Law Commons^™

Caught In The Crossfire: Eighth Circuit Inconsistencies In Judicial Review And Mental Health Hardship To Citizen Children, Maggie N. Munsterman

Missouri Law Review

designed to thwart undocumented immigrants from remaining in the country, often hinge on the mental health of these very children.3 Caught in the crossfire of competing concerns, citizen children bear the unintended consequences of a legal framework that treats their hardships as both a policy concern and an adjudicative hurdle. Though these challenges arise from a deepl

Government-Backed Insurance For Artificial Intelligence Technologies, Renee Henson

Faculty Publications

Artificial intelligence (AI) is an unpredictable technology that has the capacity to both help and harm people. Although insurance plays a key role in compensating for harms in other contexts, AI-produced damages evade traditional principles of risk pricing which limits viable commercial insurance coverage. AI requires modified insurance systems that can compensate diverse and unpredictable losses. Just like AI, at one time nuclear energy was viewed as a new and profitable, yet wholly unpredictable, technology that had the capacity to cause devastating harm. AI poses similar threats to society in certain domains, including, for example, health care (e.g., risk management …

Technology And Me And You: Getting Comfortable With Ai, John Lande

Faculty Publications

This short essay reflects on the author’s surprising dive into artificial intelligence (AI) despite his longstanding caution about adopting new technology. As a self-described tech-wary curmudgeon who avoids unnecessary upgrades and stays off social media, the author explores how AI – specifically, a custom-built RPS (Real Practice Systems) Negotiation and Mediation Coach – nonetheless has proved to be unexpectedly valuable.

Drawing from personal experience, the essay suggests how people can become comfortable using AI, suggesting how they can overcome hesitation and use AI productively. Rather than treating AI as a black box or magic solution, it emphasizes the importance of …

Defining Diversity: Challenges To Diversity, Equity, And Inclusion Efforts In A Post-Affirmative Action America, Hannah Brown

Missouri Law Review

Finals season is a time of high stress in law schools. In fact, it is not uncommon for students to fantasize about miraculously convincing a court that a four-hour exam constitutes a form of intentional infliction of emotional distress. Such commentary remains firmly in comedic territory, not reality. Occasionally, however, law students with grievances beyond those expressed in the dramatic remarks above devote time and energy to seeking legal action against their respective law schools. The U.S. District Court for the Southern District of New York encountered such a situation in Doe v. New York University, where a student alleged …

Faculty List

Missouri Law Review

No abstract provided.

A Systems Theory Of Tort Law: Reevaluating The Case Against “Regulation By Litigation”, Timothy D. Lytton

Missouri Law Review

For decades, critics of tort law have argued that lawsuits are a poor substitute for government regulation. These detractors compare the institutional capacities of courts and agencies, and they conclude that litigation is ineffective, inefficient, and illegitimate as an alternative to notice-and-comment rulemaking. In response, this Article asserts that characterizing tort law and administrative regulation as alternatives obscures their interdependence. By using systems theory to model this interdependence, the Article argues that any fair-minded assessment of tort litigation’s contribution to regulatory governance requires understanding it as part of a system. Ignoring the systemic impacts of tort litigation overlooks the subtle …

Beyond Blinders And Boomerangs: Assessing State Business Taxation, David Gamage

Faculty Publications

Karl A. Frieden’s article, “Wearing Blinders in the Debate Over Business’s ‘Fair Share’ of State Taxes” and his subsequent article, “The Boomerang Effect of the Business ‘Fair Share’ Tax Debate,” jointly contend that progressive calls to strengthen state corporate income taxes (CITs) are misguided because businesses allegedly overpay certain other state and local taxes. This essay argues that, while Frieden does raise some valid points about the efficiency of specific tax design choices, his core argument fundamentally misconstrues the central issues: the ultimate incidence of business taxes, the pursuit of equity and efficiency, and the importance of combating harmful tax …

Second-Guessing The Jury: The Federal Circuit's Flawed Take On Enhanced Damages In Halo V. Pulse, Dennis D. Crouch

Faculty Publications

This article critically examines the Federal Circuit's February 2025 decision in Halo v. Pulse, focusing on the court's approach to enhanced damages in patent infringement cases. The analysis identifies a fundamental tension between jury findings of willful infringement under a clear and convincing evidence standard and the district court's subsequent discretion to deny enhanced damages by essentially reconsidering the same evidence. The article argues that the Federal Circuit's affirmation of this approach undermines the Supreme Court's 2016 Halo decision, which sought to make enhanced damages more accessible in cases of egregious misconduct. By creating an artificial distinction between "willful infringement" …

Note, Sophia Caroline Marcolla

The Business, Entrepreneurship & Tax Law Review

No abstract provided.

Meals On Duty: The Case For Excluding Meal Reimbursements For Law Enforcement, Daniel De Izaguirre

The Business, Entrepreneurship & Tax Law Review

This article advocates for the extension of the Internal Revenue Code (I.R.C.) § 119 exclusion to cover cash reimbursements for meals provided to law enforcement officers. Currently, § 119 excludes meals furnished by an employer from gross income, but not cash reimbursements. The unique demand placed on law enforcement officers, including the requirement to remain on-call during meals, justify the inclusion of these reimbursements within the scope of § 119. Through a comprehensive analysis of legislative intent, case law, and the “substance over form” doctrine, this article argues that cash reimbursements serve the same substantial business purpose as meals-in-kind and …

The Opposite Of Retail Therapy: Hidden Fees And Online Shopping Hell, Claire Hiegel

The Business, Entrepreneurship & Tax Law Review

In 2024, California passed a law banning hidden fees, and the Federal Trade Commission finalized a similar new rule in 2025, targeting unfair and deceptive fees. These laws aim to benefit consumers and enhance competition by increasing pricing transparency. However, they fail to adequately address variable fees, putting some businesses between a rock and a hard place as they are forced to choose between advertising a misleading price or not advertising an initial price at all, leaving some consumers with less accurate information than they would have had before the enactment of the law. These laws also vary significantly in …

Juris Dr. Strangelove Or: How I Learned To Stop Worrying And Love The Machines, Garret Macko

The Business, Entrepreneurship & Tax Law Review

Despite a surplus of practicing attorneys, millions of Americans experience inadequate legal representation, demonstrating deep inefficiencies in the market for legal services. This paper explores the potential for artificial intelligence (“AI”) to expand access to justice by providing efficient and affordable solutions. Free and widely available AI-powered tools, like ChatGPT and Claude, demonstrate the capability to assist non-lawyers in tasks like drafting legal documents, conducting legal research, and resolving disputes. These tools represent a practical and economically efficient way to increase access to legal resources for underserved populations. Still, while AI offers significant promise, clear challenges exist. Issues like hallucinations—instances …

The Screen Is Going To Ask You A Couple Questions: Analyzing No Tax On Tips And How It Will Change The Hospitality And Service Industries, Nicholas Prindiville

The Business, Entrepreneurship & Tax Law Review

The Coronavirus Pandemic, point-of-sale technology, and financial instability has pushed demand for tips to all-time highs as tipped workers struggle to make ends meet. In response, Democrats and Republicans have proposed the “No Tax On Tips” bill, which would create a limitless deduction for tip income, to provide tipped workers with financial relief. With the bill targeting such a unique type of income, the potential results of this bill are just as polarizing. This paper looks at the origin of America’s tipping culture, how tips impacted labor and tax legislation, how the bill’s tip deduction would expose holes in labor …

The Devil Wears Dupes: Legal Implications Of “Dupe Culture” In The Fashion Industry And How Trademark Law Should Adapt, Alexis Theoharidis

The Business, Entrepreneurship & Tax Law Review

The proliferation of dupes in the fashion industry—affordable imitations of high-end designs—has created a complex intersection of intellectual property challenges, ethical concerns, and consumer behavior shifts. While dupes democratize fashion by providing low-cost access to high-end aesthetics, they undermine brand integrity, dilute designer creativity, and exacerbate labor and environmental issues tied to fast fashion. Current trademark law, centered on the Lanham Act, insufficiently addresses these challenges, particularly when dupes avoid direct counterfeiting and exploit legal gray areas. This article critiques the limitations of existing protections, evaluates alternative legal reforms, including updates to anti-dilution provisions and the use of blockchain technology, …

A Snitch In Time Can Help Deport Nine: Proposing A Private Enforcement Scheme To Spur Self-Deportations, Ajay Gupta

The Business, Entrepreneurship & Tax Law Review

Any forcible deportation drive that the incoming Trump administration may undertake to remove some of the many millions of aliens illegally present in the country would be limited in scope, underscoring the importance of goading self-deportations for perceptibly reducing these aliens’ numbers by curtailing their employment opportunities. Based in part on Britain’s experience with eradicating child labor in the nineteenth century, the article proposes a scheme of private enforcement for rendering unemployable a large proportion of unauthorized aliens in the United States labor market today. The proposal comprises enacting a punitive tax on all compensation paid for the personal services …

Masthead

The Business, Entrepreneurship & Tax Law Review

No abstract provided.

Assignments For The Benefit Of Creditors As An Alternative To Bankruptcy Proceedings, Jessica G. Mckinlay

The Business, Entrepreneurship & Tax Law Review

Many companies intending to close benefit from going through a formal dissolution procedure. The simplest method is to dissolve under state law, which can be done internally by the officers and directors or other responsible people in charge of the business. Dissolution under state law is a preferred method for companies without complicated debt structures or significant remaining assets. Instead of going through a dissolution handled internally by the company decision makers, companies may also consider retaining a third-party fiduciary who can notify creditors that the company has ceased doing business, sell any remaining assets, and distribute the proceeds to …

Charter Schools: The Education Solution Strangling The Public Education System, Brynna Smith

The Business, Entrepreneurship & Tax Law Review

This paper investigates why charter schools exist in Missouri and how judicial precedent has permitted their constitutionality. It will highlight their potential for corrupt policy, rebut the scant evidence proving they perform better than public schools, and demonstrate that charter schools are not the effective solution to poor public-school performance as they were initially intended. Rather they are disguised constitutional violations. This paper proposes that the United States abandon the charter school movement, concentrate all educational funding in public schools, and use the grants intended for charter schools to implement educational reform proven to be effective.

Good Language For Dispute Resolution Bots And Humanoids, John Lande

Faculty Publications

In developing the AI tool, the RPS Negotiation and Mediation Coach, I had to give it strict instructions to use certain terms and avoid others so that it doesn’t use lots of problematic dispute resolution jargon on the internet. This short article lists those terms.

The article points out that, just like bots, humanoids need to be trained. It is especially important to teach good dispute resolution language to law professor, law student, and practitioner units. Many of these humanoids are stuck on defective codings such as “facilitative” and “evaluative” mediation, which are like contagious malware. Humanoids generally can “learn” …

The Artificially Intelligent Rps Negotiation And Mediation Coach, John Lande

Faculty Publications

This document describes the artificially intelligent RPS Negotiation and Mediation Coach (“RPS Coach”) tool, which is an outgrowth of the Real Practice Systems (RPS) Project. It is designed to help many different users perform numerous tasks including (1) attorneys anticipating challenges, strategizing, and representing clients, (2) mediators enhancing preparation, communication, and decision-making, (3) disputing parties making better decisions, (4) ADR program administrators developing clear rules, policies, and materials, (5) educators and trainers teaching practical theory and skills, and (6) students and trainees learning practical theory and skills.

RPS theory and practice is designed to help attorneys and mediators help their …

A Practical Guide For Using The Rps Negotiation And Mediation Coach, John Lande

Faculty Publications

This two-page guide introduces the RPS Negotiation and Mediation Coach, an AI-powered tool grounded in Real Practice Systems (RPS) theory. It explains who can use RPS Coach, how it supports good decision-making, and the range of tasks it can perform. It is designed for attorneys, mediators, parties, ADR program administrators, educators, and students to improve the quality of dispute resolution practice, program design, and legal education. Practitioners and parties can use it to prepare for, participate in, and reflect on negotiation and mediation. Faculty can use it to develop syllabi, assignments, and simulations. Users can explore ideas, generate drafts, and …

The Fintiv Pendulum Swings Again: More Discretionary Denials Coming Soon, Dennis D. Crouch

Faculty Publications

This article examines the USPTO’s recent rescission of the June 2022 Vidal memorandum, signaling a significant policy shift in the Patent Trial and Appeal Board's (PTAB) approach to discretionary denials of inter partes reviews (IPRs). The rescission reinstates the precedential status of Apple Inc. v. Fintiv, Inc. and its six-factor test for evaluating whether to deny IPR institution based on parallel district court litigation. The article traces the evolution of discretionary denials under the America Invents Act (AIA), from their initial limited application to the expansive approach under Director Iancu, the subsequent narrowing under Director Vidal, and now the anticipated …

Table Of Contents

The Business, Entrepreneurship & Tax Law Review

No abstract provided.

Work Without Borders: Legal Challenges In The Age Of Remote And Hybrid Employment, Kiera Doughty

The Business, Entrepreneurship & Tax Law Review

The shift to remote and hybrid work arrangements in recent years has fundamentally changed employment practices, offering increased flexibility while also creating complex legal and regulatory issues for employees, employers, and state authorities, specifically in the tax and human resources contexts. The current system of state and local laws inadequately addresses these issues, leading to double taxation, compliance problems, and legal disputes. In addition to taxation complexities, remote work environments have introduced unique risks related to online discrimination and harassment, as well as broader issues such as privacy, monitoring, and equitable workplace protections. If left unresolved, employers could face costly …

Million-Dollar Mysteries: Recent Complex Patent Cases Lost To Rule 36, Dennis D. Crouch

Faculty Publications

This article examines the Federal Circuit's continued use of Rule 36 summary affirmances to dispose of complex patent cases without written opinions. Through analysis of eight recent Rule 36 cases decided in early 2025, the author demonstrates that sophisticated legal issues involving millions of dollars are being summarily affirmed despite presenting novel and important questions of patent law. The cases discussed involve design patent evidentiary standards, jury trial rights for hybrid legal-equitable claims, analogous art determinations, claim construction, written description requirements, and PTAB procedural issues. The author argues that while the court may be avoiding difficult cases with complex factual …

What's The Matter With Batna? It's Misleading And Doesn't Help Advance Parties' Important Interests, John Lande

Faculty Publications

Many dispute resolution experts misunderstand the concept of BATNA (the best alternative to a negotiated agreement), believing that it is the most favorable possible outcome if the parties don’t settle. In fact, BATNA isn’t an expected result. It’s a course of action, not the value resulting from the course of action.

Attorneys often make unrealistic predictions of court outcomes because of inherent uncertainty and cognitive biases. Moreover, parties have many intangible interests that aren’t included in estimates of BATNA values.

This article offers suggestions for attorneys and mediators to advance clients’ interests by better understanding and valuing non-settlement outcomes.

How Ai Can Help Mediators Say What They Really Mean, John Lande

Journal of Dispute Resolution

This article critiques the widespread use of the terms “facilitative” and “evaluative” to describe mediation techniques. Despite their popularity in scholarship and practice, these labels are inconsistently defined, frequently misunderstood, and fundamentally flawed. Drawing on a survey of mediation experts, the article documents significant confusion about how professionals interpret these terms – and how they think that others interpret them. It builds on Leonard Riskin’s critique of the facilitative-evaluative framework, which shows that the language not only oversimplifies complex processes but also risks confusing parties and undermining informed decision-making.

Table Of Contents

Journal of Dispute Resolution

No abstract provided.

Revolutionizing The System: Designing A Safe Order Of Protection Mediation Program, Sabrina Saint-Marc

Journal of Dispute Resolution

Consider a situation where an African American man, Tony, residing in a rural southern jurisdiction, holds an order of protection against his partner, John, who is also an African American man. Furthermore, the presiding judge, an elderly white man, was known for denying orders of protection even when sought by white women, which creates an atmosphere where seeking court intervention might result in embarrassment and judgment for the client. This embarrassment and judgment stems from the stereotypes that mostly people who have engaged in criminal behavior belong in court; additionally, survivors experience shame about why they are appearing before a …

Time To Redress® Hazing: Changing The Way Universities Deal With Hazing Claims And Allegations, Katie Miles

Journal of Dispute Resolution

Every year, excited eighteen-year-olds step foot on a college campus ready to start a new chapter. Ready to try new things, these students join various organizations eager to make new friends and connections. Daniel Santulli was no different. He was an excited nineteen-year-old freshman at the University of Missouri in the fall of 2021. Santulli decided to join the Phi Gamma Delta fraternity and was ready to make lifelong friendships. However, on October 20, 2021, Santulli suffered a life-altering injury due to an alcohol-related hazing incident. Santulli was “marched, shirtless and blindfolded, into the basement of the Phi Gamma Delta …