Law Commons^™

Back To Basics: Statutory Interpretation And The Demise Of The Dol’S Tip Credit Rule After Loper Bright, William T. Perryman

Missouri Law Review

The Fifth Circuit recently delivered a significant blow to the Department of Labor’s (“DOL”) regulatory authority in Restaurant Law Center v. U.S. Department of Labor, which vacated a rule delineating the permissible scope of non-tip-producing work for employees under the Fair Labor Standards Act (FLSA) for employers claiming a “tip credit.” The challenged regulation—often referred to as the “80/20 rule” with a “30-minute rule” addendum—sought to limit the amount of non-tip-producing work a tipped employee could perform if the employer claimed a tip credit. What renders this decision particularly notable is the Fifth Circuit’s relatively swift invalidation of a long-standing …

Faculty List

Missouri Law Review

No abstract provided.

Breaking Up The Dog Fight: Restoring Order To Supplemental Jurisdiction After Wullschleger, Lucas Reed

Missouri Law Review

In 2024, the United States had a “jurisdictional dog fight” on its hands; one between a defendant’s right to access federal courts through removal and a plaintiff’s status as “master of the complaint.” At stake was not mere technical procedure but the very balance between state and federal authority. When defendants began removing cases with embedded federal questions to federal court only to have plaintiffs amend their complaints to eliminate federal “hooks,” the resulting legal battle would test the boundaries of precedent and the logic governing forum selection. Royal Canin U.S.A., Inc. v. Wullschleger provided such a test.

Copyright

Missouri Law Review

No abstract provided.

Google Geofences: Navigating The Fourth Amendment In The Digital Age, Maverick L. L. Lewis

Missouri Law Review

In December 2018, twenty-three-year-old Jorge Molina was wrongfully arrested for murder based on location data received from a Google geofence—a virtual perimeter around a specific geographic location, created using Google’s location services. Despite law enforcement confirming his alibi within twenty-four hours, Molina spent six days in jail before he was released. As a result, Molina lost his job and car, suffered reputational damage, and was forced to drop out of college. Molina’s stepfather was later arrested and charged for the murder after law enforcement learned he had been using Molina’s old phone, which was still logged into his email. In …

Eugenics And The Carceral State: Progressive-Era Reform & The Creation Of The Modern Criminal Justice System, Laura I. Appleman

Missouri Law Review

No abstract provided.

Masthead

Missouri Law Review

No abstract provided.

Debating The Self-Pardon: A Dialogue Of The Evidence For And Against The Constitutionality Of A Presidential Self-Pardon, Michael Conklin, Peter B. Bayer

Missouri Law Review

In light of recent events, the constitutionality of presidential self-pardons is set to potentially become one of the most pressing constitutional questions of the twenty-first century. This Article consists of a dialogue between two scholars regarding the evidence for and against the constitutionality of presidential self-pardons. By providing their best arguments for and against each side, readers are left better equipped to reach their own educated conclusions. The benefits of discussing this issue before anyone attempts to self-pardon are considerable, as doing so could contribute to solutions, potentially averting, or at least helping to resolve peaceably, a true constitutional crisis. …

Toddlers, Investors, And Tax Policy, Lauren Shores Pelikan

Faculty Publications

There is a continuing childcare crisis that worsens every year. Congress has historically used tax incentives aimed at parents and employers to try to alleviate the lack of affordable childcare. However, with private equity's increasing investment in the childcare sector, this Article advocates for an entirely new approach: Congress should encourage more people to work in the childcare sector by enacting a tax benefit for the individual childcare service provider.

Childcare is a broken market. The labor-intensive nature of the industry results in razor thin profit margins, and wages remain low due to entrenched racial and gender norms. There is …

Turning Risks Of Cheating With Ai Into Opportunities For Better Teaching, John M. Lande

Faculty Publications

Many law school faculty are concerned that students may misuse artificial intelligence (AI) tools to undermine their learning and violate academic integrity policies.  Although some students will inevitably cheat, faculty can reduce the risk – and improve student learning – by rethinking assignment design and classroom communication.

This article frames the risk of AI-related cheating as an opportunity for pedagogical improvement.  It offers practical strategies to help faculty design assignments that enhance student learning, promote good decision-making, discourage inappropriate AI use, and foster responsible AI literacy.  It outlines approaches consistent with the ABA’s new requirement for formative assessment throughout the …

The Bankruptcy Judge And The Generalist Tradition, Alexander Gouzoules

Faculty Publications

The prevailing academic consensus is that bankruptcy judges are specialists presiding over specialized courts. This Article contends that this description is incomplete and, in some respects, inaccurate. Drawing on scholarly models of judicial specialization and historical surveys of the field, this Article contends that bankruptcy judges reflect a hybrid design choice: procedural specialization combined with substantive generalism. This model delivers many of the observed benefits of judicial specialization (including efficiency and technical competence) while preserving the cross-pollination of ideas and other benefits associated with the generalist tradition of American judging.

This Article also reflects on contemporary developments—most notably the rise …

Religion Recovers Its History: The Court Puts The Establishment Clause On A New Path, Patrick M. Garry

Missouri Law Review

For over a half-century, the First Amendment Establishment Clause jurisprudence was in disarray. Judicial decisions more often stemmed from social and cultural presumptions than from constitutional history. For years, if not decades, Supreme Court observers waited for a clarifying opinion on this troubled area of First Amendment law. In a 2022 decision upholding a football coach’s right to silently pray at mid-field after a game, the Court issued a momentous decision that not only overruled much of previous Establishment Clause jurisprudence but also suggested a new path forward. Given the Court’s desire to base future doctrines on the historical meaning …

Deepseek And The First Amendment: Assessing The Eighth Circuit And Missouri’S Legal Impact On Open-Source Ai, Alvin Hoi-Chun Hung

Missouri Law Review

The rise of open-source generative artificial intelligence (AI) models presents new challenges for First Amendment jurisprudence. Although computer code has been recognized as protected speech, the emergent nature of AI-generated outputs complicates the boundary between human expression and machine autonomy. This Article examines the constitutional and regulatory implications of compelled disclosures and content filtering, situating the analysis within the precedent of the Eighth Circuit Court of Appeals and recent actions by the Missouri Attorney General targeting algorithmic opacity under consumer protection law. It further examines the limitations of Section 230 of the Communications Decency Act in addressing liability for autonomous …

Masthead

Missouri Law Review

No abstract provided.

Faculty List

Missouri Law Review

No abstract provided.

No Thanks, Just Looking: A Post-Transunion Analysis Of Session-Replay Surveillance And Historical Privacy Harms, Maggie N. Munsterman

Missouri Law Review

The constitutional doctrine of standing serves as a gateway to the federal courthouse, filtering out claims that lack a personal, concrete stake in the outcome. In privacy litigation, the alleged injuries may feel deeply personal but are often intangible and statutory. Amidst this tension, the injury-in-fact requirement of Article III has proven particularly thorny. The Supreme Court’s decisions in Spokeo, Inc. v. Robins and TransUnion LLC v. Ramirez set forth a framework requiring a “concrete” injury that bears a “close relationship” to harms traditionally recognized in American law. Yet, lower courts’ interpretation of this mandate varies considerably, especially in the …

Unlucky Chapter 13, Lawrence Ponoroff

Missouri Law Review

As a social program for individual debtors dealing with financial upheaval, Chapter 13 of the federal Bankruptcy Code is a failure and has been from its inception nearly 90 years ago. It is overly complex, internally inconsistent, and the product of congressional schizophrenia. There is no eagerness to fix it and no interest in eliminating it, which are both suggestions I have offered in the past. And so, with two strikes against me, I’ve decided to take my third and final swing. Using one of the most recent subjects of judicial disagreement over the proper application of the statute as …

The Price Is Right . . . Or Is It?: Thirteen Factors In Evaluating The Antitrust Implications Of Competitors’ Common Use Of Pricing Algorithms, Caleb M. Ross

Missouri Law Review

Imagine a ridesharing application that uses an algorithm to calculate and suggest the fares their drivers can set. If each driver in the area sets their fares at the algorithm’s suggested price, have they done so because there’s an illicit agreement to set artificially high prices? Or have they done so because it makes the most business sense for each of them to follow the algorithm’s recommendation? It is a basic tenet of antitrust law that it is illegal for competitors to agree on what prices to charge for their similar goods. This is commonly referred to as price fixing. …

Expert Report On Valuation Of Controlling Shares Of Publicly Traded Companies Under The California Billionaire Tax Act (Cbta), David Gamage, Brian D. Galle, Emmanuel Saez, Darien Shanske

Faculty Publications

This short memo addresses concerns that have been raised under the proposed California Billionaire Tax Act (CBTA or Act) about the valuation of "voting" or "special control" shares, particularly with regard to shares held in publicly traded companies. A misreading of the CBTA is circulating that claims that voting shares of all assets will be taxed in full regardless of their actual value. This is false, as shown by a straightforward reading about the provision relating to voting and special control shares in context.

Students Shouting Louder Than School Bells: An Analysis Exposing Anti-Youth Rationales In Federal Courts, Edward D. Scott Jr., Christopher L. Mathis

Missouri Law Review

In a paradigm-shifting departure from conventional First Amendment analysis, this study is the first empirical examination of First Amendment rights, spanning every level of the federal judiciary, for students in public schools. Departing from conventional narratives, our scholarship examines how the federal court adjudicates the nuances surrounding the First Amendment within public K-12 educational institutions.

Discipline With Due Process: Constitutional Safeguards For Student Speech After Plaintiff A, Sarah Stich

Missouri Law Review

When fifteen-year-old Louie posted a TikTok video criticizing his school’s disciplinary policies from his bedroom, he faced a month-long suspension despite having no notice of which policies he had violated. Across the country, Kaitlin shared a Snapchat criticizing her chemistry teacher with friends at a local coffee shop and faced expulsion with minimal opportunity to explain the context. In both cases, students received limited procedural protections before suffering severe academic consequences.

Correcting The Record: Responding To Some Legal Arguments About The 2026 Billionaire Tax Act, David Gamage, Brian D. Galle, Darien Shanske

Faculty Publications

If adopted by California voters in November of 2026, the 2026 California Billionaire Tax Act (CBTA) would impose a one-time 5% tax on the net worth of California billionaires, payable in five annual installments of 1% over 5 years (plus a small deferral charge). Critics have raised several arguments suggesting that the Act would not bring in the expected $100 billion in projected revenues because, the critics say, key parts of the Act are unconstitutional and would be subject to legal challenge. In fact, the supposed new legal challenges critics identify are mostly just very old arguments that courts have …

Expert Report On The California 2026 Billionaire Tax: Revenue, Economic, And Constitutional Analysis, David Gamage, Brian D. Galle, Emmanuel Saez, Darien Shanske

Faculty Publications

This report summarizes key provisions of the California Billionaire Tax Act. It also answers some frequently asked questions.

The Non-Punishment Principle And Restorative Justice, Rachel J. Wechsler

Faculty Publications

The non-punishment principle is a legal norm that has increasingly gained legitimacy over the past quarter-century within international, regional, and domestic law on human trafficking. At its core, this principle opposes the punishment of human trafficking victims for unlawful conduct they engage in as a consequence of their trafficking victimization. Little is known about the presence and operation of the non-punishment principle within U.S. law. This Article fills this gap as the first to comprehensively map and analyze the principle’s instantiation across state and federal law.

From this new map, three key themes emerge. First, the non-punishment principle has a …

Taxing Dynasties, David Gamage, Brian D. Galle, Bob Lord

Faculty Publications

The estate tax and the broader wealth-transfer-tax system are even more broken than is commonly understood. Over the past two decades, researchers and policy experts have identified a handful of key tactics that mega-rich families use to pass wealth from generation to generation without paying tax. These tax dodges are notorious enough to be known by their acronyms, such as the IDGT and the GRAT. Scholars and policymakers have proposed reforms to block these tactics, or at least to make them more difficult.

In this Article, we present new analysis, backed by new empirical findings, to show that these proposed …

Fda After Loper Bright, Erika Lietzan

Faculty Publications

Loper Bright, which overruled the Chevron decision from 1984, tells us that a court should determine the meaning of all statutory provisions for itself, rather than deferring to the views of the federal agencies that implement those provisions. But the overruling of Chevron may have less of an impact on the U.S. Food and Drug Administration than conventional wisdom supposes. Most challenges to FDA action do not concern its statutory interpretations. And the agency prevailed in most cases involving statutory interpretation, before the Chevron doctrine took hold. After 1984, when the doctrine did apply, the agency often lost cases at …

Why Ai May Be Your Best Negotiation And Mediation Coach, John Lande

Faculty Publications

This article explores the role of artificial intelligence (AI) tools as negotiation and mediation coaches.  Drawing on research from negotiation, mediation, and consumer behavior, the article explains why bots can sometimes coach more effectively than humans.  In this role, they offer on-demand support that can help users prepare strategically and reflect honestly.  This support is especially valuable when seeking help from a human would feel too risky or awkward.

The article cautions against use of AI for roles requiring emotional intelligence, discretion, or legitimacy, such as negotiators, mediators, or arbitrators.  It distinguishes between AI as a thinking partner and AI …

Faster Than The Speed Of Law: Data Privacy And Judicial Deference In Matters Of Technological Development And Social Media, Andrew A. Bohon

Missouri Law Review

Judge Richard Posner, formerly of the Seventh Circuit, once wrote, “the courtroom is not the place for scientific guesswork, even of the inspired sort. Law lags science; it does not lead it.” The particular occasion for this maxim was a case in which Judge Posner disregarded the testimony of an expert witness who claimed the use of a nicotine patch had caused the plaintiff to suffer a heart attack—a claim with “no backing from scientific theory or data.” Cutting-edge technology is antithetical to the law, which is better-suited to an era of horse-drawn carriages and often requires judicial guesswork to …

Copyright

Missouri Law Review

No abstract provided.

Table Of Contents

Missouri Law Review

No abstract provided.