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Missouri Law Review

No abstract provided.

Chemtrails And Solar Geoengineers: Governing Online Conspiracy Theory Misinformation, Charles R. Corbett

Missouri Law Review

This Article assesses legal obstacles to regulating chemtrail misinformation and proposes responses that work within prevailing norms and laws governing online speech. It explains how chemtrail content complicates public deliberation on solar geoengineering and, by extension, hurts the legitimacy of research activities. It also sharpens the general contributions of misinformation scholarship by applying them specifically to chemtrail content. It concludes with recommendations on how to limit chemtrail misinformation’s spread and impact. Reckoning with climate change, geoengineering, and online misinformation is a multigenerational project. Legal and policy analysis must accordingly adopt a long-time horizon when devising regulatory responses.

A Judicial Balancing Act: Evaluating The First Amendment Claims Of Sitting Judges, Zeb J. Charlton

Missouri Law Review

On April 14, 2017, members of the New Millennium Church in Little Rock, Arkansas, gathered outside of Arkansas’s Governor’s Mansion to protest capital punishment. The mansion’s resident, Governor Asa Hutchinson, had recently scheduled eight executions for the month of April. Two members of the congregation held signs reading, “Other states are trying to abolish the death penalty[,] mine’s putting it on express lane.” New Millennium Church’s lead minister Wendell Griffen lay on a cot in front of his parishioners to symbolize the use of capital punishment on Jesus Christ.

The Diminishing Dominion Of Expert Opinion: Missouri’S Imposition Of The Ultimate Issue Rule, Michael S. Figenshau

Missouri Law Review

In August 2017, the Missouri General Assembly amended its expert testimony statute, Section 490.065. The newly-enacted Section 490.065.2(3)(b) states, “In a criminal case, an expert witness shall not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.” Section 490.065.2(3)(b) is identical to Federal Rule of Evidence 704(b) (“Rule 704(b)”). This change is significant because issues in criminal cases, such as deliberation with respect to homicide and the affirmative defense of insanity, …

Twenty-Nine Photographs And The Deterioration Of The Missouri Relevance Rule, Luke A. Hawley

Missouri Law Review

Courts generally prohibit the admission of unfairly prejudicial evidence. The idea is that jurors should not be shown evidence if it has a substantially greater likelihood of prejudicing the jurors against the defendant than it does of helping them determine the facts of the case. Barring objections on other evidentiary grounds, if a piece of evidence provides substantially more probative than prejudicial value, the evidence can be shown to the jury. For decades, Missouri courts have limited the admissibility of unfairly prejudicial evidence. While federal courts are governed by the Federal Rules of Evidence, Missouri is one of the few …

Out For Blood: The Expansion Of Exigent Circumstances And Erosion Of The Fourth Amendment, Tyler M. Ludwig

Missouri Law Review

The Fourth Amendment of the United States Constitution requires police officers to obtain a warrant before conducting a search of an individual. However, doing so is not always possible, and courts have created exceptions to this requirement in order to deal with pragmatic limitations. The need for these exceptions has often been presented to the United States Supreme Court in the context of obtaining blood alcohol concentration (“BAC”) tests from drivers suspected of driving under the influence. In Mitchell v. Wisconsin, the Supreme Court dealt with a new problem in this area: drawing blood from a suspected drunk driver who …

Measuring "Access To Justice" In The Rush To Digitize, Amy J. Schmitz

Faculty Publications

Access to Justice (A2J) is the hot topic of the day, energizing Twitter and judges alike. Meanwhile, professors and policymakers join in song, singing the praises of online dispute resolution (ODR) as means for expanding A21. This is because ODR uses technology to allow for online claim diagnosis, negotiation, and mediation without the time, money, and stress of traditional court processes. Indeed, courts are now moving traffic ticket, condominium, landlord/tenant, personal injury, debt collection, and even divorce claims online. The hope is that online triage and dispute resolution systems will provide means for obtaining remedies for self-represented litigants (SRLs) and …

Missouri's Residency Restrictions For Medical Marijuana Use, Royce De R. Barondes

Faculty Publications

Missouri's adoption of a constitutional amendment decriminalizing medical marijuana for state law purposes has presented numerous interstitial issues. This article examines one that Missouri's Department of Health and Senior Services ("DHSS") has attempted to address by regulation: residency requirements for qualifying patients. The current regulations add detail to the constitutional requirement that a qualifying patient be a "Missouri resident". They require that a patient must "reside [] in Missouri and not claim resident privileges in another state or country". This article concludes this aspect of the regulations is of dubious tenability.

The Origins And Future Of Global Health Law: Regulation, Security, And Pluralism, Sam F. Halabi

Faculty Publications

The COVID-19 pandemic has presented a global health crisis unlike any seen in the seventy-five years since the United Nations and the World Health Organization were formed - one that is killing people, spreading human suffering, and upending people's lives. But this is much more than a health crisis. It is a human crisis. The coronavirus disease (COVID-19) is attacking societies at their core. It is therefore a crucial point around which to focus the capability of national and global institutions to address this essential threat to human health and life.

The purposes of this Article are to revisit and …

The Coronavirus Crisis Provides An Opportunity To Adopt Better Systems For Licensing Lawyers Than The Bar Exam, John Lande

Faculty Blogs

This post discusses an ABA Journal article entitled, Bar Exam Does Little to Ensure Attorney Competence, Say Lawyers in Diploma Privilege State. It quotes a former Wisconsin State Bar president saying that “whether [Wisconsin law school graduates] passed a bar exam … has no bearing on their lawyering abilities or character” or ensures competency. They are “swords of Damocles” hanging over schools’ and students’ heads. They privilege some doctrinal courses and discourage students from taking practice-oriented courses because those courses will not help them pass the bar exam. Bar exams entrench a pedagogy based on memorization of a lot …

The Next New Normals – In General, John Lande

Faculty Blogs

The covid pandemic was a shock wave that reverberated for several years, and we still are feeling the effects. During the crisis period, we developed routines of sheltering in place, physical distancing, communicating electronically, and working from home, among other things. This post speculated about what that new normal might be like in many domains of life after the pandemic ends. It referred to this as the “normal new normal” (NNN) in contrast to the “crisis new normal” (CNN) for the duration of the crisis. It speculated that routines developed during the CNN period may have long-lasting effects during the …

Dispute Prevention And Early Dispute Resolution Framework, John Lande

Faculty Blogs

This post explains how lawyers can help clients use dispute prevention and early dispute resolution procedures, and it provides a general framework including dispute prevention.

Early Dispute Resolution Processes, John Lande

Faculty Blogs

This post describes planned early dispute resolution, lawyering with planned early negotiation, pre-suit mediation, and planned early two-stage and multi-stage mediation.

Lira @ Cpr, John Lande

Faculty Blogs

This post summarizes presentations, data collected, and discussion in a program of the International Institute for Conflict Prevention and Resolution (CPR). The authors of the LIRA book conducted a survey of the attendees, and the post presents results of the survey. It provides nuanced discussions about how practitioners calculate BATNA values and bottom lines.

State-Circuit Split: Reconciling Tennessee Damage Caps After Lindenberg And Mcclay, Bailey D. Barnes

Faculty Publications

A divided panel of jurists on the United States Court of Appeals for the Sixth Circuit invalidated Tennessee's caps on punitive damages in Lindenberg v. Jackson National Life Insurance Company on December 21, 2018. The Sixth Circuit, sitting en bane, denied an application to rehear the case. A year later, the United States Supreme Court denied the petitions for writs of certiorari of both Jackson National Life Insurance Company and the State of Tennessee. Meanwhile, the Tennessee Supreme Court heard a challenge, via certified question from the Middle District of Tennessee, to the Volunteer State's statutory limits on non-economic damages. …

Addressing The Class Claim Conundrum With Online Dispute Resolution, Amy J. Schmitz

Faculty Publications

Consumers with similar claims in the United States (U.S.) often join forces to launch representative, or "class", actions. This allows them to obtain remedies with little cost and effort and serves a "private attorney general" function by bringing light to purchase problems that public enforcement offices may not have the resources to address. This is especially important for lower dollar claims that are too costly for each consumer to pursue individually.

Nonetheless, some have criticized class actions in the U.S. for forcing settlements and padding the pockets of lawyers, while leaving consumers with minimal pay outs. At the same time, …

Who Makes The Rules Around Here? The Missouri Legislature Redefines Discovery, Maddie Mcmillian

Missouri Law Review

In 2019, the Missouri General Assembly passed Senate Bill 224, which made significant changes to the Missouri Supreme Court Rules governing discovery. The bill intended to align state discovery rules more closely with the Federal Rules of Civil Procedure (“the FRCP”), mirroring the majority of other states that have already adopted some form of the federal rules. In advocating for the change, the bill sponsor, Senator Tony Luetkemeyer (R-34), stated, “These reforms will expedite lawsuits, ensure more timely resolution of disputes, and reduce costs for all parties involved.” While the ultimate impact of the rule change remains to be seen, …

Multiparty Joinder And Venue: How Missouri Is Acting Against Historic Procedural Law Principles In An Effort To Curb Forum Shopping, Jackson Gilkey

Missouri Law Review

Missouri has a problem. St. Louis City has become such a haven for plaintiffs to achieve easy victories with large awards that Missouri courts are now considered the second-worst forum by businesses for litigation.1 State ex rel. Johnson & Johnson v. Burlison attempted to fix this problem by requiring stricter application of joinder and venue statutes. But, in doing so, the Missouri Supreme Court and Legislature are acting against the historical and philosophical underpinnings of procedural law. Rather than trying to fix the substantive issues for why plaintiffs would rather bring their cases in this state, this decision instead makes …

Faculty List

Missouri Law Review

No abstract provided.

Compliance Issues: The Supreme Court’S Confusing Messages To Municipalities, Abigail Greene

Missouri Law Review

Local municipalities are vested with the power to enact zoning ordinances that prohibit signs and flags in residential areas for aesthetic purposes. This power directly competes with an individual’s constitutional right to use private property to express their views. The United States Supreme Court recently struck a balance for this conflict in Reed v. Town of Gilbert. The United States Court of Appeals for the Eighth Circuit applied this test in Willson v. City of Bel-Nor, Missouri and demonstrated the impracticability of the approach the Supreme Court created for municipalities when drafting ordinances.

The Slow-Me State: The Emergence Of Internet Sales Taxation And Missouri’S Anomalous Response, Claire Hawley

Missouri Law Review

In South Dakota v. Wayfair, Inc., the United States Supreme Court fundamentally reshaped more than a century of precedent on the Dormant Commerce Clause. While this decision carries far-reaching implications, this Note is primarily concerned with its impact on state sales taxation and Missouri’s anomalous – and extremely costly – response. The authority of states to levy taxes on interstate commerce has traditionally been limited to retailers with a physical in-state presence. Founded on Due Process and Commerce Clause considerations, this rule was originally articulated in response to attempts by state governments to tax the sales of mail-order retailers. Over …

Moving Us Courts Online, John Lande

Faculty Blogs

This post provides a summary compiled by Paul Embley of the National Center for State Courts about

Mincing No Words: When The Court's Opinion Criticizes An Advocate's Writing, Douglas E. Abrams

Faculty Publications

In recent years, court opinions have chastised counsel’s briefs or other written submissions for such structural deficiencies as improper citations; missing exhibit labels; incomplete tables of citations; mis-numbered counts; failure to cite to the record; and skirting of court rules that regulate font size, maximum page limits, mandated margins, and the like. Beyond structure, opinions have also chastised counsel for written submissions that are “riddled with misspellings, typographical errors, punctuation errors, and grammar and usage errors” and for those marked by careless cutting-and-pasting from forms or other prior work product, or by careless reliance on spell-check.

Some opinions identify the …

Masthead

The Business, Entrepreneurship & Tax Law Review

No abstract provided.

Clearing Obstacles To Sound Tax Policy: The Case Against The Anticipatory Assignment Of Income Doctrine In The Charitable Context, David Frederick

The Business, Entrepreneurship & Tax Law Review

The Internal Revenue Code is replete with policy preferences in the form of deductions, credits, and deferrals, commonly called tax expenditures. The law prevents these tax expenditures from impairing the revenue function of the tax code by providing caps, time limits, and recapture rules that are meant to moderate their effects and prevent abuses. While these limitations are generally prudent, they themselves require frequent review to ensure they are not unduly disrupting the legitimate functions of the tax code. Indeed, it is possible, perhaps common, for reasonable limits on tax expenditures to evolve into unreasonable obstacles to effective tax strategy.

Navigating New Landscapes In Debtor Creditor Law: Select Provisions Of The Missouri Commercial Receivership Act Compared To Federal Bankruptcy Law, Keith H. Holland, John M. Mckenzie

The Business, Entrepreneurship & Tax Law Review

Two momentous legislative overhauls dealing directly with debtor-creditor relations were enacted in the latter half of the 2010s. First, in 2016, the Missouri General Assembly enacted the Missouri Commercial Receivership Act. This act, signed into law by Governor Jeremiah “Jay” Nixon on July 13, 2016, constitutes a significant overhaul of Missouri’s statutory mechanism empowering the circuit courts of the state to appoint receivers for the collection and preservation of a financially distressed debtor enterprise’s assets. Prior to the enactment of Missouri Commercial Receivership Act, creditors, debtors, and interested third parties were guided only by three sparse statutory provisions dating to …

Pinch-Hitting For The Irs: Second Circuit Adopts Phantom Regulations To Curb A Monster Abuse Of Financial Derivatives, Frank G. Colella

The Business, Entrepreneurship & Tax Law Review

In Estate of McKelvey v. Commissioner, the Second Circuit Court of Appeals adopted the IRS’s position that probability analysis should be employed to determine that the taxpayer’s particular performance under the terms of a financial instrument was “virtually certain.” However, the IRS had steadfastly refused to promulgate regulations that, under a statutory delegation of authority to issue regulations to interpret and enforce the statute, could have administratively imposed that outcome.

Game Over? How Video Game Console Makers Are Speeding Toward An Antitrust Violation, Clayton Alexander

The Business, Entrepreneurship & Tax Law Review

There has been a recent trend in the video game industry that console makers (Sony, Microsoft, and Nintendo) have been acquiring video game developers to make games solely for their console. With a surge of acquisitions, these three console makers have rapidly increased their market share of the console video game industry. But in doing so, have they started to run afoul of antitrust law? Do these three console makers now have enough market power to exert control over the video game industry like a monopoly? This article seeks to answer these questions, while also suggesting several steps that console …

Cleaning Up And Cashing Out: Using Financial Incentives To Increase Missourians Use Of Solar Energy And Decrease Missouri’S Dependence On Imported Coal, Douglas Mann

The Business, Entrepreneurship & Tax Law Review

Climate change is one of the biggest threats to the human species. Unlike other historical threats to species, this threat is caused by humans themselves. Climate change (a product of a rise in average global temperature due to carbon emissions) is causing extreme weather patterns, droughts, mass migrations, among other catastrophic consequences. The state of Missouri is particularly guilty of carbon emissions. Missouri has one of the dirtiest energy grids in the nations. If Missouri residents were to switch from fossil fuel-generated electricity to residential solar energy systems, there could be a drastic reduction in Missouri’s carbon footprint. The Missouri …

No More Document Dumps Or Secret Subpoenas: Amending The U.S. Tax Court Rules To Conform To The Federal Rules Of Civil Procedure, Streamlining Pretrial Discovery, Kaelyn J. Romey

The Business, Entrepreneurship & Tax Law Review

The U.S. Tax Court Rules of Practice and Procedure governing pretrial discovery and subpoena production should be amended to closely mirror the Federal Rules of Civil Procedure. Over the years, extensive amendments and regular updates were made to the Federal Rules, keeping them current with federal court practice. This is not true of the Tax Court Rules, which caused several pretrial discovery rules to become outdated. Specifically, the Tax Court Rules regarding subpoena enforcement. They currently allow for last-minute document dumps on the eve of, and sometimes day of, trial. This outdated rule creates a significant challenge for those who …