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Articles 1 - 30 of 49
Full-Text Articles in Law
Death Of The Challenge To Lethal Injection - Missouri's Protocol Deemed Constitutional Yet Again, Tanya M. Maerz
Death Of The Challenge To Lethal Injection - Missouri's Protocol Deemed Constitutional Yet Again, Tanya M. Maerz
Missouri Law Review
Lethal injection is currently the predominant form of execution nationwide. Most proponents of this method cite the convenience and the humanity of this procedure over past methods of execution. However, lethal injections are fraught with problems such as the specificity and safety of the written procedures themselves, implementation of such procedures, and whether lethal injection and executions in general are constitutional. Most often, prisoners file constitutional challenges to lethal injections under the Eighth Amendment, which prevents imposing cruel and unusual punishment on an American citizen. One of the more recent cases in Missouri cited such a challenge to the implementation …
Constitutional Interpretation Through A Global Lens, Rex D. Glensy
Constitutional Interpretation Through A Global Lens, Rex D. Glensy
Missouri Law Review
This Article seeks to clarify the current debate concerning the use of non-U.S. persuasive authority within the context of constitutional interpretation. It begins by noting that commentary on comparative constitutional law often fails to make any distinction between foreign domestic sources and international law used comparatively, and thus risks evoking parallels between different systems of law that lack context and plausibility. It then draws on various normative theories and underpinnings of both domestic and international legal regimes to show that a proper comparative enterprise must take this distinction into account. The Article concludes by explaining that only when those policy …
One Prong, Two Prong, Many Prongs: A Look Into The Economic Substance Doctrine, Amanda L. Yoder
One Prong, Two Prong, Many Prongs: A Look Into The Economic Substance Doctrine, Amanda L. Yoder
Missouri Law Review
Almost every federal circuit, as well as Congress, has weighed in on the economic substance doctrine and attempted to clarify its boundaries. The economic substance doctrine deals with transactions that, although technically in accord with the Internal Revenue Code (the Code or I.R.C.), were originally structured solely for tax avoidance purposes. The Internal Revenue Service and courts dislike these transactions because they thwart the general intent of Congress in enacting certain tax-saving Code provisions. Until recent amendments to the I.R.C., the federal circuits were split between two different approaches to tax avoidance transactions, yet the application of the two approaches …
Strict In Theory, But Accommodating In Fact, Ozan O. Varol
Strict In Theory, But Accommodating In Fact, Ozan O. Varol
Missouri Law Review
As law students quickly learn, the strict-scrutiny test governs challenges under the Equal Protection Clause to the government's use of suspect classifications and infringement on certain fundamental rights. To survive strict scrutiny, the government bears the heavy burden of showing a compelling interest in drawing a suspect classification or infringing on a fundamental right and narrowly tailored means to achieve that interest. Over the years, strict scrutiny has expanded to serve as a bulwark against government intrusions on many fundamental rights and liberties in the United States Constitution - including the right to vote, marry, access the courts, and freedom …
Strip Searches Of Students: Addressing The Undressing Of Children In Schools And Redressing The Fourth Amendment Violations, Diana R. Donahoe
Strip Searches Of Students: Addressing The Undressing Of Children In Schools And Redressing The Fourth Amendment Violations, Diana R. Donahoe
Missouri Law Review
This Article exposes the problems created by T.L.O. and its progeny, analyzes the Safford decision, and proposes recommendations for lower courts, legislatures, and local school boards to redress the current strip search crisis in public schools. Part II explains the T.L.O. two-prong test and illustrates the problems the T.L.O. Court and lower courts have had in applying it, specifically in strip search cases. Part III analyzes the Safford opinion and its ramifications. Part IV proposes ways in which lower courts, legislatures, and local school boards can redress the problems created by TL.O. and Saf ford so that officials will no …
Cumulative Subject Index For Volumes 74-75
Cumulative Subject Index For Volumes 74-75
Missouri Law Review
Cumulative Subject Index for Volumes 74-75
Are You My Mother - Missouri Denies Custodial Rights To Same-Sex Parent, Emmalee M. Miller
Are You My Mother - Missouri Denies Custodial Rights To Same-Sex Parent, Emmalee M. Miller
Missouri Law Review
This Note argues that Missouri should adopt a doctrine of alternative parentage that expands the definition of "parent" to include those in same-sex relationships who are not the biological or adoptive parents.' 0 In Part II, this Note analyzes the facts and holding of White. Next, in Part 111, this Note explores the Uniform Parentage Act and introduces the nontraditional forms of standing created by courts to allow third parties to obtain custody rights. Then, Part IV examines the court's rationale in White. Lastly, Part V explores why the court erred in its decision and why courts should recognize alternative …
Cut And Run - Tuition Reimbursement And The 1997 Idea Amendments, Brianna L. Lennon
Cut And Run - Tuition Reimbursement And The 1997 Idea Amendments, Brianna L. Lennon
Missouri Law Review
This Note addresses the challenges that courts face in balancing the legislative purpose of IDEA with its practical application. At its core, IDEA was enacted to preserve the right of all children to a "free appropriate public education" (FAPE), including special needs students who, under the law, have "the right to sit in the same classrooms, to learn the same skills, [and] to dream the same dreams as their fellow Americans." At the same time, IDEA and its amendments emphasize that "parents [need] a greater voice in their children's education." These goals can create a disconnect between what schools must …
Employees' Decade: Recent Developments Under The Mhra And The Employers' Potential Rebound, The, Dane C. Martin
Employees' Decade: Recent Developments Under The Mhra And The Employers' Potential Rebound, The, Dane C. Martin
Missouri Law Review
This Note will identify the considerable changes and varying interpretations of the MHRA over the last decade, analyze the optimal balance between the competing, important interests, and determine any potential need for amendment, including consideration of the various proposals currently before the legislature. Part 11 thus analyzes the four major areas of difficulty in the adjudication of MHRA claims in the last decade, including jury trials, available damages, the burden of proof, and individual liability. Next, Part III recognizes the most recent developments under the MHRA. And lastly, Part IV involves a two-part discussion beginning with the policy and effect …
Ensuring The Ethical Representation Of Clients In The Face Of Excessive Caseloads, Peter A. Joy
Ensuring The Ethical Representation Of Clients In The Face Of Excessive Caseloads, Peter A. Joy
Missouri Law Review
This Article is divided into three substantive parts. First, I begin with a short discussion of the most important criminal justice right guaranteed to each of us under the Bill of Rights - the Sixth Amendment right to assistance of counsel. For most Americans, the right to counsel is obtained through indigent defense providers, and the quality of the representation is inextricably tied to three lesser known rights, or perhaps wishes, found in the Public Defender Bill of Rights: "[t]he right to meaningful, weighted caseload standards"; "[t]he right to judges who understand my [the public defender's] role in the [justice] …
Role Of Individuals Discrimination In Free Exercise Claims: Putting Iqbal In Its Place, The, Leila Mcneill
Role Of Individuals Discrimination In Free Exercise Claims: Putting Iqbal In Its Place, The, Leila Mcneill
Missouri Law Review
Ashcroft v. Iqbal has been widely discussed for three reasons: (1) its extension of Twombly's pleading standard to cases outside the realm of antitrust suits, (2) its application of the collateral order doctrine to a district court order denying an official's motion to dismiss on the basis of qualified immunity in a Bivens claim, and (3) its implication for national security and postSeptember 11th terrorist detainments and investigations. However, Iqbal also implicates the nature of what constitutes unconstitutional religious discrimination under the First Amendment's Free Exercise Clause. Therefore, the Iqbal Court's discussion of religious liberty will present problems of interpretation …
Protecting The Innocent: Part Of The Solution For Inadequate Funding For Defenders, Not A Panacea For Targeting Justice, Robert P. Mosteller
Protecting The Innocent: Part Of The Solution For Inadequate Funding For Defenders, Not A Panacea For Targeting Justice, Robert P. Mosteller
Missouri Law Review
In this Article, I examine an important connection between society's concern with innocence - fueled by numerous wrongful convictions revealed by newly available DNA testing - and past and future progressive changes in criminal justice practices and policy. In Why Defense Attorneys Cannot, But Do, Care About Innocence (Caring About Innocence), I argued that, while the drive to protect the innocent has the potential to divide progressives in their support of indigent defense if targeting reforms only at the innocent is seen as possible, concern for innocence should instead drive a renewed effort to secure adequate funding for representing all …
Ethical Obligations Of Indigent Defense Attorneys To Their Clients, Phyllis E. Mann
Ethical Obligations Of Indigent Defense Attorneys To Their Clients, Phyllis E. Mann
Missouri Law Review
This Article is a basic introduction to the provision of indigent defense services in state courts throughout the country and the ethical obligations of the attorneys who provide those services. First, the Article briefly quantifies what currently exists in our right to counsel systems - what we know, and what we do not know. The Article then discusses the rules that generally govern the ethics of representation provided by indigent defense attorneys. Third, the Article examines the measures by which attorneys can know whether they are fulfilling and will continue to fulfill their ethical obligations. Finally, the Article discusses the …
Missouri's Public Defender Crisis: Shouldering The Burden Alone, Sean D. O'Brien
Missouri's Public Defender Crisis: Shouldering The Burden Alone, Sean D. O'Brien
Missouri Law Review
Though this Article criticizes the quality of defense provided by overburdened defenders, it is written with the hope that adequate resources may one day make it possible for them to perform their vital function effectively. Public defenders perform socially and legally significant work every day. They are not to blame when the conditions under which they labor make it impossible to do their jobs. To fix this broken system, Missouri must first understand the scope and roots of the problem. Part II of this Article discusses Missouri's reluctant implementation of right to counsel since Gideon v. Wainwright and the State's …
Foreword, Rodney Uphoff
Foreword, Rodney Uphoff
Missouri Law Review
Even though almost everyone concedes that the caseload crisis in Missouri is real, the dire state budget situation makes a significant infusion of new resources virtually impossible. So if Missouri, like most other states, is truly broke, then realistically can the state find the funds needed to fix its broken indigent defense system? That was the question at the heart of the Symposium. The Symposium presenters and commentators, most of whom had worked at some point in their career as a public defender, brought a wealth of experience to the discussion. While the presentations and comments made that day, together …
Commentary, Norman Lefstein
Commentary, Norman Lefstein
Missouri Law Review
Good morning, ladies and gentlemen. I am delighted to be here and to have the opportunity to comment on my colleagues' remarks. I also welcome the chance to share with you my perspectives about indigent defense in the United States and here in Missouri.
State Constitutional Challenges To Indigent Defense Systems, Stephen F. Hanlon
State Constitutional Challenges To Indigent Defense Systems, Stephen F. Hanlon
Missouri Law Review
For many years, the primary vehicle that advocates used to protect the fundamental right of the accused to the effective assistance of counsel was the Sixth Amendment to the United States Constitution, as incorporated to the states by the Fourteenth Amendment. For some time, most obviously during the Warren Court years, this federal strategy proved fruitful; indeed, it resulted in a series of landmark decisions by the United States Supreme Court that impact indigent defense systems to this day. A subsequent sea change in the Court's jurisprudence, however, which placed great emphasis on federalism, particularly the doctrines of justiciability and …
Counselor, Stop Everything - Missouri's Venue Statutes Receive An Expansive Interpretation, Darin P. Shreves
Counselor, Stop Everything - Missouri's Venue Statutes Receive An Expansive Interpretation, Darin P. Shreves
Missouri Law Review
This Note seeks to place Nixon in the context of Missouri law in order to analyze the court's holding and its attendant consequences. First, this Note will review Missouri's venue law leading up to Nixon. Next, this Note will examine the court's reasoning, consider its interpretation of the newlyenacted venue provision of section 508.012, and explore the issues and implications arising from the decision. Finally, this Note will conclude that in order to mitigate Nixon's departure from the legislative goals of the Tort Reform Act, future courts will limit the decision's reach by failing to apply its reasoning beyond the …
Legal Representation For The Poor: Can Society Afford This Much Injustice, Stephen B. Bright
Legal Representation For The Poor: Can Society Afford This Much Injustice, Stephen B. Bright
Missouri Law Review
A New Yorker cartoon depicts a lawyer facing his client, asking the critical question: "You've got a pretty good case, how much justice can you afford?" Of course, the promise is equal justice for all. But that is an aspiration, not reality. The poor person accused of a crime cannot afford any justice. So how much justice is society going to provide? Competent counsel for the accused, with the resources needed for investigation and consultation with experts, is essential for the proper working of our adversary system of justice. States can afford to provide high quality representation for the accused …
Public Defender Elections And Popular Control Over Criminal Justice, Ronald F. Wright
Public Defender Elections And Popular Control Over Criminal Justice, Ronald F. Wright
Missouri Law Review
Part I of this Article reviews the existing evidence about the election of criminal justice officials and presents new evidence about the campaigns and outcomes in public defender elections. Voters respond to candidates for the public defender's office much in the same way that they react to candidates for the prosecutor's office: they choose the incumbent, even more often than they do for legislators and chief executives.2 The candidates themselves also behave fairly similarly in public defender and prosecutor election campaigns. Both the prosecutor and the defender candidates spend a disappointing amount of time in their campaign speeches discussing the …
Raising The Bar: Standards-Based Training, Supervision, And Evaluation, Adele Bernhard
Raising The Bar: Standards-Based Training, Supervision, And Evaluation, Adele Bernhard
Missouri Law Review
In this short Article, I sketch the methodology my colleagues and I at Pace Law School use to incorporate practice standards into our clinical teaching and reflect on how a standards-based teaching paradigm could be adapted to the training, supervision, and evaluation of public defenders. Then, I briefly consider how standards and standards-based teaching assist in the administration of assigned counsel plans and in the evaluation of the performance of public defender organizations. Although this Article does not cover any of these topics in depth, my goal is to introduce the reader to a standards-based approach to teaching and suggest …
Litigating The Ghost Of Gideon In Florida: Separation Of Powers As A Tool To Achieve Indigent Defense Reform, Wayne A. Logan
Litigating The Ghost Of Gideon In Florida: Separation Of Powers As A Tool To Achieve Indigent Defense Reform, Wayne A. Logan
Missouri Law Review
In this Article, I will discuss the Miami-Dade "excessive caseload" litigation, which continues to unfold in Florida's appellate courts. In doing so, I will offer some thoughts on the separation of powers implications of the aforementioned statute, which, other than a similar provision adopted in Coloradol7 that has gone unchallenged, stands alone in the nation.
Epiphenomenal Indigent Defense, Darryl K. Brown
Epiphenomenal Indigent Defense, Darryl K. Brown
Missouri Law Review
There are some much-studied, recurring social events and behaviors that, although centrally important to public policy and social life, have proven intractable to explanation and prediction. As currently salient examples, consider stock market crashes and recessions. Economists cannot consistently see them coming nor explain them after the fact in consistent detail. Another example is crime rates, which rise, and in recent decades fall, without any discernable strong causal link to familiar variables such as employment or imprisonment rates. This Article describes why we can add state funding for indigent defense counsel to that list and what this conclusion means for …
Silencing The Rebel Yell: The Eighth Circuit Upholds A Public School's Ban On Confederate Flags, Lucinda Housley Luetkemeyer
Silencing The Rebel Yell: The Eighth Circuit Upholds A Public School's Ban On Confederate Flags, Lucinda Housley Luetkemeyer
Missouri Law Review
In 2009, the United States Court of Appeals for the Eighth Circuit heard for the first time a case challenging the constitutionality of a public school's ban on the display of Confederate flags. When the Eighth Circuit faced this situation in B. WA. v. Farmington R- 7 School District (B. WA. v. Farmington), it attempted to balance the competing interests of protecting students' free speech rights and avoiding future disruption and danger to the learning environment. In doing so, the court adhered to the reasoning established by its sister circuits and set a precedent within the Eighth Circuit that shifts …
Beyond Equality And Adequacy: Equal Protection, Tax Assessments, And The Missouri Public School Funding Dilemma, Ronald K. Rowe Ii.
Beyond Equality And Adequacy: Equal Protection, Tax Assessments, And The Missouri Public School Funding Dilemma, Ronald K. Rowe Ii.
Missouri Law Review
This Note focuses on the 2009 challenge to the SB287 formula and specifically the arguments that should have been accepted by the Supreme Court of Missouri. Central to the rejected challenges were two arguments not sufficiently considered by the court in its opinion: (1) the new school funding formula violates equal protection provisions of the Missouri Constitution because it does not adequately provide equal treatment under the law with respect to the fundamental right of education, and (2) the tax assessment procedures prescribed by the new formula and implemented by the State Tax Commission do not comply with the Missouri …
Resurrection Of A Dead Remedy: Bringing Common Law Negligence Back Into Employment Law, Amanda Yoder
Resurrection Of A Dead Remedy: Bringing Common Law Negligence Back Into Employment Law, Amanda Yoder
Missouri Law Review
Prior to the enactment of workers' compensation laws' across the United States and in Missouri, many employees injured on the job were left with no redress. In 1921, less than 3,000 of the nearly 50,000 employees injured in Missouri received compensation.2 During this time, an estimated 25,000 employees died on the job in industrial accidents but less than twenty percent of their families received compensation.3 Those families that were compen- sated still had to bear the cost and delay of litigation.4 In response, legislatures sought to protect employees from the risks of the workplace and transfer the burden of recovery …
Economics Perspective On The Exclusionary Rule And Deterrence, An, Michael D. Cicchini
Economics Perspective On The Exclusionary Rule And Deterrence, An, Michael D. Cicchini
Missouri Law Review
This Article will demonstrate that the exclusionary rule does not and cannot deter police misconduct. The reason is that the expected cost to the police of their own misconduct (p*C) is nearly always zero. More specifically, the probability that the evidence will be suppressed (p), even in cases of egregious police misconduct, is very close to zero. Additionally, even in the rare case that evidence is suppressed, the cost to the police of a lost conviction (C) is nearly always zero for several reasons: first, the police tend to value arrests, not convictions; second, even if they did value convictions, …