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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 …


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 …


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.


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 …


Meaningful Access: True Equality Or Frightening Reality?, Mackenzie L. Stout Apr 2021

Meaningful Access: True Equality Or Frightening Reality?, Mackenzie L. Stout

Missouri Law Review

“It’s too good to be true” summarizes the decision in Childress v. Fox Associates, LLC. The Childress court admirably aimed to create a more accessible society for individuals with disabilities but may have unintentionally created the exact opposite. Courts require public accommodations to provide “meaningful access” to individuals with disabilities in order to comply with the Americans with Disabilities Act (“ADA”). However, “meaningful access” is an unclear, evolving standard. The Childress decision strayed from precedent by heightening the standard for meaningful access to a level equal to identical access. While this heightened standard strives for the goal of true equality, …


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 overall, with …


Copyright Apr 2021

Copyright

Missouri Law Review

No abstract provided.


Table Of Contents Apr 2021

Table Of Contents

Missouri Law Review

No abstract provided.


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 …


No-Poach, No Precedent: How Doj’S Aggressive Stance On Criminalizing Labor Market Agreements Runs Counter To Antitrust Jurisprudence, Noelle Mack Apr 2021

No-Poach, No Precedent: How Doj’S Aggressive Stance On Criminalizing Labor Market Agreements Runs Counter To Antitrust Jurisprudence, Noelle Mack

Missouri Law Review

When non-law-abiding citizens wonder whether their conduct is subject to criminal penalties, most turn to state and federal criminal statutes for guidance. Under antitrust law, potential wrongdoers must look to the Sherman Act – a broad “charter of freedom” requiring an unusual level of interpretation by federal courts. Reflecting Congress’ belief that “competition is the best method of allocating resources in a free market,” the Sherman Act simply outlaws “every contract, combination, or conspiracy in restraint of trade or commerce.” The drafters of the Sherman Act could have delineated specific categories of proscribed conduct such as bid-rigging, price-fixing, or entering …


Masthead Apr 2021

Masthead

Missouri Law Review

No abstract provided.


Faculty List Apr 2021

Faculty List

Missouri Law Review

No abstract provided.


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 …


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 …


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 – …


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 Supreme …


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 …


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 is …


“Equal Outcomes”: A Constitutional Comparison Of Gender Equality Guarantees In The United States And South Africa, Melanie Mcmullen Jan 2021

“Equal Outcomes”: A Constitutional Comparison Of Gender Equality Guarantees In The United States And South Africa, Melanie Mcmullen

Missouri Law Review

The evolution of women’s rights throughout history has had significant effects on the cultural and legal climate of the world. Each country has its own approach to gender equality, and each country has an impact on the global mindset on women’s roles in society. South Africa, for example, is a new and growing democracy that provides more equality guarantees than even the oldest established democracy – the United States. The exploration of newer ideas and approaches to equality can only benefit the growth and expansion of equal rights in the United States.


One Tire, One Time: The Supreme Court Of Missouri’S Expansion Of Reasonable Suspicion, Luke A. Hawley Jan 2021

One Tire, One Time: The Supreme Court Of Missouri’S Expansion Of Reasonable Suspicion, Luke A. Hawley

Missouri Law Review

All drivers are familiar with the white “fog line” that separates the road from the shoulder. What Missouri drivers may not be familiar with is the fact that they can be pulled over any time one of their tires cross that line. This fact may surprise Missouri drivers, in part because it has only recently become the law. While fog line infractions may seem trivial on their face, the traffic stops that result from fog line infractions trigger significant constitutional repercussions.


Hiring And Training Competent Title Ix Hearing Officers, Ben Trachtenberg Jan 2021

Hiring And Training Competent Title Ix Hearing Officers, Ben Trachtenberg

Missouri Law Review

American colleges and universities are not ready to comply with new Title IX regulations concerning campus hearings. Regulations released in May 2020 by the U.S. Department of Education, effective in August 2020, require that colleges and universities use hearing officers who are “trained on issues of relevance, including how to apply. . .rape shield provisions” and legal privileges. Institutions must conduct “a live hearing” at which the hearing officer “must permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility.” This “cross-examination … must be conducted directly, orally, …


Qualified Immunity Creates Nearly Insurmountable Protection For Defendants Against First Amendment Retaliatory Claim, Abigail Greene Jan 2021

Qualified Immunity Creates Nearly Insurmountable Protection For Defendants Against First Amendment Retaliatory Claim, Abigail Greene

Missouri Law Review

There are more than 3,000 sheriffs’ departments in the United States with varying authority based on the state and county in which they are located. Their authority may be as wide reaching as a “full-service countywide law enforcement agenc[y]” or may be as limited as having “no law enforcement jurisdiction in county areas served by local or municipal police departments.” Dissimilar to other law enforcement officials, who are hired after an interview and application process, most sheriffs gain their positions through partisan elections. Offices in forty-one states – more than 2,700 counties – conduct partisan elections for the sheriff position.


Citizen Activist Or Professional Lobbyist? Eighth Circuit Decides That Political Activity Is “Lobbying” Only When Money Is Involved, Maddie Mcmillian Green Jan 2021

Citizen Activist Or Professional Lobbyist? Eighth Circuit Decides That Political Activity Is “Lobbying” Only When Money Is Involved, Maddie Mcmillian Green

Missouri Law Review

In determining the constitutionality of lobbyist registration laws, where do courts draw the line between lobbyists and politically active citizens? What is the difference between a citizen simply sharing their ideas with their elected officials and influencing them? In 2019, the United States Court of Appeals for the Eighth Circuit attempted to draw the line in Calzone v. Summers by holding that Missouri lobbyist registration laws violated the First Amendment as applied to an uncompensated lobbyist who incurred no expenditures relating to his lobbying efforts. This decision protects individuals who neither spend nor receive any money in connection with their …


Copyright Jan 2021

Copyright

Missouri Law Review

No abstract provided.


Faculty List Jan 2021

Faculty List

Missouri Law Review

No abstract provided.


Masthead Jan 2021

Masthead

Missouri Law Review

No abstract provided.


Foundational And Contemporary Court Confidentiality, Dustin B. Benham Jan 2021

Foundational And Contemporary Court Confidentiality, Dustin B. Benham

Missouri Law Review

An integrated confidentiality system now pervades American dispute resolution. This system was created over the course of decades by legislatures, rule makers, and courts. Proponents of confidentiality have long justified expansive secrecy by claiming that the benefits of withholding litigation information outweigh any potential public harm. Recent evidence undermines this premise. In some of the most important public-harms cases of the past two decades, critical health-and-safety information was kept secret in court files. People died or were injured in the meantime. It has also become apparent that consolidating cases in multi-district litigation has the potential to accelerate and homogenize confidentiality …


Table Of Contents Jan 2021

Table Of Contents

Missouri Law Review

No abstract provided.


Still Waters Run Deep(Fakes): The Rising Concerns Of “Deepfake” Technology And Its Influence On Democracy And The First Amendment, Lindsey Wilkerson Jan 2021

Still Waters Run Deep(Fakes): The Rising Concerns Of “Deepfake” Technology And Its Influence On Democracy And The First Amendment, Lindsey Wilkerson

Missouri Law Review

This Note explores how deepfake technology can disrupt democracy and influence elections through the protections given to political speech under the First Amendment. Part II describes deepfakes in greater detail and identifies the wide uses for deepfake technology. Part III reflects on how the federal government and states are attempting to regulate deepfakes, mainly to protect individuals from pornographic exploitation and election tampering. Finally, Part IV discusses in detail how the First Amendment creates constitutional barriers in regulating deepfakes.