measures. In NFIB v. OSHA the United States …
Resurfacing Sovereignty: Who Regulates Surface Mining In Indian Country After Mcgirt?, Robin M. Rotman, Sam J. Carter
Resurfacing Sovereignty: Who Regulates Surface Mining In Indian Country After Mcgirt?, Robin M. Rotman, Sam J. Carter
Faculty Publications
This article examines disputes over surface mining jurisdiction on the Muscogee (Creek) Nation Reservation post-McGirt and the larger implications for sovereignty and environmental justice in Indian Country that follow. Part II summarizes the history of federal, state, and tribal relations and provides an analysis of the McGirt decision and its potential impacts on natural resource issues. Part III offers an examination of jurisdictional uncertainties post-McGirt through an in-depth discussion of the Surface Mining Control and Reclamation Act and the State of Oklahoma v. United States Department of the Interior case. Drawing from the examination of surface mining regulation, Part IV …
References To Robert Frost's Poetry In Advocacy And Judicial Opinions, Douglas E. Abrams
References To Robert Frost's Poetry In Advocacy And Judicial Opinions, Douglas E. Abrams
Faculty Publications
This article concerns courts whose written opinions have recently cited and quoted Frost and his poetry. By profiling Frost’s enduring influence, the article fortifies a theme I have presented in earlier “Writing It Right” articles. The theme begins in the courts, which in recent years often accent their opinions’ substantive or procedural rulings by quoting or citing well-known cultural markers from literature, sports, or popular entertainment.