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Table Of Contents Jan 2023

Table Of Contents

Missouri Law Review

No abstract provided.


Copyright Jan 2023

Copyright

Missouri Law Review

No abstract provided.


The Curious Case Of Tort Liability For A Defective Product That The Defendant Did Not Make, Sell, Or Distribute, Marin Roger Scordato Jan 2023

The Curious Case Of Tort Liability For A Defective Product That The Defendant Did Not Make, Sell, Or Distribute, Marin Roger Scordato

Missouri Law Review

Rarely does the United States Supreme Court consider and decide an issue of tort law, especially one that does not implicate any aspect of federal constitutional law. The problem of bare-metal equipment is just such an issue, taken up and addressed by the U.S. Supreme Court less than three years ago in the case of Air and Liquid Systems Corp. v. DeVries. Despite the Court’s opinion, the question continues to generate different responses from state courts and fails to enjoy much accord or consensus at the state-law level, where it has the greatest practical impact. The problem presented to the …


Federal Common Law’S Long Shadow: Shedding Light On State Law Rights To Postpetition Default Interest, Evan Miller Jan 2023

Federal Common Law’S Long Shadow: Shedding Light On State Law Rights To Postpetition Default Interest, Evan Miller

Missouri Law Review

Historically, the law imposed harsh penalties on debtors who could not meet their obligations. One regime dismembered the debtor’s body and proportionally distributed it to creditors. Rejecting these draconian penalties, the United States Constitution empowered Congress to enact federal bankruptcy legislation. Bankruptcy laws in the United States helped the “unfortunate” debtor get a fresh start while providing creditors with “prompt and effectual” administration of the debtor’s unmet obligations. In order to accomplish these policy objectives, Congress granted equitable powers to bankruptcy courts. These powers allow bankruptcy courts to occasionally adjust parties’ rights under non- bankruptcy law and fairly distribute the …


The Right To Remain Silent. . . Sometimes: Why § 1983 Claims For Miranda Violations Are Necessary To Fifth Amendment Protection, Logan Moore Jan 2023

The Right To Remain Silent. . . Sometimes: Why § 1983 Claims For Miranda Violations Are Necessary To Fifth Amendment Protection, Logan Moore

Missouri Law Review

The police arrive at your workplace and ask to speak with you. Feeling embarrassed and confused, you agree to accompany them to an isolated room to answer questions. As you pass by the concerned looks and accusatory whispers of your co-workers, you wonder to yourself, “what did I do?” Once in the room, the feeling of helplessness becomes insurmountable. The officers have blocked the exit and begin to vehemently accuse you of a crime. Although you adamantly deny any involvement in or knowledge of the crime, the officers seem prepared to keep you in the room until you make a …


Faculty List Jan 2023

Faculty List

Missouri Law Review

No abstract provided.


Gubernatorial Influence In Merit-Based Judicial Selection: Kansas, Missouri, And Colorado, 2012–2021, Zachary Reger Jan 2023

Gubernatorial Influence In Merit-Based Judicial Selection: Kansas, Missouri, And Colorado, 2012–2021, Zachary Reger

Missouri Law Review

Many states use systems of merit-based judicial selection for supreme court appointments. Under “merit selection,” an independent commission screens judicial candidates before the governor makes a final appointment. Proponents of these systems claim that by limiting gubernatorial influence over the selection process, merit selection protects judicial independence from partisan intrusion. This study evaluates such claims by comparing the recent ideological voting behavior of judges appointed by Republican and Democratic governors in three states. Those states, Kansas, Missouri, and Colorado, use three different types of merit selection—bar-controlled, hybrid, and governor-controlled, respectively—that grant the governor varying degrees of influence over the judicial …


Temporary Access And Permanent Consequences: The Misapplication Of Takings Jurisprudence To State Regulations That Benefit The Public Welfare, Maria Ceriotti Jan 2023

Temporary Access And Permanent Consequences: The Misapplication Of Takings Jurisprudence To State Regulations That Benefit The Public Welfare, Maria Ceriotti

Missouri Law Review

In 1975, California enacted the Agricultural Labor Relations Act. The Act, along with many regulations to aid in its enforcement, came after years of infighting between property owners and agriculture workers for fair pay and better treatment. Deplorable conditions included hourly wages at $0.90/hour, inadequate working standards such as a lack of toilets and segregated housing, and poor treatment from the growers. Cesar Chavez organized what is now the United Farm Workers labor organization, which helps agriculture workers across the country collectively bargain and secure their rights, fair pay, and adequate working conditions.


The Ncaa's Punts On Transgender Student-Athlete Participation, Josh Lens Jan 2023

The Ncaa's Punts On Transgender Student-Athlete Participation, Josh Lens

Missouri Law Review

The National Collegiate Athletic Association (“NCAA”), which serves as college athletics’s national governing body, states that its basic purposes include supporting and promoting healthy and safe college athletics. It accomplishes this through its stated principles, which include conducting athletics designed to protect, support, and enhance student-athletes’ physical and mental health and its commitment to diversity, equity, and inclusion. These are tall tasks, as half a million student-athletes compete in NCAA-sponsored sports. The NCAA also enjoys a history of taking strong stances on perceived discrimination. More specifically, the NCAA has used its economic influence to effect changes to state legislation or …


The Race To Ban Race: Legal And Critical Arguments Against State Legislation To Ban Critical Race Theory In Higher Education, Vanessa Miller, Frank Fernandez, Neal H. Hutchens Jan 2023

The Race To Ban Race: Legal And Critical Arguments Against State Legislation To Ban Critical Race Theory In Higher Education, Vanessa Miller, Frank Fernandez, Neal H. Hutchens

Missouri Law Review

Anti-critical race theory bills have garnered national attention in the K-12 context. However, many critical race theory (“CRT”) bans also impact institutions of higher education. The bills seek to prohibit the teaching of ideas that include the premise that racism and sexism are pervasive in our society. Those opposing CRT believe its tenets promote anti-white racism, cultural division, and threaten the public institution of education. Scholars and educators have criticized anti- CRT bills for their mischaracterization of the use and tenets of CRT and related theories of scholarship. This Article argues that state anti- CRT laws and policies in higher …


All Aboard? Missouri Statute Risks Failing To Protect Consumers From Hidden Fees And Deceptive Practices Of Prominent Companies, Ethan E. Schroeder Jan 2023

All Aboard? Missouri Statute Risks Failing To Protect Consumers From Hidden Fees And Deceptive Practices Of Prominent Companies, Ethan E. Schroeder

Missouri Law Review

At some point, every consumer has bought something and then found themselves surprised by the hidden fees and countless documents that must be signed as part of the purchase. It may even lead to some level of buyer’s remorse. However, it is not often that buyer’s remorse gives rise to a class action lawsuit brought by over 100,000 consumers against an affiliate of one of Missouri’s largest private corporations. Consumers, such as Robert and Janet McKeage, are often forced to choose between holding retailers accountable for their deceitful practices or paying increased transaction costs when dealing with Missouri retailers. With …


Have Your Cake And Eat It Too (Unless You Are Danny Brock): The Irony Of Missouri’S Co-Employee Liability Statute, Taylor M. Harrington Jan 2023

Have Your Cake And Eat It Too (Unless You Are Danny Brock): The Irony Of Missouri’S Co-Employee Liability Statute, Taylor M. Harrington

Missouri Law Review

April 30, 2013, started like any other day for Danny Brock. Like each day before, he woke up, drove to work, and clocked in. A few hours later, he looked down to see his thumb completely detached from his hand, barely hanging on by the skin. When the injury occurred, Brock was following direct orders from his supervisor, Mark Edwards. Citing safety concerns, Brock opposed the request. But Edwards demanded that Brock proceed. Fearing loss of employment, Brock did as he was told. As predicted, injury ensued. Within seconds, Brock’s hand was crushed. Brock underwent three surgeries and sustained permanent …


Masthead Jan 2023

Masthead

Missouri Law Review

No abstract provided.


Should The Federal Circuit Stand Down On Standing?, Avery J. Welker Jan 2023

Should The Federal Circuit Stand Down On Standing?, Avery J. Welker

Missouri Law Review

On March 11, 2020, the World Health Organization officially declared COVID-19 a pandemic, just ninety days after patients in Wuhan, China, began experiencing an unknown pneumonia-like illness.1 States rapidly responded, beginning shutdowns just a few days later.2 Amidst the early shutdown chaos, Moderna began human trials on its new COVID-19 vaccine.3 Moderna’s road to vaccine development was not without bumps, however, as the company launched a patent validity attack on another company’s technology it used while developing its vaccine. The dispute made its way to the Court of Appeals for the Federal Circuit, where the question focused on whether Moderna …


Osha And Public Health In An Emergency And A Culture War, Richard R. Carlson Aug 2022

Osha And Public Health In An Emergency And A Culture War, Richard R. Carlson

Missouri Law Review

The approval of COVID-19 vaccinations for working age Americans in early 2021 offered a welcome release from oppressive non-vaccination safety measures. Group activities including normal employment operations became possible with a greatly reduced risk of serious illness and death. However, escape from the virus and non-vaccination measures was limited by widespread resistance to vaccination. OSHA became one of a handful of federal government offices that adopted rules to motivate more people to accept vaccination as the best way to protect themselves, protect their families, and escape the oppression of non-vaccination measures. OSHA, which regulates private sector “occupational” health, issued an …


Reforming Qualified-Immunity Appeals, Bryan Lammon Aug 2022

Reforming Qualified-Immunity Appeals, Bryan Lammon

Missouri Law Review

The Supreme Court held in Mitchell v. Forsyth that defendants have a right to immediately appeal from the denial of immunity. This right to appeal alone is enough to halt any progress in civil-rights litigation and add complexity to a case, and defendants can use these appeals to wear down plaintiffs. But appeals from the denial of qualified immunity—or simply “qualified-immunity appeals”—are worse than some seem to realize. In the 35 years since Mitchell, the federal courts have steadily expanded the scope and availability of these appeals. The courts have also undermined (or let defendants undermine) the limits on those …


The Exclusionary Rule And Judicial Integrity: An Empirical Study Of Public Perceptions Of The Exclusionary Rule, Matthew D. Kim Aug 2022

The Exclusionary Rule And Judicial Integrity: An Empirical Study Of Public Perceptions Of The Exclusionary Rule, Matthew D. Kim

Missouri Law Review

Fourth Amendment violations call upon courts to resolve the difficult question of who will benefit from past misconduct—the factually guilty defendant or the overreaching government. Either way, courts are forced to punish the misdeed of one actor and allow the other to profit from its misconduct, potentially undermining the public’s trust in the courts. The Supreme Court opined that suppressing unlawfully obtained evidence through the exclusionary rule deters police misconduct and better preserves judicial integrity. However, with the recent discrediting of the police deterrence rationale and the growing belief that the suppression of probative evidence instead undermines judicial integrity, the …


Faculty List Aug 2022

Faculty List

Missouri Law Review

No abstract provided.


Masthead Aug 2022

Masthead

Missouri Law Review

No abstract provided.


A Confusing Clarification: How The Bad-Faith Exception In 28 U.S.C. § 1446(C) Costs More Than It Is Worth, Tate Cooper Aug 2022

A Confusing Clarification: How The Bad-Faith Exception In 28 U.S.C. § 1446(C) Costs More Than It Is Worth, Tate Cooper

Missouri Law Review

It matters where a case is heard. Venue and jurisdiction are not solely dry, esoteric matters—they impact the course of litigation and litigants’ rights. In general, plaintiffs prefer to litigate in state court, while defendants prefer federal court. Unfortunately for defendants, federal courts have limited jurisdiction. To remove an action from state to federal court, defendants must plausibly characterize an action as fitting within a particular jurisdictional grant. As attentive civil procedure students remember from World-Wide Volkswagen Corp. v. Woodson, defendants go to extraordinary lengths to avoid plaintiff-friendly jurisdictions.


Copyright Aug 2022

Copyright

Missouri Law Review

No abstract provided.


Table Of Contents Aug 2022

Table Of Contents

Missouri Law Review

No abstract provided.


“Heads I Win, Tails You Lose”: The End Of Employers’ Exploitation Of The Federal Arbitration Waiver Prejudice Requirement, Peyton E. Rosencrants Aug 2022

“Heads I Win, Tails You Lose”: The End Of Employers’ Exploitation Of The Federal Arbitration Waiver Prejudice Requirement, Peyton E. Rosencrants

Missouri Law Review

On its face, an arbitration agreement suggests a straightforward process: should a dispute between the parties subject to the agreement arise, the dispute will be resolved through arbitration rather than litigation. But sometimes the parties do not follow this seemingly predetermined path. For example, many employers include mandatory, boilerplate arbitration agreements as conditions of employment. As is often the case, what happens when an employee sues her employer without knowledge of the contract’s arbitration clause? What if the employer allows the lawsuit to proceed for several months before it decides that it would fare better before an arbitrator? Must a …


Section 230 Of The Communications Decency Act Of 1996: The Antiquated Law In Need Of Reform, Katherine Mediavilla Aug 2022

Section 230 Of The Communications Decency Act Of 1996: The Antiquated Law In Need Of Reform, Katherine Mediavilla

Missouri Law Review

Imagine a world without the information sharing-giants of Facebook, YouTube, Instagram, TikTok, Twitter, or Reddit. It is nearly impossible to go a day without some type of exposure to content created, published, and shared on such platforms. A world without these platforms would bear a striking resemblance to the world in 1996, when Congress passed the Communications Decency Act (“CDA”). The CDA, often referred to as “the 26 words that made the internet,” states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content …


Religious Organizations In Missouri Continue To Escape Liability In Negligence Actions Involving Abuse Of Children Under The Guise Of The First Amendment, Rachel M. Taylor Aug 2022

Religious Organizations In Missouri Continue To Escape Liability In Negligence Actions Involving Abuse Of Children Under The Guise Of The First Amendment, Rachel M. Taylor

Missouri Law Review

“Church allowed abuse by priest for years” was the headline of the Boston Globe on Sunday, January 6, 2002. Reporters at the Boston Globe exposed the truth about the horrendous decades of child sexual abuse at the hands of Catholic priests in the Boston area. This story launched the Catholic Church’s secrets into public view and helped unravel the pattern of abuse perpetuated by its leaders for decades. The abuse, however, was not limited to the city of Boston—or even just the United States. Claims of sexual abuse spanned the globe. Thousands of priests have been accused, and the Catholic …


Show-Me The Money: Outdated Solicitation Laws Expose Municipalities To Liability, Jessica Davis Aug 2022

Show-Me The Money: Outdated Solicitation Laws Expose Municipalities To Liability, Jessica Davis

Missouri Law Review

On any given night, roughly half a million people in the United States are homeless. In Missouri alone, approximately 6,500 people are homeless on any given day. Homeless populations create health, safety, and financial complications for municipalities. A strategy used by many municipalities to control these complications is the passage of ordinances restricting the actions of homeless populations. Commonly, these laws restrict solicitation, colloquially known as panhandling. Some laws ban panhandling altogether. While panhandling ordinances may have been a feasible solution in the past, a recent United States Supreme Court decision, Reed v. Town of Gilbert, has rendered many of …


First Keynote Address: The Two Impeachments Of Donald J. Trump, Congressman Jamie Raskin Jun 2022

First Keynote Address: The Two Impeachments Of Donald J. Trump, Congressman Jamie Raskin

Missouri Law Review

I believe that violation of the Emoluments Clauses was the original sin of the Trump Administration, and it began essentially on the first day of Trump in office when he said he was not going to give up his more than 150 businesses. He was not going to stop doing business with foreign governments, and he was not taking any pledge about refusing to take money from the federal government. The Foreign Emoluments Clause states that no president, no federal official, may accept presents or emoluments – which are payments – offices or titles of any kind whatsoever from a …


The Constitutional (And Political) Safeguards Against Impeachment, Victoria Nourse Jun 2022

The Constitutional (And Political) Safeguards Against Impeachment, Victoria Nourse

Missouri Law Review

Will the Trump impeachments inspire a flurry of future presidential impeachments? Will the second Trump impeachment, which occurred after the President left office, spur impeachments of lesser, former government officials? These and other questions emerged during the 2022 Missouri Law Review Symposium and on the Senate floor during the Trump impeachment trials. I have argued that we can make an educated prognosis about these possibilities based on constitutional structure. I called this argument the “political safeguards” of impeachment in my recent book, The Impeachments of Donald Trump: An Introduction to Constitutional Argument. What I called political safeguards, invoking the great …


Masthead Jun 2022

Masthead

Missouri Law Review

No abstract provided.


Impeachment And Its Discontents, Brian C. Kalt Jun 2022

Impeachment And Its Discontents, Brian C. Kalt

Missouri Law Review

What purpose do presidential impeachments serve if the Senate does not convict? Should impeachment be attempted at all if there is no chance of conviction? These questions remind me of the old joke in which someone is asked whether he believes in infant baptism. He replies, “Believe in it? Heck, I’ve actually seen it done.”