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Keynote: Forcing People To Choose Is Paternalistic, Cass R. Sunstein Jun 2017

Keynote: Forcing People To Choose Is Paternalistic, Cass R. Sunstein

Missouri Law Review

It can be paternalistic to force people to choose. Often people do not wish to choose, but both private and public institutions ask or force them to do so, thus overriding their wishes. As a result, people’s autonomy may be badly compromised and their welfare may be greatly reduced. These points have implications for a range of issues in law and policy, suggesting that those who favor active choosing, and insist on it, may well be overriding people’s preferences and values, and thus running afoul of John Stuart Mill’s Harm Principle (for better or for worse). People have limited mental …


Libertarian Quasi-Paternalism, Jacob Goldin Jun 2017

Libertarian Quasi-Paternalism, Jacob Goldin

Missouri Law Review

In many settings, people’s choices vary based on seemingly arbitrary features of the choice environment. Policies that manipulate these features to improve decision-makers’ well-being are paternalistic – unless one takes the unrealistic view that these features are relevant from the perspective of the choosers’ preferences. In such settings, I propose that policy design can be less paternalistic if the only people assumed to be making mistakes are those whose choices are observed to vary based on the arbitrary feature of the choice environment. I discuss several characteristics of such “quasi-paternalistic” policy design and conclude by applying the principle of quasi-paternalism …


Symposium: Evaluating Nudge: A Decade Of Libertarian Paternalism: Foreward: From Gadfly To Nudge: The Genesis Of Libertarian Paternalism, Thomas A. Lambert Jun 2017

Symposium: Evaluating Nudge: A Decade Of Libertarian Paternalism: Foreward: From Gadfly To Nudge: The Genesis Of Libertarian Paternalism, Thomas A. Lambert

Missouri Law Review

Nearly a decade has passed since Richard H. Thaler and Cass R. Sunstein published Nudge: Improving Decisions About Health, Wealth, and Happiness (hereinafter, “Nudge”). The bestselling book drew popular attention to “libertarian paternalism,” a policy approach Thaler and Sunstein had previously proposed in their academic writing. Though somewhat controversial from the start, the notion of libertarian paternalism quickly gained traction among policymakers all over the world. Given Nudge’s success over the last decade in capturing the attention of policymakers and generating concrete policy proposals, it is worth pausing to assess how the libertarian paternalist project is faring. What is working? …


Are We All In This Together? Enforcing Class Arbitration Waivers, Ariel M. Kiefer Jun 2017

Are We All In This Together? Enforcing Class Arbitration Waivers, Ariel M. Kiefer

Missouri Law Review

Mandatory class arbitration waivers are increasingly common in employment agreements. It is estimated that forty-three percent of companies have mandatory class arbitration waivers. Employees sign them because they either do not believe they will ever have a major problem with their employer, they believe arbitration is a cheaper and faster method of dispute resolution, or they simply do not read or understand the clause. This Note discusses the facts surrounding the Eighth Circuit’s decision in Cellular Sales of Missouri to uphold a class arbitration waiver. It analyzes the approach other federal circuit courts have taken in upholding and striking down …


Utilizing Behavioral Insights (Without Romance): An Inquiry Into The Choice Architecture Of Public Decision-Making, Adam C. Smith Jun 2017

Utilizing Behavioral Insights (Without Romance): An Inquiry Into The Choice Architecture Of Public Decision-Making, Adam C. Smith

Missouri Law Review

Behavioral economics has been employed in a number of policy applications over the last decade. From energy requirements to tax compliance to consumer finance, policymakers are increasingly operating under the assumption that people consistently fail to make rational choices. While the benefit of this policy trend remains an open debate, behavioral economists have long neglected a complementary examination of public decision-makers themselves. Comparison of two public agencies influenced by behavioral economics, the U.S. Consumer Financial Protection Bureau and U.K. Behavioural Insights Team, demonstrates how different institutions create divergent policy outcomes across the two agencies in a way that cannot be …


Behavioral Economics Goes To Court: The Fundamental Flaws In The Behavioral Law & Economics Arguments Against No-Surcharge Laws, Todd J. Zywicki, Geoffrey A. Manne, Kristian Stout Jun 2017

Behavioral Economics Goes To Court: The Fundamental Flaws In The Behavioral Law & Economics Arguments Against No-Surcharge Laws, Todd J. Zywicki, Geoffrey A. Manne, Kristian Stout

Missouri Law Review

During the past decade, academics – predominantly scholars of behavioral law and economics – have increasingly turned to the claimed insights of behavioral economics in order to craft novel policy proposals in many fields, most significantly consumer credit regulation. Over the same period, these ideas have also gained traction with policymakers, resulting in a variety of legislative efforts, such as the creation of the Consumer Financial Protection Bureau. Most recently, the efforts of behavioral law and economics scholars have been directed toward challenging a number of state laws that regulate retailers’ use of surcharge fees for consumer credit card payments. …


Is The Missouri Sales Tax Being Eroded? Examining A Conflict Among The Executive, Legislative, And Judicial Branches In Missouri, Courtney Lock Jun 2017

Is The Missouri Sales Tax Being Eroded? Examining A Conflict Among The Executive, Legislative, And Judicial Branches In Missouri, Courtney Lock

Missouri Law Review

This Note examines the Supreme Court of Missouri’s holding in Miss Dianna’s School of Dance, Inc. v. Director of Revenue, ascertains the holding’s scope in light of recent statutory amendments, and explores whether Missouri sales tax is at a precipice going forward. Part II discusses the facts and holding of Miss Dianna’s School of Dance. Part III explores the Supreme Court of Missouri’s fluctuating interpretations of the statute. Part IV provides an indepth analysis of the Supreme Court of Missouri’s reasoning in Miss Dianna’s School of Dance and its relevance to the interpretation of the statute going forward, including an …


Banning The Box In Missouri: A Statewide Step In The Right Direction, Jessica Chinnadurai Jun 2017

Banning The Box In Missouri: A Statewide Step In The Right Direction, Jessica Chinnadurai

Missouri Law Review

Missouri, like many other states, has evaluated and decided to address employment discrimination that occurs as a result of requiring people with a criminal history to disclose that information during the initial phases of the hiring process. Efforts to eliminate bias have been seen through the “Ban the Box” movement. The movement generally advocates removing the box applicants check if they have a criminal history, opting instead to delay this question for later in the employment process. This Note analyzes the advantages and disadvantages of adopting this legislation and evaluates whether doing so leads to a lower risk of employment …


Check Yes For Checkpoints: Suspicionless Stops And Ramifications For Missouri Motorists, Conner Harris Jun 2017

Check Yes For Checkpoints: Suspicionless Stops And Ramifications For Missouri Motorists, Conner Harris

Missouri Law Review

One of the great advantages of living in a free society is the enjoyment of general privacy and freedom from unwarranted interference in one’s personal affairs. This advantage benefits citizens in both their private and public interactions. For example, it is expected one could drive to the store across town, the mall in a neighboring city, or somewhere on the other side of the country uninterrupted and unhindered. The Fourth Amendment to the United States Constitution codifies this privacy expectation as a right to be enjoyed by all within its reach. Specifically, the Fourth Amendment protects against “unreasonable searches and …


Missed The Mark: The Supreme Court Of Missouri’S Faulty Application Of Strict Scrutiny To The Right To Bear Arms, Abigail E. Williams Apr 2017

Missed The Mark: The Supreme Court Of Missouri’S Faulty Application Of Strict Scrutiny To The Right To Bear Arms, Abigail E. Williams

Missouri Law Review

The discussion of the scope and potential limitations of the Second Amendment has been at the forefront of the United States’ political debate in recent years. Prior to 2008, Second Amendment jurisprudence was unclear as to what could constitute a lawful restriction of an individual’s right to bear arms. In 2008, the U.S. Supreme Court, in District of Columbia v. Heller, affirmed the Second Amendment guarantee of the right to bear arms, holding that a Washington, D.C., law that prohibited possessing handguns in the home was unconstitutional. The Court further indicated that nothing in the opinion “should be taken to …


Table Of Contents Apr 2017

Table Of Contents

Missouri Law Review

No abstract provided.


Faculty List Apr 2017

Faculty List

Missouri Law Review

No abstract provided.


Masthead Apr 2017

Masthead

Missouri Law Review

No abstract provided.


Police-Worn Body Cameras: An Antidote To The “Ferguson Effect”?, Alberto R. Gonzales, Donald Q. Cochran Apr 2017

Police-Worn Body Cameras: An Antidote To The “Ferguson Effect”?, Alberto R. Gonzales, Donald Q. Cochran

Missouri Law Review

This Article explores the questions raised by this scenario, focusing on police-worn body cameras, the role these cameras may play in officer-citizen encounters, and the resolution of legal disputes that arise from such encounters. Part II discusses what role, if any, citizen-recorded videos and the effect they have on society play in the prevalence of crime – what has sometimes been called the “Ferguson effect.” Part III explores the role police-worn body cameras could play in counteracting any such effect, addressing arguments in favor of body cameras and exploring their potential to encourage positive police and citizen behavior. Part IV …


Check The Invitation: The Trouble With Appeals Invited By Supreme Court Justices, Michael Gentithes Apr 2017

Check The Invitation: The Trouble With Appeals Invited By Supreme Court Justices, Michael Gentithes

Missouri Law Review

This Article proceeds in four Parts. First, it categorizes invited appeals into the two species discussed above, soft invitations and opinion-briefs, providing a growing catalogue of the latter. In the next two Parts, the Article normatively analyzes those invited appeals, concluding that, while soft invitations have many laudable qualities, opinion-briefs are extremely troubling. Lastly, the Article offers specific advice for practitioners who encounter opinion-briefs, like death penalty abolitionists determining their next move in the wake of Breyer’s Glossip opinion, arguing that they should not accept the authoring Justice’s invitation. Patience is more prudent than accepting an opinion-brief’s request for specific …


An Empirical Reexamination Of State Statutory Compensation For The Wrongly Convicted, Jeffrey S. Gutman Apr 2017

An Empirical Reexamination Of State Statutory Compensation For The Wrongly Convicted, Jeffrey S. Gutman

Missouri Law Review

In Part II, I discuss the cases of Kirk Odom and Santae Tribble brought under the D.C. Act. Those recent cases offer insight into how two different judges approached the difficult remedial questions presented. They also demonstrate how dramatically most statutes undercompensate claimants. In Part III, I describe how I drew data provided by the National Registry of Exonerations, and many other sources, to document which exonerees filed state compensation claims and how those claims were decided. The resulting data show the percentages of exonerees who filed claims and were awarded compensation and the costs of such awards. In Part …


Never Settle For Second Best? Cy Pres Distributions In Securities Class Action Settlements, Brianna S. Hills Apr 2017

Never Settle For Second Best? Cy Pres Distributions In Securities Class Action Settlements, Brianna S. Hills

Missouri Law Review

There is an old adage that one should “never settle for second best.” While this advice is arguably well taken in most areas of life, it is less useful in settlement discussions. In 2015, more federal securities class actions were filed than during the height of the financial crisis in 2008, with more of those cases settling than in any year since 2011.1Consumer class action funds often go largely unclaimed, leaving settlement funds intended to compensate injured plaintiffs unused and undistributed


Resuscitating The Non-Delegation Doctrine: A Compromise And An Experiment, A. J. Kritkos Apr 2017

Resuscitating The Non-Delegation Doctrine: A Compromise And An Experiment, A. J. Kritkos

Missouri Law Review

An autopsy of federal non-delegation jurisprudence reveals an interesting insight: the Supreme Court has never repudiated the theoretical underpinnings of the non-delegation doctrine or questioned its importance in maintaining the separation of powers. Instead, the Court has whittled the non-delegation doctrine down to a nub because of practical concerns with implementing it. First, the Court has stated that there is an insurmountable line-drawing problem that occurs when delineating a permissible delegation from an impermissible one. And second, the Court has asserted that the non-delegation doctrine cannot be seriously enforced in a complex, modern society without disastrous consequences. I argue that …


It’S Probable: Missouri Constitution Article I, Section 15 Requires A Higher Standard To Obtain A Warrant For Real-Time Or Prospective Csli, Aaron Hadlow Apr 2017

It’S Probable: Missouri Constitution Article I, Section 15 Requires A Higher Standard To Obtain A Warrant For Real-Time Or Prospective Csli, Aaron Hadlow

Missouri Law Review

The scope of this Note primarily deals with issues surrounding real-time CSLI, although the issues implicated by article I, section 15 of the Missouri Constitution could apply to historic CSLI as well. Part II of this Note discusses general principles of Fourth Amendment law and the Supreme Court’s treatment of searches and seizures in relation to electronic communications and data. It then discusses the statutory developments empowering law enforcement to use emerging technologies for surveillance purposes. Part III discusses recent developments in search and seizure law. It then discusses Missouri’s recent amendment to its constitution, which provides additional protections for …


Sound And Fury: Substantial Evidence In State V. Bruner, Anthony J. Meyer Apr 2017

Sound And Fury: Substantial Evidence In State V. Bruner, Anthony J. Meyer

Missouri Law Review

This Note argues that the current standard for substantial evidence is both confusing and inconsistent in Missouri case law. In the instant case, the standard for substantial evidence applied by the Missouri Court of Appeals, Southern District, involved weighing the credibility of the evidence when, according to the weight of authority in Missouri case law, the substantial evidence standard is a low one and does not include making determinations of credibility. Substantial evidence would be better defined as any evidence that is more than a mere scintilla that puts a matter in issue


Imputed Liability: How To Determine When Parent Companies Should Be Held Liable For The Patent Infringements Of Their Subsidiary Companies, Emma Tracy Apr 2017

Imputed Liability: How To Determine When Parent Companies Should Be Held Liable For The Patent Infringements Of Their Subsidiary Companies, Emma Tracy

Missouri Law Review

This Note examines the theory and principles behind three traditional methods used to hold parent companies liable for the infringing actions of their subsidiaries. These methods include traditional agency principles of tort law, piercing of the corporate veil, and inducement principles outlined in § 271(b) of the Patent Act. This Note then discusses how these three methods differ in both the underlying theories they employ, and the subsequent outcomes they achieve, when it comes to fundamental issues of inducement liability. This analysis will include what type of conduct is required and what level of knowledge is necessary to impute liability …


Actual Cash Value And Depreciation Of Labor On Homeowner’S Policies, Jessica Peterman Apr 2017

Actual Cash Value And Depreciation Of Labor On Homeowner’S Policies, Jessica Peterman

Missouri Law Review

This Note will examine the arguments concerning the definition of ACV and whether labor can or should be included in the ACV depreciation calculation in Missouri. In addition, this Note will review case law on this issue around the country and the impact of these holdings on insurance companies and consumers.


Copyright Apr 2017

Copyright

Missouri Law Review

No abstract provided.


Table Of Contents Jan 2017

Table Of Contents

Missouri Law Review

No abstract provided.


“Loss” Revisited: A Defense Of The Centerpiece Of The Federal Economic Crime Sentencing Guideline, Frank. O. Bowman Iii Jan 2017

“Loss” Revisited: A Defense Of The Centerpiece Of The Federal Economic Crime Sentencing Guideline, Frank. O. Bowman Iii

Missouri Law Review

I was, for better or worse, one of the principal architects of Section 2B1.1 in its consolidated 2001 form. Over time, I have become a pointed critic both of errors we made in 2001, and of some of the ways the Sentencing Commission has since amended Section 2B1.1. Nonetheless, I still support the basic structure of Section 2B1.1 and its central component – scaling offense seriousness in large measure based on the economic loss caused or intended by the defendant. In particular, I remain convinced that the definition of “loss” adopted in 2001 remains fundamentally sound. Recently, the Missouri Law …


“A Verdict Worthy Of Confidence”: The Weakening Of Brady’S “Materiality” Requirement In Missouri, Robert Wasserman Jan 2017

“A Verdict Worthy Of Confidence”: The Weakening Of Brady’S “Materiality” Requirement In Missouri, Robert Wasserman

Missouri Law Review

In 1993, Reginald Clemons was convicted and sentenced to death for his alleged participation in the brutal rapes and murders of two sisters at the Chain of Rocks Bridge in St. Louis, Missouri. Over twenty years later, and after several unsuccessful appeals by Clemons, the Supreme Court of Missouri vacated his convictions. The court found that the prosecution had failed to disclose evidence to Clemons’s trial counsel that suggested that he may have given his confession involuntarily. The court concluded that this evidence was sufficiently important that the prosecution’s failure to disclose it undermined confidence in the trial court’s verdict


Faculty List Jan 2017

Faculty List

Missouri Law Review

No abstract provided.


Masthead Jan 2017

Masthead

Missouri Law Review

No abstract provided.


Reply To Professor Bowman’S “Loss” Revisited, Daniel S. Guarnera Jan 2017

Reply To Professor Bowman’S “Loss” Revisited, Daniel S. Guarnera

Missouri Law Review

Based on Professor Bowman’s response article, “Loss” Revisited: A Defense of the Centerpiece of the Federal Economic Crime Sentencing Guideline, I am gratified to find that he and I share much common ground. In fact, I believe our respective positions are closer in many ways than his article suggests. I will use this Response primarily to clarify what I see as the key areas of disagreement about the proper role of loss – and, particularly, intended loss – in the economic crime Guidelines. I will then offer a few brief comments about possible directions for reform


Ringing The Bell: The Right To Counsel And The Interest Convergence Dilemma, Lahny R. Silva Jan 2017

Ringing The Bell: The Right To Counsel And The Interest Convergence Dilemma, Lahny R. Silva

Missouri Law Review

I tell my law students that we are gladiators. We slay injustices while protecting liberty. We battle other gladiators, incapacitate violent criminals, and watch over those without a voice. When the people ring the bell signaling the need to restructure the functions of institutions and practices, lawyers enter the arena ready for combat. In America, the inimitable skills of counsel are constitutionally recognized and celebrated. The Framers considered the right to counsel so critical to the republic that it is enshrined in the text of the Sixth Amendment. Whether majorities of the Supreme Court have held this right in such …