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Articles 1 - 30 of 45
Full-Text Articles in Law
Mavericks, Moderates, Or Drifters - Supreme Court Voting Alignments, 1838-2009, Christine Kexel Chabot, Benjamin Remy Chabot
Mavericks, Moderates, Or Drifters - Supreme Court Voting Alignments, 1838-2009, Christine Kexel Chabot, Benjamin Remy Chabot
Missouri Law Review
We introduce a new data set recording the vote of every Justice in 18,812 Supreme Court cases decided between 1838 and 1949. When combined with existing data sets, our new data allow us to examine votes in all cases through 2009. We use this data to address previously unanswerable questions about the president's ability to appoint Supreme Court Justices of similar ideology. Surprisingly, history shows that the president's odds of appointing a Justice who sides with appointees of his party have been no better than a coin flip. We find no evidence that divided government at the time of nomination …
Do I Own This Car - The Supreme Court Creates A Standard For Bapcpa Car Ownership, Anne Benton Hucker
Do I Own This Car - The Supreme Court Creates A Standard For Bapcpa Car Ownership, Anne Benton Hucker
Missouri Law Review
The case was Ransom v. FIA Card Services, N.A., and the dispute was whether, under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA), Appellant Jason Ransom should be able to claim a vehicle ownership expense for purposes of Chapter 13 bankruptcy for the unencumbered car that he owned. Practitioners in the bankruptcy field had been watching the progression of this case and were eager to learn the Court's resolution of the issue. The interest was due to two reasons. First, the outcome of the case would affect approximately 250,000 Chapter 13 petitioners. Second, the case would resolve …
Apples And Oranges: Securities Market Losses Should Be Treated Differently For Major White-Collar Criminal Sentencing Under The Federal Guidelines, John D. Esterhay
Apples And Oranges: Securities Market Losses Should Be Treated Differently For Major White-Collar Criminal Sentencing Under The Federal Guidelines, John D. Esterhay
Missouri Law Review
Part II analyzes the history of market loss, a calculation of loss that arose as a damage calculation in private plaintiff civil securities fraud actions. This Part describes the evolving theory of loss causation in order to understand the foundation for market loss at criminal sentencing. This Part also explains how market loss might have been used in sentencing before the Guidelines. After the codification of the Guidelines, victim loss became the official driving factor in fraud sentencing. Thus, Part III examines the loss table and how a large loss finding leads to a long prison term recommendation. Because the …
Life Without Parole, Or A Juvenile Death Sentence, Kyle Gottuso
Life Without Parole, Or A Juvenile Death Sentence, Kyle Gottuso
Missouri Law Review
Part II of this Note will look at the court's decision to allow juveniles to be sentenced to life without parole. In doing so, this Note will outline the policies underlying the U.S. Supreme Court's Eighth Amendment jurisprudence. Next, Part III of this Note will survey more broadly the U.S. Supreme Court's interpretation of the Eighth Amendment in terms of life without parole as well as death penalty cases. Part IV of this Note will then look at the reasoning of the majority and the dissent in the instant case. Finally, Part V of this Note will attempt to reconcile …
Cost Of A Tax Agenda: The Passage Of Proposition A And Its Effect On Kansas City And St. Louis City, The, Missy Mccoy
Cost Of A Tax Agenda: The Passage Of Proposition A And Its Effect On Kansas City And St. Louis City, The, Missy Mccoy
Missouri Law Review
This Law Summary begins with a discussion of the history of the earnings tax in Kansas City and St. Louis City starting with both cities' designations as home rule cities.10 Being home rule cities allowed them independence in governing their populace and the eventual implementation of an earnings tax through city charters and state enabling statutes. Next, this Law Summary discusses Proposition A's repeal of the previous enabling statutes, the institution of new statutes, and the prohibition of any other city from passing an earnings tax. This Law Summary takes the position that Proposition A, funded largely by St. Louis-area …
Developing The Duffy Defect: Identifying Which Government Workers Are Constitutionally Required To Be Appointed, Stacy M. Lindstedt
Developing The Duffy Defect: Identifying Which Government Workers Are Constitutionally Required To Be Appointed, Stacy M. Lindstedt
Missouri Law Review
In 2007, Professor John Duffy wrote a brief article questioning whether administrative patent judges are constitutional officers and therefore subject to the Appointments Clause. A litigant latched onto the argument and challenged the validity of eight years of Board of Patent Appeals and Interferences determinations. Congress enacted a patch to provide for the appointment of patent judges, but the "Duffy Defect" did not stop there. Other scholars have questioned the constitutionality of various government actors from Bankruptcy Judges to the Pay Czar. The United States Tax Court dealt with a recent Appointments Clause challenge when a taxpayer questioned whether Internal …
Picking Fights In Missouri: Baldwin's Non-Rule Embraces The Minority Approach To Internet Libel Jurisdiction, Allison Marie Isaak
Picking Fights In Missouri: Baldwin's Non-Rule Embraces The Minority Approach To Internet Libel Jurisdiction, Allison Marie Isaak
Missouri Law Review
The competing standards of Internet libel jurisdiction reflect the tensions between the forum state's interest in providing convenient recovery for its injured residents and the defendant's constitutional right to foresee where he might be subject to jurisdiction. In an effort to pursue these two goals as well as integrate modem Internet-related concerns, lower courts have derived numerous divergent tests for Internet libel jurisdiction, leaving the issue in a state of disorder and ambiguity. To analyze this problem, this Note will first survey the historical background of traditional personal jurisdiction principles, with particular emphasis on the U.S. Supreme Court's Calder "effects" …
Leveraging Tribal Sovereignty For Economic Opportunity: A Strategic Negotiations Perspective, Gavin Clarkson, Jim Sebenius
Leveraging Tribal Sovereignty For Economic Opportunity: A Strategic Negotiations Perspective, Gavin Clarkson, Jim Sebenius
Missouri Law Review
Part II of this Article discusses the sovereign nature of tribal governments and reviews the history of tribal sovereignty, concluding with an examination of tribal-state compacting outside of the gaming context. Part III examines the origins of Indian gaming, focusing on the development of the legal framework which governs tribal gaming activities and necessitates the negotiation of tribal-state gaming compacts. Given the need for tribal-state negotiations, Part IV presents a framework for structuring and analyzing negotiations. Part V applies that framework in the retelling of the first part of the Foxwoods story, the negotiations regarding the original gaming compact. The …
Sticks And Stones: Iied And Speech After Snyder V. Phelps, Heath Hooper
Sticks And Stones: Iied And Speech After Snyder V. Phelps, Heath Hooper
Missouri Law Review
On March 3, 2006, Marine Lance Corporal Matthew Snyder died while serving a tour of duty in Iraq. After hearing of his funeral, members of the Kansas-based Westboro Baptist Church attended and protested the Maryland ceremony bearing graphic photos and signs declaring "Thank God for IEDs" and "Thank God for Dead Soldiers." The church members did so in reflection of their religious belief that God has doomed America and its military missions because of the country's tolerance for homosexuality. Following the protest, Matthew Snyder's father, Albert Snyder, sued the Westboro Baptist Church for a variety of civil wrongs, including intentional …
Patent Law's Unpredictability Doctrine And The Software Arts, Greg R. Vetter
Patent Law's Unpredictability Doctrine And The Software Arts, Greg R. Vetter
Missouri Law Review
Part II reviews these insights from the Norden model generally. Part III brings these insights to the disclosure doctrines for software patents, with particular emphasis on the unpredictability factor for undue experimentation within enablement. The model corresponds well with enablement and best mode but does not correspond as well with other disclosure-prompting doctrines whose role is related to defining the claim. Thus, the review in Part III of written description, definiteness, and means-plus-function (§ 112 T 6) claim limitations helps establish the contours of applicability for the Norden model. The discussion of Part III also reviews the current state of …
To Construe Or Not To Construe: At The Interface Between Claim Construction And Infringement In Patent Cases, Jason R. Mudd
To Construe Or Not To Construe: At The Interface Between Claim Construction And Infringement In Patent Cases, Jason R. Mudd
Missouri Law Review
This Article examines the blurring of this interface in both the "procedural" and "substantive" contexts. Part I discusses the background and modem legal framework for classifying claim construction as a pure question of law that is answered prior to and separate from the issue of infringement. Part II analyzes the claim construction-infringement boundary in a procedural context by examining the stages of a case at which these inquiries are typically performed and the degree to which courts construe claims "in a vacuum," without reference to the accused product. This Part explains that courts are becoming increasingly accepting of and often …
Secret Prior Art: Does Prior Art In A Provisional Patent Application Bar Future Patents, Kyle Gottuso
Secret Prior Art: Does Prior Art In A Provisional Patent Application Bar Future Patents, Kyle Gottuso
Missouri Law Review
This Note will examine whether prior art found in a provisional patent application can (and should) act as prior art to defeat a subsequent application by a second inventor. In looking at this issue, this Note will ask if Giacomini can be reconciled with the principles and policies that underlie patent law. To do so, this Note will first review the facts and holding of Giacomini. Then this Note will survey the patent statutes, giving particular attention to those statutes that deal with priority and prior art. Next, this Note will examine the reasoning of the Giacomini court. Finally, this …
Shooting Suspect's Release Revives The Right To A Speedy Trial In Missouri, A, Clayton Thompson
Shooting Suspect's Release Revives The Right To A Speedy Trial In Missouri, A, Clayton Thompson
Missouri Law Review
This Note will examine the history of the Sixth Amendment's speedy trial clause, highlighting its development within the last twenty years. It will attempt to explain the rationale behind the court's decision to dismiss the indictment of a possibly violent criminal. It will take the position that in future cases where the government is to blame for an unusually slow prosecution, the outcome of this case must be repeated to maintain the integrity of the right to a speedy trial and our criminal justice system.
Forward: Symposium On Evolving The Court Of Appeals For The Federal Circuit And Its Patent Law Jurisprudence, Dennis D. Crouch
Forward: Symposium On Evolving The Court Of Appeals For The Federal Circuit And Its Patent Law Jurisprudence, Dennis D. Crouch
Missouri Law Review
As I discuss below, conditions on the ground have changed in the few short months following the Symposium. Congress has now acted, and the Patent Office will soon have additional authority. These changes play directly into the arguments of our Symposium authors and make their results even more important.
Unpredictability In Patent Law And Its Effect On Pharmaceutical Innovation, Christopher M. Holman
Unpredictability In Patent Law And Its Effect On Pharmaceutical Innovation, Christopher M. Holman
Missouri Law Review
Part II of this Article summarizes the current R&D crisis confronting the pharmaceutical industry and the accompanying drop-off in innovative output from this important technological sector. Part III explains Mr. Armitage's "view from industry," which attributes a significant causative effect to unpredictability in the patent system. Part IV provides two Lilly case studies involving generic challenges to two of the company's important drugs, Gemzar and Strattera, in which the company has suffered as a result of this unpredictability. Part V identifies three distinct forms of unpredictability in patent law: unpredictability caused by the proliferation of loosely defined standards rather than …
Minimizing Confrontation: The Eighth Circuit Uses Crawford Avoid Bruton For Non-Testimonial Statements, Samuel Buffaloe
Minimizing Confrontation: The Eighth Circuit Uses Crawford Avoid Bruton For Non-Testimonial Statements, Samuel Buffaloe
Missouri Law Review
Outside of the Bruton context, this Note also examines the implications of defining "testimonial" statements entirely from the point of view of the speaker as the Eighth Circuit did in Dale. This Note will argue that to ignore the motives of the examiner encourages the police to use unethical and deceptive interrogation techniques. This Note additionally argues that applying Bruton only to testimonial statements ignores Bruton's Due Process concerns in that it allows juries to do what the Supreme Court considers to be an "impossible" task. Finally, this Note questions whether, after Crawford, any remaining constitutional limits remain on the …
Ongoing Confusion Over Ongoing Royalties, The, Mark A. Lemley
Ongoing Confusion Over Ongoing Royalties, The, Mark A. Lemley
Missouri Law Review
In eBay Inc. v. MercExchange, L.L.C., the United States Supreme Court correctly concluded that courts had both the power and the responsibility to decide whether a successful patent owner needed injunctive relief and whether the imposition of that relief would unduly harm either the defendant or the public. The Court's application of the traditional four-factor equity test led, for the first time, to a significant number of cases in which courts found patent infringement but refused to enjoin continued infringement. That, in turn, has raised the question "what happens then?" As a matter of policy, the basic answer seems clear: …
Promoting The Progress: Three Decades Of Patent Jurisprudence In The Court Of Appeals For The Federal Circuit, Damon C. Andrews
Promoting The Progress: Three Decades Of Patent Jurisprudence In The Court Of Appeals For The Federal Circuit, Damon C. Andrews
Missouri Law Review
In the nearly thirty years since the Federal Circuit's first published decision, the court has decided numerous cases that have produced a rich patent jurisprudence. This Article seeks to evaluate that jurisprudence from several perspectives. Part II summarizes the Federal Circuit's patent history in terms of the court's judges, the external factors that have shaped its patent jurisprudence, and the overall success of the court in light of Congress's intent. Part III then evaluates the Federal Circuit's general stance on whether to uphold the PTO's grant or denial of a patent, or a district court's decision to invalidate a patent, …
Acting Like An Administrative Agency: The Federal Circuit En Banc, Ryan Vacca
Acting Like An Administrative Agency: The Federal Circuit En Banc, Ryan Vacca
Missouri Law Review
Part II of this Article describes the Federal Circuit's en banc practices since its creation in 1982, focusing on how the Federal Circuit compares to the other federal appellate courts in terms of the frequency of en banc decisions, how the Federal Circuit orders cases to be heard en banc, the number and scope of the questions presented for en banc consideration, and the use of amici curiae in the briefing stages of the case. Part III examines the Federal Circuit's en banc practices in light of how administrative agencies engage in substantive rulemaking under the APA and suggests that …
Crafting A 21st Century United States Patent And Trademark Office, David Kappos
Crafting A 21st Century United States Patent And Trademark Office, David Kappos
Missouri Law Review
Good morning. It is a privilege to be here representing the United States Patent and Trademark Office (USPTO). I want to thank the Missouri Law Review for the invitation and for hosting me here today. Moreover, I want to commend the University of Missouri for convening this important conference. These are critical topics, and today I want to focus on the key role the USPTO will play in shaping patent protections in the future. But let me first congratulate the members from the Federal Circuit who are present today for thirty years of excellence in addressing the most fundamental of …
Differentiating The Federal Circuit, Elizabeth I. Winston
Differentiating The Federal Circuit, Elizabeth I. Winston
Missouri Law Review
In 1982, Congress created the United States Court of Appeals for the Federal Circuit. Often referred to as an experiment, the Federal Circuit has flourished Born again from the ashes of its predecessors, the aptly nicknamed Phoenix Court continues to grow in significance, stature, and strength. As it grows, however, the court remains rooted in its history and in its unique nature. This Article explores the Federal Circuit's structure and its impact on the development of Federal Circuit jurisprudence. The Federal Circuit is distinguishable by more than its national jurisdiction - the very essence of the court sets it apart …
Pleading Panic: Pure Emotional Damages As Sickness Or Disease For Bodily Injury Claims, Joseph N. Blumberg
Pleading Panic: Pure Emotional Damages As Sickness Or Disease For Bodily Injury Claims, Joseph N. Blumberg
Missouri Law Review
On the surface, Derousse v. State Farm Mutual Automobile Insurance. Co. may be a relatively minor matter of statutory interpretation: Does Missouri insurance law require coverage for pure emotional distress caused by uninsured motorists? In answering the question, however, the court's generous rules of interpretation signal its recent willingness to expand recovery for emotional distress claims. Traditionally, Missouri took a conservative approach to allowing emotional damages in tort claims. Derousse is a stark example that the old regime is a relic.
Unconditional Acceptance: The Supreme Court Of Missouri's Interpretation Of Missouri Revised Statutes Section 167.131, Missy Mccoy
Unconditional Acceptance: The Supreme Court Of Missouri's Interpretation Of Missouri Revised Statutes Section 167.131, Missy Mccoy
Missouri Law Review
The unaccredited St. Louis Public School District had an average daily attendance of approximately 23,550 students in 2009, more than ten times the average attendance of the neighboring Clayton School District. In Turner v. School District of Clayton, the Supreme Court of Missouri faced the novel issue of interpreting Missouri Revised Statues section 167.131 as it related to children who resided in the currently unaccredited St. Louis Public School District but wished to attend schools in the accredited Clayton School District. After determining that the unaccredited district was responsible for the tuition of students who attended accredited schools, the majority …
Keeping Pace: Federal Mortgage Lenders Halt Local Clean Energy Programs, Ian M. Larson
Keeping Pace: Federal Mortgage Lenders Halt Local Clean Energy Programs, Ian M. Larson
Missouri Law Review
This Law Summary analyzes and comments upon the legal arguments put forth by supporters and critics of PACE liens in the wake of the July 2010 disputes. Part H discusses the origins of PACE in 2008 and its rapid expansion across the United States, paying particular attention to the passage of PACE legislation in Missouri. Part III analyzes the escalating dispute between PACE supporters and the federal mortgage lenders who oppose it, commenting upon the legal arguments articulated by both sides. Part IV proposes a resolution to the conflict that provides a more secure position for federal mortgage groups while …
Invisible Refugee: Examining The Board Of Immigration Appeals' Social Visibility Doctrine, The, Melissa J. Hernandez Pimentel
Invisible Refugee: Examining The Board Of Immigration Appeals' Social Visibility Doctrine, The, Melissa J. Hernandez Pimentel
Missouri Law Review
This Law Summary first focuses on the development of the various approaches by the U.S. immigration court system in defining the term particular social group. Second, it discusses the cryptic evolution of the social visibility doctrine. Finally, it will explore how the conflicting applications of the social visibility doctrine among the U.S. courts of appeals have resulted in potentially unpredictable outcomes for those seeking protection in the United States, and it will suggest that a clarification of the social visibility doctrine by either the BIA or Supreme Court would alleviate the conflict.
Qualifying For The Title Vii Religious Organization Exemption: Federal Circuits Split Over Proper Test, Roger W. Dyer Jr.
Qualifying For The Title Vii Religious Organization Exemption: Federal Circuits Split Over Proper Test, Roger W. Dyer Jr.
Missouri Law Review
While the United States Supreme Court has upheld the constitutionality of a law permitting religious organizations to exercise a religious preference when making employment decisions, courts remain at odds over the proper test for determining whether an organization is "religious." This conflict highlights the tension between Title VII of the Civil Rights Act and the First Amendment's religion clauses. When Congress passed Title VII, it took the first step toward its goal of "eliminat[ing] all forms of unjustified discrimination in employment." Title VII prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. Title VII generally …
Can The Tolling Of Statutes Of Limitations Based On The Defendant's Absence From The State Ever Be Consistent With The Commerce Clause, Walter W. Heiser
Can The Tolling Of Statutes Of Limitations Based On The Defendant's Absence From The State Ever Be Consistent With The Commerce Clause, Walter W. Heiser
Missouri Law Review
This Article discusses the propriety of these Commerce Clause decisions with respect to individual defendants. More precisely, this Article examines two questions. The first is whether the Supreme Court's holding in Bendix was properly extended to individual resident and nonresident defendants. The other, and more difficult, issue concerns the proper application of the Commerce Clause to state statutes that toll the statute of limitations during the time a resident defendant is temporarily absent from the state. The Article focuses on whether such provisions violate the Commerce Clause regardless of the reason for the absence. Part I of this Article examines …
Missouri Revised Statutes Section 490.715: A Toothless Attempt To Limit The Recovery Of Medical Expense Write-Offs, Alexander Cornwell
Missouri Revised Statutes Section 490.715: A Toothless Attempt To Limit The Recovery Of Medical Expense Write-Offs, Alexander Cornwell
Missouri Law Review
This Article focuses objectively on whether the decision to limit the application of the collateral source rule in Missouri is in accord with modem trends and whether Missouri courts' recent interpretation of section 490.715 is consistent with the legislature's original intent. Part 1I reviews the history of the collateral source doctrine and the justifications supporting its retention. In Part IlI, this Article outlines the Missouri legislature's decision to modify the rule and analyzes subsequent court decisions applying section 490.715. In response to the recent legislative and judicial activity, Part IV concludes that modification of the collateral source doctrine was warranted …