Law Commons^™

Blackness As Fighting Words, Etienne C. Toussaint

Faculty Publications

The resurgence of worldwide protests by activists of the Movement for Black Lives (BLM) has ushered a global reckoning with the meaning of this generation’s rallying cry – “Black Lives Matter.” As citizens emblazon their streets with this expression in massive artistic murals, the Trump administration has responded with the militarized policing of non-violent public demonstrations, revealing not merely a disregard for public safety, but far worse, a concerted dismantling of protestors’ First Amendment rights. Nevertheless, BLM protests have persisted. Accordingly, this Essay considers the implications of this generation’s acclamation of Black humanity amidst the social tensions exposed during the …

Punishing Pill Mill Doctors: Sentencing Disparities In The Opioid Epidemic, Adam M. Gershowitz

Faculty Publications

Consider two pill mill doctors who flooded the streets with oxycodone and other dangerous opioids. The evidence against both doctors was overwhelming. They each sold millions of opioid pills. Both doctors charged addicted patients hundreds of dollars in cash for office visits that involved no physical examinations and no diagnostic tests. Instead, the doctors simply handed the patients opioids in exchange for cash. To maximize their income, both doctors conspired with street dealers to import fake patients — many of them homeless — so that the doctors could write even more prescriptions. Both doctors made millions of dollars profiting off …

Women Leaders And Policy Compliance During A Public Health Crisis, Nichole M. Bauer, Jeong Hyun Kim, Yesola Kweon

Faculty Publications

How does the gender of a political leader affect policy compliance of the public during a public health crisis? State and national leaders have taken a variety of policy measures to combat the COVID-19 pandemic, with varying levels of success. While many female leaders have been credited with containing the spread of COVID-19, often through implementing strict policy measures, there is little understanding of how individuals respond to public health policy recommendations made by female and male leaders. This article investigates whether citizens are more willing to comply with strict policy recommendations about a public health issue when those recommendations …

Eager To Follow: Methodological Precedent In Statutory Interpretation, Aaron-Andrew P. Bruhl

Faculty Publications

An important recent development in the field of statutory interpretation is the emergence of a movement calling for "methodological precedent"--a regime under which courts give precedential effect to interpretive methodology. In such a system, a case would establish not only what a particular statute means but could also establish binding rules of methodology--which tools are valid, in what order, and so on. The movement for methodological precedent has attracted sharp criticism on normative grounds. But both sides of the normative debate agree on the premise that the federal courts generally do not give precedential effect to interpretive methodology today.

This …

Court-Appointment Compensation And Rural Access To Justice, Hannah Haksgaard

Faculty Publications

Hourly rates paid to court-appointed lawyers impact access to justice. Court appointed lawyers provide necessary counsel in civil and criminal cases, yet hourly rates in many jurisdictions are so low that many lawyers cannot afford to take court-appointed cases. This article argues that low hourly rates cause problems: namely, appointed lawyers will be insufficient in number, inaccessible to their clients, and sometimes even ineffective. These problems are heightened in rural America where they are compounded by geographical distance and the rural lawyer shortage. This article concludes by suggesting a number of policy solutions.

Debt, Doubt, And Dreams: Understanding The Latino College Completion Gap, Kate Sablosky Elengold, Jess Dorrance, Robert Agans, Amanda Martinez, Patricia Foxen

Faculty Publications

We surveyed individuals who had matriculated to, but never completed, at least one college program (community college, college, university, trade school, or certificate program). With a survey sample of more than 1,500 respondents, 35 percent of whom self-identified as Latino* (Latino = 522; non-Latino = 985), we gathered critical information about the most salient barriers to college completion, especially those that disproportionately burden Latino students. Based on prior literature and research, we paid particular attention to the relationship between debt, attitudes about debt, and college completion. We organized the barriers to college completion into four categories: precollege, institutional, environmental, and …

Parsing The Impact Of Alice And The Peg, Colleen Chien, Nicholas Halkowski, Maria He, Rodney Swartz

Faculty Publications

Almost two years have passed since the USPTO issued its January 2019 Patent Eligibility Guidance (PEG), itself a response to the Supreme Court’s Alice decision, and what many perceived as its destabilizing impact on the certainty of patent prosecutions. Leveraging new data releases, we report on trends in prosecution following the USPTO’s PEG and the Guidance on 112, finding 1) a decline in subject matter rejections and stabilization of subject matter appeals, 2) no discernable increase in 112 rejections, 3) no evidence that small entities were being left behind in Alice-impacted art units by forum shopping by large entities, …

The Case Against Prosecuting Refugees, Evan J. Criddle

Faculty Publications

Within the past several years, the U.S. Department of Justice has pledged to prosecute asylum-seekers who enter the United States outside an official port of entry without inspection. This practice has contributed to mass incarceration and family separation at the U.S.–Mexico border, and it has prevented bona fide refugees from accessing relief in immigration court. Yet, federal judges have taken refugee prosecution in stride, assuming that refugees, like other foreign migrants, are subject to the full force of American criminal justice if they skirt domestic border controls. This assumption is gravely mistaken.

This Article shows that Congress has not authorized …

The Remand Power And The Supreme Court's Role, Aaron-Andrew P. Bruhl

Faculty Publications

"Reversed and remanded." Or "vacated and remanded." These familiar words, often found at the end of an appellate decision, emphasize that an appellate court's conclusion that the lower court erred generally does not end the litigation. The power to remand for further proceedings rather than wrap up a case is useful for appellate courts because they may lack the institutional competence to bring the case to a final resolution (as when new factual findings are necessary) or lack an interest in the fact-specific work of applying a newly announced legal standard to the particular circumstances at hand. The modern Supreme …

Framing The Second Amendment: Gun Rights, Civil Rights And Civil Liberties, Timothy Zick

Faculty Publications

Gun rights proponents and gun control advocates have devoted significant energy to framing the constitutional right to keep and bear arms. In constitutional discourse, advocates and commentators have referred to the Second Amendment as a "collective, ""civic republican," "individual," and 'fundamental" right. Gun rights advocates have defended the right to keep and bear arms on "law and order" grounds, while gun control proponents have urged regulation based on "public health, " "human rights, " and other concerns. These frames and concepts have significantly influenced how the right to keep and bear arms has been debated, interpreted, and enforced. This Article …

Mere Common Ownership And The Antitrust Laws, Thomas A. Lambert

Faculty Publications

"Common ownership," also called "horizontal shareholding," refers to a stock investor's ownership of minority stakes in multiple competing firms. Recent empirical studies have purported to show that institutional investors' common ownership reduces competition among commonly owned competitors. "Mere common ownership" is horizontal shareholding that is not accompanied by any sort of illicit agreement, such as a hub-and-spoke conspiracy, or the holding of a control-conferring stake. This Article considers the legality of mere common ownership under the U.S. antitrust laws. Prominent antitrust scholars and the leading treatise have concluded that mere common ownership that has the incidental effect of lessening market …

Amicus Curiae Briefs: A Message From The 7th Circuit, Douglas E. Abrams

Faculty Publications

Like other brief writers, the amicus brief’s writer must heed the court’s rules of practice and procedure, including rules that prescribe a brief’s maximum page length. But a brief writer can meet the court’s circumstances and expectations without going to the max. A few months before he ascended to the Supreme Court bench in 1943, D.C. Circuit Judge Wiley B. Rutledge advised advocates to strike a balance by being “as brief as one can be consistent with adequate and clear presentation of his case."

An amicus’ prudent approach to concise brief writing is to adapt the advice delivered by opera …

Fair Use In Sayre V. Moore: A Reply To Oracle, Ned Snow

Faculty Publications

The Supreme Court is now considering the case of Google LLC v. Oracle America, Inc. Oracle has argued that Google infringed its copyright in computer software, but a jury found that Google’s use was not infringing under the fair use doctrine. The Federal Circuit reversed the jury verdict under a de novo standard of review. I have argued that this reversal violates the Seventh Amendment.

Seventh Amendment rights depend on whether an issue would have been decided by a jury in English law courts during the late 1700s. My argument is that in the 1785 English case of Sayre v. …

Co-Worker Evidence In Court, Sandra F. Sperino

Faculty Publications

This symposium explores ways to empower workers. Many employment laws rely on workers filing private rights of action to enforce the underlying substantive law. Unfortunately, when workers file these claims in court, courts often do not allow them to rely on evidence from their co-workers. While courts regularly allow employers to submit co-worker evidence of a plaintiff's poor performance or lack of qualifications, they often diminish or exclude a plaintiff's co-worker evidence that the plaintiff performed well or possessed desired qualifications. This Article identifies and explores this evidentiary inequality. It argues that efforts to empower workers must include the power …

Distorted Drug Patents, Erika Lietzan

Faculty Publications

Drug patents are distorted. Unlike most other inventors, drug inventors must complete years of testing to the government’s specifications and seek government approval to commercialize their inventions. All the while, the patent term runs. When a drug inventor finally launches a medicine that embodies the invention, only a fraction of the patent life remains. And yet, conventional wisdom holds — and empirical studies show — that patent life is essential to innovation in the pharmaceutical industry, perhaps more so than any other inventive industry. Congress tried to do something about this in 1984, authorizing the Patent and Trademark Office to …

Preventing Wrongful Conviction Caused By Eyewitness (Mis)Identification: Establishing A Presumption Of Unreliability, Bailey D. Barnes

Faculty Publications

Wrongful convictions are inherently antithetical to a key tenant of the system of criminal justice in the United States, which former Supreme Court Justice George Sutherland shrewdly articulated as to ensure that "guilt shall not escape or innocence suffer." Reaching even further into the foundations of the common law, the great legal commentator William Blackstone stated of wrongful convictions that "the law holds it better that ten guilty persons escape, than that one innocent party suffer." This core principle of American justice was bolstered by the statements of two key Founding Fathers, John Adams and Benjamin Franklin. Adams stated of …

Expanding The Reach Of Progressive Prosecution, Jeffrey Bellin

Faculty Publications

No abstract provided.

Antitrust Regulation And The Federal-State Balance: Restoring The Original Design, Alan J. Meese

Faculty Publications

The U.S. Constitution divides authority over commerce between states and the national government. Passed in 1890, the Sherman Act (“the Act”) reflects this allocation of power, reaching only those harmful agreements that are “in restraint of... commerce among the several States.” This Article contends that the Supreme Court erred when it radically altered the balance between state and national power over trade restraints in 1948, abruptly abandoning decades of precedent recognizing exclusive state authority over most intrastate restraints. This revised construction of the Act contravened the statute’s apparent meaning, unduly expanded the reach of federal antitrust regulation, and undermined the …

Two More Plumbers Look At The Leak: Purchasing An Annuity In An Institutionalized Spouse's Ira That Is Irrevocably Payable To The Community Spouse May Work For Medicaid Purposes But Runs A Risk Of Adverse Tax Treatment, David M. English, Ron M. Landsman

Faculty Publications

A recent article in NAELA ]ournal addressed the problem of how to maximize Medicaid benefits and minimize the tax burden for an institutionalized spouse who has a substantial individual retirement account (IRA) in a state where the account is not exempt. The primary problem is that most strategies require that the IRA be cashed out, triggering income tax liability for the entire withdrawal for that tax year. Once the IRA is cashed out, the proceeds can be spent down in any number of ways; one option is for the community spouse to purchase a Medicaid qualified annuity (MQA). The proposed …

Covid-19 And Its Impact On America's Retirement System, David M. English

Faculty Publications

There is a long-standing debate over whether America's retirement system is in crisis. The COVID-19 pandemic has resolved the debate. Perhaps the system was merely challenged prior to March 2020, but it is certainly in crisis now. The pandemic has negatively impacted all four of the principal pillars of retirement: Social Security, employer-sponsored retirement programs, earnings from part-time work, and the worker's own savings. This short article will discuss the impact of the pandemic on the retirement system and discuss possible ways to restore the system to health or at least ameliorate the damage.

The Changing Role Of The American Prosecutor, Jeffrey Bellin

Faculty Publications

No abstract provided.

Immoral Trademarks After Brunetti, Ned Snow

Faculty Publications

For more than a century, marks that were vulgar, profane, and obscene could not receive trademark protection. In 2019, however, the Supreme Court in Iancu v. Brunetti invalidated the statutory provision that had prevented such marks from receiving protection—the bars to “immoral” and “scandalous” marks. Those bars violated the First Amendment because they enabled the government to judge whether ideas in marks were inappropriate. Similarly, two years prior to Brunetti, the Court in Matal v. Tam struck down a bar to marks that could “disparage” others. The Court reasoned that to disparage is to offend, and the ability to offend …

The Fourth Amendment At Home, Thomas P. Crocker

Faculty Publications

A refuge, a domain of personal privacy, and the seat of familial life, the home holds a special place in Fourth Amendment jurisprudence. Supreme Court opinions are replete with statements affirming the special status of the home. Fourth Amendment text places special emphasis on securing protections for the home in addition to persons, papers, and effects against unwarranted government intrusion. Beyond the Fourth Amendment, the home has a unique place within constitutional structure. The home receives privacy protections in addition to sheltering other constitutional values protected by the Due Process Clause and the First Amendment. For example, under the Due …

Home, Schooling, And State: Education In, And For, A Diverse Democracy, Vivian E. Hamilton

Faculty Publications

Since the late nineteenth century, virtually all school-aged children have attended school; only rarely did children live and learn entirely within their homes. In recent decades, however, the practice of elective homeschooling has emerged, and the number of families opting out of regular schools has surged. Currently, the parents of nearly two million school-aged children annually eschew traditional schooling.

A small but well-resourced homeschool lobby has aggressively pressured state legislators to withdraw state oversight of homeschooling. No similarly resourced lobby exists to counterbalance these efforts. As a result, states now impose few—and in some cases, no—obligations on parents who choose …

References To Children's Stories And Fairy Tales In Judicial Opinions And Written Advocacy, Douglas E. Abrams

Faculty Publications

Jones v. State is typical of recent state and federal court decisions that have spiced substantive or procedural points with references to classic children’s stories or classic fairy tales. These literary resources have won places in American popular culture and are likely generally familiar to readers, especially when (as in Jones) the court provides any necessary context explaining the resource’s relevance to the decision.

In previous Journal of The Missouri Bar articles, I have written about judges’ invocation of an array of influential cultural markers that are generally familiar to Americans. These articles explored written opinions that accompanied substantive or …

Applying International Law Solutions To The Xinjiang Crisis, Preston Jordan Lim

Faculty Publications

No abstract provided.

Reputation Systems Bias In The Platform Workplace, E. Gary Spitko

Faculty Publications

Online reputation systems enable the providers and consumers of a product or service to rate one another and allow others to rely upon those reputation scores in deciding whether to engage with a particular provider or consumer. Reputation systems are an intrinsic feature of the platform workplace, in which a platform operator, such as Uber or TaskRabbit, intermediates between the provider of a service and the consumer of that service. Operators typically rely upon consumer ratings of providers in rewarding and penalizing providers. Thus, these reputation systems allow an operator to achieve enormous scale while maintaining quality control and user …

Cambridge Analytica's Black Box, Margaret Hu

Faculty Publications

The Cambridge Analytica–Facebook scandal led to widespread concern over the methods deployed by Cambridge Analytica to target voters through psychographic profiling algorithms, built upon Facebook user data. The scandal ultimately led to a record-breaking $5 billion penalty imposed upon Facebook by the Federal Trade Commission (FTC) in July 2019. The FTC action, however, has been criticized as failing to adequately address the privacy and other harms emanating from Facebook’s release of approximately 87 million Facebook users’ data, which was exploited without user authorization. This Essay summarizes the FTC’s response to the Cambridge Analytica–Facebook scandal. It concludes that the scandal focuses …

Consent, Rape And The Criminal Law, Michelle Oberman, Katharine K. Baker

Faculty Publications

he story of US criminal rape law reform tends to be told as one of remarkable feminist success (between 1970–1990, feminist-led coalitions changed state laws so that rape ceased to be a crime requiring force and resistance and became instead a crime that only required sex without consent) followed by widespread stagnation. Despite comprehensive changes in the law, reporting rates, prosecution rates and conviction rates for rape increased only slightly. This essay resists that binary account of success and failure by offering a more nuanced assessment. First, it explores the full range of factors hindering the reporting, prosecution and conviction …

After Espinoza: What's Left Of The Establishment Clause?, Carl H. Esbeck

Faculty Publications

Consistent with the Establishment Clause, the Supreme Court had permitted the government to fund public and private K-12 schools, so long as any direct aid was not diverted to an explicitly religious purpose. In Espinoza v. Montana Dept. of Rev., the Court held that when there is a government program with a secular purpose, such as education, the Free Exercise Clause requires that the program be available without regard to religion. Clearly the Religion Clauses have undergone a major transformation since the days of no parochial school aid whatsoever in the 1970s and 80s. So, it bears asking: What …