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Articles 1 - 30 of 49
Full-Text Articles in Law
What’S Missing? Addressing The Inadequate Lgbt Protections In The Missouri Human Rights Act, Ellen Henrion
What’S Missing? Addressing The Inadequate Lgbt Protections In The Missouri Human Rights Act, Ellen Henrion
Missouri Law Review
Most Missourians can move into homes with their partners, put up pictures of their spouses at their workplace desks, or book a hotel room for an overnight stay with a carefree confidence that these actions will not result in harassment or discriminatory repercussions. Unfortunately, this is not true for all of the state’s residents. Approximately 160,000 adults in Missouri identify as lesbian, gay, bisexual, and/or transgender (“LGBT”). Accordingly, approximately 160,000 adults in Missouri are particularly vulnerable to workplace, housing, and public accommodations discrimination as the Missouri Human Rights Act (“MHRA”), Missouri’s general anti-discrimination statute, does not explicitly prohibit discrimination based …
Evaluating The Special Needs Doctrine In The Context Of Higher Education, Ryan Prsha
Evaluating The Special Needs Doctrine In The Context Of Higher Education, Ryan Prsha
Missouri Law Review
Part II of this Note discusses the legal context in which this issue must be framed and gives a brief history of how the courts have handled public school drug-testing policies to this point. Part III examines the current state of drug testing in the academic setting – specifically focusing on the ongoing legal situation at Linn State. Part IV delves into questions concerning the Eighth Circuit’s current treatment of the Linn State situation, as well as the potential approaches that the judiciary could take in future cases.
Why Lenity Has No Place In The Income Tax Laws, Andy S. Grewal
Why Lenity Has No Place In The Income Tax Laws, Andy S. Grewal
Missouri Law Review
This Article shows that courts should reject such arguments because the rule of lenity has no place in the construction of the income tax provisions in Subtitle A of the tax code. The rule of lenity makes sense when applied to a statute that compels or prohibits some type of behavior, but income tax provisions do not compel or prohibit anything. Those provisions simply describe consequences associated with particular transactions. Consequently, applying the rule of lenity can lead to anomalous results.
Without Deference, Jeffrey A. Pojanowski
Without Deference, Jeffrey A. Pojanowski
Missouri Law Review
I argue that such an alternative regime has appealing features but may not bring as much practical change as casual critiques or defenses of Chevron contemplate, at least immediately. The more immediate change would arise at the level of theory and rhetoric, which, in turn, may lead to greater practical changes in the longer run. The theoretical presuppositions underwriting a regime of non-deferential review are far more classical in cast than the moderate legal realism underwriting Chevron. Rejecting deference, therefore, would change how courts talk about the difference between law and policy in the administrative state. The resurrection of the …
Toward A Context-Specific Chevron Deference, Christopher J. Walker
Toward A Context-Specific Chevron Deference, Christopher J. Walker
Missouri Law Review
With Justice Scalia’s passing, the Supreme Court is less likely to consider overturning the administrative law doctrines affording deference to agency statutory interpretations (Chevron deference) or agency regulatory interpretations (Auer deference). Without Justice Scalia on the Court, however, a different kind of narrowing becomes more likely. The Court may well embrace Chief Justice Roberts’s context-specific Chevron doctrine, as articulated in his dissent in City of Arlington v. FCC and his opinion for the Court in King v. Burwell. This Article, which is part of a symposium on the future of the administrative state, explores the Chief Justice’s more limited approach …
Private Complements To Public Governance, Emily S. Bremer
Private Complements To Public Governance, Emily S. Bremer
Missouri Law Review
This Article suggests that private governance offers an attractive alternative or complement to the administrative state. It is commonly assumed that without administrative agencies, there would be no regulation. As a foundational matter, this Article challenges the notion that there are only two, mutually exclusive options: governmental regulation or no regulation all. Although it is perfectly natural for public law scholars to focus primarily on regulation through government institutions and programs, much regulation is in fact accomplished via mechanisms outside the administrative state.4 At least in some circumstances, it is not only possible but may even be preferable to use …
Statutory Interpretation In Missouri, Matthew Davis
Statutory Interpretation In Missouri, Matthew Davis
Missouri Law Review
Although countless secondary sources discuss the canons used to interpret statutory language, few thoroughly focus on the canons cited by Missouri courts. This four-part Note attempts to fill that void. Part II begins by organizing and concisely stating roughly thirty rules of statutory interpretation. Part III then contends that two of these principles – that the purpose of a statute should be furthered and that absurd outcomes should be avoided – often lend themselves to unpredictable results. Part IV concludes by suggesting one way this unpredictability could be minimized.
An Important Time For The Future Of Class Action Waivers And The Power Struggle Between Businesses And Consumers, Jack Downing
An Important Time For The Future Of Class Action Waivers And The Power Struggle Between Businesses And Consumers, Jack Downing
Missouri Law Review
This Note discusses the inherent problems that come with arbitration clauses in contracts of adhesion. Further, this Note will address the likelihood of a potential change – through future Supreme Court interpretations of the FAA or new legislation. Something must be done to protect those with inferior bargaining power from being forced, through contracts of adhesion, to give up their right to bring class action lawsuits. If Congress, the Supreme Court, and regulatory agencies maintain the status quo, companies will retain the ability to improperly strip consumers of their rights and their due compensation nationwide.
Missouri Campaign Reporting Requirements In The Shade Of Citizens United, Benjamin N. Levin
Missouri Campaign Reporting Requirements In The Shade Of Citizens United, Benjamin N. Levin
Missouri Law Review
In Geier v. Missouri Ethics Commission, the appellant, Gerald Geier, asked the Supreme Court of Missouri to consider the constitutionality of Missouri’s reporting requirement statutes as applied to Stop Now!, an inactive political action committee (“PAC”). Geier argued that the reporting requirement failed to meet the exacting scrutiny standard because the State’s interest in receiving reports of inactivity did not outweigh the burden placed on Geier by the requirement. This Note analyzes the court’s application of exacting scrutiny in the instant decision. It also notes the limits of PAC disclosure requirements as a public policy tool in the absence of …
Syntax Or Experience: What Should Determine If Sex Trafficking Qualifies As A Crime Of Violence?, Britteny Pfleger
Syntax Or Experience: What Should Determine If Sex Trafficking Qualifies As A Crime Of Violence?, Britteny Pfleger
Missouri Law Review
This Note analyzes the Fourth Circuit’s opinion in United States v. Fuertes, ultimately concluding that, contrary to the decision in Fuertes, sex trafficking should be considered a crime of violence under 18 U.S.C. § 924(c). Part II of this Note details the acts of German Ventura, a defendant charged with sex trafficking and possession of a gun during a crime of violence. Part III explores the purpose of § 924(c) and courts’ interpretations of “crime of violence”; it then considers federal circuit courts’ bases for finding sex trafficking under the TVPA to be a violent crime under a variety of …
Marbury V. Madison And The Concept Of Judicial Deference, Aditya Bamzai
Marbury V. Madison And The Concept Of Judicial Deference, Aditya Bamzai
Missouri Law Review
Part I summarizes Marbury’s statutory analysis. Part II picks up that summary and analyzes each of the three types of “deference” discussed in the Marbury opinion. Part III provides some concluding thoughts.
A Fresh Look At Copyright On Campus, Jacob H. Rooksby
A Fresh Look At Copyright On Campus, Jacob H. Rooksby
Missouri Law Review
This Article reviews developments in these three areas of higher education through the lens of copyright, examining, in particular, the copyright ownership – as opposed to use – questions they present. In these emerging contexts, institutional claims to copyright often work to the detriment of students, faculty, and the public. Also harmful are campus copyright policies that are ambiguously worded or inappropriately purport to vest ownership interests in colleges and universities.
A Blatant Inequity: Contributions To The Common Benefit Fund In Multidistrict Litigation, Jack Downing
A Blatant Inequity: Contributions To The Common Benefit Fund In Multidistrict Litigation, Jack Downing
Missouri Law Review
This Note analyzes the nuances of this issue and offers resolutions to its fundamental problems. Part II includes an overview of the MDL litigation, the plaintiffs’ lead counsel selection process, and the function and nature of CBFs. This Part will also include the judicial justification for creating a CBF in federal MDLs. Part III examines current problems with CBFs. In particular, this Part will focus on plaintiffs’ attorneys’ ability to use work product obtained for the federal MDL in their concurrent state court cases without having to contribute any portion of their recovery in state court to the federal CBF. …
A Fatally Flawed Proxy:The Role Of “Intended Loss” In The U.S. Sentencing Guidelines For Fraud, Daniel S. Guarnera
A Fatally Flawed Proxy:The Role Of “Intended Loss” In The U.S. Sentencing Guidelines For Fraud, Daniel S. Guarnera
Missouri Law Review
This Article provides the first extended analysis of the new intended loss provision, and it does so primarily through the framework of rules and standards. Generally speaking, a rule is “framed in terms of concepts that can be applied without explicit reference to the principles or policies that might have motivated the rule, usually by specifying operative facts that trigger the rule.” In contrast, the use of standards “involve[s] recourse to justificatory principles or policies, mediated by some form of balancing that does not specify in advance the result thereof.” For example, a law prohibiting driving over sixty-five miles per …
The Scope Of § 337 Post-Suprema, Inc. V. International Trade Commission, Matthew Davis
The Scope Of § 337 Post-Suprema, Inc. V. International Trade Commission, Matthew Davis
Missouri Law Review
This Note first sets forth the facts and holding of the Federal Circuit’s decision in Suprema. Then, it examines the origins of the ITC, the relationship between § 337 and the Patent Act, and the cases that were raised in the majority and dissenting opinions. Next, it details the court’s interpretation of § 337 under the Chevron framework. Finally, this Note appraises the court’s construction, addresses the concerns underlying the decision, and assesses the harmful consequences of extending the ITC’s authority to the importation of non-infringing articles intended to induce post-importation infringement.
Missouri’S Statutory Cause Of Action For Medical Negligence: Legitimate Application Of Legislative Authority Or Violation Of Constitutional Rights?, Emily Mace
Missouri Law Review
This Note discusses whether SB 239 is likely to survive future arguments against its constitutionality. Part II describes the bases upon which damages caps have been challenged in Missouri and the role of the right to trial by jury in analyzing damages caps. Part III then provides a short procedural history of SB 239. Finally, Part IV discusses whether SB 239 attempts to alter a common law cause of action in a way that renders the statute unconstitutional, or whether it abolishes and recreates the cause of action in a manner permitted by the Missouri Constitution.
Access To Education: Transgender Students In Missouri’S Public Education System, Cailynn Hayter
Access To Education: Transgender Students In Missouri’S Public Education System, Cailynn Hayter
Missouri Law Review
Although the questions about whether transgender students have a right to use the restrooms of their gender identity in public schools have been centered on moral and religious concerns, this Note does not focus on those aspects. Instead, it focuses on legal precedent and the implications of developing law on the issue in Missouri. The first half of this Note discusses the federal and state legal backgrounds of transgender students’ right to use the restroom of their gender identity, while the second half discusses the need for the Missouri General Assembly to adopt a specific statute protecting this right.
Too Close For Comfort: Protecting Agriculture In An Urban Age, Maggie Gibson
Too Close For Comfort: Protecting Agriculture In An Urban Age, Maggie Gibson
Missouri Law Review
Part II of this Note introduces issues in Labrayere v. Bohr Farms, the instant case that upheld agricultural protections against nuisance damages. Part III of this Note presents some of the historical trends that led to the court’s decision in Labrayere. It also examines Missouri’s closely related Right to Farm constitutional amendment. Finally, in Part IV, the court’s reasoning is dissected and future implications of the decision are considered.
Rfra Rights Revisited: Substantial Burdens, Judicial Competence, And The Religious Nonprofit Cases, Scott W. Gaylord
Rfra Rights Revisited: Substantial Burdens, Judicial Competence, And The Religious Nonprofit Cases, Scott W. Gaylord
Missouri Law Review
This Article contends that on remand, the circuit majority should join the Eighth Circuit and uphold the right of religious nonprofits to forego the notice required under the Accommodation. Contrary to the majority’s claim, Hobby Lobby and Holt v. Hobbs preclude courts from deciding whether the ACA (or any other statute) actually burdens a religious adherent’s sincerely held beliefs. Although, as Chief Justice Marshall famously declared, “it is emphatically the province and duty of the judicial department to declare what the law is,” courts lack the authority and competence to declare what the religious commitments of a faith are and …
Are Non-Judicial Sales Unconstitutional? The Super-Priority Lien And Its Influence On State Foreclosure Statutes, Ryan Prsha
Missouri Law Review
Part II of this Note discusses the background necessary to understand the super-priority lien and its constitutional implications in regards to nonjudicial foreclosure. Part III reviews the recent developments that have given rise to this issue. Part IV discusses the ramifications of the manner in which the super-priority lien is being handled and how the court’s methodology could potentially affect the constitutionality of non-judicial foreclosure.
Dueling Decisions: The Wrongful Death Clock Clangs Twice On The Same Day, Stacey Ann Lannert
Dueling Decisions: The Wrongful Death Clock Clangs Twice On The Same Day, Stacey Ann Lannert
Missouri Law Review
Part II of this Note provides the facts and holding in Boland. Part III presents the legal background of Boland, discusses both the statutory and common law origins of wrongful death causes of action, and explores Missouri’s unique history of wrongful death statutory interpretation. Part IV analyzes the rationale of the Boland court’s return to the strict interpretation standard of days past. Finally, Part V discusses the ramifications of the court's decision and explores why the court should have acknowledged wrongful death claims that ascended from common law.
Raising Our Standards: Rethinking The Supreme Court’S Abortion Jurisprudence, E. C. Duckworth
Raising Our Standards: Rethinking The Supreme Court’S Abortion Jurisprudence, E. C. Duckworth
Missouri Law Review
Part II of this Note explores the Supreme Court’s abortion jurisprudence by discussing MKB Management Corp. v. Stenehjem, which declared a North Dakota statute barring abortions after a fetus has a detectable heartbeat to be unconstitutional. Next, Part III analyzes the relevant history surrounding abortion rights and the rationale behind the precedent relied on in Stenehjem. Part IV examines the U.S. Court of Appeals for the Eighth Circuit’s decision to void the statute, along with the Eighth Circuit’s vehement plea for a new abortion standard. Finally, Part V of this Note reveals flaws in the Supreme Court’s current abortion jurisprudence …