Law Commons^™

Marriage Equality And The New Maternalism, Cynthia Godsoe

Faculty Scholarship

No abstract provided.

E-Museletter: November 2015, Kathleen Klepfer

Museletter

This Issue:

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Early Prerogative And Administrative Power: A Response To Paul Craig, Philip Hamburger

Missouri Law Review

This Article is organized around Craig’s three criticisms. (I) In challenging my thesis that federal administrative power revives a version of prerogative power, he argues that these types of power are crucially different because the prerogative was independent of statute. But his statute-free vision of prerogative power is grossly incorrect, and it therefore cannot distinguish prerogative and administrative power. His argument also is unresponsive. My thesis is that administrative power revives the extralegal character of the absolute prerogative – in other words, that both sorts of power have bound subjects through extralegal edicts – and this extralegal power remains a …

Timing Is Everything: Shea Homes, Inc. V. Commissioner, Nick Griebel

Missouri Law Review

In 1986, the Internal Revenue Code (“Tax Code”) was comprehensively revised for the first time in over thirty years as part of the Tax Reform Act of 1986 (“Act”). In enacting this comprehensive reform, Congress was guided by three overarching objectives: achieving fairness, improving efficiency, and striving for simplicity in the Tax Code. Before 1986, high-income taxpayers found ways to lower their effective tax rates through many tax shelters and loopholes in the Tax Code. As a result, many of these wealthy taxpayers were paying lower tax rates than their less affluent, low-income counterparts. With this perceived unfairness in mind, …

Protecting The State From Itself? Regulatory Interventions In Corporate Governance And The Financing Of China's 'State Capitalism', Nicholas C, Howson

Book Chapters

From the start of China’s “corporatization without privatization” process in the late 1980s, a Chinese corporate governance regime, apparently shareholder-empowering and determined by enabling legal norms, has been altered by mandatory governance mechanisms imposed by a state administrative agency, the China Securities Regulatory Commission (CSRC). This has been done to protect minority shareholders against exploitation by the Party-state controlling shareholders, the power behind China’s “state capitalism.” This chapter reviews the path of this benign intervention by the CSRC and the structural reasons for it, and then speculates on why this novel example of the China’s “fragmented authoritarianism” continues to be …

Defining Peaceably: Policing The Line Between Constitutionally Protected Protest And Unlawful Speech, Tabatha Abu El-Haj

Missouri Law Review

The current wave of civil rights demonstrations in response to police killings began on August 9, 2014, after Darren Wilson, a white police officer, fatally shot Michael Brown, an unarmed African-American eighteen-year-old, in Ferguson, Missouri. Outraged by the incident and by the fact that the body was left on the street for four-and-a-half hours – an image that went viral on social media – members of the community took to the streets. They went out without securing the necessary permits and without visible connection to established local civil rights organizations. The mainstream media quickly framed the events in Ferguson as …

Reflections On Ferguson: What’S Wrong With Black People?, Chuck Henson

Missouri Law Review

After Officer Darren Wilson shot and killed Michael Brown on August 9, 2014, it seemed as if it was the summer of 1967 again. The same series of events that happened in Newark and Detroit in 1967 happened in Ferguson, Missouri, in 2014. A white man shot and killed a black man. The predominantly black population protested, rioted, and looted. The predominantly white police force was overwhelmed. The governor called out the National Guard and imposed a curfew. When these things happened in the summer of 1967, President Lyndon B. Johnson, by Executive Order 11365, established what would become known …

Setting The Stage For Ferguson: Housing Discrimination And Segregation In St. Louis, Rigel C. Oliveri

Missouri Law Review

The history of St. Louis is replete with discriminatory housing laws, policies, and practices: racially restrictive covenants, redlining, blockbusting and white flight, and exclusionary zoning. While these were common in virtually every part of the United States, they were particularly egregious, widespread, and pervasive in industrial Midwestern cities like Chicago, Detroit, and St. Louis – which saw a large influx of blacks migrating from the south at the close of the nineteenth century. In fact, three of the most foundational housing cases originated in St. Louis. When we look closely at these cases – not just the legal principles that …

No, You “Stand Up”: Why Prosecutors Should Stop Hiding Behind Grand Juries, Ben L. Trachtenberg

Missouri Law Review

This Article argues that prosecutors should not allow grand juries to consider indicting defendants whom the prosecutors themselves believe should not be indicted. To illustrate the problems with this practice, this Article uses the example of St. Louis County Prosecutor Robert P. McCulloch – who encouraged deliberations by the grand jury that heard evidence concerning the shooting death of Michael Brown in Ferguson, Missouri, despite personally believing that Brown’s killer, police officer Darren Wilson, should not be indicted. The arguments against allowing grand juries to conduct such needless deliberations include: (1) the exercise wastes the time of citizens forced to …

Faculty List

Missouri Law Review

Table of Contents - Issue 3

Masthead

Missouri Law Review

No abstract provided.

Copyright

Missouri Law Review

No abstract provided.

Why Bias Challenges To Administrative Adjudication Should Succeed, Kent Barnett

Missouri Law Review

Administrative adjudication’s partiality problem is a worthy candidate to join these claims for three reasons. First, prohibiting administrative adjudicators’ partiality, unlike some other structural areas, does not require overruling prior decisions and relies heavily on the Court’s recent precedent. Second, partiality challenges fit comfortably within the Court’s penchant for formalism and prophylaxes in structural constitutional matters. Indeed, formalism is much more justified for partiality challenges than certain other structural issues and has a longer jurisprudential provenance. Finally, as compared to other proposed challenges to the administrative state, challenges based on administrative partiality are more likely to earn enough votes to …

Rating The Cities: Constructing A City Resilience Index For Assessing The Effect Of State And Local Laws On Long-Term Recovery From Crisis And Disaster, John Travis Marshall

Faculty Publications By Year

Superstorm Sandy, the 2008 Iowa floods, and Hurricanes Katrina and Rita all supply recent reminders that U.S. cities can no longer adopt an ad hoc approach to threats presented by climate change and natural hazards. The stories detailing long-term recovery from these disasters underscore that federal, state, and local governments are struggling to appreciate the legal tools and institutions necessary to implement the large-scale infrastructure, housing, and community development programs that climate change and more frequent natural disasters demand. This Article calls for development of a tool allowing succinct evaluation of the range of community capacities that will figure critically …

Human Trafficking And Film: How Popular Portrayals Influence Law And Public Perception, Jonathan Todres

Faculty Publications By Year

No abstract provided.

Gaming The System: The Exemption Of Professional Sports Teams From The Fair Labor Standards Act, Charlotte S. Alexander, Nathaniel Grow

Faculty Publications By Year

This article examines a little known exemption to the Fair Labor Standards Act relieving seasonal recreational or amusement employers from their obligation to pay the minimum wage and overtime. After evaluating the existing, confused case law surrounding the exemption, we propose a new, simplified framework for applying the provision. We then apply this framework to a recent wave of FLSA lawsuits brought by cheerleaders, minor league baseball players, and stadium workers against professional sports teams. The article concludes by considering the policy implications of exempting this class of employers from the FLSA's wage and hour requirements.

Challenging The Randomness Of Panel Assignment In The Federal Courts Of Appeals, Marin K. Levy, Adam S. Chilton

Cornell Law Review

No abstract provided.

Locked In: The Competitive Disadvantage Of Citizen Shareholders, Anne M. Tucker

Faculty Publications By Year

In this Essay, I challenge the conventional corporate law wisdom that unhappy mutual fund investors paying high fees don’t need litigation or regulation to protect their interests because they should simply exit a fund and reinvest elsewhere. The exit solution, advanced by Professors John Morley and Quinn Curtis in Taking Exit Rights Seriously provided an elegantly simply solution to the problem of unhappy indirect investors (e.g., mutual fund investors) given that they are often low-dollar, low-incentive, rationally-apathetic investors facing enormous information asymmetries and collective action problems. According to their view, competition produced by exit, or the threat of exit, is …

Regulating Drug Promotion To Promote The Public Health: A Response To Bennett, Et Al., Patricia J. Zettler

Faculty Publications By Year

No abstract provided.

Introduction To Spontaneous Order And Emergence Of New Systems Of Property, Yun-Chien Chang, Richard A. Epstein

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

The New Stock Market: Sense And Nonsense, Merritt B. Fox, Lawrence R. Glosten, Gabriel V. Rauterberg

Articles

How stocks are traded in the United States has been totally transformed. Gone are the dealers on NASDAQ and the specialists at the NYSE. Instead, a company’s stock can now be traded on up to sixty competing venues where a computer matches incoming orders. High-frequency traders (HFTs) post the majority of quotes and are the preponderant source of liquidity in the new market. Many practices associated with the new stock market are highly controversial, as illustrated by the public furor following the publication of Michael Lewis’s book Flash Boys. Critics say that HFTs use their speed in discovering changes in …

Accurately Instructed In The Law: Finding State Jury Instructions, Jan B. Bissett, Margi Heinen

Library Scholarly Publications

No abstract provided.

The Opinion Volume 48 Issue 1 – November 1, 2015, The Opinion

The Opinion Newspaper (all issues)

The Opinion newspaper issue dated November, 1, 2015

Exploring The Link Between Food Security And Climate Change, Kaitlin Y. Cordes

Columbia Center on Sustainable Investment Staff Publications

Our growing global population is demanding a more resource-intensive and so-called “Western” diet. And that change in demand has drastic impact on how we must change our supply.

Tpp Would Let Foreign Investors Bypass The Canadian Public Interest, Lisa E. Sachs, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

In early October, prime ministerial candidate Justin Trudeau promised Canadians “a full and open public debate” on the Trans-Pacific Partnership. With 30 chapters that would bind Canada to sweeping agreements on everything from services to intellectual property to the environment to procurement, there is much to debate.

Next Generation Treaty – India’S New Model Bit Makes It Clear That Its Goal Is To Accomplish More Than Investor Protection, Lisa E. Sachs, Lise Johnson, Sudhanshu Roy

Columbia Center on Sustainable Investment Staff Publications

The April release of India’s draft model bilateral investment treaty 1(BIT), which is expected to be approved by the cabinet soon, has generated a rich public debate on its international investment regime. There are important questions about the purpose and content of investment treaties, both in India and other countries. However, some reactions – like Augusts Law Commission report suggesting that the model BIT was not sufficiently investor-friendly – frame the discussion too narrowly, ignoring key questions and objectives behind India’s transitioning investment policy regime.

The Tpp’S Investment Chapter: Entrenching, Rather Than Reforming, A Flawed System, Lise Johnson, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

During the negotiations of the Trans-Pacific Partnership (TPP) agreement, many stakeholders raised strong concerns about the Investment Chapter of the TPP, and in particular, the investor-state dispute settlement mechanism (ISDS). The US Trade Representative (USTR) and other representatives of the negotiating partners assured the stakeholders that the TPP’s investment chapter would respond to the legitimate concerns about expansive investor protections and ISDS. The actual text, however, when made public, showed the opposite: a further evisceration of the role of domestic policy, institutions, and constituents. In their current form, the TPP’s substantive investment protections and ISDS pose significant potential costs to …

Trademark Enforcement Issues In The United States: Bullies And Trolls, Michael S. Mireles Jr.

McGeorge School of Law Scholarly Articles

The article discusses several issues in trademark enforcement in the U.S. It analyzes the problems on trademark bullies and trademark trolls in the U.S. and their existence including the trademark enforcement practices of Travelers Corp. It explains the reason the problem on a trademark troll is a problem unlikely to develop in the U.S.

How Moving From “Best” To “Next” Practices Can Fuel Innovation, Sandee Magliozzi

Faculty Publications

No abstract provided.

“The People Surrender Nothing”: Social Compact Theory, Republicanism, And The Modern Administrative State, Joseph Postell

Missouri Law Review

The Article’s argument proceeds in four parts. Part I provides an overview of the scholarly arguments in defense of the nondelegation doctrine. It describes three arguments in favor of the nondelegation doctrine: the separation of powers, political accountability, and constitutional text. Part II argues that social compact theory – not separation of powers, accountability, or constitutional text – is the true foundation of the nondelegation principle. Part III connects the theory of the social compact to the basic principles of republican government, which require that legislative powers are exercised by the representatives of the people chosen through elections. Part IV …