Law Commons^™

The Ultimate Congressional Workaround: Why Businesses Should Advocate The Return Of A Robust And Originalist Nondelegation Doctrine After Nfib V. Osha And Biden V. Missouri, Tyler A. Dodd

The Business, Entrepreneurship & Tax Law Review

At the height of the COVID-19 pandemic, the Biden administration looked for a way to stop the spread of the virus. To stop the spread, the Biden administration announced a COVID-19 vaccine mandate for all businesses with over 100 employees and for all healthcare facilities receiving funds from the Center for Medicare and Medicaid Services (“CMS”). OSHA and CMS would administer the mandates, respectively. The agencies needed to administer the vaccine mandate because Congress failed to enact a mandate, and the agencies had broad and indefinite regulatory power in enacting public health measures. In NFIB v. OSHA the United States …

From Sherman To Shut Down – Understanding Antitrust Legislation Targeting Big Tech, Dayna L. Linneman

The Business, Entrepreneurship & Tax Law Review

Beginning in the late 19th and 20th centuries and extending into present day, United States antitrust legislation has sought to safeguard consumers and maintain fair competition among businesses. While the purpose of antitrust legislation has always been to encourage free market principles, changing technologies within re-cent decades, as well as the rise of so-called “Big Tech”, has disrupted the “traditional” business landscape. This article begins with a general history of antitrust legislation within the United States in an effort to provide context regarding legislators’ recent push for legislation targeting Big Tech giants. In analyzing recent antitrust legislation, this article provides …

Using International Human Rights Law To Address Hunger In The U.S., R. Denisse CóRdova Montes

The Business, Entrepreneurship & Tax Law Review

International human rights law recognizes a right to adequate food. The International Covenant on Economic, Social and Cultural Rights (“ICESCR”) upholds “the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing, and housing, and to the continuous improvement of living conditions.” The right is further enumerated in international law through additional conventions and standards and is continuously being interpreted and analyzed by United Nations (“U.N.”) expert bodies. The United States (“U.S.”), though a signatory to several international human rights conventions, including the ICESCR, has not ratified any convention that would make …

Trouble In Paradise: Puerto Rico's Routine Exclusion From Federal Benefit Programs As A Result Of The Alien-Citizen Paradox, Katerina Martínez Vélez

The Business, Entrepreneurship & Tax Law Review

Puerto Ricans are United States citizens by birthright. The island itself is neither a state nor an independent country, but rather, a territory of the United States. As a territory, Puerto Rico holds a unique tax status, and its residents are exempt from some federal and income taxes. Regardless, Puerto Ricans contribute significantly to the federal treasury by paying customs taxes, federal commodity taxes, and all payroll taxes (also known as FICA taxes), which include Social Security, Medicare, and Unemployment Compensation. Yet, its residents are still subject to discrimination on the basis of residency. In this article, I will explore …

Not For Sale: Why Congress Should Act To Counter The Trend Of Massive Corporate Acquisitions Of Real Estate, Stephen George

The Business, Entrepreneurship & Tax Law Review

The concept that property ownership is a right of the American people has been a bedrock principle of the United States ever since its founding. Property ownership was regarded by the Founding Fathers as an essential right for the American people to truly be independent and free. Throughout the United States’ history, property ownership has remained a core principle of American society, from being one of the natural rights that set the foundation of the nation, to form the most critical components of the “American Dream” through the 20th century and into the present. However, the prospects of owning property …

Cross-Border Data Transfers: A Balancing Act Through Federal Law, Joshua M. Wilson

The Business, Entrepreneurship & Tax Law Review

Throughout the digital age, corporations have collected, used, and stored individuals’ digital information to efficiently market to consumers and expand their business. In fact, not only do retail companies rely on data, but also farmers, financial institutions, health services, and other businesses heavily depend on one’s in-formation. Despite the importance and necessity of data, the U.S. has failed to establish a comprehensive federal law addressing data issues. Many countries with developed or developing economies, however, have established laws related to data, a company’s usage of such data, and other data-related issues. A key obstacle plaguing U.S. businesses in terms of …

References To Robert Frost's Poetry In Advocacy And Judicial Opinions, Douglas E. Abrams

Faculty Publications

This article concerns courts whose written opinions have recently cited and quoted Frost and his poetry. By profiling Frost’s enduring influence, the article fortifies a theme I have presented in earlier “Writing It Right” articles. The theme begins in the courts, which in recent years often accent their opinions’ substantive or procedural rulings by quoting or citing well-known cultural markers from literature, sports, or popular entertainment.

Resurfacing Sovereignty: Who Regulates Surface Mining In Indian Country After Mcgirt?, Robin M. Rotman, Sam J. Carter

Faculty Publications

This article examines disputes over surface mining jurisdiction on the Muscogee (Creek) Nation Reservation post-McGirt and the larger implications for sovereignty and environmental justice in Indian Country that follow. Part II summarizes the history of federal, state, and tribal relations and provides an analysis of the McGirt decision and its potential impacts on natural resource issues. Part III offers an examination of jurisdictional uncertainties post-McGirt through an in-depth discussion of the Surface Mining Control and Reclamation Act and the State of Oklahoma v. United States Department of the Interior case. Drawing from the examination of surface mining regulation, Part IV …

Osha And Public Health In An Emergency And A Culture War, Richard R. Carlson

Missouri Law Review

The approval of COVID-19 vaccinations for working age Americans in early 2021 offered a welcome release from oppressive non-vaccination safety measures. Group activities including normal employment operations became possible with a greatly reduced risk of serious illness and death. However, escape from the virus and non-vaccination measures was limited by widespread resistance to vaccination. OSHA became one of a handful of federal government offices that adopted rules to motivate more people to accept vaccination as the best way to protect themselves, protect their families, and escape the oppression of non-vaccination measures. OSHA, which regulates private sector “occupational” health, issued an …

Reforming Qualified-Immunity Appeals, Bryan Lammon

Missouri Law Review

The Supreme Court held in Mitchell v. Forsyth that defendants have a right to immediately appeal from the denial of immunity. This right to appeal alone is enough to halt any progress in civil-rights litigation and add complexity to a case, and defendants can use these appeals to wear down plaintiffs. But appeals from the denial of qualified immunity—or simply “qualified-immunity appeals”—are worse than some seem to realize. In the 35 years since Mitchell, the federal courts have steadily expanded the scope and availability of these appeals. The courts have also undermined (or let defendants undermine) the limits on those …

The Exclusionary Rule And Judicial Integrity: An Empirical Study Of Public Perceptions Of The Exclusionary Rule, Matthew D. Kim

Missouri Law Review

Fourth Amendment violations call upon courts to resolve the difficult question of who will benefit from past misconduct—the factually guilty defendant or the overreaching government. Either way, courts are forced to punish the misdeed of one actor and allow the other to profit from its misconduct, potentially undermining the public’s trust in the courts. The Supreme Court opined that suppressing unlawfully obtained evidence through the exclusionary rule deters police misconduct and better preserves judicial integrity. However, with the recent discrediting of the police deterrence rationale and the growing belief that the suppression of probative evidence instead undermines judicial integrity, the …

Faculty List

Missouri Law Review

No abstract provided.

Masthead

Missouri Law Review

No abstract provided.

A Confusing Clarification: How The Bad-Faith Exception In 28 U.S.C. § 1446(C) Costs More Than It Is Worth, Tate Cooper

Missouri Law Review

It matters where a case is heard. Venue and jurisdiction are not solely dry, esoteric matters—they impact the course of litigation and litigants’ rights. In general, plaintiffs prefer to litigate in state court, while defendants prefer federal court. Unfortunately for defendants, federal courts have limited jurisdiction. To remove an action from state to federal court, defendants must plausibly characterize an action as fitting within a particular jurisdictional grant. As attentive civil procedure students remember from World-Wide Volkswagen Corp. v. Woodson, defendants go to extraordinary lengths to avoid plaintiff-friendly jurisdictions.

Copyright

Missouri Law Review

No abstract provided.

Table Of Contents

Missouri Law Review

No abstract provided.

“Heads I Win, Tails You Lose”: The End Of Employers’ Exploitation Of The Federal Arbitration Waiver Prejudice Requirement, Peyton E. Rosencrants

Missouri Law Review

On its face, an arbitration agreement suggests a straightforward process: should a dispute between the parties subject to the agreement arise, the dispute will be resolved through arbitration rather than litigation. But sometimes the parties do not follow this seemingly predetermined path. For example, many employers include mandatory, boilerplate arbitration agreements as conditions of employment. As is often the case, what happens when an employee sues her employer without knowledge of the contract’s arbitration clause? What if the employer allows the lawsuit to proceed for several months before it decides that it would fare better before an arbitrator? Must a …

Section 230 Of The Communications Decency Act Of 1996: The Antiquated Law In Need Of Reform, Katherine Mediavilla

Missouri Law Review

Imagine a world without the information sharing-giants of Facebook, YouTube, Instagram, TikTok, Twitter, or Reddit. It is nearly impossible to go a day without some type of exposure to content created, published, and shared on such platforms. A world without these platforms would bear a striking resemblance to the world in 1996, when Congress passed the Communications Decency Act (“CDA”). The CDA, often referred to as “the 26 words that made the internet,” states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content …

Religious Organizations In Missouri Continue To Escape Liability In Negligence Actions Involving Abuse Of Children Under The Guise Of The First Amendment, Rachel M. Taylor

Missouri Law Review

“Church allowed abuse by priest for years” was the headline of the Boston Globe on Sunday, January 6, 2002. Reporters at the Boston Globe exposed the truth about the horrendous decades of child sexual abuse at the hands of Catholic priests in the Boston area. This story launched the Catholic Church’s secrets into public view and helped unravel the pattern of abuse perpetuated by its leaders for decades. The abuse, however, was not limited to the city of Boston—or even just the United States. Claims of sexual abuse spanned the globe. Thousands of priests have been accused, and the Catholic …

Show-Me The Money: Outdated Solicitation Laws Expose Municipalities To Liability, Jessica Davis

Missouri Law Review

On any given night, roughly half a million people in the United States are homeless. In Missouri alone, approximately 6,500 people are homeless on any given day. Homeless populations create health, safety, and financial complications for municipalities. A strategy used by many municipalities to control these complications is the passage of ordinances restricting the actions of homeless populations. Commonly, these laws restrict solicitation, colloquially known as panhandling. Some laws ban panhandling altogether. While panhandling ordinances may have been a feasible solution in the past, a recent United States Supreme Court decision, Reed v. Town of Gilbert, has rendered many of …

Shestowsky’S Study Supports Value Of Lawyers’ Early Education Of Clients About Their Procedural Options, John M. Lande, John Lande

Faculty Blogs

This post summarizes parts of Donna Shestowsky’s study on parties’ expectations about the process used to resolve their cases. She writes, “Our findings suggest the value of educating litigants about legal procedures, helping them develop realistic expectations for what each procedure can entail for their situation, and helping them make informed decisions about whether to attend their procedures. . . . Our results suggest how important it is for lawyers to educate their clients about each of their procedural options. Effective education and managing client expectations might lead to the formation of attitudes that reflect realistic expectations, and, in turn, …

Billionaire Mark-To-Market Reforms: Response To Susswein And Brown, David Gamage, Reuven S. Avi-Yonah

Faculty Publications

In their essay, “Is It Time to Tax Disney’s Unrealized Capital Gains From 1965?” Donald B. Susswein and Kyle Brown argue that a mark-tomarket reform like the recent proposals for billionaire income tax reforms would amount to double taxation. We explain here why their arguments are incorrect. Instead, the primary impact of enacting a billionaire income tax reform would be to close the loopholes and combat the harmful political-optionality dynamics that enable many billionaire and megamillionaire taxpayers to fully and permanently escape income taxation on the majority of their true investment gains.

Readings And Resources For Teaching, John Lande

Faculty Blogs

This post provides links to resources that instructors can use when teaching dispute resolution.

Study Of Odr In Family Cases With Positive Results, John Lande

Faculty Blogs

This post summarizes the results of a study finding that parties who used ODR for child custody, parenting time, or child support matters were more likely to reach agreement and to rate their experience more highly than those who declined to use ODR.

Description

Journal of Dispute Resolution

No abstract provided.

Table Of Contents

Journal of Dispute Resolution

No abstract provided.

Appraisal Of The Success Of The Instruments Of International Commercial Arbitration Vis-À-Vis International Commercial Litigations And Mediation In The Harmonization Of The Rules Of Transnational Commercial Dispute Resolution, Samuel Maireg Biresaw

Journal of Dispute Resolution

This article compares the major instruments of International Commercial Arbitration (hereinafter ‘ICA’) with the instruments of International Commercial Litigation and Mediation. By so doing, the article comparatively assesses the success of ICA, litigation, and mediation as alternative mechanisms of transnational commercial dispute resolution. Accordingly, the article argues that, while the ICA is not the only means of transnational commercial dispute resolution, it will continue to be the most successful means of dispute resolution, playing the dominant role in harmonizing the rules of transnational commercial dispute resolution. However, the article also argues that, over time, transnational commercial litigation and mediation are …

Improved Writing From Reading Other Writers, Douglas E. Abrams

Faculty Publications

In 1954, a 12-year-old junior high school student wrote to Justice Felix Frankfurter seeking advice about how to prepare to become a lawyer. “The best way to prepare for the law,” Frankfurter answered, “is to come to the study of law as a well-read person.” Reading other writers, he explained, enables future lawyers to “acquire the capacity to use the English language on paper and in speech and with the habits of clear thinking.”

Justice Frankfurter offered his young correspondent sound advice about the intimate link among reading, writing, and lawyering. Reading works from other writers with an eye toward …

Home Run Or Strike Out: Can Baseball Arbitration Solve America’S Medical Debt Crisis?, Sarah Jolley

Journal of Dispute Resolution

In 2012, a New York woman named Claudia Knafo found herself in need of a complicated spinal surgery. She immediately began the long and arduous process of selecting a physician in her insurance network, even going so far as to interview prospective surgeons to confirm their in-network status. Claudia finally selected a well-regarded local surgeon, whose website verified his in-network status with her health insurance plan, after calling his office to confirm. Weeks after her successful spinal surgery, Claudia received notice that the doctor’s receptionist and website were incorrect—the surgeon was not actually in-network. Claudia’s health insurance plan provided $66,0000 …

Is Arbitration For Olympic Athletes Arbitrary?, Shelby Ehrmann

Journal of Dispute Resolution

In December of 2021, Professional Russian Figure Skater Kamila Valieva completed a doping control test during a Russian National Figure Skating Championship. On February 7, 2022, a World Anti-Doping Agency (WADA) accredited laboratory detected the presence of a banned substance from Kamila’s December 2021 test. The Russian Anti-Doping Agency, (RUSADA) which is in charge of the application of WADA, first implemented a provisional suspension on Kamila, prohibiting her from competing in the 2022 Olympic Winter Games. The RUSADA’s Disciplinary Anti-Doping Committee (DADC) then moved to lift this provisional suspension. The International Olympic committee, the WADA and the International Skating Union …