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Between the Sword and a Hard Place: Systemic Solutions to the Shortcomings of the Missouri Public Defender System
No full text“Striving to better, oft we mar what’s well.” The attempt to solve a problem can sometimes topple a functional system entirely. The striving to improve a thing can frustrate its purpose. Limping along under the guise of functionality, however, many sociopolitical processes hinder our progress. Something works, so we cling to it in fear of making it worse. The idea has been aphorized that perfect is the enemy of good. Although a quaint and conservative philosophy, there is a countertheory: “Good is the enemy of great.
Catching Up to Technology: Mediation’s Role in the Era of Driverless Cars
No full textAn autonomous vehicle (AV), also known as a driverless or self-driving car, is a vehicle that can operate itself and perform necessary functions without human intervention. Autonomous vehicles have been under development since the midtwentieth century and operate with the use of cameras and radar systems to acquire information about road conditions—allowing them to choose the easiest path of travel
Housing Sexual Harassment: A Department of Justice Case Study
No full textSexual harassment in housing-when tenants or prospective tenants are sexually harassed by their landlords, housing providers, or other people associated with their housing-is a clear national problem. In 2019 the Department of Justice (DOJ) and the Department of Housing and Urban Development (HUD) announced an initiative to bring attention to this issue, as well as a shared commitment to increased enforcement against harassers.This enforcement push provides an opportunity for study. In particular, there are now a significant number of complaints and other litigation documents posted to the DOJ\u27s website that provide a convenient and robust sample for analysis. The cases-seventy-six in total-span several decades and have been filed in courts across the United States. This article is based on a detailed examination of these cases, focusing on factors such as the identity of the perpetrators of the harassment, the specific types of harassing conduct alleged, and victim reporting behavior and outcomes, and the types of housing in which the harassment occurred
Profit Shifting and the States: A Short Primer
No full textThis essay argues that corporate profit shifting remains one of the most significant challenges for U.S. state tax systems. Multinational enterprises continue to shift billions in profits to offshore tax havens, eroding state tax bases, distorting market competition, and forcing a greater reliance on more regressive taxes. We contend that the dominant water\u27s-edge combined reporting method used by most states is structurally inadequate to combat modern profit-shifting techniques, which primarily involve the manipulation of intangible assets. The recent transformation of federal tax law (from GILTI to NCTI) and the global adoption of the OECD\u27s Pillar 2 minimum tax framework create a critical moment for states to act. Rather than ceding the field, states can and should leverage this new federal and international infrastructure to implement more robust solutions, such as worldwide combined reporting, to protect their revenue and ensure tax fairness
A Silence after Slaughter-House: Nineteenth-Century State Constitutional Substantive Rights, Liberties, and Privileges
No full textIn rejecting federal constitutional challenges to the Louisiana legislature’s exclusive butchering grant in the Slaughter-House Cases, the United States Supreme Court opined that it was the states’ obligation to protect fundamental privileges, such as rights to acquire and possess property, engage in trade and commerce, and pursue happiness, subject only to those restraints necessary for the public good. But the states met this charge with silence. State courts across the nation consistently parroted Slaughter-House’s reasoning, even while occasionally acknowledging the decision did not bind their interpretation of state constitutional provisions guaranteeing fundamental rights, liberties, privileges, and immunities. Although two states ratified arguably responsive constitutional provisions affording protection to state privileges and immunities, their judiciaries also followed the Supreme Court’s lead.Yet a minority of states, both before and after Slaughter-House, specifically targeted exclusive state legislative grants through anti-monopoly state constitutional provisions or through common-law doctrines. While not affording broad protections for their citizens’ rights and liberties, these constitution makers and state judiciaries attacked the specific perceived problem through either the majoritarian convention and ratification process or within the majoritarian features of the common law.This symposium piece explores the salient lessons this nineteenth-century response offers for the past, present, and future of state constitutional interpretation in Louisiana and throughout the nation. Ascertaining the meaning of universal American foundational jurisprudential principles—such as liberty, rights, privileges, and immunities—has always been a predominantly shared judicial enterprise, despite some arguably significant textual variations among America’s constitutions. But state courts depart more frequently from the universal approach and federal constitutional law’s influence when supported by either a precise state constitutional guarantee targeting the issue or a longstanding state common-law tradition. These methods typically prevail when the state constitution’s design and accompanying institutional incentives reinforce the majoritarian features of state constitutionalism. This explains the state constitutional response to Slaughter-House over 150 years ago and still holds true today
Teaching Students to Write Well with AI (Even If You\u27re Still Learning It): A Guide for Faculty Who Want to Teach - Not Play Detective
No full textAs generative artificial intelligence (AI) tools rapidly enter legal education, faculty need practical ways to guide student writing and promote academic integrity. This one-page guide offers concrete strategies to help faculty teach students to think and write more effectively with AI tools. As students increasingly use AI on their own, faculty face two related challenges: preventing misuse and promoting deeper learning.
This guide frames the instructor’s role not as a detective, but as a coach who helps students use AI responsibly. It outlines techniques to clarify expectations, promote good writing, and foster critical engagement with AI. Adapted from the short article Did Your Student or a Bot Write This Paper? Teaching and Grading in the Age of AI, this guide includes a link to that article
The Fintiv Pendulum Swings Again: More Discretionary Denials Coming Soon
No full textThis article examines the USPTO’s recent rescission of the June 2022 Vidal memorandum, signaling a significant policy shift in the Patent Trial and Appeal Board\u27s (PTAB) approach to discretionary denials of inter partes reviews (IPRs). The rescission reinstates the precedential status of Apple Inc. v. Fintiv, Inc. and its six-factor test for evaluating whether to deny IPR institution based on parallel district court litigation. The article traces the evolution of discretionary denials under the America Invents Act (AIA), from their initial limited application to the expansive approach under Director Iancu, the subsequent narrowing under Director Vidal, and now the anticipated return to broader PTAB discretion under President Trump. This policy shift will likely increase discretionary denials and incentivize patent owners to accelerate district court proceedings to avoid PTAB review. The article contextualizes this change within the broader pendulum of patent policy and examines its implications for patent litigation strategy, highlighting how it may redirect access to what has become America\u27s most active patent litigation forum
Louisiana\u27s Ten Commandments Statute: With Litigation Updates from Arkansas and Texas
No full textLegislators in conservative states are drawn to a belief that the Ten Commandments [“10/Cs”] underscore American’s moral, jurisprudential, and historical heritage. First the State of Louisiana, and thereafter Arkansas and Texas, enacted legislation requiring the posting of the 10/Cs in every public school and university classroom in the state. This quickly brought on legal challenges by students and their parents, along with a smattering of local clerics, together contending that these laws were unconstitutional, most prominently violations of the Establishment Clause. State attorney generals leaped to defend these statutes making the facial assertion that the 10/Cs are not so much religious as secularly grounded.
Being the lawsuit first in time, a preliminary injunction was issued against the Louisiana 10/Cs statute by a federal district court. That order was later upheld by a unanimous three-judge panel of the Fifth Circuit. Next to issue was a preliminary injunction by a federal district court in Arkansas, followed closely by a like disposition before a federal trial court in Texas. Pending is the State of Louisiana’s petition for rehearing en banc in the Fifth Circuit.
When enacting these 10/Cs laws, the legislatures made self-serving findings the gist of which is that the law’s purpose is moral and historical, not religious. On the other hand, the reviewing courts focused on the floor debate by bill sponsors, and even outside supporters, which profess Christian motivations. Both seem like wrong approaches. The 10/Cs are religious, at least in significant part. The “first tablet” is inherently and exclusively religious, declaring: the I AM is the one true God; he alone is to be worship, his name is not to be taken in vain, and finally the Sabbath is to be kept holy. The precedent for such a judicial finding is the same as when the school prayer cases of the 1960s made the obvious observation: prayer is inherently religious.
The most straightforward path to an Establishment Clause violation is to show religious coercion. Here, we deal with an unwanted government message to impressionable minors, all in a captive setting of mandatory school attendance laws. While the featured posters are entirely passive, the students are in their presence all day, five days a week, nine months out of the year. That’s coercion.
The newest path to an Establishment Clause violation is by reference to “history and tradition” at the founding. This late eighteenth century history is to yield a definition for the original public meaning of the forbidden “an establishment of religion.” The courts in Louisiana, Arkansas, and Texas instead looked to the early practices in America’s public schools—schools that didn’t even exist until the 1820s. That’s not the historical question pointed to by SCOTUS.
By SCOUTS guidance, these lower courts reached the right result but wrong rationale. So, we await the next memorandum opinion, this time by the entire active judges sitting on the U.S. Court of Appeals for the Fifth Circuit
The Illusion of Redemption: Examining Gubernatorial Pardons, Collateral Consequences, and the Ineligibility for Public Office in Missouri
No full textImagine you have just pled guilty to a felony offense in Missouri. While the court may inform you of certain rights that will be lost, additional rights remain unmentioned. Suddenly, you find yourself stripped of fundamental liberties such as voting, serving on a jury, holding public office, and owning firearms. Additionally, the right to a trial by jury, the assistance of a lawyer at trial, and protection against self-incrimination have been forfeited. In this bleak scenario, a glimmer of hope emerges: the possibility of a gubernatorial pardon. This pardon represents a chance at redemption, potentially restoring all the rights you once held. It is a tantalizing prospect—the opportunity to become a “new man” in the eyes of the law