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Articles 1 - 30 of 70
Full-Text Articles in Law
Prohibition’S Lingering Shadow: Under-Regulation Of Official Uses Of Force, Wesley M. Oliver
Prohibition’S Lingering Shadow: Under-Regulation Of Official Uses Of Force, Wesley M. Oliver
Missouri Law Review
Grand jury determinations that officers would face no charges in the shooting death of Michael Brown or in the choking death of Eric Garner sparked controversy and riots. This is, of course, a challenge to the ability of the criminal justice system’s ability to resolve society’s most contentious issues. Highly contentious racial issues have long defied resolution through deliberative processes, even though the law strives to achieve outcomes that will be viewed as legitimate. Poorly defined rules of criminal procedure, however, have contributed to judicial resolutions that the public finds unsatisfactory. Our constitutional scheme for regulating police – which traces …
The Death Penalty On The Streets: What The Eighth Amendment Can Teach About Regulating Police Use Of Force, Jelani Jefferson Exum, D. A. Telman
The Death Penalty On The Streets: What The Eighth Amendment Can Teach About Regulating Police Use Of Force, Jelani Jefferson Exum, D. A. Telman
Missouri Law Review
This Article offers punishment as another lens through which to view police force. The Supreme Court has consistently rejected arguments that the Eighth Amendment is the appropriate vehicle for dealing with excessive police force claims.5 However, reconceptualizing the use of deadly force by police officers as punishment provides a new understanding of the gravity of deadly police force and adds necessary substance to the reasonableness analysis. When police force is likened to punishment, the use of fatal force by police officers can be considered the administration of the death penalty on the streets, absent the procedural protections and focus on …
Setting The Stage For Ferguson: Housing Discrimination And Segregation In St. Louis, Rigel C. Oliveri
Setting The Stage For Ferguson: Housing Discrimination And Segregation In St. Louis, Rigel C. Oliveri
Missouri Law Review
The history of St. Louis is replete with discriminatory housing laws, policies, and practices: racially restrictive covenants, redlining, blockbusting and white flight, and exclusionary zoning. While these were common in virtually every part of the United States, they were particularly egregious, widespread, and pervasive in industrial Midwestern cities like Chicago, Detroit, and St. Louis – which saw a large influx of blacks migrating from the south at the close of the nineteenth century. In fact, three of the most foundational housing cases originated in St. Louis. When we look closely at these cases – not just the legal principles that …
Vox Populi: Robert Mcculloch, Ferguson, And The Roles Of Prosecutors And Grand Juries In High-Profile Cases, Frank O. Bowman Iii
Vox Populi: Robert Mcculloch, Ferguson, And The Roles Of Prosecutors And Grand Juries In High-Profile Cases, Frank O. Bowman Iii
Missouri Law Review
The decisions of St. Louis County Prosecuting Attorney Robert McCulloch during the grand jury investigation of the shooting of Michael Brown by Officer Darren Wilson in Ferguson, Missouri, have been criticized on a variety of grounds. In an article written for a Missouri Law Review symposium on the shooting and its aftermath, titled “‘No, You Stand Up’: Why Prosecutors Should Stop Hiding Behind Grand Juries,” Professor Ben Trachtenberg takes Mr. McCulloch to task for allowing the grand jury to deliberate without making a recommendation about whether charges should be filed. Professor Trachtenberg asserts that, at the close of the evidentiary …
Lactation Intolerance: Trivializing The Struggles Of Working Mothers & The Need For A More Diverse Judiciary, Thomas H. Limbrick
Lactation Intolerance: Trivializing The Struggles Of Working Mothers & The Need For A More Diverse Judiciary, Thomas H. Limbrick
Missouri Law Review
Part II of this Note provides a brief background of the facts and the Eighth Circuit’s ultimate holding in Ames. Part III discusses the legal history of Title VII and legislative efforts to prohibit discrimination in the workplace. Part IV examines the Eighth Circuit’s reasoning. Finally, Part V comments on the supposed limited use of summary judgment in employment discrimination cases, the reasonableness of Ames’s actions, the effect of stereotypes in employment discrimination, the role that the identity of the judiciary plays in discrimination cases, and how this case could have been prevented by appropriate human resource (“HR”) management practices. …
Does The Punishment Fit The Crime?: A Comparative Note On Sentencing Laws For Murder In England And Wales Vs. The United States Of America, Megan Elizabeth Tongue
Does The Punishment Fit The Crime?: A Comparative Note On Sentencing Laws For Murder In England And Wales Vs. The United States Of America, Megan Elizabeth Tongue
Missouri Law Review
This Note explores the differences between the American legal system’s sentencing procedures for murder with the procedures of England and Wales. This Note attempts to determine how this divide occurred and whether the two countries chose the appropriate way to sentence their murderers. In particular, this Note focuses on England’s and Wales’s lack of degrees of murder and the United States’ practice of plea bargaining. Part II discusses the history of American and English criminal law and how these countries similarly evolved from their origins to the late nineteenth century. Part III explores modern criminal law theory progressing from the …
Exploring The Administrative State, Erin Morrow Hawley
Exploring The Administrative State, Erin Morrow Hawley
Missouri Law Review
The administrative state today “wields vast power and touches almost every aspect of daily life.” There’s no question that the Founders would have been surprised by the current administrative state. By and large, however, both the academy and Article III judges are either reluctant or enthusiastic devotees of the administrative state. A variety of arguments have been put forward to situate the Fourth Branch within the constitutional fabric, from constitutional moments, to the Supreme Court’s pragmatic recognition that, given government as we know it, “Congress simply cannot do its job absent an ability to delegate power under broad general directives.” …
Building Trust And Breaking Down The Wall: The Use Of Restorative Justice To Repair Police-Community Relationships, Laura Merkey
Building Trust And Breaking Down The Wall: The Use Of Restorative Justice To Repair Police-Community Relationships, Laura Merkey
Missouri Law Review
The town of Ferguson, Missouri, captured national attention when a grand jury failed to indict Darren Wilson, a white police officer who shot and killed Michael Brown, an unarmed black teenager, three months prior. Similar citizen deaths involving police in both New York City and Cleveland have magnified the tensions felt across the country, and in many cities and communities, the community-police relationships are rapidly becoming untenable. Baltimore, Maryland, is a prime example; protests, riots, and an atmosphere of mistrust pervaded the city for months after the deaths of Michael Brown, Eric Garner, and Tamir Rice. The situation was, simply …
Ferguson: Footnote Or Transformative Event?, S. David Mitchell
Ferguson: Footnote Or Transformative Event?, S. David Mitchell
Missouri Law Review
“Ferguson.” No longer does this name simply represent the geographical boundaries of a city in St. Louis County formed initially by white flight from St. Louis City and that has become increasingly African American over time. It has come to represent so much more.
One More Call To Respect The Time Of Grand Jurors, Ben L. Trachtenberg
One More Call To Respect The Time Of Grand Jurors, Ben L. Trachtenberg
Missouri Law Review
This Article replies briefly to the robust response that Professor Frank O. Bowman III submitted in answer to my earlier contribution to this Issue.
The Wild Mid-West: Missouri Ethics And Campaign Finance Under A Narrowed Corruption Regime, Dan Schnurbusch
The Wild Mid-West: Missouri Ethics And Campaign Finance Under A Narrowed Corruption Regime, Dan Schnurbusch
Missouri Law Review
This Note explores some of the history of Missouri’s attempts at ethics reform, recent developments in Missouri’s ethics legislation and federal First Amendment jurisprudence, and how these issues commingle to produce a dangerous climate in which to operate a representative democracy. This Note confronts some of the Supreme Court’s conclusions in both Citizens United and McCutcheon, exposes some of the deleterious societal and legal effects of these rulings, and provides some possible courses of action that Missouri and other states might undertake in order to help lay the groundwork for upholding meaningful campaign finance regulation in the future.
Early Prerogative And Administrative Power: A Response To Paul Craig, Philip Hamburger
Early Prerogative And Administrative Power: A Response To Paul Craig, Philip Hamburger
Missouri Law Review
This Article is organized around Craig’s three criticisms. (I) In challenging my thesis that federal administrative power revives a version of prerogative power, he argues that these types of power are crucially different because the prerogative was independent of statute. But his statute-free vision of prerogative power is grossly incorrect, and it therefore cannot distinguish prerogative and administrative power. His argument also is unresponsive. My thesis is that administrative power revives the extralegal character of the absolute prerogative – in other words, that both sorts of power have bound subjects through extralegal edicts – and this extralegal power remains a …
Why Bias Challenges To Administrative Adjudication Should Succeed, Kent Barnett
Why Bias Challenges To Administrative Adjudication Should Succeed, Kent Barnett
Missouri Law Review
Administrative adjudication’s partiality problem is a worthy candidate to join these claims for three reasons. First, prohibiting administrative adjudicators’ partiality, unlike some other structural areas, does not require overruling prior decisions and relies heavily on the Court’s recent precedent. Second, partiality challenges fit comfortably within the Court’s penchant for formalism and prophylaxes in structural constitutional matters. Indeed, formalism is much more justified for partiality challenges than certain other structural issues and has a longer jurisprudential provenance. Finally, as compared to other proposed challenges to the administrative state, challenges based on administrative partiality are more likely to earn enough votes to …
Defining Peaceably: Policing The Line Between Constitutionally Protected Protest And Unlawful Speech, Tabatha Abu El-Haj
Defining Peaceably: Policing The Line Between Constitutionally Protected Protest And Unlawful Speech, Tabatha Abu El-Haj
Missouri Law Review
The current wave of civil rights demonstrations in response to police killings began on August 9, 2014, after Darren Wilson, a white police officer, fatally shot Michael Brown, an unarmed African-American eighteen-year-old, in Ferguson, Missouri. Outraged by the incident and by the fact that the body was left on the street for four-and-a-half hours – an image that went viral on social media – members of the community took to the streets. They went out without securing the necessary permits and without visible connection to established local civil rights organizations. The mainstream media quickly framed the events in Ferguson as …
Timing Is Everything: Shea Homes, Inc. V. Commissioner, Nick Griebel
Timing Is Everything: Shea Homes, Inc. V. Commissioner, Nick Griebel
Missouri Law Review
In 1986, the Internal Revenue Code (“Tax Code”) was comprehensively revised for the first time in over thirty years as part of the Tax Reform Act of 1986 (“Act”). In enacting this comprehensive reform, Congress was guided by three overarching objectives: achieving fairness, improving efficiency, and striving for simplicity in the Tax Code. Before 1986, high-income taxpayers found ways to lower their effective tax rates through many tax shelters and loopholes in the Tax Code. As a result, many of these wealthy taxpayers were paying lower tax rates than their less affluent, low-income counterparts. With this perceived unfairness in mind, …
Restoring Chevron’S Domain, Jonathan H. Adler
Restoring Chevron’S Domain, Jonathan H. Adler
Missouri Law Review
This brief Article’s aim is not so ambitious as to praise or bury Chevron. It seeks only to make a more modest point about the Chevron doctrine and its domain.12 On the assumption that Chevron, in some form, will remain a significant part of the constellation of administrative law, this Article suggests Chevron’s domain should be defined and delimited by its doctrinal grounding. Put another way, the legal rationale for providing deference to agency interpretations of ambiguous statutory text should determine the doctrine’s scope and application. More precisely, insofar as the Court’s subsequent application and elucidation of Chevron have indicated …
“The People Surrender Nothing”: Social Compact Theory, Republicanism, And The Modern Administrative State, Joseph Postell
“The People Surrender Nothing”: Social Compact Theory, Republicanism, And The Modern Administrative State, Joseph Postell
Missouri Law Review
The Article’s argument proceeds in four parts. Part I provides an overview of the scholarly arguments in defense of the nondelegation doctrine. It describes three arguments in favor of the nondelegation doctrine: the separation of powers, political accountability, and constitutional text. Part II argues that social compact theory – not separation of powers, accountability, or constitutional text – is the true foundation of the nondelegation principle. Part III connects the theory of the social compact to the basic principles of republican government, which require that legislative powers are exercised by the representatives of the people chosen through elections. Part IV …
Reflections On Ferguson: What’S Wrong With Black People?, Chuck Henson
Reflections On Ferguson: What’S Wrong With Black People?, Chuck Henson
Missouri Law Review
After Officer Darren Wilson shot and killed Michael Brown on August 9, 2014, it seemed as if it was the summer of 1967 again. The same series of events that happened in Newark and Detroit in 1967 happened in Ferguson, Missouri, in 2014. A white man shot and killed a black man. The predominantly black population protested, rioted, and looted. The predominantly white police force was overwhelmed. The governor called out the National Guard and imposed a curfew. When these things happened in the summer of 1967, President Lyndon B. Johnson, by Executive Order 11365, established what would become known …
Ferguson And Police Use Of Deadly Force, Richard Rosenfeld
Ferguson And Police Use Of Deadly Force, Richard Rosenfeld
Missouri Law Review
The killing of Michael Brown, an unarmed black teenager, by Darren Wilson, a white police officer in Ferguson, Missouri, sparked widespread protests in the St. Louis area and across the nation. Protests and civil unrest resumed after a St. Louis County grand jury declined to indict the police officer.2 Protesters and commentators raised several issues related to the Ferguson incident and police use of deadly force. This Article addresses four of those issues: (1) Why Ferguson? (2) Did the Ferguson killing and ensuing civil unrest increase crime rates in St. Louis? (3) What is known about police use of deadly …
No, You “Stand Up”: Why Prosecutors Should Stop Hiding Behind Grand Juries, Ben L. Trachtenberg
No, You “Stand Up”: Why Prosecutors Should Stop Hiding Behind Grand Juries, Ben L. Trachtenberg
Missouri Law Review
This Article argues that prosecutors should not allow grand juries to consider indicting defendants whom the prosecutors themselves believe should not be indicted. To illustrate the problems with this practice, this Article uses the example of St. Louis County Prosecutor Robert P. McCulloch – who encouraged deliberations by the grand jury that heard evidence concerning the shooting death of Michael Brown in Ferguson, Missouri, despite personally believing that Brown’s killer, police officer Darren Wilson, should not be indicted. The arguments against allowing grand juries to conduct such needless deliberations include: (1) the exercise wastes the time of citizens forced to …
The Missouri Felony Murder Rule’S Merger Limitation: A Doctrine In Limbo, Jared Guemmer
The Missouri Felony Murder Rule’S Merger Limitation: A Doctrine In Limbo, Jared Guemmer
Missouri Law Review
Unfortunately, recent case law in Missouri obliterated the merger doctrine. This Note aims to expose the faulty reasoning applied by Missouri courts in abrogating the merger doctrine. In Part II, this Note will summarize the history of the merger doctrine, both generally and in Missouri. Then, Part III highlights the recent developments in Missouri law regarding felony murder and the merger doctrine. In Part IV, this Note discusses the purpose of the merger doctrine, the rules of interpretation regarding Missouri’s felony murder provision, and why Missouri courts incorrectly decided the merger doctrine no longer functions as a valid legal theory …
The Plight Of The Tattletale: How The Eighth Circuit’S Relaxing Of Rule 9(B) Means More Unpredictability For Fca Whistleblower Claims, Suzanne L. Specker
The Plight Of The Tattletale: How The Eighth Circuit’S Relaxing Of Rule 9(B) Means More Unpredictability For Fca Whistleblower Claims, Suzanne L. Specker
Missouri Law Review
The Eighth Circuit’s decision in United States ex rel. Thayer v. Planned Parenthood addresses this very issue.9 As this Note argues, the Thayer decision not only departs from the Eighth Circuit’s previous position within the circuit split, but it also further contributes to the confusing variance of nuances and interpretations that exist regarding how to apply Rule 9(b) to FCA claims.10 Because the Thayer decision arguably increases the muddled confusion of Rule 9(b)’s application to FCA claims, it is imperative that the Supreme Court resolve the circuit split in the near future. In Part II, this Note analyzes the facts …