Law Commons^™

Removing “Black Marks”: How States Can Preserve Wrongful Birth Suits Without Reliance On “Eugenic” Rhetoric, Paul J. Wuennenberg

Missouri Law Review

“[L]ebensunwertes Leben—Life Unworthy of Life.” Those words, used by the National Socialist (Nazi) Party in Germany to describe people with genetic disorders, ring throughout world history as a moral indictment of the Nazi German state and all those who collaborated with it. Unfortunately, Germany was not alone in its designation of some people as unworthy of life; the United States has also, throughout its history, given the same designation to portions of its population. From Japanese-Americans during the Second World War to people with disabilities in the era of eugenics, the American government has frequently singled out those whom it …

"What Shall Be Orthodox" In Polarized Times: Overview And Response To Commentators, Linda C. Mcclain, James E. Fleming

Missouri Law Review

"lf there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." Justice Robert Jackson wrote this celebrated passage in his majority opinion in West Virginia State Board of Education v. Barnette (1943), which protected the First Amendment right of Jehovah's Witness children not to participate in a compulsory flag salute in public schools. ln recent years, protests against imposed orthodoxy-usually invoking Barnette-have occurred in a growing …

The Illusion Of Redemption: Examining Gubernatorial Pardons, Collateral Consequences, And The Ineligibility For Public Office In Missouri, Anna Claire Parker

Missouri Law Review

Imagine you have just pled guilty to a felony offense in Missouri. While the court may inform you of certain rights that will be lost, additional rights remain unmentioned. Suddenly, you find yourself stripped of fundamental liberties such as voting, serving on a jury, holding public office, and owning firearms. Additionally, the right to a trial by jury, the assistance of a lawyer at trial, and protection against self-incrimination have been forfeited. In this bleak scenario, a glimmer of hope emerges: the possibility of a gubernatorial pardon. This pardon represents a chance at redemption, potentially restoring all the rights you …

Masthead

Missouri Law Review

No abstract provided.

Vouching For Fair Housing: Landlords’ Duty To Accept Housing Vouchers As Reasonable Accommodations For Handicapped Tenants, Elly M. Lang

Missouri Law Review

Earning enough income to afford housing is challenging. Maintaining a steady job that covers both housing and basic essentials requires significant time and energy. Now, imagine you have a physical disability affecting your mobility. Suddenly, your job options are limited, and your health care costs increase. Now, imagine you suffer from a psychological disability as well. Your health care costs skyrocket because you must pay for medications to alleviate both your physical and psychological disabilities, equipment to assist your mobility, therapy fees, and other essential health care costs. In addition, your already limited job opportunities have again been significantly reduced. …

Toward A Politically Neutral Approach To K-12 Pedagogy, Cameron S. Kang, John M. Kang

Missouri Law Review

Professors Linda McClain and James Fleming have written an intellectually stimulating book manuscript, “What Shall Be Orthodox” in Polarized Times? It is a privilege to have been afforded access to an early iteration of the book and an opportunity to share our thoughts about it. We (with “we” and its related “our” and “us” denoting Cameron and John) were inspired by Professors McClain and Fleming to reflect about the relationship between pedagogy and the Constitution.

Responsible Realism About Artificial Intelligence: How Ai Is Shaping Legal And Dispute Resolution Practice, Education, And Scholarship, John Lande

Faculty Publications

This article synthesizes the views of legal scholars examining how generative artificial intelligence (AI) is affecting legal and dispute resolution practice, education, and scholarship. They share a perspective of responsible realism – recognizing both the promise and the perils of AI. It is already reshaping how lawyers, neutrals, educators, students, and scholars work – and its influence will only grow.

The scholars identify clear benefits: broader access, greater efficiency, and new support for professional learning. They also warn of serious risks, including bias, deskilling, and erosion of judgment. Avoiding both hype and panic, they analyze developments, offer realistic strategies, and …

Training Humanoids To Use Good Dispute Resolution Language, John Lande

Faculty Publications

This short essay uses satire to spotlight the entrenched, misleading terminology widely used in the dispute resolution field, especially in legal and academic settings. Drawing on metaphors of humanoids, bots, and malware, it critiques outdated jargon like “facilitative” and “evaluative” mediation and proposes clearer alternatives derived from Real Practice Systems theory. It describes efforts to train an AI tool, the RPS Negotiation and Mediation Coach, to model improved language use and nudge human users toward better decision-making. Though light in tone, it reflects a serious commitment to reforming the way we talk about and practice negotiation and mediation.

Barnette’S Robert H. Jackson: The Constitution Protects Individual Conscience When The Cost To Society Is Not Too High, John Q. Barrett

Missouri Law Review

This essay, part of a symposium on Linda McClain’s and James Fleming’s book “WHAT SHALL BE ORTHODOX” IN POLARIZED TIMES, is about Justice Robert H. Jackson’s opinion for the Supreme Court in West Virginia State Board of Education v. Barnette. Justice Jackson explained in Barnette how the U.S. Constitution protects schoolchildren conscientious objectors from being compelled by government to salute and to pledge allegiance to the U.S. flag. But Barnette was not, as the Supreme Court recently seems to read it, an absolutist decision constitutionalizing individual conscience claims to be exempt from societal, general, significant interests in compelling speech. Barnette …

Between The Sword And A Hard Place: Systemic Solutions To The Shortcomings Of The Missouri Public Defender System, Andrew A. Bohon

Missouri Law Review

“Striving to better, oft we mar what’s well.” The attempt to solve a problem can sometimes topple a functional system entirely. The striving to improve a thing can frustrate its purpose. Limping along under the guise of functionality, however, many sociopolitical processes hinder our progress. Something works, so we cling to it in fear of making it worse. The idea has been aphorized that perfect is the enemy of good. Although a quaint and conservative philosophy, there is a countertheory: “Good is the enemy of great.”

Supreme Court Lgbtq Orthodoxy, Carlos A. Ball

Missouri Law Review

This Article argues that the Supreme Court has relied on two simplifying assumptions in First Amendment exemption cases involving LGBTQ issues. The first assumption is that the government’s interest in addressing and remedying discrimination is irrelevant to the matter at hand. The second assumption is that state officials, in enforcing sexual orientation antidiscrimination laws against individuals who object to them on religious or moral grounds, seek to force the dissenters to speak in ways they do not want to speak. As the Article explains, the Court has abided by neither simplifying assumption in exemption cases involving the application of race …

Assessing The Tax Communications Of E-Commerce Vendors, Part Ii, David Gamage

Faculty Publications

This article presents the second part of a research project on the tax communications of e-commerce vendors. It details the results of a behavioral experiment designed to test how different representations of sales and use tax obligations influence consumer purchasing decisions. The study finds that potentially misleading indicators, such as "No Tax" or "$0 of Tax," significantly increase the likelihood that consumers will purchase from vendors who do not collect sales tax. Compared to vendors who provide accurate information about potential use tax liabilities, consumers were substantially more likely to choose a vendor displaying a "No Tax" message. These findings …

Winter Is Coming: What States Should Do Now, Part I, David Gamage, Darien Shanske

Faculty Publications

This Article addresses the unprecedented fiscal challenges facing state governments as federal policy shifts threaten to create a perfect storm of revenue losses and increased service demands. As states confront potential federal cuts to essential services like Medicaid, reduced tax enforcement capacity, and possible tariff-driven economic disruption, we argue that piecemeal responses will prove insufficient.

We propose a seven-step framework for state fiscal resilience: (1) pausing automatic conformity to federal tax changes to preserve revenue bases; (2) enhancing state tax enforcement capacity by hiring federal personnel as the IRS sheds expertise; (3) maintaining and expanding taxpayer service innovations like direct …

The Art Of Mediation Representation: Helping Clients Make Good Decisions, John Lande

Faculty Publications

Attorneys regularly represent clients in mediation, yet many do not perform this role effectively. The article is designed to help attorneys better assist clients in making good decisions during mediation. It explores the theory and practice of mediation representation, emphasizing how attorneys can provide excellent client service by counseling clients and communicating effectively with mediators and counterpart attorneys. Ideally, attorneys as act “quasi-mediators,” helping clients make informed, confident decisions while navigating the mediation process. Drawing on the Real Practice Systems checklists and empirical research, the article outlines key tasks before, during, and after mediation sessions. It critiques the inadequate preparation …

When Ai Comes To The Table: How Tech Tools Will Change Adr, John Lande

Faculty Publications

Artificial intelligence (AI) is quickly reshaping the landscape of dispute resolution. This article explores how an expanding range of AI tools will influence negotiation, mediation, arbitration, and related processes. These tools will serve a wide array of users and contexts, reflect differing practice philosophies, and raise important questions about fairness, transparency, and values. Drawing on theory, practice, and real-world examples, the article identifies seven categories of emerging tools – from dispute prevention and practitioner preparation to education and platform integration. It highlights the importance of ethical design, user awareness, and professional responsibility, arguing that AI should support – not replace …

Getting The Most From Ai Tools: A Practical Guide To Writing Effective Prompts, John Lande

Faculty Publications

This article is a companion to How I Learned to Stop Worrying and Love the Bot: What I Learned About AI and What You Can Too. This article helps users, especially those in dispute resolution roles, learn how to write effective prompts and engage productively with artificial intelligence (AI) tools. The goal is to make AI less intimidating and more useful – one good question at a time.

The article shows how users can choose appropriate tools, formulate effective prompts, and generate useful results. It offers role-specific prompt suggestions for mediators, attorneys, disputants, ADR program managers, law school faculty, …

How I Learned To Stop Worrying And Love The Bot: What I Learned About Ai And What You Can Too, John Lande

Faculty Publications

Artificial intelligence (AI) tools play an increasingly prominent role in legal education, legal practice, and dispute resolution. People’s understanding of how these tools work varies widely. This article outlines a framework to improve AI literacy among dispute resolution practitioners, parties, ADR program managers, faculty, students, and scholars. It highlights emerging trends and offers practical suggestions and resources to support AI literacy and the responsible integration of AI into their work. A companion article, Getting the Most from AI Tools: A Practical Guide to Writing Effective Prompts, helps users, especially those in dispute resolution roles, learn how to write effective …

The Essence Of An Antitrust Violation, Thomas A. Lambert

Faculty Publications

Judicial embrace of the consumer welfare standard reduced the indeterminacy and political manipulability of U.S. antitrust law. Continual invocations of antitrust’s consumer welfare focus, however, have created the misimpression that consumer harm is a sufficient, not merely a necessary, condition for condemning antitrust-relevant behaviors like agreements in restraint of trade and exclusion-causing unilateral acts. Such a “consumer harm sufficiency” view underlay the plaintiffs’ claims in Epic Games v. Apple and FTC v. Qualcomm and has inspired scholarly proposals to condemn various antitrust-relevant behaviors simply because they occasion consumer harm.

Antitrust economics and dynamic efficiency considerations call for rejection of the …

Assessing The Tax Communications Of E-Commerce Vendors, Part I, David Gamage

Faculty Publications

This article reports research results from a study analyzing the tax communication practices of top e-commerce retailers and marketplaces. The research found a spectrum of tax communication practices. Notably, many (but not all) e-commerce businesses that did not collect sales tax did still inform customers about potential use tax obligations, though the transparency of this information varied.

Rps Coach Project: A Growing Library About A Valuable Ai Tool, John Lande

Faculty Publications

This document collects a growing library of publications, videos, and podcasts about the RPS Negotiation and Mediation Coach (RPS Coach), an AI tool grounded in Real Practice Systems (RPS) Theory. RPS Coach is designed to support mediators, lawyers, parties, educators, students, and scholars by promoting good decision-making and reflective practice in negotiation and mediation. This piece summarizes articles and blog posts that present the theory, knowledge base, and functions of RPS Coach, along with practical guidance for its use in dispute resolution, writing, and legal education. It includes links to each publication and will be updated as new work is …

Rps Coach Is Biased - And Proud Of It, John Lande

Faculty Publications

This short essay explores the concept of bias in artificial intelligence tools used in dispute resolution. Biases are not necessarily flaws to be avoided, but inevitable and potentially constructive features of these tools. They reflect values and design choices that AI developers should disclose.

There are both market and ethical imperatives for AI tools to disclose their features and embedded values. As developers compete for users, people will want to know what they’re getting. Disclosure helps users understand the effects of assumptions, priorities, and frameworks built into a tool’s design, and thus should be treated as a core ethical principle. …

Starting The Conversation: The Need For A Pre-Launch “Skinny Labeling” Dispute Resolution System, Eric H. Siemens

Missouri Law Review

Since Congress adopted the Hatch-Waxman Act in 1984, generic drug manufacturers have been able to come to market while certain uses of brand-name drugs are still patented by “carving out” the patented uses from their labeling. For example, suppose a brand-name drug is used to treat both tonsillitis and strep throat, but the drug company has patented only the specific method of using its drug to treat only strep throat. In this scenario, a generic manufacturer can still sell a generic version of the drug, but only for the non-patented use of tonsillitis treatment. To do this, the generic manufacturer …

Copyright

Missouri Law Review

No abstract provided.

The Sec, Fraud, And Cryptocurrencies, Lawrence J. Trautman, Brian Elzweig, Neal F. Newman

Missouri Law Review

The SEC’s Strategic Plan for Fiscal Years 2022–2026 is focused on the impact of the rapidly developing rate of change in new technologies that provide for markets to be more interconnected and interdependent than ever. Because Congress has yet to give the SEC, or any other agency, express authority to regulate cryptocurrency, the SEC has taken a regulation-by-enforcement approach. The SEC’s recent enforcement efforts relating to crypto asset securities were substantial, with enforcement actions addressing a range of alleged misconduct in the crypto asset securities space, including billion-dollar crypto fraud schemes; unregistered crypto asset offerings, platforms, and intermediaries; and illegal …

Table Of Contents

Missouri Law Review

No abstract provided.

Masthead

Missouri Law Review

No abstract provided.

The Clobes Conundrum: Why Muldrow Should Not Apply To Hostile Work Environment Claims And How The Eighth Circuit Got It Right, M. Thomas Yang

Missouri Law Review

In 2024, the Supreme Court held that an employee does not have to prove material harm to prevail on a discrimination claim under Title VII. Because hostile work environment claims also derive from Title VII, courts and litigants are currently grappling with whether this ruling upends the long-standing “severe or pervasive” doctrine. This Note argues that it does not. Passed in 1964, Title VII of the Civil Rights Act makes it illegal for “an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, …

The Buck Stops Here: Missouri Legislature’S Defunding Of Abortion Providers, Maizey Edgar

Missouri Law Review

On May 2, 2022, the Supreme Court’s draft opinion for Dobbs v. Jackson Women’s Health Organization leaked online. The era-defining opinion to overturn fifty years of Roe v. Wade and undo the constitutional right to abortion reinvigorated the discussion surrounding reproductive healthcare access among the American public, with the majority of Americans supporting legal access to abortion in all or most cases. Over the last decade, a movement to defund abortion providers has arisen, and the issue of defunding has become an even hotter point of debate after the Dobbs decision. In Missouri, elected representatives have fought to defund Planned …

Suicide’S Shadow: The Evolution Of A Ghost Crime, Scott W. Howe

Missouri Law Review

Law treats suicide as malfeasance—a display of mental illness and, worse, a ghost crime that has never left us. While states no longer criminally punish suicide, they detain and force mental-health treatment on many who attempt it, or indicate they might attempt it, and threaten criminal sanctions against those who aid or encourage it. For these and other reasons, the suicide label functions not merely as a description of an event but as a censure. A lengthy, legal history, fueled originally by religion but then tempered by pragmatism, led to these circumstances and can largely rationalize relevant legal doctrines and …

Intangible Harms, Tangible Consequences: Analyzing The Impact Of Transunion On Standing To Sue For Data Breach, Noelle Wilson, Amanda Reid

Missouri Law Review

Scholars and practitioners predicted that the 2021 Supreme Court case TransUnion v. Ramirez would essentially nullify the private right of action—a key enforcement mechanism for many consumer privacy laws. This Article analyzes federal courts (N=96) interpreting TransUnion in data breach contexts. Our contribution is twofold: (1) identifying tests courts employ to determine whether data breach plaintiffs have alleged sufficient “injury in fact” to establish Article III standing, and (2) highlighting the areas of inconsistency in how courts employ those tests. The analysis serves to ground the scholarly debate about the implications of TransUnion in holding breached entities accountable. Despite the …