Law Commons^™

Red-Flag Laws, Civilian Firearms Ownership And Measures Of Freedom, Royce De R. Barondes

Faculty Publications

This essay provides context for an assessment of a part of the recently-enacted Bipartisan Safer Communities Act--federal legislation funding state red-flag procedures, which allow for seizures of firearms from persons who have not committed crimes.

First, it assesses Maryland’s experience during the first year of implementing these procedures. The essay details computations, extrapolating from Maryland’s first-year experience, showing that adoption of these statutes causes blameless persons to be subject to being killed by the government at a rate comparable to or in excess of the murder rate.

Second, the essay identifies an overlooked impact of this federal legislation. The legislation’s …

Conservation Easements: A Tool For Preserving Wildlife Habitat On Private Lands, Robin M. Rotman, Sarah A. Brown, Michael A. Powell, Sonja A. Wilhelm Stanis

Faculty Publications

Conservation easements are an essential tool for conserving private lands, and they have great potential for enhancing wildlife habitat and biodiversity. Private land conservation in the United States is likely to increase in the coming years, in light of Executive Order No. 14,008, issued by President Joseph Biden on January 27, 2021, which set a goal of conserving at least 30% of U.S. lands and waters by 2030 (Executive Office of the President 2021). There is, therefore, a need to evaluate the effect of conservation easements on wildlife habitat and biodiversity and to make recommendations for further enhancing the effectiveness …

The Case Of The Missing Device Patents, Or: Why Device Patents Matter, Erika Lietzan, Kristina M. L. Acri, Evan Weidner

Faculty Publications

A company that earns premarket approval of its medical device is entitled to an extension of one patent claiming the device, to make up for some of the time it spent doing premarket research. Yet, surprisingly, a mere thirteen percent of those eligible for this extension (also known as patent term "restoration") ask for one. In contrast, most drug companies entitled to this same patent extension ask for one.

In this Article, we attribute the imbalance largely to differences between the two regulatory frameworks. In brief, because the FDA classifies and regulates devices based on what they do and how …

The Causation Canon, Sandra F. Sperino

Faculty Publications

It is rare to witness the birth of a canon of statutory interpretation. In the past decade, the Supreme Court created a new canon-the causation canon. When a statute uses any causal language, the Court will assume that Congress meant to require the plaintiff to establish "but-for" cause.

This Article is the first to name, recognize and discuss this new canon. The Article traces the birth of the canon, showing that the canon did not exist until 2013 and was not certain until 2020. Demonstrating how the Court constructed this new canon yields several new insights about statutory interpretation.

The …

Solutions Still Searching For A Problem: A Call For Relevant Data To Support "Evergreening" Allegations, Erika Lietzan, Kristina M. L. Acri

Faculty Publications

For years pharmaceutical policymaking discussions have been revolving around allegations of supposed “evergreening” by pharmaceutical companies, and policymakers have considered a range of significant policy reforms — including to antitrust law and drug regulatory law — to address this purported problem. This paper evaluates empirical data offered to substantiate “evergreening” and explains that these data — though mostly accurate — do not support proposed policy changes.

The “evergreening” claim is that by securing additional patents and FDA-related exclusivities after approval of their new drugs, brand drug companies enjoy a period of exclusivity in the market that is longer than the …

Copyright

Missouri Law Review

No abstract provided.

The Curious Case Of Tort Liability For A Defective Product That The Defendant Did Not Make, Sell, Or Distribute, Marin Roger Scordato

Missouri Law Review

Rarely does the United States Supreme Court consider and decide an issue of tort law, especially one that does not implicate any aspect of federal constitutional law. The problem of bare-metal equipment is just such an issue, taken up and addressed by the U.S. Supreme Court less than three years ago in the case of Air and Liquid Systems Corp. v. DeVries. Despite the Court’s opinion, the question continues to generate different responses from state courts and fails to enjoy much accord or consensus at the state-law level, where it has the greatest practical impact. The problem presented to the …

Federal Common Law’S Long Shadow: Shedding Light On State Law Rights To Postpetition Default Interest, Evan Miller

Missouri Law Review

Historically, the law imposed harsh penalties on debtors who could not meet their obligations. One regime dismembered the debtor’s body and proportionally distributed it to creditors. Rejecting these draconian penalties, the United States Constitution empowered Congress to enact federal bankruptcy legislation. Bankruptcy laws in the United States helped the “unfortunate” debtor get a fresh start while providing creditors with “prompt and effectual” administration of the debtor’s unmet obligations. In order to accomplish these policy objectives, Congress granted equitable powers to bankruptcy courts. These powers allow bankruptcy courts to occasionally adjust parties’ rights under non- bankruptcy law and fairly distribute the …

The Right To Remain Silent. . . Sometimes: Why § 1983 Claims For Miranda Violations Are Necessary To Fifth Amendment Protection, Logan Moore

Missouri Law Review

The police arrive at your workplace and ask to speak with you. Feeling embarrassed and confused, you agree to accompany them to an isolated room to answer questions. As you pass by the concerned looks and accusatory whispers of your co-workers, you wonder to yourself, “what did I do?” Once in the room, the feeling of helplessness becomes insurmountable. The officers have blocked the exit and begin to vehemently accuse you of a crime. Although you adamantly deny any involvement in or knowledge of the crime, the officers seem prepared to keep you in the room until you make a …

Faculty List

Missouri Law Review

No abstract provided.

Gubernatorial Influence In Merit-Based Judicial Selection: Kansas, Missouri, And Colorado, 2012–2021, Zachary Reger

Missouri Law Review

Many states use systems of merit-based judicial selection for supreme court appointments. Under “merit selection,” an independent commission screens judicial candidates before the governor makes a final appointment. Proponents of these systems claim that by limiting gubernatorial influence over the selection process, merit selection protects judicial independence from partisan intrusion. This study evaluates such claims by comparing the recent ideological voting behavior of judges appointed by Republican and Democratic governors in three states. Those states, Kansas, Missouri, and Colorado, use three different types of merit selection—bar-controlled, hybrid, and governor-controlled, respectively—that grant the governor varying degrees of influence over the judicial …

Temporary Access And Permanent Consequences: The Misapplication Of Takings Jurisprudence To State Regulations That Benefit The Public Welfare, Maria Ceriotti

Missouri Law Review

In 1975, California enacted the Agricultural Labor Relations Act. The Act, along with many regulations to aid in its enforcement, came after years of infighting between property owners and agriculture workers for fair pay and better treatment. Deplorable conditions included hourly wages at $0.90/hour, inadequate working standards such as a lack of toilets and segregated housing, and poor treatment from the growers. Cesar Chavez organized what is now the United Farm Workers labor organization, which helps agriculture workers across the country collectively bargain and secure their rights, fair pay, and adequate working conditions.

The Ncaa's Punts On Transgender Student-Athlete Participation, Josh Lens

Missouri Law Review

The National Collegiate Athletic Association (“NCAA”), which serves as college athletics’s national governing body, states that its basic purposes include supporting and promoting healthy and safe college athletics. It accomplishes this through its stated principles, which include conducting athletics designed to protect, support, and enhance student-athletes’ physical and mental health and its commitment to diversity, equity, and inclusion. These are tall tasks, as half a million student-athletes compete in NCAA-sponsored sports. The NCAA also enjoys a history of taking strong stances on perceived discrimination. More specifically, the NCAA has used its economic influence to effect changes to state legislation or …

The Race To Ban Race: Legal And Critical Arguments Against State Legislation To Ban Critical Race Theory In Higher Education, Vanessa Miller, Frank Fernandez, Neal H. Hutchens

Missouri Law Review

Anti-critical race theory bills have garnered national attention in the K-12 context. However, many critical race theory (“CRT”) bans also impact institutions of higher education. The bills seek to prohibit the teaching of ideas that include the premise that racism and sexism are pervasive in our society. Those opposing CRT believe its tenets promote anti-white racism, cultural division, and threaten the public institution of education. Scholars and educators have criticized anti- CRT bills for their mischaracterization of the use and tenets of CRT and related theories of scholarship. This Article argues that state anti- CRT laws and policies in higher …

All Aboard? Missouri Statute Risks Failing To Protect Consumers From Hidden Fees And Deceptive Practices Of Prominent Companies, Ethan E. Schroeder

Missouri Law Review

At some point, every consumer has bought something and then found themselves surprised by the hidden fees and countless documents that must be signed as part of the purchase. It may even lead to some level of buyer’s remorse. However, it is not often that buyer’s remorse gives rise to a class action lawsuit brought by over 100,000 consumers against an affiliate of one of Missouri’s largest private corporations. Consumers, such as Robert and Janet McKeage, are often forced to choose between holding retailers accountable for their deceitful practices or paying increased transaction costs when dealing with Missouri retailers. With …

Have Your Cake And Eat It Too (Unless You Are Danny Brock): The Irony Of Missouri’S Co-Employee Liability Statute, Taylor M. Harrington

Missouri Law Review

April 30, 2013, started like any other day for Danny Brock. Like each day before, he woke up, drove to work, and clocked in. A few hours later, he looked down to see his thumb completely detached from his hand, barely hanging on by the skin. When the injury occurred, Brock was following direct orders from his supervisor, Mark Edwards. Citing safety concerns, Brock opposed the request. But Edwards demanded that Brock proceed. Fearing loss of employment, Brock did as he was told. As predicted, injury ensued. Within seconds, Brock’s hand was crushed. Brock underwent three surgeries and sustained permanent …

Masthead

Missouri Law Review

No abstract provided.

Should The Federal Circuit Stand Down On Standing?, Avery J. Welker

Missouri Law Review

On March 11, 2020, the World Health Organization officially declared COVID-19 a pandemic, just ninety days after patients in Wuhan, China, began experiencing an unknown pneumonia-like illness.1 States rapidly responded, beginning shutdowns just a few days later.2 Amidst the early shutdown chaos, Moderna began human trials on its new COVID-19 vaccine.3 Moderna’s road to vaccine development was not without bumps, however, as the company launched a patent validity attack on another company’s technology it used while developing its vaccine. The dispute made its way to the Court of Appeals for the Federal Circuit, where the question focused on whether Moderna …

Using Real Practice Systems Resources In Practice, John M. Lande

Faculty Blogs

This post describes how mediators can use ideas and materials from the Real Practice Systems Project to better understand and improve their own mediation systems. Mediators’ practice systems are the combination of factors affecting what they do before, during, and after mediation sessions. These systems include their routine procedures and strategies for dealing with recurring challenging situations. Trainers and mediation program administrators can use this to help mediators in their programs.

Resources For Using Real Practice Systems Materials In Teaching, John Lande

Faculty Blogs

This post describes how faculty can use ideas and materials from the Real Practice Systems Project to help students get realistic understandings of practice. Although the project has generally focused on the systems that mediators develop and use, it can be adapted to understand the perspectives of lawyers acting as advocates in mediation, negotiators, and in legal practice generally. In addition to requiring or recommending that students read publications about real practice systems, faculty could assign students to write papers such as (1) a Stone Soup interview of a practitioner, (2) a description of students’ actual system in simulated or …

Shifting The Central Paradigm To Dispute System Design, John Lande

Faculty Blogs

This post argues that instead of identifying our field as ADR, we should use dispute system design as our central theoretical framework. Although people often think of DSD as being used only in large organizations, individuals and small practice groups also handle streams of cases and can use these principles and techniques to improve their case management and dispute resolution procedures. DSD is about tailoring dispute systems to the needs of stakeholders, especially disputing parties. Good designs fit the stakeholders’ context and culture so that the dispute processes produce as much satisfaction of the parties’ procedural and substantive goals as …

Legal Citations: A Foundation Of Written Advocacy, Douglas E. Abrams

Faculty Publications

The article advanced this formula for achieving effective appellate advocacy: “First, you seek to persuade the court of the merit of the client’s case, to create an emotional empathy for your position. Then you assist the court to reach a conclusion favorable to the client’s interest in terms of the analysis of the law and the procedural posture of the case.”

Houston, We Have A Problem In The Dispute Resolution Field, John M. Lande

Faculty Blogs

Parties are supposed to actively participate in mediation (and other dispute resolution processes to some extent), and thus they need to understand what experts are saying. Lawyers representing clients in mediation especially need to understand the process to fulfill their ethical responsibility of competence. And certainly mediators should understand basic concepts of mediation.

Solving The Procedural Puzzles Of The Texas Heartbeat Act And Its Imitators: New York Times V. Sullivan As Historical Analogue, Charles W. "Rocky" Rhodes, Howard M. Wasserman

Faculty Publications

The Texas Heartbeat Act (S.B. 8) prohibits abortions following detection of a fetal heartbeat while delegating exclusive enforcement through private civil actions brought by “any person,” regardless of injury, for statutory damages of a minimum of $10,000 per prohibited abortion. Texas sought to impose costly litigation and potentially crippling liability on reproductive health providers and rights advocates, with the hope of stopping abortion in the state. Prior to Dobbs v. Jackson Women’s Health Organization overruling Roe v. Wade and eliminating constitutional protection for abortion, the law represented a unique threat to reproductive freedom. But states are spreading S.B. 8’s exclusive …

Going Concerns And Environmental Concerns: Mitigating Climate Change Through Bankruptcy Reform, Alexander Gouzoules

Faculty Publications

This article examines how legislative reforms to the Bankruptcy Code could mitigate the effects of climate change, speed the adoption of renewable energy, and contribute to U.S. compliance with the Paris Agreement of 2015. It analyzes the benefits derived by the fossil fuel industry from Chapter 11, which allows extractive firms to survive boom-and-bust cycles caused by volatile oil and gas prices. Insolvent polluters are preserved as going concerns during price collapses, only to resume and expand production as prices recover.

This article proposes novel legislative reforms to the Bankruptcy Code that would require insolvent fossil fuel producers to liquidate …

Taxation And The Constitution, Reconsidered, David Gamage, John R. Brooks

Faculty Publications

Our current income tax is unable to address growing concentrations of financial wealth and resulting economic inequality. But reforms to address these problems—such as a wealth tax or an income tax on unrealized capital gains—are stymied by fears of unconstitutionality. The basic claim is that wealth taxes and similar reforms are “direct taxes” under the Apportionment Clauses of the Constitution, and since apportionment is not feasible, these taxes are impossible. But this claim is wrong.

This Article shows that there is in fact a long history of federal taxes similar to wealth taxes—both apportioned and uniform—and a well-developed constitutional tax …

Masthead

The Business, Entrepreneurship & Tax Law Review

No abstract provided.

Proposition 12 And A New Paradigm For Federal Law: Toward More Humane And Ethical Farm Animal Practices In California And The U.S., Valerie J. Watnick

The Business, Entrepreneurship & Tax Law Review

This paper explores California’s Proposition 12, a ballot measure designed to im-prove factory farmed animal welfare and marginally, the conditions for those who work on such farms. The Proposition bans cruelty in farm animal confinement within California and calls for specific space requirements. Proposition 12 also re-quires that animals raised outside the state and sold within the state comply with the more humane housing standards in the law. Based on a recent ruling upholding Proposition 12 by the U.S. Court of Appeals for the Ninth Circuit and the introduction of multiple other state laws banning the most inhumane practices in …

Chapter 11 Bankruptcy & Corporate Accountability: How Large Economic Players Use Reorganization As A Liability Shield, Luke J. Doherty

The Business, Entrepreneurship & Tax Law Review

Corporate reorganization, also known as Chapter 11 of the Bankruptcy Code (“the Code”), operates under the premise that, in certain circumstances, an insolvent business entity is better equipped to repay its debts if kept “alive” rather than “dead.” In such a case, the entity maintains operations but reorganizes its assets as a means to repay creditors. Today, however, this needed tool has provided some of the country’s largest economic players with a sort of liability shield, allowing them to avoid substantial legal accountability, particularly in tort. Non-debtor release forms, which shield corporate officers from corporate conduct, courts’ liberal use of …

Table Of Contents

The Business, Entrepreneurship & Tax Law Review

No abstract provided.