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Masthead Jun 2021

Masthead

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 Jun 2021

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.


Insider Trading Under Sarbanes-Oxley: Bypassing The Personal Benefit Test, Andrew J. Meyer Jun 2021

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


A “20/20” Vision: Supreme Court Of Missouri Revisits Admissibility Of Eyewitness Expert Testimony After More Than 30 Years, Emily Miller Jun 2021

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.


Balancing Purpose, Power, And Discretion Between Article Iii Courts And The Patent Office, Emily N. Weber Jun 2021

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 ...


Faculty List Jun 2021

Faculty List

Missouri Law Review

No abstract provided.


Copyright Jun 2021

Copyright

Missouri Law Review

No abstract provided.


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 Jun 2021

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 Jun 2021

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 ...


The Walking Dead: How The Criminal Regulation Of Sodomy Survived Lawrence V. Texas, Jordan Carr Peterson Jun 2021

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.


At The Edge Of Objectivity: The Missouri Court Of Appeals’ Deference To A Seemingly Subjective Assessment Of Prejudice Under Strickland, Bradley J. Isbell Jun 2021

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.


Redefining “Amend”: For The “Better” Of Whom?, Clayton A. Voss Jun 2021

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 ...


Table Of Contents Jun 2021

Table Of Contents

Missouri Law Review

No abstract provided.


Indirect Initiative And Unpopular Referendum In Missouri, Gunnar Johanson Apr 2021

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 ...


Two Steps Forward, One Step…Back? Missouri Legislature Targets Rise In Violent Crime, Sarah Walters Apr 2021

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 ...


Faculty List Apr 2021

Faculty List

Missouri Law Review

No abstract provided.


Copyright Apr 2021

Copyright

Missouri Law Review

No abstract provided.


Symposium: A New Hope? An Interdisciplinary Reflection On The Constitution, Politics, And Polarization In Jack Balkin’S “The Cycles Of Constitutional Time”, Paul Litton Apr 2021

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 Apr 2021

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.


Some Linear Thoughts On A Cyclical Vision, Frank O. Bowman Iii Apr 2021

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 ...


Compromising Trust, Lynn Mie Itagaki Apr 2021

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 Apr 2021

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 ...


A Contractual Dilemma: Where Arbitration Agreements And Delegation Provisions Collide, Trent H. Hamoud Apr 2021

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 ...


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 Apr 2021

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 ...


Masthead Apr 2021

Masthead

Missouri Law Review

No abstract provided.


Table Of Contents Apr 2021

Table Of Contents

Missouri Law Review

No abstract provided.


Democratic Culture And Democratic Shocks: The Limits Of Constitutional Cycles, Jonathan Gienapp Apr 2021

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 to ...


Exhuming Brutus: Constitutional Rot And Cyclical Calls For Court Reform, Amanda Hollis-Brusky Apr 2021

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 ...


Cock-Eyed Optimist Meets Chicken Little: Jack Balkin On The American Future, Sanford Levinson Apr 2021

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 ...


Missouri Workers’ Compensation Enhanced Benefits For Mesothelioma Victims: Too Crispy Or Too Chewy?, Grace Hambuchen Apr 2021

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 “best ...