Law Commons^™

Reasonable Minds May Differ: The Application Of Miller And Graham To Consecutive Sentences For Juvenile Offenders In Missouri, Shawna C. Quast

Missouri Law Review

Ledale Nathan was convicted of second-degree murder and a series of nonhomicide offenses stemming from a home invasion he committed at the age of sixteen. The St. Louis Circuit Court sentenced Nathan at a time when Eighth Amendment jurisprudence regarding juvenile sentencing was in flux. The United States Supreme Court decided two cases that restricted the way courts sentence juvenile offenders: Graham v. Florida and Miller v. Alabama. Graham held that juvenile offenders who had not committed homicide offenses could not be sentenced to life without parole (“LWOP”), while Miller held that LWOP could not be a mandatory sentence for …

Dispute Resolution In The Digital Age - Online Dispute Resolution, Amy J. Schmitz

Open Educational Resources

Dispute Resolution in the Digital Age includes the resources created and used by Professor Amy J. Schmitz at the University of Missouri School of Law to teach online dispute resolution. These materials are created as as open educational resources under a Creative Commons BY-NC 4.0 license. The materials may be shared and adapted as long as Prof. Schmitz receives attribution and the use is non-commercial.

The New Handshake: Using Odr To Create Value For Consumers And Businesses, John Lande

Faculty Blogs

This post discusses issues related to the ABA book, The New Handshake: Online Dispute Resolution and the Future of Consumer Protection, by Amy Schmitz and Colin Rule. The book is designed to help build consumer protection that will benefit both consumers and merchants. It explains problems with the status quo, suggesting how ODR can improve handling of consumer problems and identifying challenges in implementing ODR systems.

Divide & Concur: Separate Opinions & Legal Change, Thomas B. Bennett, Barry Friedman, Andrew D. Martin, Susan Navarro Smelcer

Faculty Publications

To the extent concurring opinions elicit commentary at all, it is largely contempt. They are condemned for muddying the clarity of the law, fracturing the court, and diminishing the authoritative voice of the majority. But what if this neglect, or even disdain, of concurring opinions is off the mark? In this article, we argue for the importance of concurring opinions, demonstrating how they serve as the pulse and compass of legal change. Concurring opinions let us know what is happening below the surface of the law, thereby encouraging litigants to push the law in particular directions. This is particularly true …

"Fear Itself": What Legal Writers Can Learn From Fdr's Iconic Moment, Douglas E. Abrams

Faculty Publications

This article concerns President Roosevelt's timeless faceoff with fear from the inaugural podium in the depths of the Great Depression. After surveying the dire national emergency that faced the new administration more than eight decades ago, the article draws lessons about sound rhetoric for today's legal writers.

Raising The Bar: The Ninth Circuit's Troubling Interpretation Of The Federal Foreclosure Bar, Sarah Rowan

Missouri Law Review

This Note argues that the Ninth Circuit erred in holding that the Federal Foreclosure Bar requires the Agency’s consent and that, even if it does require Agency consent, the Agency has not already impliedly consented. This Note also discusses the policy implications of the Berezovsky decision and of requiring the Agency’s consent before associations can foreclose. The Federal Foreclosure Bar completely undercuts the balance that priority lien laws created between lenders and associations, and it effec-tively prevents associations from enforcing their rights.

The First Amendment, The University And Conflict: An Introduction To The Symposium, Christina E. Wells

Faculty Publications

Universities across the country have experienced a dramatic increase in free speech conflicts - i.e., an experience of discord between individuals or groups of speakers. These conflicts occur in various forms. For example, members of university communities (e.g., students, staff, or faculty) have protested controversial speakers. Some have called for universities to disinvite controversial speakers. Others have heckled or shouted down speakers. Finally, some members of university communities - usually students - have protested university officials' or other students' expression by occupying buildings, camping or interrupting meetings in order to disseminate their message. It is common to view resolution of …

Legal Writing: Sense And Nonsense, Douglas E. Abrams

Faculty Publications

Professor Abrams authors a column, Writing it Right, in the Journal of the Missouri Bar. In a variety of contexts, the column stresses the fundamentals of quality legal writing - conciseness, precision, simplicity, and clarity.

Free Speech Hypocrisy: Campus Free Speech Conflicts And The Sub-Legal First Amendment, Christina E. Wells

Faculty Publications

This Article is modest in scope. It seeks primarily to illuminate the role of free speech conflicts, especially those involving contentious speech, within the Court's jurisprudence, and to illustrate how arguments characterizing the protestors' speech as censorship misperceive the important role such conflicts play. Using both the Court's doctrinal framework and conflict resolution literature, this article attempts to bring deeper understanding to the purposes for the Court's approach, the context underlying the current conflicts, and the flaws underlying the argument that the protestors' actions are censorial. Part I briefly reviews three illustrative free speech conflicts at the University of Missouri, …

Disregarding Statutory Safeguards: The Supreme Court Of Missouri's Failure To Recognize Manifest Injustice In Predatory Sexual Offender Determinations, Lauren Vincent

Missouri Law Review

This Note scrutinizes the way in which the Supreme Court of Missouri resolved the issue of whether the predatory sexual offender statute, section 566.125.5(3), is constitutional when applied to currently charged acts in light of the procedural mandates for sentence enhancement provided in section 558.021.2. This Note argues the Supreme Court of Missouri erred in its interpretation of the statutory language provided in section 566.125.5(3) and in its application of Alleyne precedent. This Note further argues the Supreme Court of Missouri failed to recognize the manifest injustice that resulted when the trial court disregarded the statutory timing requirements that should …

"Dangerous Instruments": A Case Study In Overcriminalization, Chad Flanders, Desiree Austin-Holliday

Missouri Law Review

Many states – including Missouri – have provisions that provide greater punishment for some felonies that are committed with, or by the use of, a “deadly weapon” or “dangerous instrument.” The definition of “deadly weapon” tends to be pretty straightforward, usually a list that includes several specific items that just are deadly weapons, such as guns and knives. “Dangerous instrument” is deliberately left as a broader, more capacious term – defined not in terms of a list of instruments but in terms of those things that could be easily or “readily” used to cause serious physical injury or death. But …

Masthead

Missouri Law Review

No abstract provided.

Copyright

Missouri Law Review

No abstract provided.

Inadvertent Resurrection Of The Equitable Parentage Doctrine In Missouri? An Evaluation Of Motions For Third Party Custody And Defining A "Natural Father", Bailey M. Schamel

Missouri Law Review

This Note discusses the 2018 Supreme Court of Missouri decision of Bowers v. Bowers, which awarded full custody of a child to her stepfather. The facts in Bowers are discussed in Part II. Part III analyzes the Missouri Uniform Parentage Act and the approaches the Supreme Court of Missouri and Missouri appellate courts have taken when a child’s non-biological parent seeks full custody. Part IV explains the Supreme Court of Missouri’s rationale in granting full custody to the stepfather through a motion for third party custody and the dissent’s disagreement. Finally, Part V discusses why the Bowers court should not …

Faculty List

Missouri Law Review

No abstract provided.

Table Of Contents

Missouri Law Review

No abstract provided.

Remorse Bias, M. Eve Hanan

Missouri Law Review

It is an article that addresses how implicit cognitive biases may affect judges when they decide whether to credit defendants’ displays of remorse and how we can lessen the effects of that bias. This article focuses exclusively on the relationship between racial bias against African Americans – primarily men – and remorse assessment. Much more can and should be said about how implicit biases relating to gender, class, and other social groupings might affect judges when they assess defendant remorse. While taking a multi-dimensional approach to the intersections of race, gender, class, and other variables yields important insights, this article …

An Empirical Look At The "Brokered" Market For Patents, Brian J. Love, Kent Richardson, Erik Oliver, Michael Costa

Missouri Law Review

We studied five years of data on patents listed and sold in the quasi-public “brokered” market. Our data covers almost 39,000 assets, an estimated eighty percent of all patents and applications offered for sale by patent brokers between 2012 and 2016. We provide statistics on the size and composition of the brokered market, including the types of buyers and sellers who participate in the market, the types of patents listed and sold on the market, and how market conditions have changed over time. We conclude with an analysis of what our data can tell us about how to accurately value …

Help Me, Help You: Eighth Circuit Diminishes Notice Requirement For Employees Seeking An Ada Accommodation, Rachel S. Kim

Missouri Law Review

This Note argues that the Eighth Circuit’s holding creates uncertainty for both employers and employees. When deciding whether an employer has failed to engage in the interactive process, the Eighth Circuit should look to whether the employee clearly requested a need for an accommodation, rather than examining the totality of knowledge the employer had on hand. Requiring employees to clearly request an accommodation puts employers on notice and thus helps employers better help employees with disabilities. Part II of this Note provides the facts and holding of Kowitz. Part III examines the legal background surrounding Kowitz. Part IV reviews the …

Into The Final Frontier: The Expanse Of Space Commercialization, Rachel Mitchell

Missouri Law Review

This Note explores the emerging commercialization of space and the legal questions that arise as companies seek to further exploit the space economy. Whether or not new laws passed in the United States and in Luxembourg that purport to give ownership rights to companies that harvest space materials comply with the Outer Space Treaty is disputed. Furthermore, the international space regime may not be equipped to govern a new age in space. This Note advocates that space mining should be legalized but finds that space law in its current form is inadequate to effectively regulate space mining and other emerging …

Incarcerated For Indigence: Probation Revocation For Inability To Pay Court-Ordered Fines Found To Violate Due Process, Aaron Wynhausen

Missouri Law Review

Currently, in Missouri, if you are an alleged criminal offender unable to afford bail, sitting in county jail waiting for trial, you may be racking up a bill worth thousands of dollars for your “care.” State prosecutors and judges have the discretion to impose this bill upon you, and if you are unable to pay this bill for any reason, then the true cost may well be the incalculable expense of your freedom. The Supreme Court of Missouri recently considered a case that followed this pattern and ultimately released a man who spent three years in state prison for failure …

Crime, Punishment, And Causation: The Effect Of Etiological Information On The Perception Of Moral Agency, Paul J. Litton, Philip Robbins

Faculty Publications

Moral judgments about a situation are profoundly shaped by the perception of individuals in that situation as either moral agents or moral patients (Gray & Wegner, 2009; Gray, Young, & Waytz, 2012), Specifically, the more we see someone as a moral agent, the less we see them as a moral patient, and vice versa. As a result, casting the perpetrator of a transgression as a victim tends to have the effect of making them seem less blameworthy (Gray & Wegner, 201 1). Based on this theoretical framework, we predicted that criminal offenders with a mental disorder that predisposes them to …

Confusing Dispute Resolution Jargon, John M. Lande

Faculty Blogs

Decision trees enable people to assign probabilities to various contingencies and produce expected values for uncertain events.

Letter, Lloyd Gaines To George L. Gaines; Discusses Job Waiting Tables., Lloyd L. Gaines

Gaines Family Correspondence

No envelope. 2 page note on 3x6 paper, black ink. Date: Sunday nite, Jan. 3rd. No year indicated. Discusses job waiting tables.

Volume 41, Issue 2 (Winter 2018)

Transcript

No abstract provided.

There's An "App" For That: Developing Online Dispute Resolution To Empower Economic Development, Amy J. Schmitz

Faculty Publications

Traditionally, litigation has been the norm for resolving disputes. It takes place in a public forum and face-to-face. In a global economy, however, such public and face-to-face dispute resolution is not feasible. This is especially true with cross-border purchases through e-commerce. E-commerce requires more efficient and less litigious remedy systems that allow consumers to obtain remedies on their purchases without the cost and travel associated with traditional face-to-face procedures. This has led to development of online dispute resolution (“ODR”) processes, especially with respect to business-to-consumer contracts. Accordingly, scholarship and policy papers have advanced ODR for the benefit of consumers. What …

Do Discretionary Religious Exemptions Violate The Establishment Clause, Carl H. Esbeck

Faculty Publications

The Establishment Clause is not violated when government enacts regulatory or tax legislation but provides, concerning these burdens, an exemption for those holding conflicting religious beliefs and practices. Such accommodations are at the discretion of a legislature and have as their purpose to ameliorate hardships borne by religious minorities and other dissenters who find themselves out of step with the prevailing social or legal culture. Statutory religious exemptions are commonplace in this nation where there is a long and venerable tradition of religious tolerance toward our neighbors, as well as those who have made their way to America to escape …

Teaching And Scholarship Enrichment Through Involvement In Law Reform, R. Wilson Freyermuth

Faculty Publications

One of the most important ways for faculty to enrich their teaching and scholarship is through meaningful connections with the practicing bar. One effective way of developing these connections is through involvement in law reform efforts. This Essay focuses on developing these connections along two dimensions-through the work of the Uniform Law Commission and through involvement with trade organizations or nonprofit groups.

The New Model Negotiated Alternative To The Foreclosure Act, R. Wilson Freyermuth, Dale A. Whitman

Faculty Publications

One of the many painful lessons learned from the mortgage crisis that began in 2007 is that foreclosure is often a costly, slow, inefficient, and uncertain process. The additional cost and uncertainty for lenders are magnified when the balance of the mortgage debt exceeds the value of the collateral (that is, when the borrower is “underwater”), and thus full recovery by the lender of its investment is unlikely. Ways to avoid this misery are for the lender (usually represented by the servicer for a secondary market purchaser or a securitized trust) and the borrower to enter into a deed in …

Can International Law Trump Trump's Immigration Agenda: Protecting Individual Rights Through Procedural Jus Cogens, S. I. Strong

Faculty Publications

Donald Trump's approach to immigration has been revolutionary, to say the least. In his short tenure in office, his policies banning travel of individuals from certain Muslim countries have been taken to the United States Supreme Court on two separate occasions, and his most recent technique of separating children from their parents at the border has already spawned litigation. His boldest proposal yet, however, involves the widespread denial of procedural rights to immigrants.In his words, "[w]hen somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came [sic]."

This Essay considers the …