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Table Of Contents - Issue 4 Nov 2013

Table Of Contents - Issue 4

Missouri Law Review

Table of Contents - Issue 4


Symposium: Bombshell Or Babystep - The Ramifications Of Miller V. Alabama For Sentencing Law And Juvenile Crime Policy: Symposium Foreword, Paul J. Litton Nov 2013

Symposium: Bombshell Or Babystep - The Ramifications Of Miller V. Alabama For Sentencing Law And Juvenile Crime Policy: Symposium Foreword, Paul J. Litton

Missouri Law Review

Part II of this Foreword briefly addresses one open constitutional question in the wake of Miller: in light of its rationale, is juvenile LWOP – whether mandatory or the result of an individualized sentencing process – constitutionally permissible? I argue that the Miller opinion itself is incoherent insofar as it permits juvenile LWOP as a constitutionally viable sentence. Part III provides a short synopsis of the controversy among Justices regarding the proper methodology for Eighth Amendment proportionality analyses. Then, with particular attention to the authors’ different takes on Miller’s implications for methodology, Part III provides a guide to the symposium …


Userra Oxymoron: Termination As A Valid Reemployment Position, The, Breanna Hance Nov 2013

Userra Oxymoron: Termination As A Valid Reemployment Position, The, Breanna Hance

Missouri Law Review

This Note assesses Milhauser’s impact on reemployment claims under USERRA. Part II begins with an analysis of the facts and holding of the case. Next, Part III synthesizes the background of USERRA, provides an overview of the statute, and introduces the escalator principle. Part IV outlines the court’s rationale in deciding Milhauser. Finally, Part V discusses the impact of Milhauser on USERRA reemployment claims. This Note argues that: (1) the court’s reliance on USERRA regulation § 1002.194 was misplaced because the court’s interpretation presents a conflict between two sections of the statute and creates burden of proof issues; (2) the …


We The People: A Needed Reform Of State Initiative And Referendum Procedures, Nicholas R. Theodore Nov 2013

We The People: A Needed Reform Of State Initiative And Referendum Procedures, Nicholas R. Theodore

Missouri Law Review

Part II of this Comment begins by detailing the history of the ballot initiative and referendum in the United States. Part III next details the different types of initiatives and referenda commonly used in the United States. Part IV discusses the merits of the ballot initiative, discussing both benefits and disadvantages. Part V gives an overview of various state approaches to initiative procedures. Part VI introduces some of the various procedural shortfalls in the initiative process. Part VII discusses Missouri common law and how the courts have helped shape Missouri’s law in the initiative process. Part VIII examines Brown v. …


Juvenile Lifers And Judicial Overrreach: A Curmedgeonly Meditation On Miller V. Alabama, Frank O. Bowman Iii Nov 2013

Juvenile Lifers And Judicial Overrreach: A Curmedgeonly Meditation On Miller V. Alabama, Frank O. Bowman Iii

Missouri Law Review

This Article focuses very little on the implications of Miller and Graham for the population they most directly affect – juvenile offenders previously eligible for sentences of life without parole – and more on the implications of the Court’s reasoning in Miller and Graham for sentencing generally. However gratifying the results of Miller and Graham may be as sentencing policy, they are troubling as a constitutional matter both because they are badly theorized and because they are two strands of a web of decisions in which the Court has consistently used doubtful constitutional interpretations to transfer power over criminal justice …


Precedent As A Policy Map: What Miller V. Alabama Tells Us About Emerging Adults And The Direction Of Contemporary Youth Services, Clark M. Peters Nov 2013

Precedent As A Policy Map: What Miller V. Alabama Tells Us About Emerging Adults And The Direction Of Contemporary Youth Services, Clark M. Peters

Missouri Law Review

To illuminate the role that Miller plays with regard to the wider realm of youth policy, I will employ the analytic approach of Professor John Kingdon, whose influential book Agendas, Alternatives, and Public Policies (Agendas) provides a framework for understanding how ideas move from mere proposals to effectuated policy. His approach emerges from the pluralist tradition, which emphasizes government processes and the role of political influence in affecting policy choices. In posing Kingdon’s central question – “How does an idea’s time come?” – to the Miller decision, this Article employs Kingdon’s theoretical framework in two ways. First, Kingdon’s framework is …


Bargaining With Bite: Missouri High Court's Constitutional Holdings Alter Public Sector Labor Law, Peter W. Bay Nov 2013

Bargaining With Bite: Missouri High Court's Constitutional Holdings Alter Public Sector Labor Law, Peter W. Bay

Missouri Law Review

Collective bargaining – negotiations over working conditions between an employer and representatives of their employees – appeared as early as 1891 as labor unions arose in response to the Industrial Revolution. Collective bargaining in private industry was recognized in 1935 by the National Labor Relations Act but was considered prohibited in the public sector. In 1945, the state of Missouri ratified its constitution, which included article 1, section 29, a provision protecting employee collective bargaining rights. That provision, however, was quickly interpreted by courts as applying only to private employees, and thus, public employees had little power to negotiate employment …


Other Missouri Model: Systemic Juvenile Injustice In The Show-Me State, The, Mae C. Quinn Nov 2013

Other Missouri Model: Systemic Juvenile Injustice In The Show-Me State, The, Mae C. Quinn

Missouri Law Review

Part II of this Article examines some of the most well-known claims about the Missouri Model of juvenile justice, clarifying that the positive press to date actually describes only one small component of the larger juvenile justice structure: Missouri’s system of residential correction for state-placed adjudicated youth. And while that system has much to admire and replicate, it also has room for improvement In Part III, this Article fills in what has been left out of most public and press stories about Missouri’s larger youth justice system. That is, despite mostly glowing media accounts, Missouri’s at-risk youth are poorly served …


Where The Judiciary Prosecutes In Front Of Itself: Missouri's Unconstitutional Juvenile Court Structure, Josh Gupta-Kagan Nov 2013

Where The Judiciary Prosecutes In Front Of Itself: Missouri's Unconstitutional Juvenile Court Structure, Josh Gupta-Kagan

Missouri Law Review

Part II will describe the juvenile officer’s unique role in Missouri law, and explain how this role makes Missouri an outlier within the United States. Part III will argue that the juvenile officer’s prosecutorial discretion violates the separation of powers required by the Missouri Constitution and informed by the U.S. Constitution. Part IV will describe the real world harms that flow from this violation, with a particular focus on the harms in child abuse and neglect cases. Part V will outline potential policy solutions to this problem.


Miller V. Alabama: What It Is, What It May Be, And What It Is Not, Nancy Gertner Nov 2013

Miller V. Alabama: What It Is, What It May Be, And What It Is Not, Nancy Gertner

Missouri Law Review

In Miller v. Alabama, the Supreme Court of the United States, in a five to four opinion written by Justice Elena Kagan, held that mandatory life imprisonment without parole for defendants convicted of murder who were under age eighteen at the time of their crimes violated the Eighth Amendment to the United States Constitution. The decision raises a host of important questions that the University of Missouri School of Law’s recent symposium ably addressed. Is Miller a watershed opinion, prefiguring a new era of substantive Eighth Amendment jurisprudence that would apply to other imprisonment sentences across offender and offense categories? …


Eighth Amendment Differentness, William W. Berry Iii Nov 2013

Eighth Amendment Differentness, William W. Berry Iii

Missouri Law Review

Part II of the Article provides the context for the Miller case, outlining the theoretical underpinnings of the Court’s Eighth Amendment jurisprudence. Part III describes the Court’s “different” jurisprudence, linking the concept of “juveniles are different” to the Court’s longstanding view that “death is different.” In Part IV, the Article demonstrates how the two possible interpretations of the Court’s statement in Miller that “juveniles are different” – as a character-based form of differentness and, in the case of juvenile LWOP, as a punishment-based form of differentness – create distinct theoretical bases for broadening the scope of the Eighth Amendment. Finally, …


Mill(Er)Ing Mandatory Minimums: What Federal Lawmakers Should Take From Miller V. Alabama, Mary Price Nov 2013

Mill(Er)Ing Mandatory Minimums: What Federal Lawmakers Should Take From Miller V. Alabama, Mary Price

Missouri Law Review

In this Article, I make the case that, while the robust proportionality principles informing Miller and similar cases are unlikely to translate into the end of mandatory minimum sentencing by way of the Eighth Amendment (at least anytime soon), embracing sentencing proportionality is the key for lawmakers who are – or should be – addressing the unsustainable growth in the federal prison population as a distinct threat to public safety. Politicians who support mandatory minimums have been immune over the years to the many reasoned arguments about how unjust those sentences are and what costs they pose to families and …


Cure For Collusive Settlements: The Case For A Per Se Prohibition On Pay-For-Delay Agreements In Pharmaceutical Patent Litigation, A , Michael Owens Nov 2013

Cure For Collusive Settlements: The Case For A Per Se Prohibition On Pay-For-Delay Agreements In Pharmaceutical Patent Litigation, A , Michael Owens

Missouri Law Review

This Comment will examine how the particulars of the Hatch-Waxman Act, the regulatory scheme that governs generic competition in pharmaceutical industry, gives rise to reverse settlements in infringement litigation; review existing analysis of the pay for delay problem in judicial decisions, in academic commentary, and amongst antitrust enforcement bodies; and finally, draw upon a decision theoretic framework to propose per se illegality as the appropriate antitrust rule for pay-for-delay settlements.


Not Just Kid Stuff - Extending Graham And Miller To Adults, Michael M. O'Hear Nov 2013

Not Just Kid Stuff - Extending Graham And Miller To Adults, Michael M. O'Hear

Missouri Law Review

Part II more fully unpacks the central jurisprudential values that animate Graham and Miller. By reference to these values, Part III explains how Graham and Miller may be reconciled with Harmelin and Ewing. Finally, Part IV discusses the application of Graham and Miller to one particular category of adult offenders – those sentenced under the three-strikes provision of 21 U.S.C. § 841(b)(1)(A) – and concludes that at least some of these offenders may have viable Eighth Amendment claims


Bankrupting The Faith , Pamela Foohey Jun 2013

Bankrupting The Faith , Pamela Foohey

Missouri Law Review

This Article examines the institutions’ characteristics, reasons for filing, and case outcomes to investigate what benefits Chapter 11 brings to the organizations and whether bankruptcy is an effective solution to their financial problems. Based on the successful reorganizations and continued operations of some of the debtors in the study, it finds that Chapter 11 has the potential to provide a productive means for addressing their financial problems by offering religious organizations an avenue to rehabilitate their operations following economic downturns, failures and transitions in leadership, and standstills in negotiating with creditors. In exploring these Chapter 11 cases, this Article not …


Mental States And Misconduct: The Supreme Court Of Missouri Interprets An Important Disqualification From Unemployment Benefits, Brian Stair Jun 2013

Mental States And Misconduct: The Supreme Court Of Missouri Interprets An Important Disqualification From Unemployment Benefits, Brian Stair

Missouri Law Review

Fendler v. Hudson Services features the Supreme Court of Missouri’s first thorough discussion of section 288.030.1(23) and the Court’s decision illustrates a development in Missouri appellate court interpretation of the statute’s definition of “misconduct.” This Note describes that definitional development and addresses its potential effect on future disputes in which employers are seeking to prove that an employee’s behavior constituted misconduct. Specifically, this Note focuses on how the Supreme Court of Missouri, by refusing to require a showing of “willfulness” to prove “misconduct,” has further complicated the use of mental states in “misconduct” analysis and potentially broadened the scope of …


Rethinking The Law Firm Organizational Form And Capitalization Structure , Edward S. Adams Jun 2013

Rethinking The Law Firm Organizational Form And Capitalization Structure , Edward S. Adams

Missouri Law Review

The goal of this Article is to examine the partnership model and advocate for a change in the Model Rules that would allow for public ownership of law firms, and to make disclosure of firm financials a mandatory requirement for all firms with over 100 lawyers. Part II explores the history and evolution of limited liability and law firm structures in the United States. Part III discusses incorporated law firms and MDPs and how they might benefit U.S. law firms. Part IV looks at the developments in the United Kingdom and Australia and the forces of globalization that have an …


Decoupling Federal Offense Guidelines From Statutory Limits On Sentencing , Kevin Bernardo Jun 2013

Decoupling Federal Offense Guidelines From Statutory Limits On Sentencing , Kevin Bernardo

Missouri Law Review

This Article discusses the sensibility of each of these three options. Part II sets forth a hypothetical controlled substance offense to better illustrate the choices faced by the Commission. Part III recounts approaches that the Commission has actually adopted in incorporating statutory limits into the Guidelines. Part IV addresses the goals of guideline sentencing and concludes that the Guidelines’ structure should be primarily driven by actual fairness concerns. Applying actual fairness as the overriding concern, Part V concludes that statutory limits should not be incorporated into an offense guideline when some offenders subject to the guideline will not be subject …


Exclusively Confusing: Who Has Jurisdiction To Determine Jurisdiction Under The Missouri Workers' Compensation Law, N. Drew Kemp Jun 2013

Exclusively Confusing: Who Has Jurisdiction To Determine Jurisdiction Under The Missouri Workers' Compensation Law, N. Drew Kemp

Missouri Law Review

In 2011, the Eastern District of the Missouri Court of Appeals summarized and clarified the issue of which court has jurisdiction to determine jurisdiction. After Cooper v. Chrysler Group, LLC, it is clear that a Missouri circuit court must yield to the Commission when the jurisdiction-determining issue is one of fact. However, a circuit court can nevertheless review jurisdictional issues of law. An important question remains, however: will a circuit court distinguish between issues of fact and issues of law if an affirmative defense is not timely raised by the employer?


Table Of Contents - Issue 3 Jun 2013

Table Of Contents - Issue 3

Missouri Law Review

Table of Contents - Issue 3


Circuit Courts With Plenary Jurisdiction And Administrative Agencies With Exclusive Jurisdiction: Can They Peacefully Coexist In Missouri, Paul M. Spinden Jun 2013

Circuit Courts With Plenary Jurisdiction And Administrative Agencies With Exclusive Jurisdiction: Can They Peacefully Coexist In Missouri, Paul M. Spinden

Missouri Law Review

Part II examines this provision, including its impetus. Part III considers J.C.W.’s exposition of jurisdiction and focuses on its contention that the Missouri Constitution necessarily excludes statutory restrictions on the judiciary’s exercise of subject matter jurisdiction. Part IV closely examines McCracken’s application of J.C.W.’s analysis to the issue of exclusive administrative remedies and agency jurisdiction. Finally, Part V suggests alternative analyses that maintain exclusive remedies for workers’ compensation and other administrative agencies while preserving the circuit courts’ plenary subject matter jurisdiction.


Raised Eyebrow Test Produces Further Head-Scratching: Punitive Damages In Ondrisek V. Hoffman, The, Valerie Shands Jun 2013

Raised Eyebrow Test Produces Further Head-Scratching: Punitive Damages In Ondrisek V. Hoffman, The, Valerie Shands

Missouri Law Review

Ondrisek reveals that although the Eighth Circuit uses the same test as the Supreme Court, it certainly applies it differently. When comparing Ondrisek and other Eighth Circuit cases, one sees a subtle pattern that diverges from the Supreme Court’s jurisprudence. However, these differences are not yet distinct enough for the Supreme Court to have granted certiorari to resolve the inconsistencies.


Recoupment And Bankruptcy: How To Effectuate Bankruptcy Policy Through The Same Transaction Test , Jacob Thessen Jun 2013

Recoupment And Bankruptcy: How To Effectuate Bankruptcy Policy Through The Same Transaction Test , Jacob Thessen

Missouri Law Review

This Note will explore the interaction between recoupment and bankruptcy by focusing on the Eighth Circuit’s decision in In re Terry. Terry is significant because the Eighth Circuit allowed an insurance company to recoup pre-petition overpayments from the bankrupt debtor’s post-petition benefits. In doing so, the Eighth Circuit refused to acknowledge a separate balancing of the equities test, independent from the traditional same transaction requirement, when determining a creditor’s recoupment defense. This discussion will center on recoupment’s “same transaction” test and why it can be utilized to achieve sound bankruptcy policy by denying recoupment claims. It is this Note’s contention …


Deciding Where To Draw The Line: Compactness As A Protection Against Gerrymandering In Missouri Redistricting, Stephanie Bradshaw Jun 2013

Deciding Where To Draw The Line: Compactness As A Protection Against Gerrymandering In Missouri Redistricting, Stephanie Bradshaw

Missouri Law Review

Every ten years, the release of the U.S. Census triggers a tidal wave of political ramifications that ripple from coast to coast. The census reflects the fluctuation in population among the states, necessitating a shuffling of, among other things, state legislative and congressional districts. States are awarded Congressional representatives based on their populations: the greater the population, the greater the representation. While some states gain representatives and others lose them, the outcome is the same: districts must be redrawn. In what has been likened to a “periodic comet,” challenges by citizens to this redistricting frequently arise. Behind this litigation is …


Public Participation Without A Public: The Challenge For Administrative Policymaking , Sidney Shapiro, Richard Murphy Apr 2013

Public Participation Without A Public: The Challenge For Administrative Policymaking , Sidney Shapiro, Richard Murphy

Missouri Law Review

As Isaac Newton taught us long ago, for every action there is an equal and opposite reaction. To the degree that unelected, unaccountable mandarins rule, the people do not. Regulatory agencies, headed by unelected administrators, can thus create a “democracy deficit” and, at least for those who believe government derives its legitimacy from democracy,, a legitimacy deficit, too. Various polities have addressed this democracy deficit by embedding public administration in “accountability network[s] of rules and procedures[.]” A requirement of public participation is one such procedure common to many countries and many situations. Whether public participation serves the public, however, depends …


Science, Politics, And Administrative Legitimacy , Louis J. Virelli Iii Apr 2013

Science, Politics, And Administrative Legitimacy , Louis J. Virelli Iii

Missouri Law Review

Administrative agencies in the United States and other constitutional democracies around the world are continually faced with difficult questions about the legitimacy of their decisions.1 Each of these legitimacy questions in turn raises important second-order questions about how agencies should view their role within a constitutional democracy: How closely should agency decisions reflect popular political will? When and to what degree are deviations from popular opinion justified, and what measures should be taken to reduce the gap between regulators and the governed? What other sources of information are critical to agency decision making, and how should those inputs be treated …


Creation Of Transnational Administrative Structures Governing Internet Communication, The , Russell L. Weaver, Duncan Fairgrieve, Francois Lichere Apr 2013

Creation Of Transnational Administrative Structures Governing Internet Communication, The , Russell L. Weaver, Duncan Fairgrieve, Francois Lichere

Missouri Law Review

As the world becomes more economically integrated, increasing numbers of problems arise that are best handled through international treaties and transnational regulatory structures.4 For example, there have been concerns regarding the safety of products shipped from developing countries. These concerns have involved manufactured products, but have been particularly evident with food. Numerous examples can be found. The Japanese “discovered high levels of pesticides in imported spinach,” and U.S. “pets died from eating [imported] pet food contaminated with toxic chemicals.” In France, pesticides were discovered in fish imported from Africa, prompting the French government to suspend the importation of all fishes …


Constitutionality Of Caps: Upholding Missouri's Right To Jury Trial And The Non-Economic Damages Debate, The, Rachel Lawrence Apr 2013

Constitutionality Of Caps: Upholding Missouri's Right To Jury Trial And The Non-Economic Damages Debate, The, Rachel Lawrence

Missouri Law Review

This Note argues that the Watts decision appropriately invalidated the statutory limits on economic damages, finding non-economic caps on damages unconstitutional. Part II of this Note analyzes the facts and holding of Watts. Part III examines previous constitutional challenges to Missouri Revised Statutes chapter 538 and how the court interpreted constitutional language to reach its decision. Next, Part IV explains the court’s rationale in Watts. Last, Part V explains why the court was correct in declaring noneconomic damage caps unconstitutional and explores the policy issues behind statutory limitations on damages.


Social Networking And Freedom Of Speech: Not Like Old Times , Zachary Shklar Apr 2013

Social Networking And Freedom Of Speech: Not Like Old Times , Zachary Shklar

Missouri Law Review

In Bland v. Roberts, the United States District Court for the Eastern District of Virginia was presented with the issue of whether “liking” a page on Facebook is speech protectable by the First Amendment. This Note argues that the court’s holding, that “liking” something on Facebook is not worthy of First Amendment protection, is a disturbing result that endangers one of our most fundamental rights guaranteed by the Constitution. In Part II, this Note analyzes the facts and holding of Bland v. Roberts. Next, in Part III, this Note describes in detail how Facebook operates and explains the legal background …


Disaggregated State In Transnational Environmental Regulation, The , Hoi L. Kong Apr 2013

Disaggregated State In Transnational Environmental Regulation, The , Hoi L. Kong

Missouri Law Review

This Article argues against a positivist view of international environmental law that (i) conceives of states as unitary entities that speak with one voice in pursuit of a single national interest,1 and that focuses on (ii) authoritative sources of law and (iii) the binding force of these sources of law. Further, this Article argues for a view of transnational law that (i) views the state as disaggregated, rather than unitary, (ii) focuses on informal legal mechanisms that do not have authoritative status and (iii) directs attention towards law’s facilitative functions and away from law’s binding force. This special issue’s theme …