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Full-Text Articles in Law
Missed The Mark: The Supreme Court Of Missouri’S Faulty Application Of Strict Scrutiny To The Right To Bear Arms, Abigail E. Williams
Missed The Mark: The Supreme Court Of Missouri’S Faulty Application Of Strict Scrutiny To The Right To Bear Arms, Abigail E. Williams
Missouri Law Review
The discussion of the scope and potential limitations of the Second Amendment has been at the forefront of the United States’ political debate in recent years. Prior to 2008, Second Amendment jurisprudence was unclear as to what could constitute a lawful restriction of an individual’s right to bear arms. In 2008, the U.S. Supreme Court, in District of Columbia v. Heller, affirmed the Second Amendment guarantee of the right to bear arms, holding that a Washington, D.C., law that prohibited possessing handguns in the home was unconstitutional. The Court further indicated that nothing in the opinion “should be taken to …
It’S Probable: Missouri Constitution Article I, Section 15 Requires A Higher Standard To Obtain A Warrant For Real-Time Or Prospective Csli, Aaron Hadlow
Missouri Law Review
The scope of this Note primarily deals with issues surrounding real-time CSLI, although the issues implicated by article I, section 15 of the Missouri Constitution could apply to historic CSLI as well. Part II of this Note discusses general principles of Fourth Amendment law and the Supreme Court’s treatment of searches and seizures in relation to electronic communications and data. It then discusses the statutory developments empowering law enforcement to use emerging technologies for surveillance purposes. Part III discusses recent developments in search and seizure law. It then discusses Missouri’s recent amendment to its constitution, which provides additional protections for …
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.
“Show Me” Your Legal Status: A Constitutional Analysis Of Missouri’S Exclusion Of Daca Students From Postsecondary Educational Benefits, Britteny Pfleger
“Show Me” Your Legal Status: A Constitutional Analysis Of Missouri’S Exclusion Of Daca Students From Postsecondary Educational Benefits, Britteny Pfleger
Missouri Law Review
This Note discusses how Missouri’s exclusion of in-state tuition and state scholarship funding affects DACA students and concludes the Missouri legislature’s proposal violates the Fourteenth Amendment’s Equal Protection Clause. Part II explores the DACA program and its effects on both DACA individuals and society; it then lays out Missouri law on higher education benefits, both prior to and after the passage of HB 3 and SB 224. Next, Part III details the process used to evaluate equal protection claims based on immigration status. Part IV scrutinizes the legislation under equal protection case law, ultimately concluding in Part V that HB …
Frederick Douglass’S Constitution: From Garrisonian Abolitionist To Lincoln Republican, Paul Finkelman
Frederick Douglass’S Constitution: From Garrisonian Abolitionist To Lincoln Republican, Paul Finkelman
Missouri Law Review
This Article explores how the great black abolitionist Frederick Douglass was both a constitutional actor and a constitutional theorist. Unlike most constitutional actors, Douglass was not a judge, lawyer, professor, or an elected official. Nevertheless, throughout much of his life, Douglass shaped the Constitution through his actions. He was also shaped by the Constitution as he went from being a fugitive slave – and thus an “object” of the Constitution – to being a free citizen and an appointed officeholder. He became a constitutional theorist who brought his theories into action through his speeches, writings, and activities as an abolitionist, …
Sustainable Constitutional Growth? The “Right To Farm” And Missouri’S Review Of Constitutional Amendments, Angela Kennedy
Sustainable Constitutional Growth? The “Right To Farm” And Missouri’S Review Of Constitutional Amendments, Angela Kennedy
Missouri Law Review
Part I discusses the historical background and enactment of the amendment. Next, Part II outlines the legal challenges available during the political constitutional amendment process, detailing what challenges were – or were not – made to the right-to-farm amendment during its enactment. Part III discusses how Missouri courts generally review legislatively-referred constitutional amendments and how they would likely review challenges brought under the right-to-farm amendment. Part IV discusses the adequacy of existing legal challenges to Missouri constitutional amendments – particularly on the front end – when these amendments are enacted via a single election. It also provides suggestions for the …
Setting A Better Standard: Evaluating Jail Officials’ Constitutional Duties In Preventing The Sexual Assault Of Pretrial Detainees, Blair A. Bopp
Setting A Better Standard: Evaluating Jail Officials’ Constitutional Duties In Preventing The Sexual Assault Of Pretrial Detainees, Blair A. Bopp
Missouri Law Review
This Note examines Walton v. Dawson, a recent Eighth Circuit decision that considers whether jail officials should be held accountable when an inmate-on-inmate sexual assault occurs and the assault was directly facilitated by the failure of the officials’ subordinates to follow the jailhouse policy of locking cell doors overnight. Parts II and III introduce the facts and holding of Walton and the legal context within which an analysis of the instant case may be framed. Part IV synthesizes the court’s rationale in the Walton decision with the established legal context. Finally, Part V discusses Walton’s foreseeable impact on future deliberate …
Civil Or Criminal?: Deciding Whether A Law May Be Applied Retrospectively Yet Constitutionally In Missouri. State V. Wade, Timothy M. Guntli
Civil Or Criminal?: Deciding Whether A Law May Be Applied Retrospectively Yet Constitutionally In Missouri. State V. Wade, Timothy M. Guntli
Missouri Law Review
This Note begins by discussing the facts and holding of Wade. Next, this Note examines generally the legal background and history of bans on ex post facto laws and on laws retrospective in their operation in Missouri. Then, this Note explains recent precedent regarding such bans, particularly in the context of sex offender registration statutes. After the discussion of precedent, this Note explores the analyses of the majority, concurring, and dissenting opinions in Wade. Finally, this Note concludes with a critique of these analyses in the instant decision and contemplates the future effects of the court’s decision.
Arrestee Number Two, Who Are You? Suspicionless Dna Testing Of Pre-Trial Arrestees And The Fourth Amendment Implications, Lesley A. Hall
Arrestee Number Two, Who Are You? Suspicionless Dna Testing Of Pre-Trial Arrestees And The Fourth Amendment Implications, Lesley A. Hall
Missouri Law Review
This Note discusses the resolution of that constitutional battle, Maryland v. King, where the U.S. Supreme Court held that DNA testing of pre-trial arrestees was reasonable under the Fourth Amendment as a routine booking procedure. The Court also held that DNA testing’s use for arrestee identification permitted its use as a tool to investigate suspicionless crimes. Part II analyzes the facts and holding of Maryland v. King. Part III discusses Fourth Amendment jurisprudence, including court-established tests used to ascertain whether a particular search is reasonable. Part IV examines the United States Supreme Court’s rationale in King, including Justice Scalia’s dissent, …
Bargaining With Bite: Missouri High Court's Constitutional Holdings Alter Public Sector Labor Law, Peter W. Bay
Bargaining With Bite: Missouri High Court's Constitutional Holdings Alter Public Sector Labor Law, Peter W. Bay
Missouri Law Review
Collective bargaining – negotiations over working conditions between an employer and representatives of their employees – appeared as early as 1891 as labor unions arose in response to the Industrial Revolution. Collective bargaining in private industry was recognized in 1935 by the National Labor Relations Act but was considered prohibited in the public sector. In 1945, the state of Missouri ratified its constitution, which included article 1, section 29, a provision protecting employee collective bargaining rights. That provision, however, was quickly interpreted by courts as applying only to private employees, and thus, public employees had little power to negotiate employment …
Miller V. Alabama: What It Is, What It May Be, And What It Is Not, Nancy Gertner
Miller V. Alabama: What It Is, What It May Be, And What It Is Not, Nancy Gertner
Missouri Law Review
In Miller v. Alabama, the Supreme Court of the United States, in a five to four opinion written by Justice Elena Kagan, held that mandatory life imprisonment without parole for defendants convicted of murder who were under age eighteen at the time of their crimes violated the Eighth Amendment to the United States Constitution. The decision raises a host of important questions that the University of Missouri School of Law’s recent symposium ably addressed. Is Miller a watershed opinion, prefiguring a new era of substantive Eighth Amendment jurisprudence that would apply to other imprisonment sentences across offender and offense categories? …
Eighth Amendment Differentness, William W. Berry Iii
Eighth Amendment Differentness, William W. Berry Iii
Missouri Law Review
Part II of the Article provides the context for the Miller case, outlining the theoretical underpinnings of the Court’s Eighth Amendment jurisprudence. Part III describes the Court’s “different” jurisprudence, linking the concept of “juveniles are different” to the Court’s longstanding view that “death is different.” In Part IV, the Article demonstrates how the two possible interpretations of the Court’s statement in Miller that “juveniles are different” – as a character-based form of differentness and, in the case of juvenile LWOP, as a punishment-based form of differentness – create distinct theoretical bases for broadening the scope of the Eighth Amendment. Finally, …
Science, Politics, And Administrative Legitimacy , Louis J. Virelli Iii
Science, Politics, And Administrative Legitimacy , Louis J. Virelli Iii
Missouri Law Review
Administrative agencies in the United States and other constitutional democracies around the world are continually faced with difficult questions about the legitimacy of their decisions.1 Each of these legitimacy questions in turn raises important second-order questions about how agencies should view their role within a constitutional democracy: How closely should agency decisions reflect popular political will? When and to what degree are deviations from popular opinion justified, and what measures should be taken to reduce the gap between regulators and the governed? What other sources of information are critical to agency decision making, and how should those inputs be treated …
Constitutionality Of Caps: Upholding Missouri's Right To Jury Trial And The Non-Economic Damages Debate, The, Rachel Lawrence
Constitutionality Of Caps: Upholding Missouri's Right To Jury Trial And The Non-Economic Damages Debate, The, Rachel Lawrence
Missouri Law Review
This Note argues that the Watts decision appropriately invalidated the statutory limits on economic damages, finding non-economic caps on damages unconstitutional. Part II of this Note analyzes the facts and holding of Watts. Part III examines previous constitutional challenges to Missouri Revised Statutes chapter 538 and how the court interpreted constitutional language to reach its decision. Next, Part IV explains the court’s rationale in Watts. Last, Part V explains why the court was correct in declaring noneconomic damage caps unconstitutional and explores the policy issues behind statutory limitations on damages.
Drawing On The Constitution: An Empirical Inquiry Into The Constitutionality Of Warrantless And Nonconsensual Dwi Blood Draws , Kevin Stockmann
Drawing On The Constitution: An Empirical Inquiry Into The Constitutionality Of Warrantless And Nonconsensual Dwi Blood Draws , Kevin Stockmann
Missouri Law Review
This Note assesses how courts have interpreted the text of Schmerber to justify conclusions while determining whether policy justifications support any particular interpretation. It then considers whether empirical data may favor one interpretation of Schmerber by examining the dissipation rate of alcohol from an individual’s bloodstream, the average time it takes a law enforcement officer to obtain a warrant for a blood draw on an alleged intoxicated driver, and the reliability of retrograde extrapolation. This Note confirms that neither the text of Schmerber nor the policy underlying its holding clearly favors a particular interpretation on the constitutionality of warrantless and …
Protecting The Living And The Dead: How Missouri Can Enact A Constitutional Funeral-Protest Statute, Madison Marcolla
Protecting The Living And The Dead: How Missouri Can Enact A Constitutional Funeral-Protest Statute, Madison Marcolla
Missouri Law Review
This Note will analyze the constitutionality of Missouri's funeral-protest statutes under the First Amendment. This Note argues that, with certain changes, Missouri's funeral-protest statutes should pass constitutional muster. In Part II, this Note analyzes the facts and holding of Phelps-Roper v. Koster. Next, in Part III, this Note explores the legal background of the First Amendment, time, place, and manner restrictions, and how other courts have decided cases involving funeral-protest laws. Part IV examines the court's rationale in Phelps-Roper v. Koster. Lastly, Part V explains where the district court erred and how Missouri's funeral-protest statutes can be changed to become …
State Drug Testing Requirements For Welfare Recipients: Are Missouri And Florida's New Laws Constitutional, Abby E. Schaberg
State Drug Testing Requirements For Welfare Recipients: Are Missouri And Florida's New Laws Constitutional, Abby E. Schaberg
Missouri Law Review
This Summary examines the framework set up by the Supreme Court for analyzing the constitutionality of drug testing on welfare recipients. It discusses the states' implementation of such programs, and specifically analyzes laws recently passed by Florida and Missouri that authorize drug-testing requirements on welfare recipients. The likely outcome of challenges to these laws appears to be dependent, at least in part, on whether the law provides for suspicionless drug testing or calls for drug testing based on some reasonable suspicion of drug use.
Developing The Duffy Defect: Identifying Which Government Workers Are Constitutionally Required To Be Appointed, Stacy M. Lindstedt
Developing The Duffy Defect: Identifying Which Government Workers Are Constitutionally Required To Be Appointed, Stacy M. Lindstedt
Missouri Law Review
In 2007, Professor John Duffy wrote a brief article questioning whether administrative patent judges are constitutional officers and therefore subject to the Appointments Clause. A litigant latched onto the argument and challenged the validity of eight years of Board of Patent Appeals and Interferences determinations. Congress enacted a patch to provide for the appointment of patent judges, but the "Duffy Defect" did not stop there. Other scholars have questioned the constitutionality of various government actors from Bankruptcy Judges to the Pay Czar. The United States Tax Court dealt with a recent Appointments Clause challenge when a taxpayer questioned whether Internal …
Death Of The Challenge To Lethal Injection - Missouri's Protocol Deemed Constitutional Yet Again, Tanya M. Maerz
Death Of The Challenge To Lethal Injection - Missouri's Protocol Deemed Constitutional Yet Again, Tanya M. Maerz
Missouri Law Review
Lethal injection is currently the predominant form of execution nationwide. Most proponents of this method cite the convenience and the humanity of this procedure over past methods of execution. However, lethal injections are fraught with problems such as the specificity and safety of the written procedures themselves, implementation of such procedures, and whether lethal injection and executions in general are constitutional. Most often, prisoners file constitutional challenges to lethal injections under the Eighth Amendment, which prevents imposing cruel and unusual punishment on an American citizen. One of the more recent cases in Missouri cited such a challenge to the implementation …
Constitutional Interpretation Through A Global Lens, Rex D. Glensy
Constitutional Interpretation Through A Global Lens, Rex D. Glensy
Missouri Law Review
This Article seeks to clarify the current debate concerning the use of non-U.S. persuasive authority within the context of constitutional interpretation. It begins by noting that commentary on comparative constitutional law often fails to make any distinction between foreign domestic sources and international law used comparatively, and thus risks evoking parallels between different systems of law that lack context and plausibility. It then draws on various normative theories and underpinnings of both domestic and international legal regimes to show that a proper comparative enterprise must take this distinction into account. The Article concludes by explaining that only when those policy …
Strict In Theory, But Accommodating In Fact, Ozan O. Varol
Strict In Theory, But Accommodating In Fact, Ozan O. Varol
Missouri Law Review
As law students quickly learn, the strict-scrutiny test governs challenges under the Equal Protection Clause to the government's use of suspect classifications and infringement on certain fundamental rights. To survive strict scrutiny, the government bears the heavy burden of showing a compelling interest in drawing a suspect classification or infringing on a fundamental right and narrowly tailored means to achieve that interest. Over the years, strict scrutiny has expanded to serve as a bulwark against government intrusions on many fundamental rights and liberties in the United States Constitution - including the right to vote, marry, access the courts, and freedom …
Role Of Individuals Discrimination In Free Exercise Claims: Putting Iqbal In Its Place, The, Leila Mcneill
Role Of Individuals Discrimination In Free Exercise Claims: Putting Iqbal In Its Place, The, Leila Mcneill
Missouri Law Review
Ashcroft v. Iqbal has been widely discussed for three reasons: (1) its extension of Twombly's pleading standard to cases outside the realm of antitrust suits, (2) its application of the collateral order doctrine to a district court order denying an official's motion to dismiss on the basis of qualified immunity in a Bivens claim, and (3) its implication for national security and postSeptember 11th terrorist detainments and investigations. However, Iqbal also implicates the nature of what constitutes unconstitutional religious discrimination under the First Amendment's Free Exercise Clause. Therefore, the Iqbal Court's discussion of religious liberty will present problems of interpretation …
Foreword, Margaret E. Mcguinness
Foreword, Margaret E. Mcguinness
Missouri Law Review
Columbia, Missouri is a fitting venue at which to continue the conversation about Missouri v. Holland and explore the intersection of law-making at the international, national and sub-national levels. This symposium revisits the debate over national and local control over foreign affairs and brings together the constitutional doctrinal discussion and accounts of the globalization of regulation that consider the complexity of influences operating within and between multiple systems of law. Both the factual background of Holland (primarily a case about environmental regulation) and the doctrinal context in which it arose (a Supreme Court poised to move toward constitutional endorsement of …
Is It Hot In Here - The Eighth Circuit's Reduction Of Fourth Amendment Protections In The Home, William E. Marcantel
Is It Hot In Here - The Eighth Circuit's Reduction Of Fourth Amendment Protections In The Home, William E. Marcantel
Missouri Law Review
Several years ago, the United States military developed thermal imaging technology for targeting and reconnaissance purposes which law enforcement agencies subsequently adopted as a means of conducting surveillance in support of counter-narcotics efforts. Police use thermal imaging devices in counter-narcotics operations by scanning buildings and homes in order to determine higher heat emissions from buildings. These higher than normal thermal readings of homes act as indicators of possible marijuana grow operations due to the high output of heat from the indoor lamps commonly used for such activities. Even though a majority of jurisdictions have held that a thermal imaging scan …
Dusting Off The Blaine Amendment: Two Challenges To Missouri's Anti-Establishment Tradition, Aaron E. Schwartz
Dusting Off The Blaine Amendment: Two Challenges To Missouri's Anti-Establishment Tradition, Aaron E. Schwartz
Missouri Law Review
Using broad strokes to paint the rights and protections granted therein, the free exercise and the establishment clauses stand as dual monuments to the great-American experiment in separating the State and the sacred., Their sparse language is contrasted by comparatively specific manifestations of similar interests in the state constitutions. Echoing their federal counterpart, the state constitutions commonly command that the state may not fund religiously affiliated educational institutions. No fewer than thirty-eight states, including Missouri, adopted a so-called "Blaine Amendment," which prevent states from supporting sectarian or religious schools. Employing more detail than its federal counterpart, Missouri's constitution made explicit …
Right To Remain Silent: A First Amendment Analysis Of Abortion Informed Consent Laws, The, Whitney D. Pile
Right To Remain Silent: A First Amendment Analysis Of Abortion Informed Consent Laws, The, Whitney D. Pile
Missouri Law Review
Since the United States Supreme Court legalized abortion in the 1973 decision Roe v. Wade, the law governing the regulation of abortions has been in a constant state of flux. After the legalization of abortion, states began enacting informed consent laws in order to regulate what information a woman must be given before terminating her pregnancy; today, a total of 32 states have an informed consent law of some kind. Many informed consent laws, such as that of Missouri, require that a woman receive information at least 24 hours before undergoing an abortion and that the abortion providers disclose the …
Second Amendment Incorporation Through The Fourteenth Amendment Privileges Or Immunities And Due Process Clauses, Michael Anthony Lawrence
Second Amendment Incorporation Through The Fourteenth Amendment Privileges Or Immunities And Due Process Clauses, Michael Anthony Lawrence
Missouri Law Review
The Second Amendment, alternately maligned over the years as the black sheep of the constitutional family and praised as a palladium of the liberties of a republic, should be recognized by the United States Supreme Court to apply to the several States through the Fourteenth Amendment privileges or immunities clause or, alternatively, through the due process clause. This article suggests that the issue of Second Amendment incorporation presents a useful contemporary mechanism for the Court to revive the longdormant Fourteenth Amendment privileges or immunities clause. Such judicial recognition of the clause is necessary to respect the Framers' vision, as inspired …
Questioning Deference, Christina E. Wells
Questioning Deference, Christina E. Wells
Missouri Law Review
Part I of this Article discusses executive branch actions in the crises discussed earlier and identifies a pattern of response to certain perceived threated. Part II assesses this historical pattern in light of a psychological understanding of risk assessment, concluding that the pattern is consistent with predictably skewed risk assessment. Part III discusses the psychology of accountability and the possibility that judicial review can serve as a mechanism of accountability and improve executive decision making.
Beyond Campaign Finance: The First Amendment Implications Of Nixon V. Shrink Missouri Goverment Pac, Christina E. Wells
Beyond Campaign Finance: The First Amendment Implications Of Nixon V. Shrink Missouri Goverment Pac, Christina E. Wells
Missouri Law Review
Part I of this Essay discusses legal background, focusing first on the Court's decision in Buckley and then on the Shrink litigation. Part II itemizes Shrink's flaws, ultimately concludng that those flaws cannot be attributed solely to Buckley. Finally, Part III examines the Court's standards of scrutiny in First Amendment cases and argues that Shrink results at least in part from flaws found in those standards.