Law Commons^™

Clandestine Awards, Information Asymmetries, And Equality Of Arms In Investment Arbitration, Fernando Dias Simões

Journal of Dispute Resolution

Among the numerous criticisms leveled at investor-state arbitration over the years, it has almost become de rigueur to point out a lack of transparency. In this arena “transparency” refers to the extent to which the public may be aware of the existence of a dispute, have access to key arbitral documents, or attend oral hearings.

Disentangling Conflicts Of Laws In Eu And Member States’ Investment Agreements, Ottavio Quirico

Journal of Dispute Resolution

The European Union (“EU”) is integrated into global markets via an open investment regime, which has fostered the development of wide economic relations. In 2019, the net investment outflow from EU Member States toward third countries totaled $42,6761 million, while inflow totaled $47,3196 million. To regulate investment disparities since the establishment of the common market in the 1950s, EU Member States have concluded about 1400 multilateral investment treaties (“MITs”) and bilateral investment treaties (“BITs”) with third countries. EU Member States have also negotiated around 190 MITs and BITs inter se, or intra-EU investment agreements. Since the adoption of the Lisbon …

The Federal Sentencing Guidelines: Some Valedictory Reflections Twenty Years After Apprendi, Frank O. Bowman Iii

Faculty Publications

This Article reflects on the author's professional experience and intellectual evolution in relation to federal sentencing policy and the Federal Sentencing Guidelines before and after the Supreme Court's decision in Apprendi v. New Jersey.

The account begins with the author's first encounters with the Guidelines when he was a zealous Assistant U.S. Attorney, continues through his transition to teacher, scholar, policy advocate, and occasional sentencing consultant, and concludes with the author pessimistic about the prospects of meaningful federal sentencing reform.

The utility, if any, of these musings will lie partly in the fact that the author has been deeply involved …

Redefining “Amend”: For The “Better” Of Whom?, Clayton A. Voss

Missouri Law Review

In Trustees of Clayton Terrace Subdivision v. 6 Clayton Terrace, LLC, the Supreme Court of Missouri overturned eighty years of legal precedent regarding the ability of homeowners to amend residential subdivision agreements to place further burdens on the use of real property. The court established that subdivisions can now increase the burdens on their lot owners, provided that the minimum number of owners, as required by the amendment provision in the subdivision indentures, support the new restriction. The court’s holding signifies a shift away from the traditional principle that a covenant authorizing a requisite majority of owners to “amend” or …

Table Of Contents

Missouri Law Review

No abstract provided.

A “20/20” Vision: Supreme Court Of Missouri Revisits Admissibility Of Eyewitness Expert Testimony After More Than 30 Years, Emily Miller

Missouri Law Review

Since 1989 the admissibility of expert testimony regarding eyewitness identifications has been unaddressed in Missouri’s courts. During this time, over 2,000 scientific studies have illustrated the fallibility of eyewitness testimony. The United States Supreme Court has long recognized the “vagaries” of eyewitness identification and the real potential for erroneous identifications leading to wrongful convictions. Most recently, advanced capabilities with DNA evidence have highlighted the tragic consequences of erroneous eyewitness identification. Indeed, a now often-cited fact: Of the 375 exonerations since 1989, nearly seventy percent involved wrongful convictions founded at least in part on eyewitness identification.

Governing By Executive Order During The Covid-19 Pandemic: Preliminary Observations Concerning The Proper Balance Between Executive Orders And More Formal Rule Making, Kelly J. Deere

Missouri Law Review

As the United States entered 2021, almost all fifty states were still operating under a state of emergency due to COVID-19 more than nine months later. Governors using emergency powers provided to them under their respective emergency disaster statutes and state constitutions continued to govern their state by executive order. These executive orders have had significant impacts on citizens’ everyday lives including stay-at-home orders, limits on non-essential gatherings, non-essential business closures and moratoriums on evictions. And these emergency orders have been opposed at almost every turn from citizens gathering in public protest shouting “Liberate Michigan,” to constitutional legal challenges to …

A Common-Law Remedy For The Eviction Epidemic, Brian M. Miller

Missouri Law Review

Eviction burdens tenants and their households with incredible hardship. But it long has been the standard legal remedy when a tenant fails to keep up with rent payments. The combination of these two facts has birthed a crisis. Many commentators have responded to the crisis by suggesting legislative or executive solutions, but courts and the common law have been mostly ignored. This article focuses on courts and the role they can play under the common law to minimize unnecessarily harmful evictions. By considering reasonable expectations and interests of not only landlords, but of tenants and the public as well, this …

Copyright

Missouri Law Review

No abstract provided.

Masthead

Missouri Law Review

No abstract provided.

Faculty List

Missouri Law Review

No abstract provided.

Pomegranates And Railroads: Why Pom Wonderful Suggests That The Federal Railroad Safety Act Should Never Preclude Federal Employers Liability Act Claims, Dominic G. Biffignani

Missouri Law Review

On September 30, 2010, Scott Schendel was the engineer on a locomotive heading southbound near Two Harbors, Minnesota. His shift started early that morning – he clocked in at 4:30 a.m. – and the railroad wanted to make sure Schendel’s locomotive returned to Two Harbors before his mandatory twelve-hour on-duty time limit expired. At 4:05 p.m., however, disaster struck: Schendel’s locomotive collided with a northbound train, causing catastrophic damage. Three locomotives and fourteen rail cars derailed, resulting in $8.1 million in damages to railroad property.

At The Edge Of Objectivity: The Missouri Court Of Appeals’ Deference To A Seemingly Subjective Assessment Of Prejudice Under Strickland, Bradley J. Isbell

Missouri Law Review

Strickland v. Washington is often heralded as one of the most important criminal procedure cases of the last century. The opinion created a two-prong framework for analyzing a post-conviction relief claim of ineffective assistance of counsel: performance and prejudice. The focus of this Note is the prejudice prong, specifically when the post-conviction court is the same court that presided over a defendant’s trial or sentencing.

Insider Trading Under Sarbanes-Oxley: Bypassing The Personal Benefit Test, Andrew J. Meyer

Missouri Law Review

Insider trading is broadly defined as the use of material nonpublic information in connection with the trade of stock or other securities. To the average person, the classic case of insider trading is a corporate executive reaping handsome personal profits by trading stock using insider information that he obtained through his position within the corporation. The reality, however, can be much more complicated

The Walking Dead: How The Criminal Regulation Of Sodomy Survived Lawrence V. Texas, Jordan Carr Peterson

Missouri Law Review

Eighteen years after the Supreme Court held in Lawrence v. Texas that a law criminalizing sodomy violated the constitutional guarantee to substantive due process, individuals are still arrested, prosecuted, convicted, and incarcerated pursuant to statutes that are the material equivalent of the one at issue in Lawrence. Though this seems both strange and unfair, it is neither unusual nor accidental. Because the constitutional order renders the judiciary a passive institution and radically fragments authority across a polycentric collection of governments, noncompliance with judicial decisions is endemic to American institutional design.

Balancing Purpose, Power, And Discretion Between Article Iii Courts And The Patent Office, Emily N. Weber

Missouri Law Review

The function of the United States Patent and Trademark Office (“USPTO”) is to promote the industrial and technological innovation of the nation and strengthen the economy through the preservation, classification, and dissemination of patent information. The America Invents Act (“AIA”) prescribed a multitude of supporting goals to best promote innovation, such as preserving “quality patents,” “timely consideration” of issues, maintaining “cost-effective” methods, preventing “frivolous litigation,” and preventing “uncertainty.” The AIA ensures the “efficiency, objectivity, predictability, and transparency” of the patent system. Part of this act included revamping the adjudicatory forum located within the USPTO, the Patent Trial and Appeal Board …

Dwight Golann On A Year Of Zoom Mediations, John Lande

Faculty Blogs

This post summarizes Dwight Golann’s article, “I Sometimes Catch Myself Looking Angry or Tired …” The Impact of Mediating by Zoom. He concludes, “Mediating by Zoom is a much more positive experience than people expected and will be a large part of the field in the future.”

On The Cusp Of The Next Medical Malpractice Insurance Crisis, Philip G. Peters Jr.

Faculty Publications

Medical malpractice claims are dwindling. Total payouts are far lower than during the 2002 crisis. Yet, insurance industry profits have been sinking for a decade and are nearly in the red. After a dozen years with a “soft” insurance market, we are now on the cusp of yet another malpractice insurance crisis.

How can profits be in peril if claims have dwindled and payouts are historically low?
Answering that question requires an understanding of the insurance cycle. The cycle periodically transforms gradual increases in costs and gradual decreases in revenue into explosive increases in premiums.

The industry’s financial statistics today …

Shakespeare In The Courts, Douglas E. Abrams

Faculty Publications

This article continues the theme of recent “Writing It Right” articles in the Journal of the Missouri Bar. These articles describe how federal and state judges today frequently accent their opinions’ substantive or procedural rulings with references to cultural markers that can resonate with the advocates, parties, and judges who comprise the opinions’ readership. The courts’ broad array of cultural references demonstrates versatility. Some of my early articles in the Journal profiled judicial opinions that referenced terminologies, rules, and traditions of baseball, football, and other sports. Together these sports’ mass audiences help define American culture.

Later my Journal articles profiled …

Dilyara Nigmatullina’S New Article On Planned Early Dispute Resolution And Technology, John Lande

Faculty Blogs

This post summarizes Dilyara Nigmatullina’s article entitled, Planned Early Dispute Resolution [PEDR] Systems and Elements: Experiences and the Promise of Technology. It investigates actual experiences of companies using PEDR systems and discusses the effect that the companies’ shift to PEDR has on law firms. It concludes by exploring how PEDR systems can benefit from the use of technological tools and how the interaction between technology and dispute resolution can affect the future of the legal profession. PEDR is discussed in Section 8.

The Odious Intellectual Company Of Authority Restricting Second Amendment Rights To The “Virtuous”, Royce De R. Barondes

Faculty Publications

To the woes of the victims of American over-criminalization, we can add deprivation of the suitable tools for self-defense during national emergency and civil unrest. Federal law disarms “unlawful users” of controlled substances (including medical marijuana), and imposes a permanent firearms ban on substantially all those with prior felony convictions. A notable exception is made for white-collar criminals with felony violations of antitrust and certain business practice statutes.

The constitutionality of these restrictions typically is founded on the view that one is tainted as “non-virtuous” for any serious criminal conviction, which includes any felony conviction. Using extensive sampling, this article …

Beyond Stress Reduction: Mindfulness As A Skill For Developing Authentic Professional Identity, Richard C. Reuben

Faculty Publications

Mindfulness is often touted in the legal field for its capacity to help reduce stress and improve focus through the management of distractions. However, the potential contributions of mindfulness practice for the legal profession extend beyond stress reduction' and include great promise for helping lawyers understand who they are as members of the legal profession - that is, their professional identity. This knowledge is empowering because it allows lawyers facing ethical quandaries to make choices that better align their professional values with their personal values, rather than aligning their personal values with professional values and societal expectations of success. In …

Book Review: Social Media And Democracy: The State Of The Field And Prospects For Reform, Cynthia W. Bassett

Faculty Publications

Social Media and Democracy illuminates the empirical social science research done to date to tease apart the effects social media has had on representative democracies. It is a collection of essays by academic social scientists researching the intersection of social media and democracy from a variety of angles.

Symposium: A New Hope? An Interdisciplinary Reflection On The Constitution, Politics, And Polarization In Jack Balkin’S “The Cycles Of Constitutional Time”, Paul Litton

Missouri Law Review

Politically, we are living in dark times. Political polarization has increased over the past forty years, reaching an extreme and causing real damage to our political system and to our interpersonal lives. Americans are experiencing more hostility and anger towards their neighbors, family members, and fellow citizens with opposing political views. Growing distrust in government and intense polarization causally contributed to the 2016 presidential election of a populist demagogue whose appeals to toxic prejudices, racial resentment, and baseless fears were designed to exacerbate political and civil division. After he lost the 2020 election, a mob of his most ardent supporters …

Race And The Cycles Of Constitutional Time, Jack M. Balkin

Missouri Law Review

The Cycles of Constitutional Time argues that we can understand American constitutional development in terms of three kinds of cycles. The first is the rise and fall of regimes featuring dominant political parties. The second is a very long cycle of polarization and depolarization that stretches from the Civil War through the present. The third cycle is a series of episodes of constitutional rot and constitutional renewal.

Two Steps Forward, One Step…Back? Missouri Legislature Targets Rise In Violent Crime, Sarah Walters

Missouri Law Review

In May 2020, the Missouri Legislature passed Senate Bill 600, a controversial crime bill which made modifications to a handful of criminal provisions in an effort to tackle the violent crime plaguing the state’s largest cities. According to Senator Tony Luetkemeyer, the bill’s sponsor, inspiration for the legislation stemmed from an August 2019 USA Today report ranking Kansas City and St. Louis as the fifth- and first-most-dangerous cities in the country, respectively, and Springfield as the twelfth-most-dangerous. In a similar USA Today report ranking the most dangerous states, Missouri broke the top ten, coming in at number eight overall, with …

Table Of Contents

Missouri Law Review

No abstract provided.

Faculty List

Missouri Law Review

No abstract provided.

A Contractual Dilemma: Where Arbitration Agreements And Delegation Provisions Collide, Trent H. Hamoud

Missouri Law Review

Interpretation of arbitration agreements continues to present unique and challenging issues in Missouri law. Arbitration is a mainstay of the wider field of alternative dispute resolution, seeking to merge the competing interests of would-be litigants in a speedier, less expensive, less formalized environment. Delegation provisions, however, serve as an additional analytical hurdle in determining when and what disputes can be rightfully sent to arbitration. At first glance, a seemingly irreconcilable dilemma is presented. Must assent to the arbitration agreement, and thus the delegation provision, exist before the dispute will be sent to arbitration? Or is the simple appearance of a …

Cock-Eyed Optimist Meets Chicken Little: Jack Balkin On The American Future, Sanford Levinson

Missouri Law Review

Given that we are close friends and the co-authors of some twenty articles and a book, Democracy and Dysfunction, it is not surprising that I think very highly of and agree with much of Jack Balkin’s new book, The Cycles of Constitutional Time. I read it in two sittings; it is a real pageturner, written with brio as Jack presents a remarkably comprehensive overview of what he discerns as various cycles in American politics (importantly including the Supreme Court and the development of constitutional doctrine) from the beginning of the new national government in 1789 to the present. It is …