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Full-Text Articles in Law
Resuscitating The Non-Delegation Doctrine: A Compromise And An Experiment, A. J. Kritkos
Resuscitating The Non-Delegation Doctrine: A Compromise And An Experiment, A. J. Kritkos
Missouri Law Review
An autopsy of federal non-delegation jurisprudence reveals an interesting insight: the Supreme Court has never repudiated the theoretical underpinnings of the non-delegation doctrine or questioned its importance in maintaining the separation of powers. Instead, the Court has whittled the non-delegation doctrine down to a nub because of practical concerns with implementing it. First, the Court has stated that there is an insurmountable line-drawing problem that occurs when delineating a permissible delegation from an impermissible one. And second, the Court has asserted that the non-delegation doctrine cannot be seriously enforced in a complex, modern society without disastrous consequences. I argue that …
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 …
It's Not Over 'Til It's Over: Mandating Federal Pretrial Jurisdiction And Oversight In Mass Torts, Tanya Pierce
It's Not Over 'Til It's Over: Mandating Federal Pretrial Jurisdiction And Oversight In Mass Torts, Tanya Pierce
Missouri Law Review
Nearly twenty years ago, speaking of the difficulties inherent in managing mass tort cases, Chief Justice William Rehnquist predicted that without coordinated state and federal mechanisms, lawyers would "seek to pursue duplicative and exhaustive litigation." And some courts, "operating under a parochial view of the situation," would allow them to do so. He warned that the result would be "expense, delay, resulting crowding of dockets, divergent decisions on identical factual questions, and sometimes the insolvency of the defendants who are being sued." Despite this and similar warnings, expensive and exhaustive litigation is exactly what has happened in many cases.
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 …
Troubling Ambition Of Federal Rule Of Evidence 502(D), The , Michael Correll
Troubling Ambition Of Federal Rule Of Evidence 502(D), The , Michael Correll
Missouri Law Review
Federal Rule of Evidence 502 promised to change American litigation for the better. It was heralded as a solution to the gross inequity and spiraling litigation costs associated with the painstaking, cumbersome, and largely wasteful document reviews necessary to protect the attorney-client privilege. And in some measure, it succeeded. It has brought uniformity, predictability, and equity to issues of inadvertent disclosure and subject matter waiver. But a largely overlooked provision of the rule promises even bigger, and more troubling changes. Federal Rule of Evidence 502(d) authorizes district courts to enter discovery orders protecting parties from the waiver consequences normally attached …
Echoes From The Past: How The Federal Circuit Continues To Struggle With Patentable Subject Matter Post-Bilski, Jeff Thruston
Echoes From The Past: How The Federal Circuit Continues To Struggle With Patentable Subject Matter Post-Bilski, Jeff Thruston
Missouri Law Review
This Note will examine whether the cases comprising the eligible subject matter trio are inherently inconsistent. In looking at this issue, this Note will ask if Classen Immunotherapies can be reconciled with the patent eligibility trio, or if both the case and Judge Rader's concerns could have been dealt with more effectively by applying 35 U.S.C. § 101 as a last resort, and instead determining patent eligibility via 35 U.S.C. §§ 102, 103, and 112. It is fundamentally more difficult, expensive, and time consuming to ascertain which category of patentable subject matter a claimed invention falls into, or if the …
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 …
Federal And State Judicial Selection In An Interest Group Perspective, Michael E. Solimine, Rafael Gely
Federal And State Judicial Selection In An Interest Group Perspective, Michael E. Solimine, Rafael Gely
Missouri Law Review
This Article proceeds as follows. In Part II, we summarize the model advanced by Landes and Posner. In Part III, we explore some of the criticisms that have been levied against their model, while in Part IV we raise some criticisms of our own and explore how later scholarship has addressed them. Part V concludes the article.
Lessening The Rehabilitative Focus Of The Federal Juvenile Delinquency Act: A Trend Towards Punitive Juvenile Dispositions, Meghan E. Lewis
Lessening The Rehabilitative Focus Of The Federal Juvenile Delinquency Act: A Trend Towards Punitive Juvenile Dispositions, Meghan E. Lewis
Missouri Law Review
Both the federal and state governments have recognized that criminal adults and delinquent juveniles are fundamentally different. Acknowledging that juveniles are more amenable to successful rehabilitation than adults, each government has created a separate juvenile justice system to better handle these unique concerns. The federal structure for juvenile adjudication was established by the Federal Juvenile Delinquency Act ("FJDA," "the Act"), and was enacted to provide individualized rehabilitation for juvenile delinquents in an informal, less procedurally rigid setting than traditional criminal courts. The FJDA grants federal district courts considerable discretion in determining whether a juvenile should be adjudicated under the FJDA …
Supreme Court Cordially Invited You To Sue In Federal Court: Hope You Don't Mind Waiting, The, Evan F. Fitts
Supreme Court Cordially Invited You To Sue In Federal Court: Hope You Don't Mind Waiting, The, Evan F. Fitts
Missouri Law Review
Congestion in the federal judiciary is so prevalent that it has become an afterthought. From the outset of their introductory Federal Civil Procedure course, most law students learn that any attorney who brings an action in a federal court better be prepared to wait. A recent report by the Federal Judicial Center indicated that the average time between filing and adjudication of issues in federal district courts was approximately two years. It can reasonably be asserted that this length of time is directly proportional to the amount of cases on the federal docket. Therefore, any step to reduce the caseload …
Monastic Life Of A Federal Distric Judge, The, Colleen Mcmahon
Monastic Life Of A Federal Distric Judge, The, Colleen Mcmahon
Missouri Law Review
There is no one on earch more monk-like than a federal district judge. As a result, there is no one on earth who more surely needs to have some understanding of core monastic virtures in order to do the job well.