Missouri law review最新文献

{"title":"“There but for the grace of God go I”","authors":"Edmund S. K. Fung","doi":"10.1525/9780520938328-038","DOIUrl":"https://doi.org/10.1525/9780520938328-038","url":null,"abstract":"","PeriodicalId":82026,"journal":{"name":"Missouri law review","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67339749","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Will for Willa Cather","authors":"T. Simmons","doi":"10.2139/SSRN.3284499","DOIUrl":"https://doi.org/10.2139/SSRN.3284499","url":null,"abstract":"Artists hold their creative works dear: whether paintings, poems, or songs, their human creators treat them with special care and often desire that same care be exercised after death. Directing particular uses of property from the grave can be met with several objections. The objections sound in alarmist responses to “dead hand control” and include the Rule Against Perpetuities, uncertainty, capriciousness, and the repugnancy of restraints on alienation.This Article considers these and other recurring objections in one particular context and with one particular variety of creative works: an author’s unpublished and private letters to her friends. A mechanism for achieving an artist’s restrictions over the use of her creative works after death is introduced in the form of a purpose trust. Purpose trusts are typically utilized by pet owners to ensure the continued care and preservation of their pets after the owner’s death. Purpose trusts are unique in that they lack ascertainable beneficiaries to enforce the trustee’s duties. Many purpose trusts do not qualify as charitable trusts (which can be enforced by the state attorney general’s office). Instead, a private “enforcer” must be provided. Here, a noncharitable purpose trust designed to restrict access to an author’s private correspondence is introduced; a testamentary trust hypothetically created under the terms of the Last Will and Testament of the celebrated American author Willa Cather.","PeriodicalId":82026,"journal":{"name":"Missouri law review","volume":"83 1","pages":"7"},"PeriodicalIF":0.0,"publicationDate":"2018-11-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42988289","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Neutralizing Access to Justice: Criminal Defendants' Access to Justice in a Net Neutrality Information World","authors":"A. Chase","doi":"10.2139/ssrn.2538729","DOIUrl":"https://doi.org/10.2139/ssrn.2538729","url":null,"abstract":"Ten years ago, the phrases “net neutrality” and “access to justice” were not a part of the public vocabulary – not individually and certainly not in the same sentence. In addition, few people who were talking about these issues were addressing their intersection as it relates to the millions of Americans who are being under-served in the criminal justice system. Because net neutrality issues are almost universally discussed in terms of large-scale commercial sites, very few people are interested in how the demise of net neutrality threatens to impact access to information for those represented by counsel (or worse, themselves) in criminal proceedings in the United States. This article details how the demise of net neutrality will harm the millions of Americans who are currently a part of the criminal justice system, and what can be done to ensure that their access to justice remains intact.","PeriodicalId":82026,"journal":{"name":"Missouri law review","volume":"84 1","pages":"5"},"PeriodicalIF":0.0,"publicationDate":"2018-08-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45399167","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Digital Sampling v. Appropriation Art: Why Is One Stealing and the Other Fair Use? A Proposal for a Code of Best Practices in Fair Use for Digital Music Sampling","authors":"M. Eckhause","doi":"10.2139/ssrn.3224724","DOIUrl":"https://doi.org/10.2139/ssrn.3224724","url":null,"abstract":"This Article examines the disparate treatment of music sampling and appropriation art under copyright law and advocates for the creation of a code of best practices in fair use for digital music sampling. In the music industry, when artists sample two-seconds of a song, courts call it stealing, piracy, and copyright infringement. In contrast, in the art world, when artists sample whole photographs, courts label it appropriation art, collage, and fair use. Yet, appropriation art and digital sampling are artistically analogous acts. Both arise from the practice of collage and the long-standing practice of musicians and visual artists sampling other artists’ works by incorporating them into new pieces, often without permission from the original artists. Therefore, this Article argues that the more liberal fair use and de minimis principles adopted in recent visual arts cases should be applied to music sampling. This Article then sets forth a Code of Best Practices in Fair Use for Digital Music Sampling which articulates principles for determining under which circumstances permission is needed for sampling. This code is based on the author’s online survey that questioned music professionals about their opinions, experiences, and practices concerning digital music sampling. This Article does not advocate for bright-line rules classifying all sampling as per se fair use. Just as some appropriation art is copyright infringement, some digital sampling will require a license too. The point is that it is time for musical artists to reclaim their right to fair use and to put digital music sampling on the same legal par as other artistic collage practices.","PeriodicalId":82026,"journal":{"name":"Missouri law review","volume":"84 1","pages":"6"},"PeriodicalIF":0.0,"publicationDate":"2018-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41937257","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"\"Make Him an Offer He Can't Refuse\" - Mezzanatto Waivers as Lynchpin of Prosecutorial Overreach","authors":"C. Mueller","doi":"10.2139/SSRN.2941731","DOIUrl":"https://doi.org/10.2139/SSRN.2941731","url":null,"abstract":"Plea bargaining is the dominant means of disposing of criminal charges in the United States, in both state and federal courts. This administrative mechanism has become a system that is grossly abusive of individual rights, leading to many well-known maladies of the criminal justice system, which include overcharging, overincarceration, convictions on charges that would likely fail at trial, and even conviction of “factually innocent” persons. Instrumental in the abuses of plea bargaining is the so-called Mezzanatto waiver, which takes its name from a 1995 Supreme Court decision that approved the practice of getting defendants to agree that anything they say in negotiations with prosecutors can be admitted against them if a trial ensues, despite Evidence Rule 410, which provides that such statements are inadmissible. These waivers, which are largely overlooked in the vast literature that criticizes plea bargaining, are in fact lynchpins in a system that is horrifying to contemplate. \u0000These waivers mean that the very act of negotiation almost guarantees conviction of something, imposing one-sided risks on defendants that can only benefit prosecutors. They amount to a kind of palpable unfairness that the system tolerates, and they not only contribute to the maladies described above, but they produce rulings (if a trial goes forward) that admit unreliable statements. There are many reasons why these waivers should be disapproved, including policy arguments (they are unfair, produce bad results and unreliable statements) and arguments based on contract law, on Rule 410 itself, on a widely-recognized but seldom enforced “unitary” principle and on the “Mezzanatto proviso” (a widely ignored term in the decision itself). \u0000This Article explores the origins and operation of Mezzanatto waivers, examines the reasons for disapproving them and taking a new direction, and offers a reply to standard arguments that prosecutors need them (they really don’t and have other means to hold defendants to their bargains).","PeriodicalId":82026,"journal":{"name":"Missouri law review","volume":"82 1","pages":"1023"},"PeriodicalIF":0.0,"publicationDate":"2017-03-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2941731","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45969952","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Toward a Context-Specific Chevron Deference","authors":"Christopher J. Walker","doi":"10.2139/SSRN.2798813","DOIUrl":"https://doi.org/10.2139/SSRN.2798813","url":null,"abstract":"With Justice Scalia’s passing, the Supreme Court is unlikely to consider overturning the administrative law doctrines affording deference to agency statutory interpretations (Chevron deference) or agency regulatory interpretations (Auer deference). Without Justice Scalia on the Court, however, a different kind of narrowing becomes more likely. The Court may well embrace Chief Justice Roberts’ context-specific Chevron doctrine, as articulated in his dissent in City of Arlington and his opinion for the Court in King v. Burwell. This Essay, which is part of a symposium on the future of the administrative state, explores the Chief Justice’s more-limited approach to Chevron deference and details how recent empirical studies of congressional drafters and agency rule drafters may well provide some support for a context-specific Chevron doctrine (as well as King’s major questions doctrine). Although the wisdom of such a reform lies outside the scope of this Essay, litigants and scholars should pay more attention to the Chief Justice’s dissent in City of Arlington as it may well soon become the law of the land.","PeriodicalId":82026,"journal":{"name":"Missouri law review","volume":"81 1","pages":"1095-1114"},"PeriodicalIF":0.0,"publicationDate":"2016-06-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68333512","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"RFRA Rights Revisited: Substantial Burdens, Judicial Competence, and the Religious Nonprofit Cases","authors":"S. W. Gaylord","doi":"10.2139/SSRN.2741136","DOIUrl":"https://doi.org/10.2139/SSRN.2741136","url":null,"abstract":"The most recent challenge to the free exercise of religion is here. And while it stems from the same legislation that prompted the action in Burwell v. Hobby Lobby Stores, Inc. — the contraception mandate under the Patient Protection and Affordable Care Act (the “ACA”) — it raises unique and equally important issues: what constitutes a substantial burden on the exercise of religion and who gets to decide (the religious adherents or the courts). In Hobby Lobby, the government contended that for-profit corporations could not exercise religion and, consequently, could not avail themselves of the broad protection afforded free exercise under the Religious Freedom Restoration Act. In the seven religious nonprofit cases pending before the United States Supreme Court, the government acknowledges that RFRA applies to religious nonprofits but now alleges that the ACA does not substantially burden the free exercise of these religious organizations. In particular, the government argues that the accommodation to the contraception mandate (which permits religious nonprofits to avoid directly providing coverage for all FDA-approved contraceptives and sterilization procedures by giving notice to their insurance issuers or third party administrators that the religious organizations object to providing such coverage) does not burden, let alone substantially burden, the religious nonprofits’ exercise of religion.To date, eight circuit courts of appeals have sided with the government, instructing the religious nonprofits that their sincerely held belief — that the accommodation makes them complicit in a grave moral wrong (i.e., the provision of contraceptives and abortifacients) — is incorrect because the ACA, not any actions by the religious nonprofits, is the legal cause of the insurance issuers’ and TPAs’ obligation to provide such coverage. Under the majority’s “Pontius Pilate” defense, the accommodation “washes the hands” of religious nonprofits, cleansing them of any legal or moral responsibility for providing the objectionable coverage. As a result, the religious nonprofits cannot meet their burden under RFRA because the accommodation does not substantially burden their exercise of religion. Only the Eighth Circuit has ruled for the religious nonprofits. The Supreme Court’s resolution of the circuit conflict, therefore, will impact the scope of free exercise protection far beyond the ACA context by deciding whether courts or religious practitioners have the right to determine when government-mandated actions actually contravene sincerely held religious beliefs.This article contends that the circuit court majority is wrong. Contrary to the majority’s claim, Hobby Lobby and Holt v. Hobbs preclude courts from deciding whether the ACA (or any other statute) actually burdens a religious adherent’s sincerely held beliefs. Although, as Chief Justice Marshall famously declared, “it is emphatically the province and duty of the judicial department to declare what the ","PeriodicalId":82026,"journal":{"name":"Missouri law review","volume":"81 1","pages":"5"},"PeriodicalIF":0.0,"publicationDate":"2016-03-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2139/SSRN.2741136","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68282216","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Bowman v. Monsanto Co.: A Bellwether for the Emerging Issue of Patentable Self-Replicating Technologies and Inadvertent Infringement","authors":"Christopher M. Holman","doi":"10.2139/ssrn.2731380","DOIUrl":"https://doi.org/10.2139/ssrn.2731380","url":null,"abstract":"The inherent tendency of patented seeds to self-replicate has led to fears that farmers might face liability for inadvertent patent infringement. To address the perceived problem, some have proposed severely limiting the availability of effective patent protection for self-replicating technologies. Typical examples include denying patent rights to \"second generation\" self-replicating products, and even broadly declaring such technologies ineligible for patent protection. The fact is, lawsuits against inadvertently infringing farmers remain of largely hypothetical concern. However, changes in the market could soon render such lawsuits a reality. In addressing the resulting policy concerns, Congress and the courts have at their disposal a variety of doctrinal tools that could effectively shield legitimately inadvertent infringers from liability without unduly weakening the ability of patents to incentivize investment in the development of self-replicating technologies. A failure to do so could have dramatic unintended consequences for a host of emerging self-replicating technologies in areas as diverse as synthetic biology, nanotechnology, computer software, and even space exploration. Congress and the courts have already addressed problems of inadvertent copyright infringement that have arisen with respect to software and other digitally encoded content, and some of the same fundamental principles could be recruited to address the emerging issue of inadvertent patent infringement caused by the increasing prevalence of patentable self-replicating technologies. At the same time, innovators in self-replicating technologies might need to seriously consider the implementation of technological restrictions on copying as a practical alternative to patent protection.","PeriodicalId":82026,"journal":{"name":"Missouri law review","volume":"80 1","pages":"665"},"PeriodicalIF":0.0,"publicationDate":"2015-06-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68278286","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Rigorous Romantic: Anthony Lewis on the Supreme Court Beat","authors":"L. Greenhouse","doi":"10.2139/SSRN.2559452","DOIUrl":"https://doi.org/10.2139/SSRN.2559452","url":null,"abstract":"Tony Lewis called himself “a romantic about the Supreme Court.” If he had not been a romantic when he took up the beat for the New York Times in 1957, he surely would have become one as, for the next seven years, he chronicled the Warren Court’s progressive constitutional revolution at the peak of its energy and transformative power. To list just some of the landmark opinions the Court issued during those seven years is to prove the point: Cooper v. Aaron, Mapp v. Ohio, Baker v. Carr, Engel v. Vitale, Gideon v. Wainwright, Brady v. Maryland, School District of Abington Township, Pennsylvania v. Schempp, New York Times Co. v. Sullivan, Reynolds v. Sims, Heart of Atlanta Motel, Inc. v. United States. “Historic Change in the Supreme Court” was the headline on a New York Times Magazine article of Tony’s that ran in the midst of it all, in June 1962, an article to which I shall return, because it reveals as much about its author as it did about its subject.You may have done a double-take when I said that Tony covered the Court for seven years – only seven years. As one who came to the beat fourteen years after he left it, and who stayed for nearly three decades, I also find that hard to believe, to the extent that I feel the need to keep checking my notes for accuracy every time I mention it. The reason his seven-year tenure sounds so unbelievably short is that its impact was so unbelievably great. He explained what was happening at the Court in muscular and declarative prose that any intelligent reader could understand. But he did so much more than that. He placed the decisions in the context of contemporary politics and the framework of constitutional history while assessing their significance. He transformed journalism about the Supreme Court from a score-keeping account of winners and losers to a rich narrative of the Court’s role in a democracy grappling with profound questions about the meaning of justice for all.","PeriodicalId":82026,"journal":{"name":"Missouri law review","volume":"79 1","pages":"907"},"PeriodicalIF":0.0,"publicationDate":"2014-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68203646","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Are Corporate Super PAC Contributions Waste or Self-Dealing? A Closer Look","authors":"J. Leahy","doi":"10.2139/SSRN.2304852","DOIUrl":"https://doi.org/10.2139/SSRN.2304852","url":null,"abstract":"Management has exclusive domain over a corporation's day-to-day affairs; shareholders play no role in ordinary business decisions. Thus, in a post-Citizens United world, management may cause a corporation to contribute to a Super PAC without any shareholder input. If a shareholder discovers the contribution and objects, her only options under state corporation law are to elect a new board, sell her shares or sue management for breach of fiduciary duty – i.e., \"vote, sell or sue.\"Unfortunately, for most shareholders of publicly traded corporations, neither \"vote\" nor \"sell\" is an effective response a Super PAC contribution. Ousting the board is not an option due to the collective action problem. Selling one's shares also is no remedy because the stock market will already know of and have reacted to the contribution.But what about \"sue\"? Many corporate law scholars have summarily rejected this option, urging that management's decision to make the contribution would be protected by the business judgment rule. Yet, no such scholar has thoroughly analyzed this issue.Bucking this trend, two authors recently have urged that shareholders could successfully sue to challenge a corporate Super PAC contribution. However, these commentaries have been ignored in the law reviews and summarily panned in the blogosphere, leaving the idea largely unexamined. This Article remedies that oversight.After close scrutiny, one of the two theories proffered in these two papers – waste – is a sure loser in all but the most extreme circumstances. There is simply no good argument that a typical corporate Super PAC contribution meets the nearly-impossible-to-satisfy waste standard.By contrast, the second theory – self-dealing – may be viable if the candidate supported by the Super PAC advocates policies that favor the financial interests of management over those of most Americans. Yet, although self-dealing is a better theory than waste, it is nonetheless uncertain to succeed due to the attenuated causal connection between any Super PAC contribution and any potential financial benefit to management.As such, a shareholder derivative lawsuit challenging a Super PAC contribution faces long odds – unless, perhaps, she advances a theory other than waste or self-dealing.","PeriodicalId":82026,"journal":{"name":"Missouri law review","volume":"79 1","pages":"283"},"PeriodicalIF":0.0,"publicationDate":"2014-07-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68080784","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}