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Full-Text Articles in Law

The Federal Sentencing Guidelines: Some Valedictory Reflections Twenty Years After Apprendi, Frank O. Bowman Iii Jun 2021

The Federal Sentencing Guidelines: Some Valedictory Reflections Twenty Years After Apprendi, Frank O. Bowman Iii

Faculty Publications

This Article reflects on the author's professional experience and intellectual evolution in relation to federal sentencing policy and the Federal Sentencing Guidelines before and after the Supreme Court's decision in Apprendi v. New Jersey.

The account begins with the author's first encounters with the Guidelines when he was a zealous Assistant U.S. Attorney, continues through his transition to teacher, scholar, policy advocate, and occasional sentencing consultant, and concludes with the author pessimistic about the prospects of meaningful federal sentencing reform.

The utility, if any, of these musings will lie partly in the fact that the author ...


On The Cusp Of The Next Medical Malpractice Insurance Crisis, Philip G. Peters Jr. May 2021

On The Cusp Of The Next Medical Malpractice Insurance Crisis, Philip G. Peters Jr.

Faculty Publications

Medical malpractice claims are dwindling. Total payouts are far lower than during the 2002 crisis. Yet, insurance industry profits have been sinking for a decade and are nearly in the red. After a dozen years with a “soft” insurance market, we are now on the cusp of yet another malpractice insurance crisis.

How can profits be in peril if claims have dwindled and payouts are historically low?
Answering that question requires an understanding of the insurance cycle. The cycle periodically transforms gradual increases in costs and gradual decreases in revenue into explosive increases in premiums.

The industry’s financial statistics ...


Shakespeare In The Courts, Douglas E. Abrams May 2021

Shakespeare In The Courts, Douglas E. Abrams

Faculty Publications

This article continues the theme of recent “Writing It Right” articles in the Journal of the Missouri Bar. These articles describe how federal and state judges today frequently accent their opinions’ substantive or procedural rulings with references to cultural markers that can resonate with the advocates, parties, and judges who comprise the opinions’ readership. The courts’ broad array of cultural references demonstrates versatility. Some of my early articles in the Journal profiled judicial opinions that referenced terminologies, rules, and traditions of baseball, football, and other sports. Together these sports’ mass audiences help define American culture.

Later my Journal articles profiled ...


The Odious Intellectual Company Of Authority Restricting Second Amendment Rights To The “Virtuous”, Royce De R. Barondes Apr 2021

The Odious Intellectual Company Of Authority Restricting Second Amendment Rights To The “Virtuous”, Royce De R. Barondes

Faculty Publications

To the woes of the victims of American over-criminalization, we can add deprivation of the suitable tools for self-defense during national emergency and civil unrest. Federal law disarms “unlawful users” of controlled substances (including medical marijuana), and imposes a permanent firearms ban on substantially all those with prior felony convictions. A notable exception is made for white-collar criminals with felony violations of antitrust and certain business practice statutes.

The constitutionality of these restrictions typically is founded on the view that one is tainted as “non-virtuous” for any serious criminal conviction, which includes any felony conviction. Using extensive sampling, this article ...


Beyond Stress Reduction: Mindfulness As A Skill For Developing Authentic Professional Identity, Richard C. Reuben Apr 2021

Beyond Stress Reduction: Mindfulness As A Skill For Developing Authentic Professional Identity, Richard C. Reuben

Faculty Publications

Mindfulness is often touted in the legal field for its capacity to help reduce stress and improve focus through the management of distractions. However, the potential contributions of mindfulness practice for the legal profession extend beyond stress reduction' and include great promise for helping lawyers understand who they are as members of the legal profession - that is, their professional identity. This knowledge is empowering because it allows lawyers facing ethical quandaries to make choices that better align their professional values with their personal values, rather than aligning their personal values with professional values and societal expectations of success. In so ...


Book Review: Social Media And Democracy: The State Of The Field And Prospects For Reform, Cynthia W. Bassett Apr 2021

Book Review: Social Media And Democracy: The State Of The Field And Prospects For Reform, Cynthia W. Bassett

Faculty Publications

Social Media and Democracy illuminates the empirical social science research done to date to tease apart the effects social media has had on representative democracies. It is a collection of essays by academic social scientists researching the intersection of social media and democracy from a variety of angles.


The Establishment Clause: Its Original Public Meaning And What We Can Learn From The Plain Text, Carl H. Esbeck Feb 2021

The Establishment Clause: Its Original Public Meaning And What We Can Learn From The Plain Text, Carl H. Esbeck

Faculty Publications

Modern times in church-state relations began in 1947 with the Supreme Court’s decision in Everson v. Board of Education. The justices in both the majority and dissent said they were interpreting the Establishment Clause based on the intent of the founding generation. However, rather than looking to Congress’s lawmaking in the summer of 1789 that led to the First Amendment, the justices relied on the Virginia disestablishment from four years prior, as well as the efforts of just two statesmen, James Madison and Thomas Jefferson.

For the next half century, the High Court’s search was for events ...


Tough Conversations About Race: Let The Book Start The Discussion, Cynthia W. Bassett, Kara Phillips Jan 2021

Tough Conversations About Race: Let The Book Start The Discussion, Cynthia W. Bassett, Kara Phillips

Faculty Publications

Discussing racism is difficult, both for those who have experienced it and those who are seeking to understand its effect on others. The authors suggest that book discussion groups can help lawyers and students to have these difficult conversations.


Arbitration In The Age Of Covid: Examining Arbitration's Move Online, Amy J. Schmitz Jan 2021

Arbitration In The Age Of Covid: Examining Arbitration's Move Online, Amy J. Schmitz

Faculty Publications

Arbitration has been moving online over time with the growth of the Internet and Online Dispute Resolution (“ODR”), which includes use of technology to assist online negotiation, mediation, arbitration, and variations thereof. Online Arbitration (“OArb”) is nonetheless a unique subset of ODR because it usually culminates in a final and binding award by a neutral third party that is enforceable under the Federal Arbitration Act (“FAA”). Indeed, I have written about OArb on prior occasions, due to its unique status under the FAA and other arbitration laws. However, OArb was relatively limited until the COVID-19 pandemic sparked the acceleration of ...


Arbitration In The Age Of Covid: Examining Arbitration's Move Online, Amy J. Schmitz Jan 2021

Arbitration In The Age Of Covid: Examining Arbitration's Move Online, Amy J. Schmitz

Faculty Publications

Arbitration has been moving online over time with the growth of the Internet and Online Dispute Resolution ("ODR"), which includes use of technology to assist online negotiation, mediation, arbitration, and variations thereof Online Arbitration ("OArb ") is nonetheless a unique subset of ODR because it usually culminates in a final and binding award by a neutral third party that is enforceable under the Federal Arbitration Act ("FAA"). Indeed, I have written about OArb on prior occasions, due to its unique status under the FAA and other arbitration laws. However, OArb was relatively limited until the COVID-19 pandemic sparked the acceleration of ...


Mere Common Ownership And The Antitrust Laws, Thomas A. Lambert Nov 2020

Mere Common Ownership And The Antitrust Laws, Thomas A. Lambert

Faculty Publications

"Common ownership," also called "horizontal shareholding," refers to a stock investor's ownership of minority stakes in multiple competing firms. Recent empirical studies have purported to show that institutional investors' common ownership reduces competition among commonly owned competitors. "Mere common ownership" is horizontal shareholding that is not accompanied by any sort of illicit agreement, such as a hub-and-spoke conspiracy, or the holding of a control-conferring stake. This Article considers the legality of mere common ownership under the U.S. antitrust laws. Prominent antitrust scholars and the leading treatise have concluded that mere common ownership that has the incidental effect of ...


Amicus Curiae Briefs: A Message From The 7th Circuit, Douglas E. Abrams Nov 2020

Amicus Curiae Briefs: A Message From The 7th Circuit, Douglas E. Abrams

Faculty Publications

Like other brief writers, the amicus brief’s writer must heed the court’s rules of practice and procedure, including rules that prescribe a brief’s maximum page length. But a brief writer can meet the court’s circumstances and expectations without going to the max. A few months before he ascended to the Supreme Court bench in 1943, D.C. Circuit Judge Wiley B. Rutledge advised advocates to strike a balance by being “as brief as one can be consistent with adequate and clear presentation of his case."

An amicus’ prudent approach to concise brief writing is to adapt ...


Distorted Drug Patents, Erika Lietzan Oct 2020

Distorted Drug Patents, Erika Lietzan

Faculty Publications

Drug patents are distorted. Unlike most other inventors, drug inventors must complete years of testing to the government’s specifications and seek government approval to commercialize their inventions. All the while, the patent term runs. When a drug inventor finally launches a medicine that embodies the invention, only a fraction of the patent life remains. And yet, conventional wisdom holds — and empirical studies show — that patent life is essential to innovation in the pharmaceutical industry, perhaps more so than any other inventive industry. Congress tried to do something about this in 1984, authorizing the Patent and Trademark Office to “restore ...


References To Children's Stories And Fairy Tales In Judicial Opinions And Written Advocacy, Douglas E. Abrams Sep 2020

References To Children's Stories And Fairy Tales In Judicial Opinions And Written Advocacy, Douglas E. Abrams

Faculty Publications

Jones v. State is typical of recent state and federal court decisions that have spiced substantive or procedural points with references to classic children’s stories or classic fairy tales. These literary resources have won places in American popular culture and are likely generally familiar to readers, especially when (as in Jones) the court provides any necessary context explaining the resource’s relevance to the decision.

In previous Journal of The Missouri Bar articles, I have written about judges’ invocation of an array of influential cultural markers that are generally familiar to Americans. These articles explored written opinions that accompanied ...


After Espinoza: What's Left Of The Establishment Clause?, Carl H. Esbeck Aug 2020

After Espinoza: What's Left Of The Establishment Clause?, Carl H. Esbeck

Faculty Publications

Consistent with the Establishment Clause, the Supreme Court had permitted the government to fund public and private K-12 schools, so long as any direct aid was not diverted to an explicitly religious purpose. In Espinoza v. Montana Dept. of Rev., the Court held that when there is a government program with a secular purpose, such as education, the Free Exercise Clause requires that the program be available without regard to religion. Clearly the Religion Clauses have undergone a major transformation since the days of no parochial school aid whatsoever in the 1970s and 80s. So, it bears asking: What work ...


Greenwashing No More: The Case For Stronger Regulation Of Environmental Marketing, Robin M. Rotman, Chloe J. Gossett, Hope D. Goldman Jul 2020

Greenwashing No More: The Case For Stronger Regulation Of Environmental Marketing, Robin M. Rotman, Chloe J. Gossett, Hope D. Goldman

Faculty Publications

Fraudulent and deceptive environmental claims in marketing (sometimes called “greenwashing”) are a persistent problem in the United States, despite nearly thirty years of efforts by the Federal Trade Commission (FTC) to prevent it. This Essay focuses on a recent trend in greenwashing - fraudulent “organic” claims for nonagricultural products, such as home goods and personal care products. We offer three recommendations. First, we suggest ways that the FTC can strengthen its oversight of “organic” claims for nonagricultural products and improve coordination with the USDA. Second, we argue for inclusion of guidelines for “organic” claims in the next revision of the FTC ...


The Limits Of Antitrust In The 21st Century, Thomas A. Lambert Jun 2020

The Limits Of Antitrust In The 21st Century, Thomas A. Lambert

Faculty Publications

Antitrust is having a moment. Commentators and policymakers, both progressive and conservative, are calling for increased antitrust enforcement to address all manner of social ills. From technology platforms' power over speech and encroachments on user privacy to wage stagnation in more concentrated labor markets, to competition softening from ever-larger index funds, to growing income inequality, reduced innovation, and threats to democracy itself - the list of maladies for which antitrust has been proposed as a remedy goes on and on.

This Article revisits The Limits of Antitrust in light of the current antitrust moment. Part I describes the central components of ...


Reflections On Covid-19, Insurance, Business Interruption, Systemic Risk, And The Future, Robert H. Jerry Ii Jun 2020

Reflections On Covid-19, Insurance, Business Interruption, Systemic Risk, And The Future, Robert H. Jerry Ii

Faculty Publications

The COVID-19 pandemic is a major loss event for the insurance industry. This chapter begins with an overview of the pandemic’s most significant insurance implications. Because business interruption has been the most prominently discussed of these impacts, the second part of this chapter takes a closer look at business interruption insurance. This part describes how markets for this coverage are structured in the U.S., and then undertakes a detailed analysis of one of the most common business interruption policy forms, demonstrating that some aspects of this form, insofar as pandemic-caused business interruption is concerned, were not drafted with ...


The Origins And Future Of Global Health Law: Regulation, Security, And Pluralism, Sam F. Halabi May 2020

The Origins And Future Of Global Health Law: Regulation, Security, And Pluralism, Sam F. Halabi

Faculty Publications

The COVID-19 pandemic has presented a global health crisis unlike any seen in the seventy-five years since the United Nations and the World Health Organization were formed - one that is killing people, spreading human suffering, and upending people's lives. But this is much more than a health crisis. It is a human crisis. The coronavirus disease (COVID-19) is attacking societies at their core. It is therefore a crucial point around which to focus the capability of national and global institutions to address this essential threat to human health and life.

The purposes of this Article are to revisit and ...


Measuring "Access To Justice" In The Rush To Digitize, Amy J. Schmitz May 2020

Measuring "Access To Justice" In The Rush To Digitize, Amy J. Schmitz

Faculty Publications

Access to Justice (A2J) is the hot topic of the day, energizing Twitter and judges alike. Meanwhile, professors and policymakers join in song, singing the praises of online dispute resolution (ODR) as means for expanding A21. This is because ODR uses technology to allow for online claim diagnosis, negotiation, and mediation without the time, money, and stress of traditional court processes. Indeed, courts are now moving traffic ticket, condominium, landlord/tenant, personal injury, debt collection, and even divorce claims online. The hope is that online triage and dispute resolution systems will provide means for obtaining remedies for self-represented litigants (SRLs ...


Addressing The Class Claim Conundrum With Online Dispute Resolution, Amy J. Schmitz Apr 2020

Addressing The Class Claim Conundrum With Online Dispute Resolution, Amy J. Schmitz

Faculty Publications

Consumers with similar claims in the United States (U.S.) often join forces to launch representative, or "class", actions. This allows them to obtain remedies with little cost and effort and serves a "private attorney general" function by bringing light to purchase problems that public enforcement offices may not have the resources to address. This is especially important for lower dollar claims that are too costly for each consumer to pursue individually.

Nonetheless, some have criticized class actions in the U.S. for forcing settlements and padding the pockets of lawyers, while leaving consumers with minimal pay outs. At the ...


Generalist Judges And Advocates' Jargon, Douglas E. Abrams Jan 2020

Generalist Judges And Advocates' Jargon, Douglas E. Abrams

Faculty Publications

Clerking is a privilege. Fresh out of law school and eager to begin their careers, law clerks at any level of the federal or state judiciary covet the opportunity to learn from a judge’s reservoir of knowledge. But law clerks who anticipate careers writing as advocates are also well-positioned to learn about something that a judge may not know when briefs or other adversary submissions land on the desk.

That “something” concerns jargon, this article’s focus because its use by advocates can impede the court’s understanding of a case’s facts and law. “Jargon” refers to “special ...


The Nagoya Protocol And The Legal Structure Of Global Biogenomic Research, Sam F. Halabi, Michelle Rourke, Gian Luca Burci, Rebecca Katz Jan 2020

The Nagoya Protocol And The Legal Structure Of Global Biogenomic Research, Sam F. Halabi, Michelle Rourke, Gian Luca Burci, Rebecca Katz

Faculty Publications

As life sciences technologies have advanced, so too has the potential for these international collaborations to lead to breakthrough medicines, enhance food security, and protect ecological systems. The linchpin of this progress is the development of high throughput genetic sequencing technologies. Researchers are now able to generate and compare large stretches of DNA - 1 million bases or more - from different sources quickly and inexpensively. Such comparisons can yield massive amounts of information about the role of inheritance in susceptibility to infection and illness as well as responses to environmental influences. In addition, the ability to sequence genomes more quickly and ...


Early Access To Unapproved Medicines In The United States And France, Erika Lietzan Jan 2020

Early Access To Unapproved Medicines In The United States And France, Erika Lietzan

Faculty Publications

In 2018, President Trump signed a federal "right to try" law, claiming that it would give desperately ill patients earlier access to unapproved medicines, by allowing the patient, doctor, and drug company to arrange for access without federal oversight. Critics of the law argued that it would not meaningfully increase access to experimental medicines, because federal oversight was not the obstacle in the first place. And they were correct. U.S. law already permitted companies to provide terminally ill patients with early access to unapproved medicines. The problem was instead that companies did not take advantage of this option. This ...


A No-Contest Discharge For Uncollectible Student Loans, Brook E. Gotberg, Matthew Bruckner, Dalie Jimenez, Chrystin Ondersma Jan 2020

A No-Contest Discharge For Uncollectible Student Loans, Brook E. Gotberg, Matthew Bruckner, Dalie Jimenez, Chrystin Ondersma

Faculty Publications

Over forty-four million Americans owe more than $1.6 trillion in student loan debt. This debt is nearly impossible to discharge in bankruptcy. Attempting to do so may require costly and contentious litigation with the Department of Education. And because the Department typically fights every case, even initial success can be followed by years of appeals. As a result, few student loan borrowers attempt to discharge their student loan debt in bankruptcy.

In this Article, we call on the Department of Education to develop a set of ten easily ascertainable and verifiable circumstances in which it will not contest a ...


References To Movies In Judicial Opinions And Written Advocacy, Part 2, Douglas E. Abrams Nov 2019

References To Movies In Judicial Opinions And Written Advocacy, Part 2, Douglas E. Abrams

Faculty Publications

In the Journal’s September- October issue, Part I of this article sampled recent federal and state judicial opinions that cite themes, scenes, or characters from movies listed on the American Film Institute (AFI) “100 Greatest American Films of All Time.” This Part II picks up where Part I left off. The discussion below samples recent judicial opinions that cite other well-known movies that have captivated American audiences without winning places on the “100 Greatest” list. Part II concludes by explaining why brief writers should feel comfortable following the judges’ lead by carefully using movie references to help make written ...


Assumptions About Terrorism And The Brandenburg Incitement Test, Christina E. Wells Oct 2019

Assumptions About Terrorism And The Brandenburg Incitement Test, Christina E. Wells

Faculty Publications

The incitement standard announced in Brandenburg v. Ohio is one of the most familiar tests in the Supreme Court's jurisprudence. It prohibits government officials from punishing advocacy of illegal activity unless it is directed and likely to imminently incite such activity. Brandenburg's standard has become a pillar of free speech law, allowing government officials to protect public safety by punishing only speech intended and likely to create an imminent danger of harm, while protecting even the most abhorrent of speakers from suppression of their speech simply because government officials fear or dislike it. Terrorist advocacy, however, is putting ...


References To Movies In Judicial Opinions And Written Advocacy, Part 1, Douglas E. Abrams Sep 2019

References To Movies In Judicial Opinions And Written Advocacy, Part 1, Douglas E. Abrams

Faculty Publications

In opinions in cases with no claims or defenses concerning movies or the movie industry, trial and appellate judges often help explain substantive or procedural points, or help embellish the discussion, with references to themes, scenes, or characters from well-known films that have held Americans’ attention. Sometimes the reference appears in an opinion of the court, and sometimes it appears in a concurring or dissenting opinion.


Vouchers And Affordable Housing: The Limits Of Choice In The Political Economy Of Place, Rigel C. Oliveri Jul 2019

Vouchers And Affordable Housing: The Limits Of Choice In The Political Economy Of Place, Rigel C. Oliveri

Faculty Publications

America's housing segregation problem, and the direct role of government and private actors in creating it, is well documented. What to do about it is less clear. And even when consensus develops about particular strategies, they can be difficult to implement because of significant headwinds that impede change. These headwinds-including market forces, government policies, and private prejudices-continue to stymie progress, and even well-intentioned reform efforts can fail at best and lead to negative consequences at worst. This piece seeks not to provide answers, but rather to describe one such set of reforms and headwinds and to propose some modest ...


Relational Preferences In Chapter 11 Proceedings, Brook E. Gotberg Jul 2019

Relational Preferences In Chapter 11 Proceedings, Brook E. Gotberg

Faculty Publications

It is no secret that creditors hate so-called "preference" actions, which permit a debtor to recover payments made to creditors on the eve of bankruptcy for the benefit of the estate. Nominally, preference actions are intended to equalize the extent to which each unsecured creditor must bear the loss of a bankruptcy discharge, or to discourage creditors from rushing to collect from the debtor in such a way that will push an insolvent debtor into bankruptcy. But empirical evidence strongly suggests that, at least in chapter 11 reorganization proceedings, preference actions do not fulfill either of these stated goals. Interviews ...