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Missouri Law Review

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Missouri Law Review

No abstract provided.

Some Linear Thoughts On A Cyclical Vision, Frank O. Bowman Iii

Missouri Law Review

I am honored to have been included in this Symposium on Jack Balkin’s new book, The Cycles of Constitutional Time. Professor Balkin is a giant in the legal academy and a public intellectual of the first rank. Here, as elsewhere, he has written a book that combines careful study of American history and constitutionalism with lucid, propulsive prose. The other contributors to this Symposium are themselves a Who’s Who in constitutional law, history, and political science. I am not sure I quite belong in this exalted company. Even though I have written about some specialized – if sometimes topical – …

Democratic Culture And Democratic Shocks: The Limits Of Constitutional Cycles, Jonathan Gienapp

Missouri Law Review

In his new book, The Cycles of Constitutional Time, Jack Balkin achieves something remarkable. He paints an unflinchingly grim portrait of modern American politics that is at once brutally honest about the dire state of our predicament while also somehow brimming with optimism and hope. In that regard, it is Balkinsian to its core – sober and trenchant in its analysis, yet buoyant in its outlook. Not many people could have written a book like this. And we should be grateful that he has. At a time like this, when it feels like the democratic sun is ever more likely …

Exhuming Brutus: Constitutional Rot And Cyclical Calls For Court Reform, Amanda Hollis-Brusky

Missouri Law Review

Once upon a time, in the late eighteenth and early nineteenth centuries, the phrase “judicial independence” struck fear into the hearts of many Americans, especially those associated with the Anti-Federalist movement. Robert Yates, for example, writing under the pseudonym “Brutus,” wrote with horror of the proposed independence of the judiciary: [The Constitution has] made the judges independent, in the fullest sense of the word. There is no power above them, to controul any of their decisions. There is no authority that can remove them, and they cannot be controuled by the laws of the legislature. In short, they are independent …

Compromising Trust, Lynn Mie Itagaki

Missouri Law Review

Public distrust erodes the efficiency and productivity of our economy, government, and society. It accelerates and amplifies weaknesses in our democratic political infrastructure alongside business relationships and social interactions in mutually reinforcing ways. Determining how to cultivate public trust depends on definitions of “the public”: to whom the government and its officials are accountable. Given the history of the United States as a White settler colonial state, its dependence on African chattel slavery, and its continuing racist xenophobia, “the public” is a frustratingly elastic term. For marginalized populations, public trust might vary in intensity over the past centuries since the …

The Myth Of Eternal Return And The Politics Of Judicial Review, Samuel Moyn

Missouri Law Review

Constitutionalism is an ancient idea, albeit one long associated with the form of regimes in general rather than self-governance under written charters that lay down fundamental law. As such, constitutionalism began its life linked to “dreary cyclical” stories of rise and decline, improvement and decadence, splendor and ruin. In doing so, it repurposed archaic thinking from even earlier to descry the direction of constitutional politics. But modern constitutionalism, especially the neo-providentialist form that many Americans have learned to associate with self-governance under a written document, is not the same as the archaic or the ancient. It works with a dualism …

Missouri Workers’ Compensation Enhanced Benefits For Mesothelioma Victims: Too Crispy Or Too Chewy?, Grace Hambuchen

Missouri Law Review

One of the most polarizing debates in history surrounds the best chocolate chip cookie recipe. With all controversial, highly opinionated topics, certain parties, or sides, arise. Some argue the ideal cookie is soft and chewy, while others opt for the crispy and crunchy. However, most dedicated cookie enthusiasts argue the objectively best cookie is a compromise – soft in the middle with a slight crunch on the edges. Baking involves precision. If too much or too little of a simple ingredient is added, the entire cookie changes. The cookie might be “fine,” and still edible, but it is not the …

Indirect Initiative And Unpopular Referendum In Missouri, Gunnar Johanson

Missouri Law Review

Most governments in the United States operate as a representative democracy through elected officials. Over time, advocates have successfully reformed many of our institutions to give citizens themselves more power through direct democracy. The direct election of United States Senators, the presidential primary, recall, the direct initiative, and popular referendum are all developments in the governments of the United States that place power directly in the hands of voters. Direct initiatives and popular referendums, specifically, are lingering evidence of the Progressive Era of the 1900s. Like most reforms of that time, proponents of direct initiative and popular referendum believed it …

Confusion In The Time Of Covid: The Supreme Court’S Lack Of Clarification In Balancing A Public Health Emergency And The Constitutional Right To Free Exercise, Lauren M. Marsh

Missouri Law Review

The case of Calvary Chapel Dayton Valley v. Sisolak demonstrates the breadth of a State’s authority during a public health crisis. The SAR-Co-V-2 (“COVID-19”) pandemic led to the declaration of emergency orders and most states creating guidelines for the public to follow to reduce the potential spread of the virus. These guidelines typically included bans on large gatherings, including gatherings in houses of worship, after research showed that large gatherings often turn into “superspreader” events. This led to numerous lawsuits claiming impediments in violation of the First Amendment Free Exercise Clause of the United States Constitution. The United States Supreme …

Meaningful Access: True Equality Or Frightening Reality?, Mackenzie L. Stout

Missouri Law Review

“It’s too good to be true” summarizes the decision in Childress v. Fox Associates, LLC. The Childress court admirably aimed to create a more accessible society for individuals with disabilities but may have unintentionally created the exact opposite. Courts require public accommodations to provide “meaningful access” to individuals with disabilities in order to comply with the Americans with Disabilities Act (“ADA”). However, “meaningful access” is an unclear, evolving standard. The Childress decision strayed from precedent by heightening the standard for meaningful access to a level equal to identical access. While this heightened standard strives for the goal of true equality, …

No-Poach, No Precedent: How Doj’S Aggressive Stance On Criminalizing Labor Market Agreements Runs Counter To Antitrust Jurisprudence, Noelle Mack

Missouri Law Review

When non-law-abiding citizens wonder whether their conduct is subject to criminal penalties, most turn to state and federal criminal statutes for guidance. Under antitrust law, potential wrongdoers must look to the Sherman Act – a broad “charter of freedom” requiring an unusual level of interpretation by federal courts. Reflecting Congress’ belief that “competition is the best method of allocating resources in a free market,” the Sherman Act simply outlaws “every contract, combination, or conspiracy in restraint of trade or commerce.” The drafters of the Sherman Act could have delineated specific categories of proscribed conduct such as bid-rigging, price-fixing, or entering …

Anna Howard’S New Book Examines Why Businesses Don’T Use Mediation – And Other Issues, John Lande

Faculty Blogs

Anna Howard‘s book, EU Cross-Border Commercial Mediation: Listening to Disputants – Changing the Frame; Framing the Changes, provides valuable insights about business disputing. Her study is based on 21 semi-structured interviews of senior in-house counsel in multi-national companies operating in Europe. It shows that lawyers think about disputes from the outset of problems, not simply at the later stages of cases. The study pays particular attention to why businesses don’t use mediation, highlighting the impact of internal organizational dynamics.

Eight Strategies That Enhance Legal Writing, Douglas E. Abrams

Faculty Publications

A few years ago, I spoke about legal writing at an annual forum of Missouri’s appellate judges, held at the University of Missouri School of Law in Columbia. The hour-long presentation advanced eight strategies that enable judges and practicing lawyers to sharpen their writing. These eight strategies appear below in this article.

Masthead

The Business, Entrepreneurship & Tax Law Review

No abstract provided.

Form Over Function: The Case For Employing The Arbitrary And Capricious Standard In Reviewing Top-Hat Plan Denials Of Benefits, Sam Taddeo

The Business, Entrepreneurship & Tax Law Review

The Supreme Court held in Firestone Tire & Rubber Co. v. Bruch that the review of administrators’ decisions to deny benefits under ERISA-qualified plans must be accorded a non-deferential, de novo standard of review. But what about top-hat plans? A top-hat plan is a type of nonqualified deferred compensation plan designed to avoid key ERISA provisions, including ERISA’s fiduciary provisions. In the decades since Firestone, this question has remained unanswered. What has occurred is a rift among the appellate courts, centered around a split between the Third and Seventh Circuits. This article addresses the dilemma and advocates for the implementation …

Table Of Contents

The Business, Entrepreneurship & Tax Law Review

No abstract provided.

The Risks Of Relying On Direct-To-Consumer Genetic Testing Service Agreements To Protect Genetic Information, Brennan Canuteson

The Business, Entrepreneurship & Tax Law Review

A consumer’s unique genetic code is their most intimate piece of personal data. Many federal laws concerning the privacy and nondiscrimination of health data are outdated, and most are related to healthcare providers instead of commercial services. To ensure that direct-to-consumer (“DTC”) genetic testing companies do not misuse a consumer’s unique genetic code, consumers rely on contractual agreements to protect their genetic information. DTC contractual protections are insufficient for several reasons: (1) consumers may not understand or read the agreement, (2) the company can modify the privacy statement, (3) the company could breach the agreement, and (4) new DTC companies …

Don’T Break The Internet: § 230 And Its Role Within Today’S Modern Internet Era, Lauren Rundall

The Business, Entrepreneurship & Tax Law Review

Section 230 of the Communications Decency Act has faced increasing political opposition as the law has become a fixture of recent public discussion. Proponents of § 230 applaud the law for shaping the modern internet into the expansive, open platform for public dialogue that we know today. Opponents, however, critique the law for its blanket immunity provided to internet platforms, which allows internet platforms to exert editorial control without fear of liability. Many have considered whether § 230 provides internet platforms with too much power to shape the content people consume. If it does, how can the law be changed …

Regulations In Alcohol Advertising: Scrutiny Applied To Commercial Speech, John M. Middleton

The Business, Entrepreneurship & Tax Law Review

There is a circuit split between the U.S. Court of Appeals for the Eighth and Ninth circuits concerning the level of scrutiny to apply to the regulation of alcohol advertising. The regulatory framework for the alcohol industry has a long and evolving history. Since our country’s founding, alcohol has had a strong presence in Ameri-can life, and it continues to enjoy a flourishing market. Knowing the alcohol industry’s history is important to understanding the current circuit split. The Twenty-First Amendment repealed Prohibition and gave states the power to regulate alcohol according to their own standards. The protections granted by the …

How Stricter E-Cigarette Regulations Will Keep The Traditional Cigarette In Power, Tyler Manuel

The Business, Entrepreneurship & Tax Law Review

First harvested for export in 1612, tobacco has remained a large, and controversial, part of the United States’ identity. In 1966, 42.6% of the American population smoked cigarettes. Currently, cigarette usage rate is around 14%, its lowest rate ever. Even with this sharp decline, cigarettes remain the number one cause of preventable deaths in the United States resulting in approximately 480,000 deaths per year. Nicotine, the active ingredient in tobacco, is an addictive drug, and many treatments exist for those attempting to quit. Recent studies have shown, however, that electronic nicotine delivery systems, more commonly known as “vapes” or “e-cigarettes”, …

Supplemental Environmental Projects: Dojs March 2020 Policy Showed The Downfalls Of A Ban, Madeline Mckernan

The Business, Entrepreneurship & Tax Law Review

In March of 2020, the Department of Justice (“DOJ”) adopted a policy that bars the use of supplemental environmental projects (“SEPs”) in settlements of environmental enforcement suits. A ban on SEPs can drastically impact both companies and the environment. The DOJ repeatedly rolled back the use of SEPs during the Trump Administration, but President Biden reversed the ban placed on SEPs in March 2020 under the previous administration. SEPs have long been used in environmental enforcement suits and have been extremely useful in the settlement process by giving companies more options when entering into settlement agreements, making settlements easier for …

The New Mmpa Standard: One Step Forward Or Two Steps Back?, Jacob Adamson

The Business, Entrepreneurship & Tax Law Review

In the summer of 2020, Missouri legislators passed a law that drastically reduced consumer protections in Missouri.1 SB-591 amended – and effectively gutted – the protections of the Missouri Merchandising Practices Act (MMPA). The MMPA was the primary method of relief for Missouri consumers who have fallen victim to fraudulent behavior. The freshly gutted MMPA has distinct parallels to the inadequacies of common law fraud. Wronged consumers now face higher burdens of proof, minimal awards, and an uphill battle to seek redress when they have been wronged. This article examines the law’s progression from inadequate remedies under common law fraud …

Sexual Orientation And Gender Identity Discrimination Claims Under The Fair Housing Act After Bostock V. Clayton County, Rigel C. Oliveri

Faculty Publications

On June 15, 2020, the Supreme Court handed down a landmark decision in Bostock v. Clayton County, Georgia, ruling by a vote of 6-3 that Title VII of the Civil Rights Act of 1964 protects gay, lesbian, and transgender employees from discrimination. The majority held that the statute's prohibition against discrimination in employment "because of ... sex" necessarily applies to discrimination based on sexual orientation and transgender identity.

This decision will undoubtedly have ramifications reaching beyond the employment context because many other federal statutes contain language similar to that in Title VII. In particular, the federal Fair Housing Act (FHA), …

Note From Editor

The Business, Entrepreneurship & Tax Law Review

No abstract provided.

New Edition Of Psychology For Lawyers, John Lande

Faculty Blogs

This post describes the second edition of Jennifer Robbennolt and Jean Sternlight’s book, Psychology for Lawyers: Understanding the Human Factors in Negotiation, Litigation, and Decision Making. Based on the latest research, it provides insights about perception, memory, judgment, decision making, emotion, persuasion and influence, communication, and the psychology of justice. It applies these insights tasks to daily tasks of lawyering, including interviewing, negotiating, counseling, and conducting discovery.

Student Paper Topics, John Lande

Faculty Blogs

Students often have problems deciding what to write about for their course papers. This post collects blog posts with provocative ideas that students might elaborate or critique in their papers.

The Establishment Clause: Its Original Public Meaning And What We Can Learn From The Plain Text, Carl H. Esbeck

Faculty Publications

Modern times in church-state relations began in 1947 with the Supreme Court’s decision in Everson v. Board of Education. The justices in both the majority and dissent said they were interpreting the Establishment Clause based on the intent of the founding generation. However, rather than looking to Congress’s lawmaking in the summer of 1789 that led to the First Amendment, the justices relied on the Virginia disestablishment from four years prior, as well as the efforts of just two statesmen, James Madison and Thomas Jefferson.

For the next half century, the High Court’s search was for events and prominent …

So Many Have Died: Covid-19 In America's Nursing Homes, David M. English

Faculty Publications

As of the date of this writing in late September 2020, over 77,000 residents and staff of long-term care facilities have died of COVID-19 with more to come. This article will describe the reasons for this mass wave of death and provide practical suggestions for attorneys who represent a resident or family members of residents.

Tough Conversations About Race: Let The Book Start The Discussion, Cynthia W. Bassett, Kara Phillips

Faculty Publications

Discussing racism is difficult, both for those who have experienced it and those who are seeking to understand its effect on others. The authors suggest that book discussion groups can help lawyers and students to have these difficult conversations.