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It's A Blessing, Douglas E. Abrams Dec 2008

It's A Blessing, Douglas E. Abrams

Faculty Publications

No abstract provided.


Table Of Contents - Issue 4 Nov 2008

Table Of Contents - Issue 4

Missouri Law Review

Table of Contents - Issue 4


Cumulative Subject Index For Volumes 72-73 Nov 2008

Cumulative Subject Index For Volumes 72-73

Missouri Law Review

Cumulative Subject Index for Volumes 72-73


Does It Make A Difference - Granting Public Employees The Right To Collectively Bargain, Amanda Stogsdill Nov 2008

Does It Make A Difference - Granting Public Employees The Right To Collectively Bargain, Amanda Stogsdill

Missouri Law Review

In Independence-National Education Ass'n v. Independence School District, the Missouri Supreme Court granted public employees the right to collectively bargain. This holding breathed new life into an argument more than sixty years old: that the Missouri Constitution grants both public and private sector employees the right to collectively bargain. However, a close reading of this seemingly landmark case shows that Missouri's highest court smothered the numerous possibilities afforded by this holding before they could be tested by both public employers and public employees. This Note will argue that the Missouri Supreme Court's holding was unnecessary and affords ...


Split On Sanctioning Pro Se Litigants Under 28 U.S.C. 1927: Choose Wisely When Picking A Side, Eighth Circuit, The, Kelsey Whitt Nov 2008

Split On Sanctioning Pro Se Litigants Under 28 U.S.C. 1927: Choose Wisely When Picking A Side, Eighth Circuit, The, Kelsey Whitt

Missouri Law Review

In recent years, an increasing number of pro sel litigants have appeared in federal courts. Between October 2003 and September 2004, federal district courts had over 20,000 cases filed by pro se litigants. In fact, "pro se litigants appeared in thirty-seven percent of all cases.' The increase of pro se litigation is attributed to several factors, including the rising cost of litigation combined with the decrease of funding for legal services, the negative public perception of lawyers, and the rise of do-it-yourself legal resources. Once pro se litigants enter the federal court system, their presence multiplies the resources spent ...


Internationalism Of American Federalism: Missouri And Holland, The, Judith Resnik Nov 2008

Internationalism Of American Federalism: Missouri And Holland, The, Judith Resnik

Missouri Law Review

This Earl F. Nelson Lecture, given at the University of Missouri School of Law's Symposium, Return to Missouri v. Holland: Federalism and International Law, developed from and overlaps with a series of articles including Ratifying Kyoto at the Local Level: Sovereigntism, Federalism, and Translocal Organizations of Government Actors (TOGAs), 50 ARIZ. L. REV. 709 (2008) (with Joshua Civin and Joseph Frueh); Lessons in Federalism from the 1960s Class Action Rule and the 2005 Class Action Fairness Act: "The Political Safeguards'" ofAggregate Translocal Actions, 156 U. PA. L. REv. 1929 (2008); Law as Affiliation: "Foreign " Law, Democratic Federalism, and the ...


Foreword, Margaret E. Mcguinness Nov 2008

Foreword, Margaret E. Mcguinness

Missouri Law Review

Columbia, Missouri is a fitting venue at which to continue the conversation about Missouri v. Holland and explore the intersection of law-making at the international, national and sub-national levels. This symposium revisits the debate over national and local control over foreign affairs and brings together the constitutional doctrinal discussion and accounts of the globalization of regulation that consider the complexity of influences operating within and between multiple systems of law. Both the factual background of Holland (primarily a case about environmental regulation) and the doctrinal context in which it arose (a Supreme Court poised to move toward constitutional endorsement of ...


Missouri V. Holland's Second Holding, Carlos Manuel Vazquez Nov 2008

Missouri V. Holland's Second Holding, Carlos Manuel Vazquez

Missouri Law Review

This legitimate federalism problem, however, does not warrant a complete rethinking of Treaty Power doctrine. It just requires some tinkering around Missouri v. Holland's edges. The solution I propose is far narrower than those proposed by Bradley and Rosenkranz, and unlike their proposed solutions, it is consistent with the Founder's design. I argue that the power to implement treaties under the Necessary and Proper clause is the power to require compliance with treaty obligations. Because aspirational treaty provisions do not impose obligations in any meaningful sense of the term, the clause does not give Congress the power to ...


Putting Missouri V. Holland On The Map, Edward T. Swaine Nov 2008

Putting Missouri V. Holland On The Map, Edward T. Swaine

Missouri Law Review

While I can think of no fitter setting for a symposium on this important topic, it must be admitted that geographically speaking, Missouri v. Holland disappoints. One thrills to the prospect of a divisive dispute between the State of Missouri and a province of the Netherlands - perhaps a sub-national compact on flood control gone sour? It quickly becomes apparent, though, that "Holland" is merely a lower-level federal official. And Missouri's particulars play a limited role in the case, as suggested by the fact that Kansas came to its side in the Supreme Court proceedings. Those who are not students ...


What Story Got Wrong - Federalism, Localist Opportunism And International Law, Paul B. Stephan Nov 2008

What Story Got Wrong - Federalism, Localist Opportunism And International Law, Paul B. Stephan

Missouri Law Review

I first explain the theoretical underpinning of the argument against the inevitability of localist opportunism. I then illustrate the general theory with three examples where the international obligations of the United States can be met without the strong federal supervision that Story deemed necessary and that latter-day nationalists embrace. I first discuss the body of law that was the subject of Swift v. Tyson, namely the rules governing negotiable instruments. Story thought that developing a federal common law was necessary to thwart idiosyncratic, and presumably opportunistic, state decisions. Yet both before and after the overthrow of Swift v. Tyson in ...


Crucial Role Of The States And Private International Law Treaties: A Model For Accommodating Globalization, The, Julian G. Ku Nov 2008

Crucial Role Of The States And Private International Law Treaties: A Model For Accommodating Globalization, The, Julian G. Ku

Missouri Law Review

This brief essay highlights the central and important role that state governments play in the development and integration of private international law treaties into the United States legal system. States play this central role even though, as some of the papers in this symposium have concluded, there are few, if any, constitutional constraints on the ability of the federal government to sign, ratify, and implement treaties that would displace state law. The primacy of states in the integration of private international law, this essay argues, points the way to a model of accommodation of other kinds of treaties affecting traditional ...


Federalism And International Law Through The Lens Of Legal Pluralism, Paul Schiff Berman Nov 2008

Federalism And International Law Through The Lens Of Legal Pluralism, Paul Schiff Berman

Missouri Law Review

In this brief Essay, then, I wish to engage in a thought experiment by looking at both federalism and international law through a pluralist rather than a sovereigntist lens. First, I summarize the pluralist literature and some of its core insights and suggest that scholars interested in international law (and its relationship with domestic law) would do well to consider this literature. Second, I provide a few examples of jurisdictional redundancy operating in the transnational, international, and federalist realm and show how the existence of multiple fora can both empower voices that might otherwise be silenced and effect changes of ...


Tiebout Goes Global: International Migration As A Tool For Voting With Your Feet, Ilya Somin Nov 2008

Tiebout Goes Global: International Migration As A Tool For Voting With Your Feet, Ilya Somin

Missouri Law Review

In this article, I make a tentative effort to plug this hole in the literature. I suggest that the benefits of international foot voting may well be much larger than those of free movement within national borders. Part II briefly summarizes the theory of foot voting and its potential benefits. I focus particularly on the use of exit rights as a form of political participation by which migrants can more effectively choose the public policies under which they live. Crucial benefits of political participation through exit rights include the matching of public policy to diverse preferences, the creation of an ...


Foreign Affairs, International Law, And The New Federalism: Lessons From Coordination, Robert B. Ahdieh Nov 2008

Foreign Affairs, International Law, And The New Federalism: Lessons From Coordination, Robert B. Ahdieh

Missouri Law Review

Even after the departure of two of its most prominent advocates - Chief Justice William Rehnquist and Justice Sandra Day O'Connor - the federalism revolution initiated by the Supreme Court almost twenty years ago continues its onward advance. If recent court decisions and congressional legislation are any indication, in fact, it may have reached a new beachhead in the realm of foreign affairs and international law. The emerging federalism in foreign affairs and international law is of a distinct form, however, with distinct implications for the relationship of sub-national, national, and international institutions and interests. This article draws on the prism ...


Cotenants Trumping Cotenants: The Eighth Circuit Takes A Diverse Stance On Cotenants' Authority Under The Fourth Amendment, Benjamin M. Johnston Nov 2008

Cotenants Trumping Cotenants: The Eighth Circuit Takes A Diverse Stance On Cotenants' Authority Under The Fourth Amendment, Benjamin M. Johnston

Missouri Law Review

Reluctantly, John Adams mailed the envelope addressed to his wife, Abigail, knowing the contents could bring about his death. This letter, mailed to his "dear friend," contained a description of his pleas for independence to the Continental Congress, a description that if located by the British, would most certainly subject him to charges of treason. Immediately after Mr. Adams dispatched his letter, he was approached by a British intelligence officer requesting to review the letter. Mr. Adams denied the officer's request and sent him on his way. Later, when the letter arrived to the unsuspecting Abigail, it was accompanied ...


Elusive Foreign Compact, The, Duncan B. Hollis Nov 2008

Elusive Foreign Compact, The, Duncan B. Hollis

Missouri Law Review

Missouri v. Holland marks one of the great rivalries of foreign affairs law, with Missouri and the federal government squaring off over states' rights limitations on the federal government's treaty-making power.' But the rivalry did not end with that case. Recently, Missouri and the federal government opened a new chapter in their feud over state and federal powers in foreign affairs. This time, however, the constitutional challenge involved an international agreement made by Missouri, not the federal government


Direct Threat Defense Under The Ada: Posing A Threat To The Protection Of Disabled Employees, The, Rene L. Duncan Nov 2008

Direct Threat Defense Under The Ada: Posing A Threat To The Protection Of Disabled Employees, The, Rene L. Duncan

Missouri Law Review

The Americans with Disabilities Act was passed with intentions of eliminating stereotypes and fear towards disabled individuals and their ability to function and contribute to society. In the employment context, the Act will not permit an employer to refuse to hire an individual solely because of that person's disability. However, it will permit the employer to defend such action when limitations caused by an individual's disability rise to the level of a direct threat to the safety of others. When an employer raises such a defense, circuit courts are split as to whether the burden of proving the ...


Missouri V. Holland And Historical Textualism , Michael D. Ramsey Nov 2008

Missouri V. Holland And Historical Textualism , Michael D. Ramsey

Missouri Law Review

This essay does not undertake to say what the Holland rule should be today; instead, it advances a methodology to determine the Constitution's original meaning on the matter. Its approach, for want of a better phrase, I will call "historical textualism." In brief, historical textualism finds constitutional meaning in the specific words of the Constitution's text as they were situated and understood in the context in which they were written. Applying that approach, I find full support for Holland's conclusion in the Constitution's original meaning. That conclusion differs from other studies which have relied on "originalist ...


Resurrecting Missouri V. Holland, Peter J. Spiro Nov 2008

Resurrecting Missouri V. Holland, Peter J. Spiro

Missouri Law Review

This brief essay sketches the constitutional dormancy of Missouri v. Holland and the potential for its activation. The essay first describes how the treatymakers declined the Treaty Power offered them by the Court. In the near century since the ruling, no treaty appears to have depended on the decision for authority. The treatymakers have worked from contrary constitutional premises, establishing a sort of parallel constitutional universe in which the ruling was never handed down. Through these years, Missouri v. Holland has failed accurately to represent prevailing constitutional norms on the question. In other words, arguably, the decision is no longer ...


Federalism And Horizontality In International Human Rights , Margaret E. Mcguinness Nov 2008

Federalism And Horizontality In International Human Rights , Margaret E. Mcguinness

Missouri Law Review

The advent of the international human rights system is one of the many changes to international law since the time Missouri v. Holland was decided. As other contributions to this symposium note, one of the challenging federalism questions raised by Holland in this new era is the effect of international human rights treaties and emerging customary international human rights law on U.S. states. And just as the creation of the international human rights regime has affected domestic analysis of federalism, the international human rights system has itself adjusted to the processes of federalism. The human rights regime is largely ...


First Amendment And Specialty License Plates: The Choose Life Controversy, The, Stephanie S. Bell Nov 2008

First Amendment And Specialty License Plates: The Choose Life Controversy, The, Stephanie S. Bell

Missouri Law Review

This summary will examine the models of specialty license plate creation, the history of "Choose Life" specialty license plates, the litigation surrounding the controversy, and the two differing standards courts have used to distinguish government and private speech: the Fourth Circuit's four-factor test and the Johanns test.


Ethical Considerations In Drafting And Enforcing Consumer Arbitration Clauses, Amy J. Schmitz Oct 2008

Ethical Considerations In Drafting And Enforcing Consumer Arbitration Clauses, Amy J. Schmitz

Faculty Publications

Attorneys face mixed messages regarding consumer arbitration: Mixed professional responsibility rules; mixed legal enforcement; mixed messages from commentators and policymakers; mixed evidence regarding efficiency, cost-savings and fairness. It is therefore doubtful that attorneys would face discipline for drafting or enforcing onerous consumer arbitration provisions they believe in good faith to be lawful. Professional discipline rules, however, merely set the floor for ethical conduct and can only go so far in dictating morals or teaching values. Indeed, an attorney's commitment to ethics and public service "must begin at home." Moreover, the bottom line is: "If you have the wrong values ...


Enforcing Class Arbitration In The International Sphere: Due Process And Public Policy Concerns, S. I. Strong Oct 2008

Enforcing Class Arbitration In The International Sphere: Due Process And Public Policy Concerns, S. I. Strong

Faculty Publications

This article appears to be the first to address the unique issues relating to international class arbitration and to discuss the status of class arbitration in other countries. To date, the only published articles on class arbitration - a dispute resolution mechanism that has been in existence in the United States since the early 1980s - have focused on domestic arbitration. However, with a number of known international class arbitrations in progress, all seated in the United States, questions concerning the transnational legitimacy of the class arbitration process and the ability to enforce class awards under the New York Convention - the primary ...


What The Hein Decision Can Tell Us About The Roberts Court And The Establishment Clause, Carl H. Esbeck Oct 2008

What The Hein Decision Can Tell Us About The Roberts Court And The Establishment Clause, Carl H. Esbeck

Faculty Publications

This extended essay plays off the Supreme Court's recent decision in Hein v. Freedom From Religion Foundation, Inc., 127 S. Ct. 2553 (2007) (plurality opinion), rejecting taxpayer standing where the claim on the merits challenges discretionary actions by officials in the executive branch said to violate the establishment clause. While the matter directly at hand is the scope of taxpayer standing first permitted in Flast v. Cohen (1968), the essay uses the "injury in fact" requirement for standing to delve into the manner by which the four opinions in Hein give us insight into how the Roberts Court will ...


The Patent Lottery: Exploiting Behavioral Economics For The Common Good, Dennis D. Crouch Oct 2008

The Patent Lottery: Exploiting Behavioral Economics For The Common Good, Dennis D. Crouch

Faculty Publications

Lotteries are immensely popular. Players are willing to give the organizer a large monetary cut of every ticket purchase in return for a chance at a jackpot. In some ways, our current patent system operates as a lottery as well. Most patents are relatively worthless, while a few are highly valuable. Reaching the major payout of a highly valuable patent takes perseverance in the face of tremendous uncertainty. Like lottery players, small entrepreneurial companies and individuals have shows signs of bounded rationality. In particular, what I call the patent lottery effect is associated with the phenomena of potential innovators overweighting ...


Curing Consumer Warranty Woes Through Regulated Arbitration, Amy J. Schmitz Oct 2008

Curing Consumer Warranty Woes Through Regulated Arbitration, Amy J. Schmitz

Faculty Publications

This article proposes legislative procedural reforms accounting for the realities of consumer arbitration that have threatened and denied consumers' access to remedies for companies' violations of public, or statutory, warranty remedies under the Magnuson-Moss Warranty Act (MMWA). Furthermore, the Article proposes to clarify and expand the MMWA's current dispute resolution template in order to resolve judicial disagreement regarding the template's application and foster beneficial use of finding arbitration. Accordingly, this is not a call to ban all pre-dispute arbitration clauses in consumer contracts, but is instead an invitation for more politically palatable reforms that preserve both companies' savings ...


Embracing Unconscionability’S Safety Net Function, Amy J. Schmitz Oct 2008

Embracing Unconscionability’S Safety Net Function, Amy J. Schmitz

Faculty Publications

Despite courts' and commentators' denial of morality and focus on efficiency in contract law, fairness and flexibility have remained the bedrocks of the unconscionability doctrine. This Article therefore departs from the popular formalist critiques of unconscionability that urge for the doctrine's demise or constraint based on claims that its flexibility and lack of clear definition threaten efficiency in contract law. Contrary to this formalist trend, this Article proposes that unconscionability is necessarily flexible and contextual in order to serve its historical and philosophical function of protecting core human values. Unconscionability is not frivolous gloss on classical contract law. Instead ...


Trading In The Marketplace Of Ideas: Letters-To-The-Editor And Op-Ed Articles (Part I), Douglas E. Abrams Oct 2008

Trading In The Marketplace Of Ideas: Letters-To-The-Editor And Op-Ed Articles (Part I), Douglas E. Abrams

Faculty Publications

No abstract provided.


Confronting Adr Agreements' Contract/No-Contract Conundrum With Good Faith, Amy J. Schmitz Jul 2008

Confronting Adr Agreements' Contract/No-Contract Conundrum With Good Faith, Amy J. Schmitz

Faculty Publications

This Article explores the intricate problem, or conundrum, of enforcing "Alternative Dispute Resolution ('ADR') agreements" that require mediation or other non-binding dispute resolution procedures. Although public policy supports ADR, courts' inadequate analysis of ADR agreements is threatening their vitality. Instead of properly considering the flexible nature of these agreements, courts assume formalist contract or no-contract conclusions similar to those they impose on what Professor Charles Knapp has termed "contracts to bargain." ADR agreements and other contracts to bargain pose enforcement problems because they require parties' cooperation without specifying what cooperation means or how to enforce such flexible duties. This Article ...


Knowing Which Deanship Is The Right One, R. Lawrence Dessem Jul 2008

Knowing Which Deanship Is The Right One, R. Lawrence Dessem

Faculty Publications

In this Article, I elaborate on this subject and suggest ways in which the dean candidate can avoid the poor fit that might lead to a deanship that is unsatisfactory, either for her as dean or for the law school that otherwise might hire her. In order to maximize the chance of a good fit between the dean candidate and law school, the candidate should (1) carefully plan her law school dean search; (2) conduct thorough discovery concerning schools of potential interest during the search process; (3) be candid and open during the interview process; and (4) take time to ...