Missouri law review最新文献

{"title":"Tiebout Goes Global: International Migration As a Tool for Voting with Your Feet","authors":"I. Somin","doi":"10.2139/SSRN.3535767","DOIUrl":"https://doi.org/10.2139/SSRN.3535767","url":null,"abstract":"I. INTRODUCTION Students of federalism have long recognized that citizens in a federal system can \"vote with their feet\" by moving from one jurisdiction to another. (1) Those oppressed or harmed by the policies of one regional government can improve their lot by moving to another. Such \"exit rights\" are an important alternative to traditional \"voice\"-based political participation through voting. (2) In a classic 1956 article, Charles Tiebout pointed out that foot voting can also help citizens find jurisdictions that more closely approximate their preferred mix of taxes and public services. (3) While foot voting cannot work perfectly so long as there are moving costs, (4) it does enable many people to choose which jurisdiction to live in and thereby decide which policies they wish to live under. However, scholars have so far failed to systematically consider the implications of foot voting and the Tiebout model for international migration. Although much research addresses the economic and human rights issues raised by movement across international boundaries, there has been very little discussion of its utility as a form of political participation through exit rights. Some scholars have argued for stronger international migration rights on deontological moral grounds. (5) Others advocate such changes because they are likely to greatly increase the well-being of migrants from repressive and underdeveloped societies, and also provide economic benefits to the societies that take them in. (6) Two economists have recently considered the implications of the Tiebout model for empirical explanations of international migration induced by fiscal policy differences between nations in the European Union. (7) The existing literature has not, however, addressed the full normative implications of the Tiebout model and foot voting for migration between nation-states more generally. In this article, I make a tentative effort to plug this hole in the literature. I suggest that the benefits of international foot voting may well be much larger than those of free movement within national borders. Part II briefly summarizes the theory of foot voting and its potential benefits. I focus particularly on the use of exit rights as a form of political participation by which migrants can more effectively choose the public policies under which they live. Crucial benefits of political participation through exit rights include the matching of public policy to diverse preferences, the creation of an outlet for local political minorities and discriminated-against groups, competition between jurisdictions for migrants, and improved incentives for information acquisition relative to traditional ballot box voting. In Part III, I show how these benefits are potentially much greater for international migration than for domestic migration within advanced democracies. Public policies differ far more across nations than within national boundaries. Free international migration therefore pr","PeriodicalId":82026,"journal":{"name":"Missouri law review","volume":"73 1","pages":"13"},"PeriodicalIF":0.0,"publicationDate":"2008-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68604638","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 Insubstantiality of the 'Substantial Factor' Test for Causation","authors":"J. Sanders, Michael D. Green, William Powers","doi":"10.2139/SSRN.1345171","DOIUrl":"https://doi.org/10.2139/SSRN.1345171","url":null,"abstract":"The Second Restatement of Torts continued the use of the \"substantial factor\" test for causation. This article reconsiders that test in a causally problematic context, asbestos litigation. It considers how courts have used and abused the substantial factor test and concludes that its use is unfortunate because of its fuzziness and lack of analytical rigor. There are obvious advantages to returning to the but-for test of causation, as has the Third Restatement of Torts. The ambiguity surrounding the substantial factor test leads to inconsistent results, at least across jurisdictions. More importantly, the test gives no clear guidance to the factfinder about how one should approach the causal problem. It also permits courts to engage in fuzzy-headed thinking about what sort of causal requirement ought to be imposed on plaintiffs, especially in cases that present complications in the availability of evidence of such. The but-for test, on the other hand, offers a roadmap on how to think about causation.But this article can't demonstrate the advantage of but-for causation over the substantial factor approach in a context like asbestos, where proof of causation is not possible. Under the circumstances this article does not take issue with jurisdictions that relax their proof requirements and permit plaintiffs to do something less than show that exposure to a given defendant's asbestos products was a factual cause of the harm. But-for causation simply won't work in these circumstances. Nor does this article criticize the effort on the part of courts to limit the extent of liability for defendants who have made small contributions to the overall dose to which the plaintiff was exposed. But even in this situation, the substantial factor test obfuscates what is really going on and permits courts to proceed without grappling with the real issues presented and resolving them on a transparent and honest basis. Recognition of the very difficult problems of proof in asbestos, a predicate to a coherent response to that problem, can't proceed without a clear grasp on what we mean by causation and the role of but-for in that definition.","PeriodicalId":82026,"journal":{"name":"Missouri law review","volume":"73 1","pages":"399"},"PeriodicalIF":0.0,"publicationDate":"2008-03-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68166593","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":"Pragmatism over Politics: Recent Trends in Lower Court Employment Discrimination Jurisprudence","authors":"L. Reeves","doi":"10.2139/SSRN.1024632","DOIUrl":"https://doi.org/10.2139/SSRN.1024632","url":null,"abstract":"Many scholars have argued that the judiciary's decreasing receptivity to employment discrimination claims is attributable either entirely or predominantly to the fact that the federal bench has become more ideologically conservative in recent years. This Article seeks to dispute that hypothesis as incomplete at best, and to offer a competing theory. Specifically, I argue (i) that employment discrimination jurisprudence is properly viewed not as a holistic entity, but rather as a series of circuit-specific creations; and (ii) that each circuit's employment discrimination jurisprudence is correlated with two factors, total workload per capita judge and employment discrimination filings per capita judge. After considering empirical evidence, the Article first concludes that judges' political ideology plays only a limited role in their decision making, and shows that Democratic and Republican appointees agree much more often than they disagree with respect to employment discrimination claims. The Article then identifies two factors that appear to be correlated with how receptive a given circuit is towards claims of employment discrimination: Overall workload and the number of employment filings. Through empirical research, the Article demonstrates that there are vast differences between the circuits in terms of both of these factors. Finally, the Article compares the various analytical approaches that the circuits have taken to resolve certain issues that commonly arise in employment discrimination cases. The Article concludes by showing that a circuit's interpretation of relevant statutory and procedural provisions is correlated with its workload and the number of employment filings it handles, and demonstrates that, on balance, judges in circuits that have heavier workloads and greater numbers of employment discrimination filings have interpreted substantive law and procedural rules in a manner less receptive to employment discrimination claimants than have their counterparts in circuits with lower workloads and fewer employment discrimination filings.","PeriodicalId":82026,"journal":{"name":"Missouri law review","volume":"73 1","pages":"7"},"PeriodicalIF":0.0,"publicationDate":"2007-10-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68129136","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 Policy of Family Privacy: Uncovering the Bias in Favor of Nuclear Families in American Constitutional Law and Policy Reform","authors":"Richard F. Storrow","doi":"10.2139/SSRN.289677","DOIUrl":"https://doi.org/10.2139/SSRN.289677","url":null,"abstract":"Recent scholarship on family privacy suggests that family privacy is not a right belonging to family units per se but to each member of a family. This article, reexamining family privacy doctrine in light of recent controversial developments in the areas of grandparental visitation rights and the abortion rights of minors, among others, argues that the quality of family privacy bestowed on individuals depends in large measure on whether the choices made by those individuals promote the formation and longevity of nuclear families. This bias in favor of nuclear families is reflected not only in constitutional law jurisprudence, but, likewise, permeates even policy reform efforts seemingly aimed at safeguarding the rights of nontraditional families. To show this bias at the level of policy reform, this article analyzes recent reform efforts in the areas of inheritance, adoption, and move-away custody disputes and explains how in each of these contexts the substance of policy reform proposals perpetuates the law's bias in favor of nuclear families.","PeriodicalId":82026,"journal":{"name":"Missouri law review","volume":"66 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2001-11-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68424076","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":"Private Concerns of Private Plaintiffs: Revisiting a Problematic Defamation Category","authors":"Nat Stern","doi":"10.2139/SSRN.220292","DOIUrl":"https://doi.org/10.2139/SSRN.220292","url":null,"abstract":"The magnitude of recovery in a defamation case may well depend on a court's characterization of an assertion as involving either a public or private concern. At a minimum, designation as a matter of private concern drastically lowers the level of fault that a plaintiff must show in order to recover presumed or punitive damages. In addition, a finding of a private concern may eliminate the plaintiff's constitutional burden of proving falsity. Moreover, the Supreme Court has intimated that other barriers to recovery in defamation actions may be lightened or removed by the absence of a public concern. After a decade-and-a-half since the Court injected the public/private concern dichotomy into defamation doctrine, however, uncertainty about the dichotomy's application abounds. The struggle by lower courts to interpret the Court's terse pronouncements on the distinction between public and private concerns has not crystallized into a useful methodology. Rather, courts have generally proceeded by way of ad hoc analyses or ipse dixit conclusions. The inability of courts to translate this doctrine into a lucid framework, however, does not represent a failure of judicial imagination. Instead, this Article contends, the enterprise was destined to flounder because of the inherent indeterminacy of the distinction between public and private concerns in defamatory expression. Part I of the Article traces the route to the Court's decision to add the public/private concern inquiry to the complex body of defamation doctrine, as well as the potential impact of this distinction beyond the context in which it was first promulgated. Part II reviews courts' efforts to categorize defamatory speech in a rational way, seeking to demonstrate that this goal has inevitably eluded them. From a broader perspective, Part III examines the Court's longstanding ambivalence toward elevating speech of a presumably public nature over other expression. Against this backdrop, the Court's decision to distinguish between public and private concerns in defamation amounts to an avoidable choice, not an obligatory standard. At the same time, as Part IV tries to show, withdrawal of this element from defamation doctrine would not require wholesale abolition of the public/private distinction in free speech jurisprudence. The Article concludes that restoration of the regime that prevailed prior to the public/private concern criterion would restore a more defensible balance to the constitutional law of defamation.","PeriodicalId":82026,"journal":{"name":"Missouri law review","volume":"65 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2000-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67983517","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":"Switched at the fertility clinic: determining maternal rights when a child is born from stolen or misdelivered genetic material.","authors":"A M Noble-Allgire","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":82026,"journal":{"name":"Missouri law review","volume":"64 3","pages":"517-94"},"PeriodicalIF":0.0,"publicationDate":"1999-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25894483","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":"Wrongful life, wrongful birth, wrongful death, and the right to refuse treatment: can reasonable jurisdictions recognize all but one?","authors":"M Strasser","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":82026,"journal":{"name":"Missouri law review","volume":"64 1","pages":"29-76"},"PeriodicalIF":0.0,"publicationDate":"1999-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"22379922","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":"Constitutional considerations underlie Missouri's expansion of fetal rights within its wrongful death statute.","authors":"E S Brown","doi":"","DOIUrl":"","url":null,"abstract":"","PeriodicalId":82026,"journal":{"name":"Missouri law review","volume":"61 2","pages":"473-87"},"PeriodicalIF":0.0,"publicationDate":"1996-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"25235188","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 issue of personal choice: the competent incurable patient and the right to commit suicide?","authors":"R. Morgan, T. C. Marks, B. Harty-Golder","doi":"10.4324/9781315050492-2","DOIUrl":"https://doi.org/10.4324/9781315050492-2","url":null,"abstract":"","PeriodicalId":82026,"journal":{"name":"Missouri law review","volume":"57 1 1","pages":"1-49"},"PeriodicalIF":0.0,"publicationDate":"1992-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70624441","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":"Admissions of Agents","authors":"R. Adams","doi":"10.4324/9781843147558-18","DOIUrl":"https://doi.org/10.4324/9781843147558-18","url":null,"abstract":"","PeriodicalId":82026,"journal":{"name":"Missouri law review","volume":"40 1","pages":"12"},"PeriodicalIF":0.0,"publicationDate":"1975-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70479738","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}