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Abolish Municipal Courts: A Response To Professor Natapoff, Brendan Roediger Jan 2021

Abolish Municipal Courts: A Response To Professor Natapoff, Brendan Roediger

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If we are serious about disrupting the generational reproduction of the racial social order, we are going to have to learn to let go. Taking up the legacy of criminal municipal courts and racial control, this Response argues against the practice of prescribing from the traditional “medication list” of liberal reforms (substantive, procedural, and “democratizing”) without grappling with whether a system or apparatus is so inextricably bound up with the maintenance of race and class hierarchy that it should be demolished. I assert that we should always ask whether something is redeemable before we ask whether it is reformable. In ...


Legalizing Midwifery In Missouri, Michael A. Wolff Jan 2020

Legalizing Midwifery In Missouri, Michael A. Wolff

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Two decades after the Missouri Supreme Court upheld an injunction against the practice of midwifery, two midwives became lobbyists for the cause and, with the remarkable cooperation of friendly legislators and lobbyists, got a provision inserted in a health bill legalizing the practice of tocology, a synonym for midwifery that went unnoticed by legislators who voted for the lengthy bill in which it was inserted. Medical associations sued to invalidate this "stealth" provision but their efforts failed when the Missouri Supreme Court declined to grant standing to the doctors to "protect" the interests of the public. Thirteen years later, the ...


Local Human Rights Lawyering, Lauren Bartlett Jan 2018

Local Human Rights Lawyering, Lauren Bartlett

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International human rights offer a powerful set of norms that have helped domestic advocates to successfully secure additional civil, political, economic and social rights for those living in poverty in the U.S. Legal aid attorneys, public defenders, and other public interest advocates have recognized human rights as an additional advocacy tool and are increasingly using human rights arguments in U.S. courts. This article examines three cases in which legal aid attorneys and public defenders successfully used human rights arguments in U.S. courts, and discusses emerging best practices for using human rights in litigation in the U.S.


Keeping The Rule Of Law Simple: Comments On Gowder, The Rule Of Law In The Real World, Chad Flanders Jan 2018

Keeping The Rule Of Law Simple: Comments On Gowder, The Rule Of Law In The Real World, Chad Flanders

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Let me start by just stating my experience of reading The Rule of Law in the Real World1 because it will help make sense of the structure of my remarks. The first third of the book: I am utterly convinced, even blown away, by the elegance and persuasiveness of the argument and the analysis; even when there is merely a summary, I am helped and bettered by it. The second third of the book: I am inclined, based on the enormous goodwill generated by the first third of the book to accept-almost uncritically-the historical discussion and the conclusions drawn ...


Is Having Too Many Aggravating Factors The Same As Having None At All? A Comment On The Hidalgo Cert. Petition, Chad Flanders Jan 2017

Is Having Too Many Aggravating Factors The Same As Having None At All? A Comment On The Hidalgo Cert. Petition, Chad Flanders

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While the Court does not dispute that at first blush the defendant's argument appears logical, it is disturbed by the prospect of how one determines the point at which the number of aggravating circumstances causes the death penalty statute to be generally unconstitutional. Is the Court to engage in some mathematical calculation as to who might be covered by the statute and who is not; and if so, what would be reasonable and logical factors to include in the formula? Can the Court arbitrarily declare that fifty aggravating circumstances is too many but forty-nine is permissible? Even assuming one ...


Perspectives On The Tax Avoidance Culture: Legislative, Administrative, And Judicial Ambiguity, Henry Ordower Jan 2017

Perspectives On The Tax Avoidance Culture: Legislative, Administrative, And Judicial Ambiguity, Henry Ordower

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Henry Ordower discusses the effect that legislating economic incentives through the tax system has on taxpayer behaviour and explores the resulting difficulty in drawing the line between legitimate and objectionable tax avoidance. He argues that while the attempts to separate the two types of tax avoidance – attempts such as enacting general anti-avoidance rules (GAARs) and following general principles of economic substance – may be partially successful, subsidies delivered through the tax system will inherently limit their effect. The lack of clear delineation between legitimate tax planning and objectionable tax avoidance enables an even firmer embedding of “the culture of tax avoidance ...


Out Of Ferguson: Misdemeanors, Municipal Courts, Tax Distribution And Constitutional Limitations, Henry Ordower, J. Onésimo Sandoval, Kenneth Warren Jan 2017

Out Of Ferguson: Misdemeanors, Municipal Courts, Tax Distribution And Constitutional Limitations, Henry Ordower, J. Onésimo Sandoval, Kenneth Warren

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The matter of police and municipal courts as revenue producers became increasingly prominent following Michael Brown’s death from a police shooting. This article considers the use of misdemeanors, especially traffic violations, for the purpose of collecting substantial portions of the annual operating budgets in municipalities in St. Louis County, Missouri. The article argues that the revenue raising function of traffic offenses has displaced their public safety and traffic regulation functions. The change in function from public safety to revenue suggests that the governing laws are no longer valid as exercise of policing power but must be reenacted under the ...


Let’S Pretend That Federal Courts Aren’T Hostile To Discrimination Claims, Marcia L. Mccormick Jan 2015

Let’S Pretend That Federal Courts Aren’T Hostile To Discrimination Claims, Marcia L. Mccormick

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Professor Sandra Sperino’s article, Let’s Pretend Discrimination Is a Tort,[1] makes a valuable contribution to the debate about the proper interpretation of Title VII and other employment discrimination laws in light of Supreme Court trends. Professor Sperino ably describes the way that the Supreme Court has used tort concepts increasingly in recent cases,[2] even having gone so far as to have called employment discrimination statutes federal torts.[3] This development has created significant concern among scholars,[4] including Professor Sperino herself.[5]

Rather than simply reiterate those concerns, however, in her article Professor Sperino adopts a ...


The Supreme Court And The Rehabilitative Ideal, Chad Flanders Jan 2015

The Supreme Court And The Rehabilitative Ideal, Chad Flanders

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Graham v. Fl,orida,1 the Supreme Court's 2010 decision finding a life without parole sentence for a non-homicide crime committed by a juvenile "cruel and unusual' ' has rightly been recognized as a "watershed."2 A major focus of the extensive commentary on the case has been on its application of the "evolving standards of decency'' test to a punishment outside of the death penalty, and to whether Graham might apply also to adults.3 Equally important in Graham, but subject to comparatively less critical attention,4 is the central role that the rehabilitative theory of punishment plays in ...


Reverse Abstention, Samuel P. Jordan Jan 2012

Reverse Abstention, Samuel P. Jordan

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State courts decide claims based on federal or sister-state law every day. Although the applicable constitutional provisions are different, there are significant similarities in the way the Supreme Court conceptualizes the constraints on how those claims must be treated. One project of this Article is to chart those similarities, providing a unified account of the Court’s approach to judicial federalism. The larger project, however, is not to describe the Court’s approach, but to replace it. The current emphasis on discrimination and interference imposes burdensome and unwarranted obligations on state courts. A more flexible approach to judicial federalism is ...


Choosing Justices: How Presidents Decide, Joel K. Goldstein Jan 2011

Choosing Justices: How Presidents Decide, Joel K. Goldstein

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Presidents play the critical role in determining who will serve as justices on the Supreme Court and their decisions inevitably influence constitutional doctrine and judicial behavior long after their terms have ended. Notwithstanding the impact of these selections, scholars have focused relatively little attention on how presidents decide who to nominate. This article contributes to the literature in the area by advancing three arguments. First, it adopts an intermediate course between the works which tend to treat the subject historically without identifying recurring patterns and those which try to reduce the process to empirical formulas which inevitably obscure considerations shaping ...


Leading The Court: Studies In Influence As Chief Justice, Joel K. Goldstein Jan 2011

Leading The Court: Studies In Influence As Chief Justice, Joel K. Goldstein

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Chief Justice Roberts has now completed five years of what is likely to be a lengthy tenure in the Court’s center seat. The quality of his institutional leadership, like that of his predecessors, resists confident contemporary assessment to a unique degree among principal offices of American government inasmuch as much of what a Chief Justice does is invisible to all but a relatively few observers, most or all of whom generally remain discreetly silent about such matters. Nonetheless, history counsels that the professional and interpersonal skill which a Chief Justice displays may substantially affect the Supreme Court and the ...


Regulatory Adjudication, Marcia L. Mccormick Jan 2010

Regulatory Adjudication, Marcia L. Mccormick

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Calls for increased regulation are flying fast and furious these days. We use regulation in the United States to prevent harm that various kinds of activities might cause and also to create positive external benefits that those activities could yield, but might not without incentives. Most regulatory programs in the United States provide a blend of measures designed to create these positive external benefits, promote good practices in the industry, prevent harms, and provide those harmed with remedies. At a time in which we contemplate new ways to regulate to deal with the crises of the day and prevent the ...


Situating Inherent Power Within A Rules Regime, Samuel P. Jordan Jan 2010

Situating Inherent Power Within A Rules Regime, Samuel P. Jordan

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My goal in this short Essay is to describe the way that inherent power is understood and applied within our procedural framework, and to suggest the need for a more robust account of the contemporary relationship between inherent power and formal procedural rules. Part I describes two roles – one legitimate and one not – that inherent power can play vis-à-vis the rules. Part II examines how those roles are often confused or manipulated, with the result that inherent power remains available to justify judicial action in an undesirably large class of cases. Finally, Part III explores ways to clarify the relationship ...


Local Rules And The Limits Of Trans-Territorial Procedure, Samuel P. Jordan Jan 2010

Local Rules And The Limits Of Trans-Territorial Procedure, Samuel P. Jordan

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Local rules have been unfairly cast as procedural villains. Their qualifications for the role are purportedly numerous, but chief among them is that they violate a fundamental principle embedded in our post-1938 procedural regime: that the procedural rules applied in a federal case should not be sensitive to location. It must of course be conceded that local rules do produce territorial variations in procedure. But in practice, the principle of trans-territoriality is aspirational, and is undermined by an array of factors – ranging from competing interpretations of written rules to the supplementation of those rules through exercises of inherent power – that ...


The Stockley Verdict: An Explainer, Chad Flanders Sep 2009

The Stockley Verdict: An Explainer, Chad Flanders

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The purpose o f this document is to help explain some o f the existing Missouri law that Judge Wilson used in his opinion. It does not take a side on the opinion itself. At the end o f the day, the decision Judge Wilson made was based on his call on various disputed factual questions. The law was not, for the most part, at issue. I attempt only to describe the legal framework within with Judge Wilson decided the case; not to support or to criticize his verdict. Each person will ultimately have to make his or her own ...


Why Law Students Should Take The Federal Courts Course, Roger L. Goldman Jan 2009

Why Law Students Should Take The Federal Courts Course, Roger L. Goldman

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The most unique feature of the American judiciary is its dual system of trial courts, one state and one federal. This article explores the reasons traditionally given for the need for lower federal courts and whether, in practice, the federal courts are actually serving those needs. For example, it has been assumed that state courts are less hospitable to federal civil rights and consumer claims than federal courts, yet in many jurisdictions, plaintiffs’ lawyers prefer filing claims in state courts under state anti-discrimination or consumer laws rather than federal laws to prevent removal of the case to federal court. The ...


A Review Of “How Judges Think” By Richard A Posner, Chad Flanders Jan 2009

A Review Of “How Judges Think” By Richard A Posner, Chad Flanders

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This is a short review of How Judges Think by Richard Posner.


Shareholders In The Jury Box: A Populist Check Against Corporate Mismanagement, Ann M. Scarlett Jan 2009

Shareholders In The Jury Box: A Populist Check Against Corporate Mismanagement, Ann M. Scarlett

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The recent subprime mortgage disaster exposed corporate officers and directors who mismanaged their corporations, failed to exercise proper oversight, and acted in their self-interest. Two previous waves of corporate scandals in this decade revealed similar misconduct. After the initial scandals, Congress and the Securities and Exchange Commission attempted to prevent the next crisis in corporate governance through legislative and regulatory actions such as the Sarbanes-Oxley Act of 2002. Those attempts failed. Shareholder derivative litigation has also failed because judges accord corporate executives great deference and thus rarely impose liability for breaches of fiduciary duties.

To prevent the next crisis in ...


Setting The Size Of The Supreme Court, F. Andrew Hessick, Samuel P. Jordan Jan 2009

Setting The Size Of The Supreme Court, F. Andrew Hessick, Samuel P. Jordan

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As with any institutional feature, the size of the Supreme Court should be informed by a definition of functional goals. This article describes how the current size of the Supreme Court is largely untethered from any such definition, and it begins the process of understanding how size and Court performance might interact. To do so, it identifies a list of institutional goals for the Supreme Court and explores how changing the size of the Court promotes or obstructs the attainment of those goals. Given that the Court's institutional goals are numerous and occasionally in tension, there is no definitive ...


Irregular Panels, Samuel P. Jordan Jan 2008

Irregular Panels, Samuel P. Jordan

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This article explores a common but essentially unexplored feature of appellate decision-making: decisions by irregular panels. Decisions in the federal courts of appeals are usually reached by panels of three statutorily authorized judges. But appellate panels are often irregular in practice, either because an authorized judge becomes unavailable or because an unauthorized judge is assigned as a panel member. The traditional approach, supported by both statute and case law, has been to accept the former while rejecting the latter. When considered functionally, however, decisions by quorum are at least as problematic as those by panels with unauthorized members. The absence ...


Confusion And Unpredictability In Shareholder Derivative Litigation: The Delaware Courts' Response To Recent Corporate Scandals, Ann M. Scarlett Jan 2008

Confusion And Unpredictability In Shareholder Derivative Litigation: The Delaware Courts' Response To Recent Corporate Scandals, Ann M. Scarlett

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The Delaware courts responded to the recent wave of corporate scandals, exemplified by Enron and WorldCom, by changing their approach to shareholder derivative litigation. This Article analyzes the Delaware courts' response to these scandals and concludes that the courts have created doctrinal confusion and introduced unpredictability into derivative litigation. This Article also analyzes the future negative consequences for shareholders, corporations, directors, investors, and other litigants. Finally, this Article proposes improvements for derivative litigation that may alleviate the confusion and unpredictability created by the Delaware courts' response to the recent scandals.


Not Hearing History: A Critique Of Chief Justice Robert’S Reinterpretation Of Brown, Joel K. Goldstein Jan 2008

Not Hearing History: A Critique Of Chief Justice Robert’S Reinterpretation Of Brown, Joel K. Goldstein

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In the principal opinion in Parents Involved in Community Schools v. Seattle School District No. 1, Chief Justice Roberts invoked Brown v. Board of Education to bolster his view that the United States Constitution forbids the use of virtually all racial classifications. In its closing paragraphs, the plurality opinion claimed that the NAACP attorneys in Brown subscribed to an anticlassification view of the Constitution and that the Court adopted that view. Far from hearing history, the Chief Justice’s opinion sought to rewrite it. The discussion ignored the historic context in which Brown was argued and based its argument on ...


Deliberative Dilemmas: A Critique Of Deliberation Day From The Perspective Of Election Law, Chad Flanders Jan 2007

Deliberative Dilemmas: A Critique Of Deliberation Day From The Perspective Of Election Law, Chad Flanders

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My paper deals with two subject areas - deliberative democracy theory and election law - that have had surprisingly little contact with another. My paper tries to remedy this lacuna by looking at how the two fields intersect and can contribute to the understanding of one another. In particular, I look in detail at a particularly prominent proposal by two political theorists, Bruce Ackerman and James Fishkin's Deliberation Day, and how the aims of that proposal might be frustrated by the present structure of American election law. I argue that because they fail to take into account certain structural features of ...


Early Panel Announcement, Settlement And Adjudication, Samuel P. Jordan Jan 2007

Early Panel Announcement, Settlement And Adjudication, Samuel P. Jordan

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Federal appellate courts have significant discretion to set the internal policies that govern the appeals process, and they have used that discretion to institute policies designed to combat increasing caseloads. This Article takes a close look at one such policy: early announcement of panel composition in the D.C. Circuit Court of Appeals. In stark contrast to every other circuit, the D.C. Circuit announces panel composition to litigants in civil appeals well in advance of oral argument, and it does so at least in part to encourage settlement and control the court's workload. This Article concludes that although ...


The Equality Paradise: Paradoxes Of The Law's Power To Advance Equality, Marcia L. Mccormick Jan 2006

The Equality Paradise: Paradoxes Of The Law's Power To Advance Equality, Marcia L. Mccormick

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This paper, written for Texas Wesleyan Law School's Gloucester Conference, ¿Too Pure an Air: Law and the Quest for Freedom, Justice, and Equality,¿ is a brief exploration of a broader project. Every civil rights movement must struggle with how to allocate scarce resources to accomplish the broadest change possible. This paper compares the legal and political strategies of the Black rights movement and the women's rights movement in the United States, comparing both the strategy choices and the results. These two movement followed essentially the same strategies. Where they have attained success and where each has failed demonstrates ...


Statutory Assistance For Attorneys Providing Pro Bono Services, Christine Rollins Jan 2004

Statutory Assistance For Attorneys Providing Pro Bono Services, Christine Rollins

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Missouri attorneys now have the statutory assistance they need to take a more active role in assisting the low-income and under-represented members of our communities.