Missouri law review最新文献

{"title":"Homelessness at the Cathedral","authors":"Marc L. Roark","doi":"10.2139/SSRN.2402925","DOIUrl":"https://doi.org/10.2139/SSRN.2402925","url":null,"abstract":"This Article argues that legal restraints against homeless persons are resolved by applying certain nuisance-like approaches. By drawing on nuisance restraints that adopt property-based and social-identity information, courts and decision-makers choose approaches that create conflict between homeless identities and adopted social identities. These approaches tend to relegate the social choice of whether to tolerate homeless persons to one of established social order (property) or broadly conceived notions of liberty (constitutional rights or due process rights). This Article argues for a broader conception of social identity, which may force parties to internalize certain costs of action, tolerate certain uses, or abate the full range of property rights that the law would otherwise allow in different social settings. Considering the question of “undesirable” uses of space -- both on private and public land -- helps articulate a narrative of property that moves beyond the rhetoric of economics-bound entitlements and affords a broader, more honest characterization. Conceived in this way, property entitlements represent information about how society defines, refines, enforces, and rejects its collective identity through the legal recognition of property entitlements.","PeriodicalId":82026,"journal":{"name":"Missouri law review","volume":"21 1","pages":"6"},"PeriodicalIF":0.0,"publicationDate":"2014-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68182954","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":"Decoupling Federal Offense Guidelines from Statutory Limits on Sentencing","authors":"Kevin Bennardo","doi":"10.2139/SSRN.2197126","DOIUrl":"https://doi.org/10.2139/SSRN.2197126","url":null,"abstract":"When incorporating statutorily-mandated minimum and maximum sentences into offense guidelines, the United States Sentencing Commission must strike a delicate balance between promulgating guidelines that are consistent with federal law and carrying out its characteristic institutional role of advising sentencing courts of proper punishment based on empirical data and national experience. This article recommends that, in general, when a statutory limit on sentencing deviates from what the Commission deems to be fair punishment, the Commission should incorporate the statutory limit into the offense guideline to the least extent possible. Although this approach may lead to cliffs and plateaus in the guideline’s sentencing ranges and thereby diminish relative fairness between similarly-situated offenders, this approach maximizes the imposition of actually fair sentences (as viewed by the Commission) within the confines of the statutory scheme. Controlled substance offenses, however, are an exception. In some instances, drug offenders are relieved from the application of an otherwise-applicable mandatory minimum sentence through the operation of the statutory “safety valve” or through the government's failure to charge or adequately prove triggering drug quantities. To achieve actual fairness for these offenders, the Commission should promulgate a drug distribution offense guideline that takes no account of statutory limits on sentencing.","PeriodicalId":82026,"journal":{"name":"Missouri law review","volume":"78 1","pages":"2"},"PeriodicalIF":0.0,"publicationDate":"2014-01-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67979963","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":"Eighth Amendment Differentness","authors":"William W. Berry","doi":"10.2139/SSRN.2259303","DOIUrl":"https://doi.org/10.2139/SSRN.2259303","url":null,"abstract":"This symposium article is part of a broader discussion framed by the question of whether the United States Supreme Court’s recent decision in Miller v. Alabama was a “bombshell” or a “baby step.” Miller held that the Eighth Amendment barred the use of mandatory juvenile life-without-parole (JLWOP) sentences.As the fifth case in a decade to expand the scope of the Eighth Amendment and the second to broaden its application to juvenile life-without-parole, Miller may be no more than another incremental step within a broader line of cases. On the other hand, Miller suggests a number of possible avenues for considering how to broaden the Eighth Amendment.And the need to expand the Eighth Amendment has not diminished with the Court’s work over the past decade. In an age of penal populism, the United States remains an outlier, arguably in the history of the world, in its use of mass incarceration of criminal offenders.Given this reality, this article does not seek to make a normative prediction as to what Miller will mean, as others in the symposium have done quite well. Instead, the article explores what Miller can mean. In doing so, the article aims to highlight different avenues of extending Miller such that it can become a bombshell over time, albeit by offering potential baby steps to theorists and litigators alike.This contribution, then, illuminates the potential doctrinal and theoretical consequences of the Miller decision within the broader context of the Supreme Court’s Eighth Amendment jurisprudence. Without arguing for one normative outcome over the other and recognizing that the Court’s work in this area has been largely incremental, this article offers an intellectual compass that develops many of the arguments for broadening the Eighth Amendment made more plausible after the Miller decision.At the heart of this exploration is the concept that “juveniles are different.” Specifically, this article argues that there are two distinct meanings of this conceptualization: (1) that juveniles are unique as offenders and (2) that juvenile life-without-parole is a unique punishment. While certainly not mutually exclusive, each interpretation offers its own set of consequences and paths to pursue in challenging criminal sentences under the Eighth Amendment. Part I of the article provides the context for the Miller case, outlining the theoretical underpinnings of the Court’s Eighth Amendment jurisprudence. Part II describes the Court’s “different” jurisprudence, linking the concept of “juveniles are different” to the Court’s longstanding view that “death is different.” In Part III, the article demonstrates how the two possible interpretations of the Court’s statement in Miller that “juveniles are different” — as a character-based form of differentness and, in the form of JLWOP, as a punishment-based form of differentness — create distinct theoretical bases for broadening the scope of the Eighth Amendment. Finally, Parts IV and V explore the potential ","PeriodicalId":82026,"journal":{"name":"Missouri law review","volume":"78 1","pages":"1053"},"PeriodicalIF":0.0,"publicationDate":"2013-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68039163","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":"Law Deans in Jail","authors":"Morgan Cloud, G. Shepherd","doi":"10.2139/SSRN.1990746","DOIUrl":"https://doi.org/10.2139/SSRN.1990746","url":null,"abstract":"A most unlikely collection of suspects - law schools, their deans, U.S. News & World Report and its employees - may have committed felonies by publishing false information as part of U.S. News' ranking of law schools. The possible federal felonies include mail and wire fraud, conspiracy, racketeering, and making false statements. Employees of law schools and U.S. News who committed these crimes can be punished as individuals, and under federal law the schools and U.S. News would likely be criminally liable for their agents' crimes.Some law schools and their deans submitted false information about the schools' expenditures and their students' undergraduate grades and LSAT scores. Others submitted information that may have been literally true but was misleading. Examples include misleading statistics about recent graduates' employment rates and students' undergraduate grades and LSAT scores.U.S. News itself may have committed mail and wire fraud. It has republished, and sold for profit, data submitted by law schools without verifying the data's accuracy, despite being aware that at least some schools were submitting false and misleading data. U.S. News refused to correct incorrect data and rankings errors and continued to sell that information even after individual schools confessed that they had submitted false information. In addition, U.S. News marketed its surveys and rankings as valid although they were riddled with fundamental methodological errors.","PeriodicalId":82026,"journal":{"name":"Missouri law review","volume":"77 1","pages":"2"},"PeriodicalIF":0.0,"publicationDate":"2012-02-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67834514","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 Corporate Gatekeeper in Ethical Perspective","authors":"Christopher Hines","doi":"10.2139/ssrn.1940007","DOIUrl":"https://doi.org/10.2139/ssrn.1940007","url":null,"abstract":"The fallout from the financial crisis continues to inform the development of corporate and securities law, and the new regulatory landscape for economic activity within the United States is beginning to take form. This evolutionary process, however, has been anything but stable or certain. As might be expected, in concert with such momentous change in law and policy, recriminations for and associated investigations of past activity continue to affect competent regulators as well as market participants. Nevertheless, while many of the underlying causes of the financial crisis are now better understood by both policy makers and scholars, the question remains – given where we were, where do we go from here? While a definitive answer to such a question remains elusive, an additional perspective on the ethical issues of relevance to corporate and securities law may be helpful in considering the possible alternatives. In particular, the ethical rules of corporate gatekeepers in conflicts of interest scenarios is worthy of further consideration and discussion.This article presents the argument that cases involving conflicts of interest in the corporate and securities law space may be viewed as primarily calling into question the ethical rules of the corporate gatekeeper. In support of such an argument, this article sets forth a framework for conflicts of interest scenarios that takes into account four categories of legal rules – activity rules, disclosure rules, liability rules and ethical rules. In adopting such a framework, an ethical perspective will be elaborated to address the ongoing development of corporate and securities law. Further, this article proposes possible revisions to disclosure rules in relation to conflicts of interest policies for Compensation Committees as mandated by Section 952 of the Dodd-Frank Wall Street Reform and Consumer Protection Act.This article is the second in a series that explores the intersection of corporate law and legal ethics. Specifically, the present discussion concerns the foundations in doctrine and theory that may apply to issues of conflicts of interest within the ambit of corporate and securities law. Accordingly, the subject matter for discussion includes both rules of the professions – or first-order ethical rules – and rules as may be prescribed by the competent authority – that is, second-order ethical rules.","PeriodicalId":82026,"journal":{"name":"Missouri law review","volume":"78 1","pages":"103"},"PeriodicalIF":0.0,"publicationDate":"2012-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67803191","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":"Cost as a Sentencing Factor: Missouri's Experiment","authors":"Chad W. Flanders","doi":"10.2139/SSRN.1920274","DOIUrl":"https://doi.org/10.2139/SSRN.1920274","url":null,"abstract":"In sentencing offenders, should judges take into account the different costs of possible punishments? In 2010, Missouri gave sentencing judges, in addition to information about the nature and severity of the offense and the criminal history of the offender, the price tag of various punishments: prison cost about $17,000 a year, compared to probation, which is much cheaper (about $7000 per year). Judges were allowed, even encouraged, to base their sentences on how much it each sentence would cost the state. The move was a subject of considerable national and local controversy. This essay represents the first sustained look at Missouri’s new sentencing reform, and argues against the wisdom of allowing judges to consider costs when sentencing. Although it is too much to say that judges should be categorically prohibited from considering the costs of possible sentences, there are good arguments why cost should be a strongly disfavored category when it comes to criminal sentences. Desert should always be the primary consideration in sentencing for judges, and while other factors may make a difference at the margins, when judges base sentences on extrinsic, rather than intrinsic features of offenses and offenders, they risk creating unjust variations in sentences.","PeriodicalId":82026,"journal":{"name":"Missouri law review","volume":"77 1","pages":"391-410"},"PeriodicalIF":0.0,"publicationDate":"2011-08-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67787619","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 Ongoing Confusion Over Ongoing Royalties","authors":"Mark A. Lemley","doi":"10.2139/SSRN.1793361","DOIUrl":"https://doi.org/10.2139/SSRN.1793361","url":null,"abstract":"What are patentees entitled to if they don't get an injunction? Courts have tended to award reasonable royalties, but there is considerable – and unnecessary confusion about who awards those royalties and how they are calculated. In this paper, I endeavor to answer those questions.","PeriodicalId":82026,"journal":{"name":"Missouri law review","volume":"76 1","pages":"695"},"PeriodicalIF":0.0,"publicationDate":"2011-03-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67747461","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":"Distinguishing Judges: An Empirical Ranking of Judicial Quality in the U.S. Court of Appeals","authors":"Robert T. Anderson","doi":"10.2139/SSRN.1433442","DOIUrl":"https://doi.org/10.2139/SSRN.1433442","url":null,"abstract":"This article presents an empirical quality ranking of 383 federal appellate judges who served on the United States Court of Appeals between 1960 and 2008. Like existing judge evaluation studies, this article uses citations among judicial opinions to assess judicial quality. Unlike existing citation studies, which treat positive and negative citations alike, this article ranks judges according to the mix of positive and negative citations to the opinions, rather than the number of citations to those opinions. By distinguishing between positive and negative citations, this approach avoids ranking judges higher for citations even when the judges are being cited negatively. The additional information provided by this data produces strikingly different results from those found in the existing count-based studies of judicial performance. When the mix of positive and negative citations is taken into account, many of the most highly cited judges from the citation count studies are only average and some of the average judges in the citation count studies emerge as the most positively cited. This new approach is applied to evaluate the recent nomination of Judge Sonia Sotomayor to the Supreme Court, revealing aspects of judicial quality that are not captured by existing techniques.","PeriodicalId":82026,"journal":{"name":"Missouri law review","volume":"76 1","pages":"2"},"PeriodicalIF":0.0,"publicationDate":"2010-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68180857","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":"What Story Got Wrong - Federalism, Localist Opportunism and International Law","authors":"P. Stephan","doi":"10.2139/SSRN.1276028","DOIUrl":"https://doi.org/10.2139/SSRN.1276028","url":null,"abstract":"In Swift v. Tyson, Justice Story argued that federalization of the law of negotiable instruments was necessary to thwart local courts from adopting rules that favored local interests at the expense of national welfare. Variations of this argument have been embraced by modern proponents of federalizing many aspects of international law, including customary international law. The argument proves too much, and fails to take account conditions where local decisionmakers have an incentive to reach globally optimal outcomes. The law of negotiable instruments illustrates this point: State law now occupies this field but, contrary to Story's concern, the law in the United States is uniform and stable. Two international conventions currently under negotiation, the Hague Child Support Convention and the UNCITRAL Electronic Commerce Convention, provide further examples of cooperation without mandatory federal oversight.","PeriodicalId":82026,"journal":{"name":"Missouri law review","volume":"73 1","pages":"1041"},"PeriodicalIF":0.0,"publicationDate":"2008-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68156131","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":"Foreign Affairs, International Law, and the New Federalism: Lessons from Coordination","authors":"Robert B. Ahdieh","doi":"10.2139/SSRN.1272967","DOIUrl":"https://doi.org/10.2139/SSRN.1272967","url":null,"abstract":"Even after the departure of two of its most prominent advocates - Chief Justice William Rehnquist and Justice Sandra Day O'Connor - the federalism revolution initiated by the Supreme Court almost twenty years ago continues its onward advance. If recent court decisions and congressional legislation are any indication, in fact, it may have reached a new beachhead in the realm of foreign affairs and international law. The emerging federalism in foreign affairs and international law is of a distinct form, however, with distinct implications for the relationship of sub-national, national, and international institutions and interests. This article - prepared for a symposium on Missouri v. Holland - draws on the prism of \"coordination,\" as well as related analysis of standard-setting, to question two conventional assumptions about the relationship of sub-national, national, and international institutions. First, there is the common notion that a coherent foreign affairs regime requires \"one voice\" to speak for the nation. Second is the perception of some inherent conflict in the interaction of international norms and sub-national interests - a sense of international law as silencing (or at least disregarding) sub-national voices. Familiar as they are, both these claims are wrong. Coordination can be achieved in foreign affairs even with multiple voices. International law, meanwhile, may increasingly offer opportunities for states and localities to be heard. Once we appreciate as much, we can begin to develop a richer account of the interaction of sub-national, national, and international institutions, as \"our federalism\" reaches abroad.","PeriodicalId":82026,"journal":{"name":"Missouri law review","volume":"119 1","pages":"1185-1245"},"PeriodicalIF":0.0,"publicationDate":"2008-09-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68155143","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}