Law Commons^™

Environmental Racism In St. Louis, Thomas Harvey, John Mcannar, Michael-John Voss, Dutchtown South Community Corporation, Action St. Louis, Sierra Club

All Faculty Scholarship

This report calls out environmental racism-"the disproportionate impact of environmental hazards on people of color"1-in St. Louis. While these disparities have been part of the long-standing discriminatory and profit-driven policies and practices known too well by black St. Louisans, the issue of environmental racism has rarely been addressed in the City.

At least three recent reports- For the Sake of All,2 Segregation in St. Louis: Dismantling the Divide,3 and Equity lndicators4-document the heavy health, economic, and quality of life burdens that the St. Louis region imposes on its black residents. This report complements those by focusing on the burdens related …

[Dis]Integration: Second-Order Diversity And Schools, Anders Walker

All Faculty Scholarship

This article challenges the prevailing definition of diversity in schools. Borrowing from legal theorist Heather Gerken, it argues that diversity is best understood not simply as a rationale for creating integrated spaces, but also [dis]integrated ones, places where minority students and faculty can occupy majority positions, and are able to exercise majority control. Such spaces serve legitimate pedagogical goals that are different from those associated with statistical integration, and therefore warrant consideration by courts tasked with reviewing the use of race in university admissions.

Building A Better Bar Exam, Marsha Griggs

All Faculty Scholarship

In the wake of declining bar passage rates and limited placement options for law grads, a new bar exam has emerged: the UBE. Drawn to an allusive promise of portability, 36 U.S. jurisdictions have adopted the UBE. I predict that in a few years the UBE will be administered in all states and U.S. territories. The UBE has snowballed from an idea into the primary gateway for entry into the practice of law. But the UBE is not a panacea that will solve the bar passage problems that U.S. law schools face. Whether or not to adopt a uniform exam …

Freedom And Prison: Putting Structuralism Back Into Structural Inequality, Anders Walker

All Faculty Scholarship

Critics of structural racism frequently miss structuralism as a field of historical inquiry. This essay reviews the rise of structuralism as a mode of historical analysis and applies it to the mass incarceration debate in the United States, arguing that it enriches the work of prevailing scholars in the field.

St. Louis Vacancy Collaborative: 2019-2021 Work Plan, Dana M. Malkus

All Faculty Scholarship

Our City has a serious vacant property challenge. To effectively address vacancy, we must understand and respond to the factors that cause and perpetuate it. Much of the story of vacancy in our city, like other cities, includes a legacy of racism, disinvestment, and disengagement that has led to a breakdown in trust. We know that vacancy can result from incomplete foreclosure, bankruptcy, prolonged probate or lack of proper probate, investors with little incentive to care, judgment proof owners, bank ownership, lack of resources to repair or redevelop, lack of value, the foreclosure crisis, sprawl and weak markets.¹ In …

A Guide To Knowing Your Rights With The Police And Getting Out Of Jail: Booklet 2, Thomas Harvey, Michael-John Voss, John Mcannar

All Faculty Scholarship

ArchCity Defenders created a self-advocating guide for people to use if they have an encounter with the police, jail or the courts.

From Venetian Glass To Contemporary Intellectual Property: Revisiting Tailored Patent Regimes (Book Review), Ana Santos Rutschman

All Faculty Scholarship

This piece reviews Stefania Fusco's “Murano Glass Vase" and "Lessons from the Past." In Murano Glass Vase, Fusco recounts the history of the glassmaking industry in Venice, framing it as the natural experiment from which the patent system sprang into the world. Fusco emphasizes the mix of exclusionary rights and trade secrecy that formed the backbone of Venetian innovation policy against the backdrop of a heavily regulated and protectionist economy. In “Lessons from the Past,” Fusco draws on original research performed at the Venetian State Archives to further the Murano narrative by looking at how the Venetian government fueled an …

What Makes The Death Penalty Arbitrary? (And Does It Matter If It Is?), Chad Flanders

All Faculty Scholarship

A common objection to the death penalty is that it is arbitrarily imposed. Indeed, the Supreme Court in the 1970s held the death penalty as it was then administered to be unconstitutional precisely because the states seemed to have no clear standards for who got death and who did not. In the most famous passage in that opinion (Furman v. Georgia), Justice Stewart wrote that the death penalty was cruel and unusual in the same way that being struck by lightning was cruel and unusual.

It is thus surprising that the Court and those scholars who push this objection have …

Labor Interests And Corporate Power, Matthew T. Bodie

All Faculty Scholarship

Labor unions exert significant power through collective bargaining, pension fund investing, and political advocacy. But in each of these areas, unions face inherent structural limitations that severely constrain these powers. Workers need participation rights in corporate governance to overcome the multiplicity of forces arrayed against them. And rather than obviating the need for unions, worker corporate power would facilitate a different kind of labor representation — a transition to labor power that advocates for occupational interests and forms coalitions across the shifting political interests of different worker groups.

What Makes The Death Penalty Arbitrary? (And Does It Matter If It Is)?, Chad Flanders

All Faculty Scholarship

A common objection to the death penalty is that it is “arbitrarily” imposed. Indeed, the Supreme Court in the 1970s held the death penalty as it was then administered to be unconstitutional precisely because the states seemed to have no clear standards for who got death and who did not. In the most famous passage in that opinion (Furman v. Georgia), Justice Stewart wrote that the death penalty was “cruel and unusual” in the same way that being “struck by lightning” was “cruel and unusual.”

It is thus surprising that the Court and those scholars who push this objection have …

A Guide To Knowing Your Rights With The Police And Getting Out Of Jail: Booklet 1, Thomas Harvey, Michael-John Voss, John Mcannar

All Faculty Scholarship

ArchCity Defenders created a self-advocating guide for people to use if they have an encounter with the police, jail or the courts.

The Vaccine Race In The 21st Century, Ana Santos Rutschman

All Faculty Scholarship

In a world in which infectious diseases are spreading increasingly faster, the development of new human vaccines remains a priority in biopharmaceutical innovation. Legal scholars have addressed different aspects of vaccine regulation and administration, but less attention has been paid to the role of laws governing innovation during the stages of research and development (R&D) of vaccines.

This Article explores the race to develop new vaccines from its beginnings through the early 21st century, with a particular focus on the progressively pervasive role of intellectual property in governing vaccine innovation. It describes the insufficiencies of current innovation regimes in promoting …

Reconstructing The Corporation: A Mutual-Control Model Of Corporate Governance, Grant M. Hayden, Matthew T. Bodie

All Faculty Scholarship

The consensus around shareholder primacy is crumbling. Investors, long assumed to be uncomplicated profit-maximizers, are looking for ways to express a wider range of values in allocating their funds. Workers are agitating for greater voice at their workplaces. And prominent legislators have recently proposed corporate law reforms that would put a sizable number of employee representatives on the boards of directors of large public companies. These rumblings of public discontent are echoed in recent corporate law scholarship, which has cataloged the costs of shareholder control, touted the advantages of nonvoting stock, and questioned whether activist holders of various stripes are …

Promoting Permanency And Human Rights, Lauren Bartlett

All Faculty Scholarship

An increasing number of children are being cared for exclusively by grandparents or extended family. The majority of these caregivers are raising children outside of the foster care system without a formal legal status. In fact, kinship diversion, placing children whose parents cannot or will not care for them with family or friends outside of the foster care system, is encouraged by state and federal law. Informal kinship caregivers face many obstacles to providing care for children and they are more likely to be unemployed, receive government benefits, and be less educated, as compared with parents raising their own children. …

Jury Trial Disparities Between Class Actions And Shareholder Derivative Actions In State Courts, Ann M. Scarlett

All Faculty Scholarship

Class actions and shareholder derivative lawsuits are both forms of representative litigation that historically had to be brought in the equity courts to be decided by a judge, rather than in the common-law courts to be decided by a jury. In 1938, the federal courts merged law and equity by passing the Federal Rules of Civil Procedure, which allowed both legal and equitable claims to be heard within the same civil action. After law and equity merged, the Supreme Court interpreted the Seventh Amendment’s preservation of the right to jury trial as including not just actions recognized at common law, …

An Incomplete Masterpiece, Chad Flanders, Sean Oliveira

All Faculty Scholarship

The recent wave of popular and academic commentary on Masterpiece Cakeshop sounded a common theme: disappointment, even frustration. Masterpiece was held out as a case that was finally going to explain and resolve the conflicts between free expression, free exercise, and discrimination that were coming up again and again in the lower courts. But Justice Kennedy, the critical consensus went, avoided reaching many of the main First Amendment issues in the case and had instead ruled narrowly, giving us a prime example of"judicial minimalism:•

This assessment may be far too generous. In our short Article, we make the case that …

The Costs Of Uncertainty: The Doj’S Stalled Progress On Accessible Medical Equipment Under The Americans With Disabilities Act, Elizabeth Pendo

All Faculty Scholarship

Imagine seeking medical care for serious pressure sores for a year, but your doctor never examining the sores because you could not get on the examination table in her office. Or imagine going more than fifteen years without an annual well-woman examination for the same reason, or your doctor guessing at the right dosage for a prescription because there was no scale that she could use to weigh you.

Although these scenarios may be difficult for many to imagine, they are common experiences for individuals with mobility disability.¹ The Trump administration’s attacks on the Patient Protection and Affordable Care …

In Search Of Best Practices On Gender Equity For University Faculty: An Update, Constance Z. Wagner

All Faculty Scholarship

This article updates the author’s earlier work on the search for gender equity among women faculty in the university setting in the United States. The author reflects on the fact that some of the literature in this area does not sufficiently address the challenges facing women of color. She seeks to fill the gap in her own research by referencing best practices discussed in three recent books on the professional lives of university faculty who are women of color. She argues that future work on best practices for achieving gender equity must address issues of intersectionality of race, gender, and …

Crowdfunding Capital In The Age Of Blockchain Based Tokens, Patricia H. Lee

All Faculty Scholarship

Less than three years ago, the Securities and Exchange Commission (“SEC”) adopted investment crowdfunding regulations (“Reg. CF”) to facilitate small companies’ efforts to raise capital and jumpstart employment, providing companies potentially one of the most disruptive transformations in capital markets.

As the lion share of securities are offered under public offerings or Reg. D safe harbor exemptions, outcomes and impacts of Reg. CF offerings are not studied or monitored to the same extent. One line of inquiry is the scope of Reg. CF, including questions about the level of company participation, the types of businesses seeking capital formation, and the …

Knowledge Of Practicing Physicians About Their Legal Obligations When Caring For Patients With Disability, Nicole Agaronnik, Elizabeth Pendo, Julie Ressalam, Eric G. Campbell, Lisa Iezzoni

All Faculty Scholarship

doi: 10.1377/hlthaff.2018.05060 HEALTH AFFAIRS 38, NO. 4 (2019): 545–553

Permitted Incentives For Workplace Wellness Plans Under The Ada And Gina: The Regulatory Gap, Elizabeth Pendo, Brandon Hall

All Faculty Scholarship

Although workplace wellness plans have been around for decades, they have flourished under the Patient Protection and Affordable Care Act (“PPACA”) into a $6 billion-dollar industry. Under PPACA, a “wellness plan” is a program of health promotion or disease prevention offered by an employer that is designed to promote health or prevent disease and which meets the other applicable requirements of that subsection. Employers look to these programs to promote healthy lifestyles, improve the overall health of employees and beneficiaries, and reduce rising healthcare costs. PPACA’s amendments to the Health Insurance Portability and Accountability Act (“HIPAA”) permit employers to offer …

The Corporation Reborn: From Shareholder Primacy To Shared Governance, Grant M. Hayden, Matthew T. Bodie

All Faculty Scholarship

The consensus around shareholder primacy is crumbling. Investors, long assumed to be uncomplicated profit-maximizers, are looking for ways to express a wider range of values in allocating their funds. Workers are agitating for greater voice at their workplaces. And prominent legislators have recently proposed corporate law reforms that would put a sizable number of employee representatives on the boards of directors of large public companies. These rumblings of public discontent are echoed in recent corporate law scholarship, which has cataloged the costs of shareholder control, touted the advantages of nonvoting stock, and questioned whether activist holders of various stripes are …

A Global System Of Work, A Global System Of Regulation?: Crowdwork And Conflicts Of Law, Miriam A. Cherry

All Faculty Scholarship

On-demand platforms are changing and reshaping our conceptions of both the firm and the work relationship in far-reaching and critical ways, allowing companies to hire workers and to seek customers across national boundaries. Confronted with low pay, wage theft, and other problematic working conditions, gig workers around the world have turned to the courts, attempting to invoke the protections of traditional labor and employment law. While some commentators believe existing forms of labor and employment regulations can stretch to cover on-demand work, others have called for new legal initiatives specifically crafted for online platforms. The goal of this paper is …

On The Judicialization Of Health, Ana Santos Rutschman

All Faculty Scholarship

The provision of health care has long been at the forefront of domestic and international debates, philosophical inquiries, and political agendas. A growing body of legal scholarship has added to the debate by examining the role of judicial review in the context of health-related litigation. What role, if any, should courts play in compelling the provision of health care or in furthering access to potentially life-saving medicines?

This question intersects with multiple strands of the law. For instance, it has an institutional component that interrogates the function(s) of courts within systems of checks and balances. It ties into constitutional design …

Worker Participation, Sustainability, And The Puzzle Of The Volkswagen Emissions Scandal, Matthew T. Bodie

All Faculty Scholarship

In September 2015, Volkswagen's "clean diesel" technology was exposed as a sham. Not only were the company's vehicles discharging dangerously high levels of nitrogen oxide, but VW had intentionally rigged its emissions systems to cheat on environmental tests. In the wake of resignations and criminal investigations, the company's governance system came under justifiable attack. Were VW's famously worker-friendly governance policies to blame? This Chapter examines the root causes of the emissions scandal and concludes that VW's governance culture suffered from dictatorial leadership as well as a cozy relationship between management and labor leaders. This culture of complacency led to a …

Eradicating The Label “Offender” From The Lexicon Of Restorative Practices And Criminal Justice, Lynn S. Branham

All Faculty Scholarship

This Essay enumerates three reasons for abandoning the prevailing practice of utilizing the label “offender” when referring to a person who has committed a crime. The Essay next identifies and debunks reasons that have been cited for persisting in referring to a person as an “offender.” The Essay then explores the question of what term or terms could supplant this label and profiles signs of emerging support for desisting from the convention of calling people “offenders.” One of the themes that permeates this Essay is that the language we use when referring to people can thwart systemic and cultural change …