Law Commons^™

Still Not At All: Environmental Sustainability In The Supreme Court, James R. May

UMKC Law Review

Some predicted that the Court and litigants would make sustainability principles juridically relevant. Yet this article takes a fresh look and finds express invocation of sustainability still lacking not only in the U.S. Supreme Court but virtually throughout the U.S. federal judicial system comprised of the Supreme Court, 13 federal appellate courts, and 94 federal district courts. Part II tells the story of sustainable development's continued march as a legal principle. Part III engages sustainability jurisprudence before the U.S. Supreme Court and otherwise in the federal court system. It concludes that not only the U.S. Supreme Court but the entire …

Reckless Parties Should Foot The Bill: Advocating For State Agency Search And Rescue Service Reimbursement, Anna Vanbuskirk

UMKC Law Review

No abstract provided.

Getting Around The Marking Requirement: Closing The Loophole On Damages, Ethan Buresh

UMKC Law Review

No abstract provided.

Protecting Water, Sustaining Communities: Transforming Groundwater Management Entities Into Sources Of Power During And After Environmental Crises, Sarah Matsumoto

UMKC Law Review

Groundwater serves as a vital, limited resource for people all over the world. The United States Geological Survey reports that about 140 million people in the United States rely on groundwater for drinking water, of those, almost 43 million people rely on groundwater from domestic (or private, non-public supply) wells. In rural areas, groundwater is often the only available source of drinking water, making protection of groundwater quality in these regions a paramount concern.

Mirroring the various state regulatory approaches to groundwater management and protection, much of the recent media coverage of groundwater in the West focuses on water allocation …

Abortion, Gay Equality, And The Normative Power Of The Actual, Pamela S. Karlan

North Carolina Law Review

No abstract provided.

The Harlan Court: A Constitutional Alternate History, H. Jefferson Powell

North Carolina Law Review

No abstract provided.

The Information Costs Of Exclusion, Jonathan Sarnoff

University of Chicago Law Review

The appropriate scope of the right to exclude is among the most contentious topics in property theory: while some defend direct state regulations that override owners’ right to exclude unwanted uses from their property, others defend greater deference to owners’ authority, implemented by stringent enforcement of the right to exclude. In recent years, scholars who favor exclusion have developed novel arguments to support it by focusing on the information costs of property. Because every- one must respect property rights, those rights must be simple enough for everyone to understand their content. And the right to exclude, which requires everyone to …

Deciphering The "Traditional Property Interests" Test For Property-Based Mail And Wire Fraud, Grant Delaune

University of Chicago Law Review

The mail and wire fraud statutes are the “first line of defense” against fraudulent activities. Adaptable and broadly written, they are go-to tools in the white- collar prosecutor’s arsenal. But this flexibility has also raised concern about their expansive and indeterminate scope—leading the Supreme Court to eliminate certain honest-services theories of fraud and limit property-based theories of fraud to the protection of “traditional property interests.”

Unfortunately, the vagueness of the traditional property interests test has resulted in a confusing morass of inconsistent judgments. With limited guidance from the Supreme Court on how to conduct such an inquiry, lower courts have …

The Finality Of Reinstated Orders Of Removal Under 8 U.S.C. § 1252, Jonah Klausner

University of Chicago Law Review

Federal law authorizes the reinstatement of a prior removal order when a noncitizen “reenter[s] the United States without authorization after having already been removed.” It further provides an “expedited process” for doing so, denying to such noncitizens the right to contest before an immigration judge their removability or inadmissibility. The question whether a noncitizen is removable is thus definitively settled immediately upon reinstatement. But the question to where the noncitizen will be removed is less certain. This is because noncitizens subject to reinstated orders of removal retain the right to pursue “withholding-only” relief, which precludes removal to the noncitizen’s home …

Critical Race Theory Bans And The Changing Canon: Cultural Appropriation In Narrative, Susan Ayres

Faculty Scholarship

Thirty-five states have enacted critical race theory bans at the level of elementary and secondary public education, and seven states have extended these to the university level. One way to resist these attempts to repress a healthy democracy by whitewashing history is through a pedagogy of antiracism, including literary works. The question of what that would look like involves questions of cultural appropriation, which occurs when one takes from another culture, such as a writer creating a narrative about a character outside of the writer’s cultural identity. This Article considers the story of Ota Benga, brought from the Congo to …

The Sources And Consequences Of Disputes Over Contractual Meaning, Randy D. Gordon

Faculty Scholarship

With some frequency, parties agree to the particular words used in a contract they sign, only to later disagree as to the meaning of those words and their legal effect. That is, they each assent to something, but that “something” is something different for each of them. In this Article, I first categorize and trace the sources of recurring points of disagreement as a matter of language and linguistics. Then, I look at the consequences of a dispute that leads a fact finder to conclude that the parties genuinely did not agree to the same thing, which is to say …

Putting The Lawyer First: Framing Well-Being In Law As An Ethical Dilemma, Aric Short

Faculty Scholarship

A disturbingly high percentage of our students continue to be unwell. In the most recent and comprehensive survey of law student well-being in 2021, almost 70% of law students responded that, in the past twelve months, they believed they needed to seek help for emotional or mental health problems. Embedded screening tools in the survey suggested that 34% of respondents were clinically depressed and 54% suffered from clinical anxiety. 44% of respondents reported being drunk in the past thirty days, 33% had engaged in binge drinking in the preceding two weeks, and 38% had smoked marijuana in the past twelve …

Adoption As Substitute For Abortion?, Malinda L. Seymore

Faculty Scholarship

In Dobbs v. Jackson Women’s Health, Justice Samuel Alito relied on adoption as part of the justification for holding that abortion is not constitutionally protected: “States have increasingly adopted ‘safe haven’ laws, which generally allow women to drop off babies anonymously; and that a woman who puts her newborn up for adoption today has little reason to fear that the baby will not find a suitable home.” Using adoption as an adequate substitute for abortion is a long-standing strategy for the antiabortion movement; but it is often embraced by pro-choice advocates as well. This position is supportable only if the …

The Subfederal In Immigration Polarization, Huyen Pham, Pham Hoang Van

Faculty Scholarship

The framing of subfederal immigration regulation as a red- blue divide is conventional wisdom. As more states, cities, and counties have engaged in the regulation of immigrants within their jurisdictions, it is not particularly surprising to see deep-red states like Texas enacting laws that restrict the rights of immigrants in their jurisdictions (e.g., requiring police within the state to honor detainers issued by United States Immigration and Customs Enforcement (ICE)) or deep-blue states like California enacting laws that protect immigrants’ rights (e.g., issuing driver’s licenses without requiring proof of lawful immigration status).

Rather than only reflecting national polarization on immigration …

Breaking Down Siloes And Building Up Students: The Transformational Possibilities Of Professional Identity Formation, Lindsey P. Gustafson, Aric K. Short, Robin Thorner

Faculty Scholarship

Under the ABA’s sequenced approach to implementation of Standard 303(b)(3), schools should now have developed plans for providing opportunities for professional identity formation and should be implementing them. These plans must provide students with an “intentional exploration of the values, guiding principles, and well-being practices considered foundational to successful legal practice.” In addition, these plans should provide for frequent opportunities for development, “during each year of law school and in a variety of courses and co-curricular and professional development activities.”

Because Standard 303(b)(3) is necessarily tied to the unique character, existing
structures, and available resources of a law school, each …

Mind The Gap: Toussaint And The Reception Of International Human Rights Law In Canada, Karinne Lantz

Articles, Book Chapters, & Popular Press

This article explores the reception of international human rights law (“IHRL”) in Canada and the enforcement gap that may arise when legislation is not passed expressly implementing human rights treaties that Canada has ratified. Despite establishing a variety of interpretive methods that may result in Canada’s binding IHRL obligations having domestic effect even when they are not expressly implemented, Canadian courts have struggled to provide clear and consistent guidance on how IHRL applies in Canada. The selective approach in Canada to implementing legislatively IHRL obligations may give rise to an enforcement gap when rights individuals purportedly enjoy under international law …

Regulating Congressional Insider Trading: The Rotten Egg Approach, Sarah J. Williams

Cardozo Law Review

A 2004 study revealed that the stock portfolios of members of Congress were consistently outperforming those of the investing public. The financial success of federal lawmakers was statistically correlated to the use of nonpublic information obtained while performing legislative responsibilities—reasonably characterizable as insider trading. Cries of dismay over such profiteering by lawmakers have been echoing in the public domain since Samuel Chase, Maryland’s representative in the Continental Congress, directed colleagues to corner the flour market in 1778 after learning that copious quantities of it would be purchased by the government to support the Continental Army. Notwithstanding efforts to apply insider …

Bound To Misfortune: Protecting Juvenile Abortion Through The Right To Travel, John H.C. Hughes

Cardozo Law Review

On July 1, 2022, the Indianapolis Star reported that a ten-year-old Ohio girl, who had been raped and was six weeks pregnant, had sought an abortion in Indiana. Abortion had been outlawed in Ohio mere hours after the Supreme Court overturned Roe v. Wade, but it remained legal ˙in neighboring Indiana. The Ohio girl was able to cross the state border, get the abortion, and—presumably—return home safely. But if lawmakers like those in Missouri, South Carolina, Texas, and a handful of other states have their way, pregnant© children in abortion-restrictive states will be unable to avail themselves of neighboring …

Designing Contracts For A Modern Classroom: The Abcs Of Cbas, Elizabeth Chu, Molly Gurny, Tong Koh, Evan Stone, Chiara Grabill, Jill Mclaughlin

Center for Public Research and Leadership

Although teacher contracts (commonly, collective bargaining agreements or CBAs) provide critical workforce protections for teachers and govern much of the profession, they remain an underutilized lever for enabling strong teaching and learning, elevating the teaching profession, and equipping school systems with tools and capacities to confront the challenges of a rapidly changing, increasingly uncertain world.

Drawing on research spanning states, school systems, and time periods, this report sets forth a conceptual framework that draws attention to teacher contracts — both what they say and the ways they are built — as a potentially powerful, already-embedded, forward-looking mechanism for professionalizing teaching …

The Making Of Presidential Administration, Ashraf Ahmed, Lev Menand, Noah Rosenblum

Faculty Scholarship

Today, the idea that the President possesses at least some constitutional authority to direct administrative action is accepted by the courts, Congress, and the legal academy. But it was not always so. For most of American history — indeed until relatively recently — Presidents derived their authority over the administrative state largely from statute. Any role for the White House in agency rulemaking or adjudication had to be legally specified. Scholars mostly agree about when this change occurred. But the dominant shared narrative — exemplified by then-Professor Elena Kagan’s seminal article Presidential Administration — is Whig history. It offers a …

Sect And Superstition: The Protestant Framework Of American Codification, Kellen R. Funk

Faculty Scholarship

Elite lawyers who debated codification in the nineteenth-century United States treated codification as inseparable from a liberal Protestant textualism that had taken hold in the early national era. Legislators declared codification to be the necessary final step of the Protestant Reformation and frequently characterized common law lawyers as beholden to ‘superstition’ and ‘priestcraft’. Their opponents denounced the codifiers’ idea that texts alone could adequately convey common meanings and delighted to point out the endlessly fracturing glosses on supposedly ‘clear’ texts that divided the positivists into an ever-increasing number of sects.

Many works have addressed the relationship between populism and positivism …

Opening Dialogue, Lee C. Bollinger, Geoffrey R. Stone

Faculty Scholarship

To set the stage for the excellent essays that make up this volume on the future of free speech, let’s begin where we often do when thinking together about the First Amendment: with some basic facts and fundamental observations about the constitutional command that “Congress shall make no law ... abridging the freedom of speech, or of the press.”

Of course, in the United States, “free speech” is not only part of the constitutional Bill of Rights; it is also a cultural and social norm by which we choose to live. Several of the essays in this volume therefore take …

Bridging The Divide: Does The Eu's Ai Act Offer Code For Regulating Emergent Technologies In America?, Renee Henson

Missouri Law Review

The European Union (“EU”) has taken the remarkable step of coming to agreement to implement the first-of-its-kind comprehensive legislation regarding artificial intelligence (“AI”), the AI Act. The AI Act adopts a risk-based approach to address diverse AI system applications and potential harms associated with AI technology. The AI Act categorizes AI systems based on risk levels, ranging from unacceptable to minimal, with corresponding regulatory requirements tailored to mitigate associated risks. Efforts are underway in the United States to establish AI regulatory frameworks, as demonstrated by the Bipartisan Framework for U.S. Act, proposed by Senators Josh Hawley (R-MO) and Richard Blumenthal …

Table Of Contents

Missouri Law Review

No abstract provided.

Masthead

Missouri Law Review

No abstract provided.

Resolving The Incompatibility Of Claim Accrual And Recovery In Copyright Law, Tim Knight

Missouri Law Review

Under Section 507(b) of the Copyright Act, which provides a three-year statute of limitations, courts have typically employed one of two distinct approaches to ascertain when a claim accrues in civil copyright infringement cases. One of these is the “Discovery Accrual Rule,” which provides that the three-year limitation period commences once a plaintiff discovers infringement. The other, the “Injury Accrual Rule,” provides that the three-year limitation period commences once a plaintiff has been harmed through infringement. An incompatibility arises because no section of the Copyright Act prescribes a specific lookback period for recovery. As such, there is an ongoing debate …

Copyright

Missouri Law Review

No abstract provided.

The Case For Applying Comcast's Causal Canon To The Pregnant Workers Fairness Act, Taylor Todd

Missouri Law Review

For as long as there have been employer-employee relationships, there has been the potential for problems in those relationships—some of which are rooted in discrimination. In an ideal world, employees and prospective employees would not face adverse decisions based on protected characteristics. Unfortunately, the world is not always ideal and such decisions can and do happen. That said, the law attempts to bring justice when discrimination claims arise, working to balance the interests and rights of wronged employees while also setting forth standards that require employees to meet certain thresholds when making those claims. Throughout modern history, the United States …

Using Intellectual Property To Regulate Artificial Intelligence, Dennis D. Crouch

Missouri Law Review

This Article examines the complex relationship between intellectual property (“IP”) rights and the regulation of artificial intelligence (“AI”). It advances two primary claims: First, while IP plays a role in guiding innovative behaviors in AI development, it does not serve as an effective mechanism for direct regulation of AI. This claim is based on the observation that IP rights, such as patents and copyrights, are primarily designed to incentivize innovation and protect creative works, while lacking the levers necessary to address the broader societal implications of AI technology. The narrow focus of IP rights on rewarding creators makes them ill-suited …

Calvinball In Cole County:State Ex Rel. Fitz-James V. Bailey, Eric Humphrey

Missouri Law Review

In the comic strip Calvin and Hobbes, the titular boy and tiger often play a game called Calvinball. There is only one rule to Calvinball: The game cannot be played the same way twice. In one strip, Calvin and Hobbes try to play football. Hobbes yells, “The center snaps the ball to the quarterback.” Calvin retorts, “No he doesn’t! He’s secretly the quarterback for the other team! He keeps the ball!” The game descends into chaos. At the end of the strip, Calvin says, “Sooner or later, all our games turn into Calvinball.” Much like the rules of Calvinball, the …