Law Commons^™

This Play Is Under Review: How State Name, Image, And Likeness Statutes Fail To Protect Student-Athletes From Unscrupulous Agents, Matthew S. Thomas

The Business, Entrepreneurship & Tax Law Review

For over a century, the National Collegiate Athletic Association’s concept of amateurism prohibited student-athletes from receiving compensation for their name, image, and likeness. Amateurism has been successfully challenged in the Supreme Court of the United States in recent years. In the wake of these challenges, states have passed legislation allowing student-athletes to profit from their name, image, and likeness. Additionally, the legislation allows student-athletes to utilize an agent without losing their athletic eligibility. Unfortunately, the legislation is largely void of proper attempts to regulate agent behavior and instead relies on a prior regulatory scheme. This raises a question as to …

Repealing The Consumer Welfare Standard: Ftc As Central Economic Planner?, Bryce Tobin

The Business, Entrepreneurship & Tax Law Review

The recent repeal of the consumer welfare standard and proposals for increased rulemaking authority threaten to give the Federal Trade Commission an unprecedentedly massive ambit under which to regulate. Under Section 5 of the FTC Act, the FTC is empowered to regulate unfair methods of competition as well as unfair deceptive acts or practices that affect commerce. As of 2015, the FTC was tethered to the consumer welfare standard when regulating under Section 5. However, in July 2021, the FTC abrogated the 2015 policy statement, thereby giving itself the ability to either replace the consumer welfare standard with a broader …

Table Of Contents

The Business, Entrepreneurship & Tax Law Review

No abstract provided.

Genetically Engineered Food, Food Security, And Climate Change, Joanna K. Sax

The Business, Entrepreneurship & Tax Law Review

Malnutrition is the leading cause of death and disease worldwide. Climate change is an existential crisis. We need to feed people and address the role of agriculture in climate change – at the same time. This is problematic, as agriculture inherently creates issues that contributes to climate change. Utilizing science, through genetically engineered crops, is one way to close the harm gap between food security and climate change. This essay addresses the controversial issue of genetically engineered crops with the complicated issues of food security and cli-mate change by analyzing three main issues: (1) how the science of genetically engineered …

Creating Sustainable Food Systems With Trademarks And Technology, Agnes Beatrice Gambill

The Business, Entrepreneurship & Tax Law Review

A geographical indication (GI) is a type of trademark that conveys the geographical origin and unique characteristics of a specialty product. Well-known examples of geographical indications include Champagne and Roquefort cheese. Numerous case studies from across the globe underscore the benefits that geographical indications can contribute to rural regions, such as increased job production, repopulation of rural areas, visibility, and renewed local pride. An international treaty called the Geneva Act grants intellectual property protection for geographical indications on a worldwide basis. Notably, the U.S. is not a party to this treaty and takes a hostile stance towards the use of …

Note From Editor

The Business, Entrepreneurship & Tax Law Review

No abstract provided.

Should The Great Food Transformation Be Fake-Meat Free? Considering Strategies For A Future Of Food That Is Kinder To People, Animals, And The Planet, Iselin Gambert

The Business, Entrepreneurship & Tax Law Review

In 2019, former Trump White House adviser Sebastian Gorka infamously denounced advocates of the Green New Deal with the pithy admonishment, “They want to take away your hamburgers.” This rhetoric is ironic given that none of the politicians supporting the Deal have suggested widescale adoption of vegan diets, much less any laws or policies restricting the consumption of animal-based meat. However, given our species’ broken relationship to food, perhaps they should. The 2019 EAT-Lancet Commission Food in the Anthropocene report laid bare the scope of our current global predicament, warning that “[g]lobal food production threatens climate stability and ecosystem resilience …

Masthead

The Business, Entrepreneurship & Tax Law Review

No abstract provided.

The Perfect Storm: Substance Abuse, Mental Illness, And Rural America, Bailey D. Barnes

Faculty Publications

Across the United States in the late twentieth and early twenty-first century, substance abuse and mental illness have clashed with the criminal justice system to produce inequitable and tragic results. The War on Drugs especially affects rural communities, where resources for rehabilitative services, mental health treatment, and transitional housing are scarce. In these areas, the significant strain on the criminal justice system caused by the frequent intersection of substance abuse and mental illness has wrought overcrowded correctional facilities, congested criminal court dockets, exhausted public defenders, and devastated families. This Article is a case study of one such rural community's experience …

Writing By Presidential Example: The First Inaugural Addresses Of Reagan And Obama, Douglas E. Abrams

Faculty Publications

This article is about two recent U.S. presidents who differed from one another in prominent respects. One entered the Oval Office as a staunch Republican; the other entered as a staunch Democrat. One was one of the oldest men ever to serve in the Oval Office; the other was one of the youngest. The pair assumed contrasting positions on the political spectrum.

Despite these differences, however, the pair – Ronald Reagan and Barack Obama – shared an important common denominator. As president, both achieved recognition as “great communicators,” thanks in large part to their speeches marked by dexterity with the …

Table Of Contents

The Business, Entrepreneurship & Tax Law Review

No abstract provided.

Farm And Food Policies For A Sustainable Future, John Ikerd

The Business, Entrepreneurship & Tax Law Review

United States government policies have incentivized and supported the unsustainable agri-food system of the present and fundamental changes in farm and food policies will be necessary for a sustainable future. US farm policies, initiated in the 1930s, were designed to ensure long run domestic food security by ensuring the economic viability of independent family farms. New mechanical, chemical, and biological technologies of the 1950s made it possible to increase agricultural productivity by applying industrial production strategies to farming. A shift in farm policy during the 1960s made the shift from family farms to industrial agriculture inevitable.

Partnership Taxation And The Paycheck Protection Program: Understanding Existing Guidance And How To Resolve Outstanding Issues, Blake Bracht

The Business, Entrepreneurship & Tax Law Review

When Congress established the Paycheck Protection Program as part of the response effort to the COVID-19 pandemic, it failed to anticipate the multiple tax uncertainties that resulted from tax-exempt loan forgiveness. Despite further legislation addressing various concerns, guidance by the Internal Revenue Service has been complex and confusing in some areas and wholly lacking in others. This article identifies tax issues raised by the Paycheck Protection Program, explains the existing IRS guidance, and suggests a framework for future guidance regarding the sale of a partnership interest.

The Legal Profession, Judiciary, And Dispute Resolution, John M. Lande

Faculty Blogs

The January 2022 issue of Dispute Resolution Magazine reports results of a survey of past contributors conducted by Editorial Board co-chairs Andrea Schneider and Michael Moffitt.

This post uses some of the survey responses to suggest that we recognize the legal profession and judiciary as part of the dispute resolution field.

How You Can Build A Mediation Model To Optimize Your Own Cases, John M. Lande

Faculty Blogs

Description of why formal mediation models, such as the facilitative and evaluative models, are incomplete and often misleading. Mediators constantly must answer the question “What do I do now?”, and the formal models don’t help in most situations. Lande suggests how mediators can develop their own, unique mediation models, relying in part on the work of psychologists Kenneth Kressel, Daniel Kahneman, and Amos Tversky.

Muddy Waters: Fair Use Implications Of Google V. Oracle America, Inc., Gary Myers

Faculty Publications

The United States Supreme Court ruling in Google LLC v. Oracle America, Inc. ended a long-running dispute between two giant technology companies. The case, which first began in 2010, has received considerable attention and commentary with regard to the scope of copyright protection for software and then about the contours of the fair use defense. The Court ultimately left the software copyright questions for another day, but it did render an important decision on fair use, the first major precedent on this important topic since 1994.

The Court’s fair use ruling provides important guidance on the scope of fair use …

Giving Up The Ghost In The Machine: Emergency Cellphone Tracking Under 18 U.S.C. § 2702(C)(4) Is A Search, Andrew Guinan

Missouri Law Review

In the post-September 11th world, our judiciary has been forced to confront the truth that “all free peoples have had to balance the demands of liberty with the demands of security.” This tension is not new, and in the past, “we Americans have been able to plant our flag well down the spectrum towards liberty.” Recently, however, the interception of electronic communications and other data by local, state, and federal law-enforcement authorities has emerged as a central point in the debate. While many Americans might be willing to endure some degree of intrusion under the threat of national terrorism, the …

Towards Nondelegation Doctrines, Chad Squitieri

Missouri Law Review

When discussing the nondelegation doctrine, courts and scholars frequently refer to Congress’ “legislative power.” The Constitution, however, speaks of no such thing. Instead, the Constitution vests a wide variety of “legislative powers” (plural) in Congress, including the powers to “regulate commerce,” “declare war,” “coin money,” and “constitute tribunals.” Shoehorning Congress’ diverse array of powers into a one-size-fits-all nondelegation doctrine has necessitated the development of the vaguely worded “intelligible principle” test. Unsurprisingly, that malleable test has failed to produce a judicially manageable standard. In response, this Article proposes that the nondelegation doctrine be transformed into a series of nondelegation doctrines, each …

Strengthening The Internal Affairs Doctrine Juul Labs, Inc. V. Grove, 238 A.3d 904 (Del. Ch. 2020)., Andrew J. Meyer

Missouri Law Review

The state of Delaware plays a significant role in shaping corporate law around the country. Delaware is home to a substantial number of corporations – more than half of publicly held corporations and over sixty percent of Fortune 500 companies are incorporated in the state. Furthermore, it contains the most out-of-state incorporations – a situation where a business incorporates in Delaware but has a principal place of business in another state. For instance, the State of Missouri has ten Fortune 500 corporations with their principal place of business in the state, two of which are incorporated in Delaware. Delaware maintains …

Hindsight 20/20: Missouri’S Use Of Statutory Interpretation As A Key Insight For Future Litigation Missouri State Conference Of Nat’L Ass’N For The Advancement Of Colored People V. State, 607 S.W.3d 728 (Mo. 2020)., Mackenzie L. Stout

Missouri Law Review

In Missouri State Conference of Nat’l Ass’n for the Advancement of Colored People v. State (hereinafter “NAACP v. State”), the Supreme Court of Missouri interpreted a Missouri statute that expanded the right to vote absentee in response to the COVID-19 pandemic. The new provision allowed all registered Missouri voters to vote absentee during the 2020 elections but required most absentee voters to have their ballots notarized. Voters who were “confined due to illness” or qualified as part of an “at-risk” category, however, were not required to have their ballots notarized. Appellants challenged the bill, claiming that voluntarily confining oneself as …

Masthead

Missouri Law Review

No abstract provided.

The Sword And The Shield: The Benefits Of Opinion Letters By Employment And Labor Agencies, Keith E. Sonderling, Bradford J. Kelley

Missouri Law Review

Opinion letters are a highly beneficial vehicle for federal and state agencies to provide meaningful guidance for courts, businesses, workers, unions, trade groups, practitioners, advocacy groups, and the public at large. This Article examines the benefits and criticisms of opinion letters issued by employment and labor agencies. For more than seventy years the Department of Labor (“DOL”) provided employers, workers, and others with guidance regarding the interpretation and application of the Fair Labor Standards Act and related regulations through opinion letters. Indeed, opinion letters have been issued during both Democratic and Republican administrations. Unfortunately, in more recent years, opinion letters …

Copyright

Missouri Law Review

No abstract provided.

Table Of Contents

Missouri Law Review

No abstract provided.

Technology Mergers And The Market For Corporate Control, Geoffrey A. Manne, Samuel Bowman, Dirk Auer

Missouri Law Review

Several high-profile academic articles and reports claim to have identified important gaps in current merger enforcement rules, particularly with respect to tech and pharma acquisitions involving nascent and potential competitors—so-called “killer acquisitions” and “kill zones.” As a result of these perceived deficiencies, scholars and enforcers have called for tougher rules, including the introduction of lower merger filing thresholds and substantive changes, such as the inversion of the burden of proof when authorities review mergers and acquisitions in the digital platform industry. Meanwhile, and seemingly in response to the increased political and advocacy pressures around the issue, U.S. antitrust enforcers have …

Dog Process Or Due Pupcess? Federal Court Misses Opportunity To Modernize Pet Due Process Jurisprudence Lunon V. Botsford, 946 F.3d 425 (8th Cir. 2019)., Grace Hambuchen

Missouri Law Review

Nicknames such as Boo Bear, Snookums, Sweet Precious Baby, or Cutie Patootie fondly show how owners might typically interact with their pets. With Americans spending approximately $95.7 billion on pets in 2019, the Uniform Trust Code expressly allowing trusts to care for deceased owners’ pets, and the COVID-19 pandemic bringing a sharp increase in dog adoptions, pets are becoming an ever more significant part of the American family. When a pet escapes or goes missing, most owners desperately want them to return home safely; microchipping is one proactive, reliable option for owners to help ensure they do.

Missouri’S New Green Standard Or Gray Area? What Facts And Evidence Missouri Courts Must Consider In Summary Judgment Motions Green V. Fotoohighiam, 606 S.W.3d 113 (Mo. 2020) (En Banc)., Clayton A. Voss

Missouri Law Review

Over the past three decades, it has become routine for Missouri litigators to cite ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp. as Missouri’s summary judgment standard. It has remained one of the Supreme Court of Missouri’s most cited opinions regarding summary judgment despite revisions to Missouri Rule of Civil Procedure 74.04(c)(1)–(2) in 1994 – one year after ITT interpreted and applied the previous version of the rule. In August 2020, the Supreme Court of Missouri revised ITT’s outdated guidance on what constitutes the record upon which trial courts must rely when deciding motions for summary judgment. Green v. …

The Havoc Death Wreaks: Civil Rights Challenges To Capital Punishment, Bailey D. Barnes

Faculty Publications

Following a per curium opinion that banned the imposition of capital punishment because it violated the Eighth Amendment, as made applicable to the states through the Fourteenth Amendment, United States Supreme Court Justice Thurgood Marshall offered a unique criticism of capital punishment. Justice Marshall, an iconic civil rights litigator prior to his confirmation to the Court, stated, "[T]he death penalty wreaks havoc with our entire criminal justice system." Similarly, sometime in the late 1950s, Associate Justice Robert H. Jackson reportedly said that capital punishment "completely bitches up the criminal law." In essence, both Justices were asserting that the death penalty …

Solving The Procedural Puzzles Of The Texas Heartbeat Act And Its Imitators: The Limits And Opportunities For Offensive Litigation, Charles W. "Rocky" Rhodes, Howard M. Wasserman

Faculty Publications

Texas' Fetal Heartbeat Act, enacted in 2021 as Senate Bill 8, prohibits abortions following detection of a fetal heartbeat, a constitutionally invalid ban under current Supreme Court precedent. But the method of enforcement in the Texas law is unique—it prohibits enforcement by government officials in favor of private civil actions brought by “any person,” regardless of injury. Texas sought to burden reproductive-health providers and rights advocates with costly litigation and potentially crippling liability.

In a series of articles, we explore how SB8's exclusive reliance on private enforcement creates procedural and jurisdictional hurdles to challenging the law's constitutional validity and obtaining …

A Declaration Of Rights Lost: The Diminution Of Tennesseans' Civil Rights, Bailey D. Barnes

Faculty Publications

The Constitution of the State of Tennessee, in its current form, offers to the citizens of the Volunteer State a "Declaration of Rights" that prevents abuses by those in power against the governed. To paraphrase late Associate United States Supreme Court Justice Antonin Scalia, the Tennessee Constitution, which was adopted following the state's secession from and eventual return to the United States during the Civil War, continues to serve as the charter of Tennesseans' liberties. Indeed, the Tennessee Constitution's Declaration of Rights proclaims in the very first section, "[A]ll power is inherent in the people, and all free governments are …