Law Commons^™

Factual Precedents, Allison Orr Larsen

Faculty Publications

Lawyers and judges speak to each other in a language of precedents—decisions from cases that have come before. The most persuasive precedent to cite, of course, is an on-point decision of the U.S. Supreme Court. But Supreme Court opinions are changing. They contain more factual claims about the world than ever before, and those claims are now rich with empirical data. This Supreme Court factfinding is also highly accessible; fast digital research leads directly to factual language in old cases that is perfect for arguments in new ones. An unacknowledged consequence of all this is the rise of what I …

Members Only: Undocumented Students & In-State Tuition, Angela M. Banks

Faculty Publications

No abstract provided.

The Resilience Of Property, Lynda L. Butler

Faculty Publications

Resilience is essential to the ability of property to face transforming social and environmental change. For centuries, property has responded to such change through a dialectical process that identifies emerging disciplinary perspectives and debates conflicting values and norms. This dialectic promotes the resilience of property, allowing it to adapt to changing conditions and needs. Today the mainstream economic theory dominating common law property is progressively being intertwined with constitutionally protected property, undermining its long-term resilience. The coupling of the economic vision of ordinary property with constitutional property embeds the assumptions, choices, and values of the economic theory into both realms …

Evaluating Flexibility In International Patent Law, Sarah R. Wasserman Rajec

Faculty Publications

Global patent law has raced toward harmonization over the past decades. Countries with vastly different industries, values, and levels of development now offer robust patent rights with similar contours through membership in the World Trade Organization and consequent adoption of the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”). However, patent law is still far from harmonized among countries or static within countries. Jurisdictions tailor their patent laws to accommodate differences between industries, unforeseen inefficiencies, and diverse views of the costs and benefits associated with offering patent rights to stimulate innovation. Prior scholarly work consists of either doctrinal analyses …

The True Value Of A Law Degree, Or, Why Did Thurgood Marshall Go To Law School?, R. Lawrence Dessem, Gregory M. Stein

Faculty Publications

There has been vigorous debate in recent months over whether a law degree is a worthwhile investment. Much of this discussion has focused on whether the economic costs of obtaining a degree pay off over a lawyer’s career. This conversation has largely overlooked the many non-economic benefits of a law degree. In this essay, we seek to re-introduce several non-economic factors back into this important dialogue. We suggest that prospective law school applicants would be wise to consider these non-economic factors in addition to economic ones.

Preferences Are Public Rights, Brook E. Gotberg

Faculty Publications

In the wake of the Supreme Court’s decision in Stern v. Marshall, there is widespread uncertainty as to what other proceedings may constitutionally fall within a bankruptcy court’s core jurisdiction. Supreme Court jurisprudence has been cryptic regarding the constitutional limitations of non-Article III courts, but the Court has identified a "public rights exception" to the general rule that the judicial power must be exercised only by judges with life tenure and salary protection. This public rights exception has not yet been explicitly extended to a bankruptcy proceeding, but the reasoning of the Court strongly suggests that a trustee’s motion to …

Promising Protection: 911 Call Records As Foundation For Family Violence Intervention, James G. Dwyer

Faculty Publications

No abstract provided.

Hierarchically Variable Deference To Agency Interpretations, Aaron-Andrew P. Bruhl

Faculty Publications

When courts review agency action, they typically accord agency decisions a degree of deference. As many courts and commentators have recognized, the law in this area is complicated because it features numerous standards of review, including several distinct regimes for evaluating agencies’ legal interpretations. There is, however, at least one important respect in which uniformity rather than variety prevails: the applicable standards of review do not vary depending on which court is reviewing the agency. Whichever standard governs a particular case—Chevron, Skidmore, or something else—all courts in the judicial hierarchy are supposed to apply that same standard.

This Article proposes …

The Regressing Progress Clause: Rethinking Constitutional Indifference To Harmful Content In Copyright, Ned Snow

Faculty Publications

The Constitution's Progress Clause purports to restrict Congress's copyright power to works that "promote the Progress of Science and useful Arts." For most of the past two centuries, this Clause has set a minimal content-based standard for copyright eligibility. It denied protection for a work whose content did not rise to the level of useful knowledge, in that the work either lacked compositional value or portrayed an immoral or unlawful subject matter. As evidenced by judicial and scholarly writings, this construction of the Progress Clause was consistent with the 1903 decision in Bleistein v. Donaldson Lithographing Co., where the Court …

Defendant Silence And Rhetorical Stasis, Stephen E. Smith

Faculty Publications

Silence disrupts the classic arrangement of argumentation by preventing the traditional narrowing of issues—i.e., the identification of points of stasis. This burdens the side against which silence is deployed. When the defendant invokes the right to silence, the prosecution must address every possible defense. In those rare instances where a defendant’s silence may be raised by the prosecution, the defendant may be put in a position of concession on multiple fronts. In either case, the economy of argument anticipated by classical rhetoric is lost.

Ehearsay, Jeffrey Bellin

Faculty Publications

No abstract provided.

Informational Hearing On Patent Assertion Entities, Brian Love

Faculty Publications

Testimony before the California Assembly Select Committee on High Technology

The Project That Hurts Your Head: Simple Project Management For The Innovating Law Librarian, Cynthia Bassett, Resa Kerns

Faculty Publications

Today’s law librarians are working to increase the value we add to our organizations as well as our visibility. To do this, we have taken on sophisticated projects, often involving multiple partners. The need has never been greater to grow and hone our project management skills. Using the case studies of a website redesign project involving multiple departments and the implementation of an institutional repository, we will explore the overall project life cycle. This session will provide tools for common pitfalls such as losing energy and focus, troubles balancing long term goals with short term needs, and the triple whammy …

New Wave Of Cases Involving Investment Adviser Fees, Francis J. Facciolo, Leland Solon

Faculty Publications

(Excerpt)

Shareholders challenging fees paid to the advisers of their mutual funds in civil lawsuits under §36(b) of the Investment Company Act face steep substantive and procedural challenges, but a recent decision from the federal district of New Jersey holds promise for private plaintiffs in this area. The central allegation in Kasilag v. Hartford Investment Financial Services was that the defendant investment adviser retained sub-advisers to perform substantially all of the investment management services for the defendant’s client mutual funds, and then charged its fund clients much higher investment management fees than what those services actually cost defendant. Based on …

We Know Who You Are And What You Are Made Of: The Illusion Of Internet Anonymity And Its Impact On Protection From Genetic Discrimination, Christine S. Davik

Faculty Publications

Recent advances in technology allow the online activities of Internet users to be monitored, gathered, and recorded without their knowledge. New electronic tools can compile extensive data on exactly what an individual is doing on the Web. This information can then be almost simultaneously cross-referenced with additional data to create detailed dossiers, including the user’s age, zip code, gender, and even health-related issues. While there is a vast amount of consumer information that can easily be accessed, at present there are very few restrictions on how the data amassed can be used. As a result, when consumers go online to …

Symposium Foreword: Bombshell Or Baby Step? The Ramifications Of Miller V. Alabama For Sentencing Law And Juvenile Crime Policy, Paul J. Litton

Faculty Publications

This short essay, which serves as the Symposium Foreword, argues that the rationale of Miller is incoherent insofar as it permits juvenile LWOP sentences and that the Court misidentifies the foundational principle of Roper. First, in banning mandatory juvenile LWOP sentences, the Court invokes Woodson, which bans mandatory death sentences. The Court maintains that Woodson, from its capital jurisprudence, applies because juvenile LWOP is “akin to the death penalty” for juveniles. But if the Court’s capital jurisprudence is binding based on that equivalence, Roper should imply that juvenile LWOP, like the death penalty, is unconstitutional for juveniles. This essay briefly …

Lessons From Teaching Students To Negotiate Like A Lawyer, John M. Lande

Faculty Publications

This article reports my observations from teaching those courses and offers suggestions for future efforts to improve legal education. My experience supports the (1) focus on negotiation in a wide range of situations in addition to the final resolution of disputes and transactions, (2) addition of "ordinary legal negotiation" to the two traditional theories of negotiation, and (3) use of multi-stage simulations in addition to traditional single-stage simulations. These approaches were critical in providing students with a more realistic understanding of negotiation. This article also describes experiments with other teaching techniques in my courses.

Where The Judiciary Prosecutes In Front Of Itself: Missouri's Unconstitutional Juvenile Court Structure, Josh Gupta-Kagan

Faculty Publications

This article is the first scholarly examination of Missouri’s unusual juvenile court structure: Missouri law charges a “juvenile officer” with exclusive authority to determine which child welfare or delinquency cases to file and what to charge in each case. The juvenile officer is hired and supervised by juvenile court judges, and the juvenile officer litigates cases in front of those same judges. This structure differs from the typical procedures in juvenile courts around the United States, which have generally adapted their juvenile courts to reflect the norm of executive branch agencies or attorneys (not court staff) filing cases to intervene …

Constitutional Conundrums In Arbitration: Book Review Of Arbitration And The Constitution, S. I. Strong

Faculty Publications

The combination of arbitration and constitutional law is the topic of Professor Peter Rutledge's new book, and the focus of this review essay, which will consider, among other things, whether these two subjects are compatible.

Sovereign Debt And The Three And A Half Minute Transaction: What Sticky Boilerplate Reveals About Contract Law And Practice, Andrea Boyack

Faculty Publications

The Three and a Half Minute Transaction: Boilerplate and the Limits of Contractual Design, by Mitu Gulati and Robert E. Scott, is a cautionary tale about modern legal practice where the protagonist is the standard sovereign debt contract. The book discloses an undeniable flaw in sovereign bond boilerplate (the widely used pari passu clause) that, in spite of expensive, sophisticated lawyering, perpetuates a risky disconnect between party intent and contract terms. The fact that boilerplate terms persist even in elite sovereign-lending practices suggests that the problem of over-reliance on standard form language is ubiquitous.When contract terms diverge from client risk …

Simultaneous Catches And Infield Flies: Legal Writing Techniques In Sportswriting, John Schunk

Faculty Publications

No abstract provided.

Patients’ Online Reviews Of Physicians, Eric Goldman

Faculty Publications

This short essay explores how doctors and other healthcare professionals have responded to patient reviews of their services and addresses how they should deal with patient reviews in the future.

Overlapping Intellectual Property Doctrines: Election Of Rights Versus Selection Of Remedies, Laura A. Heymann

Faculty Publications

Overlaps exist across various doctrines in federal intellectual property law. Software can be protected under both copyright law and patent law; logos can be protected under both copyright law and trademark law. Design patents provide a particular opportunity to consider the issue of overlap, as an industrial design that qualifies for design patent protection might also, in particular circumstances, qualify for copyright protection as well as function as protectable trade dress.

When an overlap issue arises—that is, when an intellectual property rights holder asserts rights under more than one doctrine—the question then becomes how courts should respond. One response, of …

Shirking, Opportunism, Self-Delusion And More: The Agency Problem Today, Jayne W. Barnard

Faculty Publications

No abstract provided.

Biometric Id Cybersurveillance, Margaret Hu

Faculty Publications

The implementation of a universal digitalized biometric ID system risks normalizing and integrating mass cybersurveillance into the daily lives of ordinary citizens. ID documents such as driver’s licenses in some states and all U.S. passports are now implanted with radio frequency identification (RFID) technology. In recent proposals, Congress has considered implementing a digitalized biometric identification card—such as a biometric-based, “high-tech” Social Security Card—which may eventually lead to the development of a universal multimodal biometric database (e.g., the collection of the digital photos, fingerprints, iris scans, and/or DNA of all citizens and noncitizens). Such “hightech” IDs, once merged with GPS-RFID tracking …

George Orwell’S Classic Essay On Writing: The Best Style “Handbook” For Lawyers And Judges (Part I), Douglas E. Abrams

Faculty Publications

No abstract provided.

Inter-Country Adoption And The Special Rights Fallacy, James G. Dwyer

Faculty Publications

No abstract provided.

Scholarship Repository Launch Prezi, Cynthia W. Bassett

Faculty Publications

This Prezi was used as a presentation to introduce the University of Missouri School of Law Scholarship Repository to the faculty and students of the school.

Scholarship Repository Launch Brochure, Cynthia W. Bassett

Faculty Publications

This brochure is introduces the University of Missouri School of Law Scholarship Repository to the faculty and students of the school. It outlines the services provided by the library in support of the Repository and our plans for its continued growth.

Towards A Public Health Legal Structure For Child Welfare, Josh Gupta-Kagan

Faculty Publications

The present American child welfare system infringes upon the fundamental liberty interests of millions of children and parents, is adversarial and punitive, and fails to prevent child maltreatment or protect children adequately from its most severe forms. Many in the field now recognize that a public health model would more effectively support the parent-child relationship and protecting children from maltreatment than the current paradigm. Despite much attention to such an approach, the field has yet to develop a clear vision for how the law could or should support a public health approach or shape the actions of individuals and institutions …