Law Commons^™

Copyright

Missouri Law Review

No abstract provided.

The Uncertain Future Of Felon Disenfranchisement, Bruce E. Cain, Brett Parker

Missouri Law Review

Felons represent a large majority of disenfranchised adult Americans, with a significant proportion remaining unable to vote even after completing the entirety of their sentences. As voter eligibility requirements become an increasingly contested partisan battlefield, the fate of these disenfranchised individuals has become increasingly unclear. With this backdrop in mind, we consider recent developments in felon disenfranchisement, the prospects for future legislative action, and the legal arguments that litigants might employ to challenge the practice. In so doing, we exploit newly collected polling data to determine (1) whether Americans are ready to end felon disenfranchisement, and (2) under what circumstances …

The Federalist Regulation Of Privacy: The Happy Incidents Of State Regulatory Activity And Costs Of Preemptive Federal Action, Henry Adams

Missouri Law Review

The impact of society’s digital integration is difficult to articulate. It suffices to say much of our lives are now digitized, and digital technologies have yielded immeasurable benefits to the individual and society at large. Change heralds challenge, and the digital paradigm-shift has brought challenges of comparable numerosity and magnitude. Privacy is at the forefront of those challenges. In recent years, the digital industry has been subject to increased scrutiny over the rising number of privacy scandals and perceived market failures related to the collection and use of individuals’ personal information. New technologies, market developments, and increases in public attention …

Reinforcing Autonomy: Legal Ethics And Constitutional Compliance In Indigent Criminal Defense, George R. Brand

Missouri Law Review

Regulating the judicial system is an inherently difficult task. With multi-ple stakeholder groups often at odds with each other and within themselves, it is almost impossible to create laws, rules, and norms that satisfy everyone. The unnervingly peculiar capital murder case of McCoy v. Louisiana typifies the many competing ideologies and motivations constantly in flux in the American judicial system. While unique idiosyncrasies within this case frame a series of events unlikely to be repeated, the Supreme Court of the United States’ split decision educes this ongoing debate amongst judges, litigants, and legislatures on the best practices and purposes undergirding …

Balancing Act: Admissibility Of Propensity Evidence Under Article I, Section 18(C) Of The Missouri Constitution, Emily Holtzman

Missouri Law Review

The American legal system has a long-standing ban against using character evidence to show a party’s propensity to act in conformity with that character. This rule has been especially stringent in the criminal system, where the notion is that when a criminal defendant is tried for a crime, that defendant should face trial only for the crimes charged. However, certain crimes, like sex crimes, can be incredibly difficult to prosecute and, accordingly, victim advocates have pushed for changes to these rules. The Federal Rules of Evidence (“FRE”) and several states have enacted rules that allow evidence of prior bad acts …

The Quest For Equal Dignity: Federal Statutory Protection Against Sexual Orientation Discrimination, Alec D. Guy

Missouri Law Review

Over one million Americans are married to someone of the same sex. Although the United States Supreme Court guaranteed the fundamental right of marriage to same-sex couples in 2015, these individuals can still be denied housing or fired from their dream job after getting legally married. For much of history, gay individuals have not been protected by the law, both statutorily and constitutionally. Private individuals are generally still free to discriminate against gay people today because federal statutes rarely prohibit discrimination based on sexual orientation. Consequently, many have argued that sexual orientation discrimination constitutes unlawful discrimination based on sex. Until …

Copyright

Missouri Law Review

No abstract provided.

Masthead

Missouri Law Review

No abstract provided.

Military Sexual Trauma: A Current Analysis Of Disability Claims Adjudication Under Veterans Benefits Law, Angela K. Drake, Charlotte R. Burgess-Mundwiller

Missouri Law Review

According to the 2018 Report of the Department of Veterans Office of Inspector General, military sexual trauma (“MST”) is on the rise, increasing 10% from the previous year. The Inspector General also found that the Department of Veteran Affairs (“VA”) improperly processed 49% of MST claims in the six-month time period reviewed. During this same time period, veterans’ benefits appeals took an average of seven years to complete, with one in four-teen veterans dying while the appeal was pending. These grim statistics, combined with an adjudication process described as an administrative “hamster wheel,” are untenable in a benefits system statutorily …

Faculty List

Missouri Law Review

No abstract provided.

Table Of Contents

Missouri Law Review

No abstract provided.

The Land Of Opportunity Zones: Deferring Taxable Capital Gains Through Investments In Low-Income Communities, Reid S. Vardell

Missouri Law Review

The market reserve of unrealized capital gains in the United States has grown to an estimated $6 trillion. A new program provides a novel way to incentivize investors into realizing those gains but deferring recognition, while at the same time helping to revitalize areas of America that need it most.

Second Injury Funds Nationally And In Missouri – Liability, Functionality, And Viability In Modern Times, Rhett Buchmiller

Missouri Law Review

A Second Injury Fund (“SIF”) is a statutory form of workers’ compensation relief operating under state law. SIFs allow employers to reduce their own liability for a worker’s injury if part of the harm from that injury was caused by a previously existing disability. The need for SIFs arises from the possibility that workers with prior injuries who are then reinjured are likely to experience greater harm than other workers. As a result, employers could be exposed to greater liability, which might incentivize employers to discriminate against potential employees with previous injuries.

Honey Badger Does Care About First Amendment Protections In Trademark Law, Dana Kramer

Missouri Law Review

In his viral YouTube video, The Crazy Nastyass Honey Badger, comedian Christopher Gordon narrates a honey badger’s actions as it hunts cobras and eats larvae from a beehive: “But look, the honey badger doesn’t care. It’s getting stung like a thousand times. It doesn’t give a shit.” Shortly after Gordon’s video went viral, Drape Creative, Inc. and Papyrus-Recycled Greetings, Inc. began producing greeting cards with catchphrases from Gordon’s YouTube video even though the companies did not have a licensing agreement with Gordon. Subsequently, in Gordon v. Drape Creative, Inc., Gordon sued those two companies for trademark infringement.

Breaking The Ban: Sports Gambling, Anti-Commandeering, And Lots And Lots Of Money, George R. Brand

Missouri Law Review

While there are myriad factors impacting historical trends in gambling revenues across America, this Note will focus specifically on the legal treatment of sports gambling. In 1992, Congress passed the Professional and Amateur Sports Protection Act (“PASPA”), which banned sports gambling nationwide, with a few exceptions such as Las Vegas. Under PASPA, all states had a one-year grace period after the statute went into effect where they could legalize sports gambling within their state and escape PASPA’s pending ban. Although New Jersey failed to take advantage of this loophole during the grace period, state legislators attempted to legalize sports gambling …

Actual Agreement, Shared Meaning Analysis, And The Invalidation Of Boilerplate: A Response To Professors Kar And Radin, Steven W. Feldman

Missouri Law Review

In their February 2019 article in the Harvard Law Review, Pseudo-Contract And Shared Meaning Analysis, Professors Robin Bradley Kar and Margaret Jane Radin argued that, notwithstanding its physical presence in the document (or on a computer screen), boilerplate without actual agreement lacks contractual force.

The authors advocated the technique of shared meaning analysis as a solution to the challenges presented by boilerplate contracts. By referring to “shared meaning,” Kar and Radin proposed that courts enforce “[t]he meaning that parties produce and agree to during contract formation that is most consistent with the presupposition that both were using language cooperatively to …

How Evidence Of Subsequent Remedial Measures Matters, Bernard Chao, Kylie Santos

Missouri Law Review

Federal Rule of Evidence 407 prohibits plaintiffs from introducing evidence of subsequent remedial measures to show that the defendant is to blame. Among its purported justifications, the rule prevents hindsight bias from unduly influencing jury decisions. Nonetheless, plaintiffs often take advantage of the rule’s numerous exceptions to introduce evidence of remedial measures for other purposes (e.g. to prove feasibility). Fearing that the exceptions could swallow the rule, some courts will even exclude evidence that fits into one of these exceptions because it is ostensibly too prejudicial. Alternatively, other courts instruct juries that they should only use the evidence for the …

Safety And Efficacy Of Orthopaedic Surgical Devices Under The Fda’S Updated Premarket Notification Program, Frank Griffin

Missouri Law Review

Orthopaedic surgical devices are recalled 11.5 times more when they obtain U.S. Food and Drug Administration (“FDA”) clearance by Premarket Notification (“510(k)”) than when they are cleared via the more vigorous Pre-market Approval (“PMA”) review. Recall of implanted orthopaedic devices can be devastating for patients – especially if the device must be removed or revised. 510(k) approval is also associated with other negative outcome issues among orthopaedic devices – including outlier devices, new devices underperforming their predicate ancestors, and significant statistical risks – which are discussed in this paper. In November 2018, the FDA announced changes to 510(k) including: (1) …

In Custodia Legis: Implied Warranty Of Habitability Procedure In Missouri, Connor M. Sosnoff

Missouri Law Review

The common law has changed drastically in its treatment of tenants who rent their living spaces from landlords. Over the course of the twentieth century, property doctrine has evolved in response to an ever changing society. Although early common law failed to recognize the relationship between land-lord and tenant as a contractual relationship, modern common law has developed to treat the relationship as such. The implication of contractual principles upon the relationship has increased the scope of duties landlords owe ten-ants in exchange for the tenants’ agreed upon rent.

Endangering Missouri’S Captive Cervid Industry, Lauren Hunter

Missouri Law Review

This Note seeks to explore the validity of regulations proposed by the Commission to prevent the spread of chronic wasting disease (“CWD”) – a fatal neurodegenerative disease – in cervids, such as white-tailed deer. Part II discusses the facts and circumstances surrounding the Missouri Supreme Court’s decision in Hill v. Missouri Department of Conservation. Part III dissects the delicate balance between private property interests and government interests, the scope of the Commission’s regulatory authority, as well as the driving forces behind the “right-to-farm” amendment to the Missouri Constitution. Part IV unpacks the court’s reasoning in Hill before concluding with a …

Masthead

Missouri Law Review

No abstract provided.

Copyright

Missouri Law Review

No abstract provided.

Table Of Contents

Missouri Law Review

No abstract provided.

Digital Sampling V. Appropriation Art: Why Is One Stealing And The Other Fair Use? A Proposal For A Code Of Best Practices In Fair Use For Digital Music Sampling, Melissa Eckhause

Missouri Law Review

This Article examines the disparate treatment of music and visual arts sampling under copyright law. Not only does this Article argue that the more liberal fair use principles adopted in recent visual arts cases should be applied to digital music sampling, but it also sets forth a preliminary Code of Best Practices in Fair Use for Digital Music Sampling (“Digital Music Sampling Code”).

Uncorrected Injustice: Plain Error Review Of Misapplied Sentencing Law, Alec D. Guy

Missouri Law Review

Criminal convictions often result in a restriction on the defendant’s freedom and a deprivation of the defendant’s liberty. Given the gravity of these consequences, there are multiple procedures the court must follow not only in determining guilt but also in imposing a sentence. Sentencing ranges are an essential component of criminal law. In Missouri, sentencing ranges are found in statutes, and these statutes help trial judges determine what sentence to impose. Unfortunately, these guidelines can be incorrectly applied. If these errors are not addressed at the trial level, the appellate process can provide relief. However, interesting questions arise when the …

Faculty List

Missouri Law Review

No abstract provided.

A Social Norm Theory Of Regulating Housing Speech Under The Fair Housing Act, Stephanie M. Stern

Missouri Law Review

The Fair Housing Act’s prohibition of discriminatory housing statements presents a puzzle. This provision regulates housing speech, such as advertisements and notices, more robustly than acts of housing discrimination (e.g., discriminatory refusals to rent or sell). It extends liability regardless of intent and, unlike other provisions in the Fair Housing Act, does not exempt small-scale landlords from liability. Making discriminatory housing statements legally actionable also burdens commercial speech, diverts enforcement resources from discriminatory refusals to rent or sell, and gives rise to other, often more costly, forms of communicating preferences in residential real estate transactions. Why accord such strong protection …

Widening The Power Gap: The Eighth Circuit’S Stringent Requirements For Class Actions In Environmental Contamination Cases, Emily Holtzman

Missouri Law Review

Pipeline construction is booming in the United States, yet it remains a polarizing topic for many because of environmental concerns. On the one hand, pipelines bring increased energy independence for the United States and are one of the safest ways to transport oil and gas.At the same time, fears of environmental damage have led to a growing and fierce opposition to pipeline construction. After the massive offshore rig spill in the Gulf of Mexico in 2010, resistance to new projects like the Keystone Pipeline has received widespread media coverage. The protests of the Dakota Access Pipeline on the Standing Rock …

Speech As Speech: “Professional Speech” And Missouri’S Informed Consent For Abortion Statute, Michael J. Essma

Missouri Law Review

Does life begin at conception? Do women need to see a sonogram to make an informed decision about whether they want an abortion? Some state legislatures believe so. Laws mandating politically driven doctor-patient dialogue affect one of the hallmarks of the physician-patient relationship: a patient’s trust in the physician’s expertise. The common law and statutory requirement that a patient provide informed consent for a medical procedure facilitates the development of trust between patient and physician by allowing the patient to understand the procedure and discuss her options with her physician. However, provisions of abortion-specific informed consent statutes that require physicians …

Neutralizing Access To Justice: Criminal Defendants’ Access To Justice In A Net Neutrality Information World, Ashley Krenelka Chase

Missouri Law Review

This Article examines net neutrality and its impact on criminal defendants’ ability to access the courts – and justice – through access to legal information. Research in the American legal system has moved largely online, and print resources are becoming increasingly expensive and, therefore, scarcer. The move to online legal research presents difficult issues in light of the recent demise of net neutrality: If meaningful and speedy access to the Internet becomes dependent upon being able to afford an Internet “fast lane,” users will be divided into the haves and the have-nots. Criminal defendants will surely fall into the latter …