Faculty & Scholarship

Promoting Sustainable Energy Through Tax Policy

April 5, 2013

Renewable energy and sustainable development are valuable means of combatting climate change and of reducing the nation's reliance on foreign energy sources. Recognizing the importance of sustainable energy, state and federal policymakers have employed aggressive tax incentive programs to stimulate unprecedented growth in wind energy, solar energy, biomass, green building, and related industries in recent years. Unfortunately, shortfalls in many state budgets and growing concerns about the national debt are now creating pressure for governments to extinguish these tax programs — a move that could bring progress in the nation's fledgling sustainable energy sector to a grinding halt.

This year's Journal of Environmental and Sustainability Law symposium is being sponsored jointly with the University of Missouri Tax Law Society. The symposium explores questions about the long-term role of tax policy as a tool for promoting renewable energy and sustainability in the United States.

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Bombshell or Baby Step?

March 8, 2013

Last year in Miller v. Alabama, the Supreme Court of the United States held that the Eighth Amendment prohibits mandatory sentences of life without parole for juveniles convicted of homicide.

This year's Missouri Law Review Symposium will focus on constitutional, practical and policy matters, regarding juveniles and sentencing more generally, that now challenge courts, legislatures and attorneys in the opinion's wake. On the constitutional front, in what ways are adult offenders who are subject to mandatory sentencing schemes asking lower courts to extend Miller, and how are those courts replying? The Miller opinion extends the Court's "death is different" doctrine to mandatory life-without-parole sentences for juveniles: should that doctrine, requiring individualized sentencing, apply in other contexts? How are state legislatures and Congress responding — and how should they respond — in designing sentencing procedures for juvenile homicide offenders? What special challenges will attorneys face when representing a juvenile in a life-without-parole sentencing trial? Morally, to what extent, if any, do recent discoveries in developmental psychology and neuroscience shed normative light for courts and legislatures on juvenile

Judge Nancy Gertner, Professor of Practice at Harvard Law School, will deliver the keynote address. She will be joined by eminent attorneys, inside and outside the academy, to explore these and other important questions regarding criminal sentencing in general and juvenile sentencing in particular.

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Overcoming Barriers in Preparing Law Students for Real-World Practice

October 19, 2012

There is a growing consensus that American law schools need to do a better job of preparing students to practice law. Teaching students to "think like a lawyer" is still important but it is not enough for students to be able to act like a lawyer soon after they graduate.

Training lawyers is especially difficult because lawyers work on many types of problems, both when handling disputes and negotiating transactions. Some legal disputes are resolved at trial or on appeal, but most are resolved through other processes in the "shadow of the law." Although legal education has evolved in recent decades, the legacy of the Langdellian system makes it hard to combine instruction in legal doctrine, practical skills, and clinical experience.

Recognizing the general problems of legal education is fairly easy. Solving them can be quite hard. Law schools serve many constituencies that have demanding and diverse interests. Needed time and money are scarce and there is no one-size-fits-all solution.

This symposium brings together scholars, practitioners, and judges to analyze the needs of stakeholders of legal education and how law schools can most effectively satisfy those needs.

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Environmental Justice Issues in Sustainable Development

March 9, 2012

Renewable energy and sustainable development strategies are increasingly viewed as valuable tools for addressing climate change, thereby helping to protect vulnerable groups across the globe from flooding, famine and other possible catastrophes. At the same time, renewable energy and sustainable development themselves can sometimes raise environmental justice issues because of their potential adverse impacts on neighboring residents or certain socioeconomic groups.

This year's Journal of Environmental and Sustainability Law symposium explores the tension between the desire to promote environmental justice through renewable energy and sustainable development strategies, and the environmental justice concerns that such development itself can sometimes raise.

This symposium commemorates the name change of the hosting journal from Missouri Environmental Law & Policy Review to the Journal of Environmental and Sustainability Law.

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Cyberbullying: Emerging Realities and Legal Challenges

February 9-10, 2012

As Internet usage among elementary and secondary school students skyrockets, so too have instances of cyberbullying, i.e. using online media to target and harass classmates. As schools adjust their policies to this new form of bullying (often by legislative command), important questions emerge: What are the effects of bullying, especially Internet-based bullying? How can schools best implement effective, appropriate regulation of cyberbullying in particular? Are legislation and the schools' new cyberbullying policies constitutional? If not, can they be rewritten to satisfy constitutional requirements?

This year's Missouri Law Review Symposium will explore the impacts of cyberbullying and its regulation, ranging from the psychological and emotional impacts of bullying to the constitutional and legal implications of school regulation, including the challenges faced by administrators and teachers who implement these regulations in the schools.

John Palfrey, co-director of the Berkman Center for Internet & Society at Harvard Law School, will deliver the keynote address. He will be joined by eminent academics and practitioners from around the country in a timely discussion of the numerous and complex implications of cyberbullying and its regulation.

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Border Skirmishes: The Intersection Between Litigation and International Commercial Arbitration

October 21, 2011

Once upon a time, international commercial arbitration and litigation were considered mutually exclusive means of resolving transnational disputes. However, those days appear to be gone forever. Instead, the existence of an arbitration agreement in a transnational dispute seems to be nothing more than an invitation for lawyers to engage in extensive (and expensive) tactical maneuvering in a variety of venues, both arbitral and judicial.

Some may see creative strategizing as the natural by-product of the significant amounts of money that are often at issue in these sorts of disputes. However, the border skirmishes between international commercial arbitration and litigation can also be attributed to the uncertainty that arises when the substantive and procedural laws of different jurisdictions collide.

Keynote speaker Gary Born joins panelists from Canada, Austria, Switzerland and the United States in a frank and timely discussion of some of the issues that can develop when parties attempt to combine litigation tactics with international commercial arbitration. This group of experts provides a uniquely transnational perspective on some of the most pressing questions facing the legal community today.

This event is offered in cooperation with the Chartered Institute of Arbitrators (CIArb) North American Branch, the University of Missouri International Center and the University of Missouri Transatlantic Center. The University of Missouri School of Law and Center for the Study of Dispute Resolution are also pleased to host a works-in-progress conference in association with this symposium, as well as a student writing competition in cooperation with CIArb.

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Evolving the Court of Appeals for the Federal Circuit and its Patent Law Jurisprudence

February 25, 2011

The Court of Appeals for the Federal Circuit is approaching its 30th anniversary as the focal point of patent law policy in the United States. Many praise the Court for its role in unifying and strengthening patent law doctrine. Others challenge the Court's formalism and argue that a doctrine-specific solitary circuit leads to systematic failures in the development of the law.

In many ways, the Court is operating in a power vacuum, with the U.S. Patent Office denied authority to substantively develop the law and Congress regularly withholding its guidance. Over the past few years, the Supreme Court has taken a more active role in deciding patent cases, but will that increased interest alter the jurisprudence of the Federal Circuit beyond the doctrinal holdings of the High Court?

This year's Missouri Law Review Symposium will explore the ongoing role for the Federal Circuit as a developer of patent law policy, the structure of the Court and its jurisprudential approach, the role of the Court relative to other potential policymaking bodies, and the Court's impact on innovation and in shaping the practice of law.

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Alternative Dispute Resolution and The Rule of Law: Making the Connection

October 15, 2010

On the face of it, the Rule of Law and Alternative Dispute Resolution seem fundamentally at odds.

The Rule of Law, after all, compels the use of formal rules to decide disputes. ADR, on the other hand, calls for the resolution of disputes through processes that do not depend upon the application of formal rules, such as negotiation and mediation. The two could not seem to be farther apart.

But a closer look suggests that ADR and the Rule of Law are not mutually exclusive. Judicial and administrative dispute resolution programs are common throughout the state and federal courts and governments. Increasingly, too, ADR processes such as town halls, study circles, and citizen juries, are being used to facilitate community dialogue on a wide range of public issues, from neighborhood blight to national health care. Moreover, many of our most established ADR processes - arbitration, mediation, even negotiation - are dependent upon the law to secure such crucial functions as enforcement, confidentiality, and legitimacy.

So, just what is the relationship between the ADR and the Rule of Law? Are they simply incompatible? Can they be mutually supportive? What do we know about this relationship, and what do we need to fine out?

To date, little consideration has been given to such questions. It is time, now, to have that discussion. Domestically, judicial and administrative ADR programs have become institutionalized, but serious questions about their legitimacy remain. Internationally, promotion of the Rule of Law remains a hallmark of U.S. foreign policy, but implementation remains a challenge in the face of traditions of graft, corruption and violence. Can ADR help?

This symposium is a first-ever convening of scholars and practitioners from across the globe to consider this relationship more deeply.

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Broke and Broken: Can We Fix Our State Indigent Defense Systems?

February 26, 2010

Across the country, systems for providing legal services to indigent criminal defendants are facing crises on a number of fronts. Stagnant or declining state appropriations are leading to oppressive caseloads for indigent defense systems. These caseloads, coupled with low compensation and difficult working conditions are driving lawyers out of the indigent defense system and into more lucrative and less stressful areas of practice. Indigent criminal defendants bear the true costs of these crises when they are represented by exhausted attorneys who are unable to adequately serve their clients.

While these challenges are well known, seldom have academics and practitioners gathered to discuss affordable yet effective solutions to the problems. The objectives of this symposium are to explore the causes of the crises facing state indigent defense systems, discuss potential solutions, and consider the impact of legal and ethical considerations on the systems.

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The Creeping Legalism Labor Arbitration

October 9, 2009

As a method of dispute resolution, labor arbitration falls somewhere in between non-binding forms of dispute resolution and more formal dispute resolution processes. This "in-between" status has made it difficult at times for the participants in labor arbitration to decide what role the law and legally related constructs should play in labor arbitration.

For many years, practitioners and scholars intensively debated the extent to which labor arbitration was becoming too legalistic. While little attention was paid to this issue in the 1990s, recent developments have made the "creeping legalism" issue particularly relevant. First, the increased regulation of the employment relationship has placed labor arbitrators in a position to interpret issues of external law when deciding collective bargaining disputes. Second, the proliferation in the use of individual employee rights arbitration, which by nature is more legalistic, might have affected the practice of labor arbitration. To the extent that some of the same players participate in both, labor and employee rights arbitration, one would expect the legalistic character of individual employee rights arbitration to spillover to labor arbitration, and perhaps other forms of alternative dispute resolution. The recent United States Supreme Court's decision in 14 Penn Plaza LLC v. Pyett, which holds that a bargaining contract provision requiring employees to arbitrate age discrimination claims is enforceable and thus precludes later litigation of such claims, accentuates the importance of this issue.

This symposium seeks to reignite the discussion on the legalization of labor arbitration. The presenters will explore the history of "creeping legalism" and evaluate its effect on the practice of labor arbitration. The presenters will also assess the effect of the legalization of labor arbitration in other forms of dispute resolution, as well as identify future trends.

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Collaborative Governance: The Future of Regulation: An Interdisciplinary and International Review

April 2-3, 2009

President Obama recently emphasized that government should be both participatory and collaborative. Collaboration, when properly executed, expands the information and insight that is available to agencies, and the focused deliberation can result in policies that would be difficult to achieve otherwise. The essence of collaboration is the bilateral nature of the discussions, with the agency engaging in a give and take, instead of simply informing itself to make the decision alone.

Collaboration can take many forms and be employed throughout the regulatory process: it might be a scoping session to develop the issues that need to be taken into account in a new rule; it might be a policy dialogue or roundtable in which the science or other important components are discussed; it might be recommendations to the agency concerning a proposed rule; or, indeed, the collaboration might be entirely within the private sector to establish a policy in lieu of mandatory regulation. While these are certainly helpful in informing the agency, they stop short of securing the ultimate benefit of collaboration: an actual agreement on the major provisions of a new policy.

On the other hand, if not used properly, a collaborative approach can waste valuable time or lead to deficient decisions. Thus, doing right and in the right situations is critically important.

This timely program will explore the regulatory use of collaborative governance and develop recommendations for its appropriate use.

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Mulling over the Missouri Plan — A Review of State Judicial Selection and Retention Systems

February 27, 2009

Increasingly politicians, academics, and attorneys passionately debate the systems of selecting and retaining state judges. The Missouri Plan was originally conceived and adopted by many states to eliminate, or at least reduce, the role of politics in judicial selection and decision-making. Yet, the recent debate has been almost entirely political and has led to new special interest groups, expensive media campaigns, and legislation promising reform.

The intention of "The Missouri Plan," also known as a "merit selection plan," is to provide for the selection of judges based on merit, rather than on political affiliation. Under the plan as applied in Missouri, a nonpartisan judicial commission made up of attorneys appointed by the bar, lay citizens appointed by the governor, and the Missouri Chief Justice, nominate a pool of judges from which the governor selects. Since its inception, the Missouri Plan has served as a national model for the selection of judges and has been adopted in various forms in more than 30 other states. As such, the debate over whether to preserve, repeal, or reform the Missouri Plan in its mother state will have national implications.

Bringing together some of the nation's most prominent scholars, federal and state judges, lawyers, and students alike, the 2009 Missouri Law Review Symposium, Mulling over the Missouri Plan: A Review of State Judicial Selection and Retention Systems, seeks to infuse an academic perspective into an already heated debate.

Recent developments have raised a number of questions to be addressed by the symposium participants: What are the effects of special interest influence on the selection and election of judges and judicial decision-making in the pursuit of the balance between independence and accountability? How well do retention votes work to balance judicial independence with the will of the public in a merit-selection system? What are the arguments for reforming the Missouri Plan? Who are the constituencies urging reform or preservation? What is the best way to preserve fair and impartial state courts?

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Missouri v. Holland Symposium

February 15-16, 2008

In the 1920 case Missouri v. Holland, Justice Oliver Wendell Holmes famously declared, "We must consider what this country has become in considering what [the Tenth] Amendment has reserved." The Supreme Court upheld the federal government's ability to regulate, through exercise of the Treaty Power, activity that otherwise would be reserved to the states. During the era when the Court adopted an expansive view of Congress' ability to regulate through the Commerce Clause, the import of Missouri v. Holland receded. But as the Court has increasingly cabined the scope of the Commerce Clause, and in a world where everything from the death penalty, to greenhouse gas emissions, to access to medical care has become the subject of multilateral treaty regimes, the ability of the federal government to invoke the Treaty Power in regulating the states is once again central to discussions of federalism in the United States.

This gathering of scholars will reexamine Missouri v. Holland and explore the intersection of federalism and international law from a variety of perspectives. The papers and commentary will address, among other topics, the following: Has increased global regulation altered the relationship between the states and the federal government in such a way as to require a fundamental reconsideration of Missouri v. Holland? Given the range of regulation now delegated to international organizations and courts, does federalism provide any limitations on the federal government's foreign affairs powers? In a system of dual sovereignty, what are the limitations on state participation in international law making in areas such as the environment and human rights? What are the implications of multiple layers of governance for the development of domestic and international law?

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Innovative Models of Lawyering: Collaborative Law and Other Processes

October 12, 2007

The Center sponsored a symposium entitled "Innovative Models of Lawyering: Collaborative Law and Other Processes." David Hoffman, the founding partner of the Boston Law Collaborative, LLC, and a former chair of the ABA Section of Dispute Resolution, gave the keynote presentation entitled, "Practicing Law as Form of Dispute Resolution: Towards a Unified Field Theory of ADR." Prof. John Lande presented the results of his empirical study of Cooperative Practice in Wisconsin and Center Director Robert Bailey and Prof. Stephen Easton moderated discussions. Articles based on the presentations will be published in the Journal of Dispute Resolution, including an article by Lawrence P. McLellan (LLM '06).

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A Festschrift in honor of Dale A. Whitman

April 13-14, 2007

In his long and distinguished career as a scholar, teacher, colleague, dean, AALS president and reporter for the Restatement of Property (Third) - Mortgages, Dale A. Whitman has made immeasurable contributions to law teaching, the legal profession and law reform. Please join the University of Missouri School of Law, and these distinguished property scholars, in celebrating Professor Whitman's contributions through this conference exploring current topics in the law of property and real estate finance.

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Interdisciplinary Perspectives on Bankruptcy Reform

February 24-25, 2006

On April 20, 2005, President Bush signed into law the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, the most sweeping bankruptcy reform legislation to be passed by Congress in over a quarter of a century. This legislation has become the subject of contentious debate among academics, bankruptcy judges, and practitioners. Some argue that this reform legislation threatens to undermine the bankruptcy system itself. This symposium examines bankruptcy reform by gathering experts from various fields, including law, psychology, and the judiciary. Addressing topics ranging from the role of race in bankruptcy reform, to using social science research to test the assumptions underlying bankruptcy reform, to the impact of means testing on the bankruptcy system, the goal of this symposium is to afford greater insight into the future of bankruptcy.

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Reflections on Judging: A Discussion Following the Release of the Blackmun Papers

February 25-26, 2005

This symposium examines the role of judges in our constitutional order and the factors that influence judicial decision-making by gathering experts in various fields, including law, political science, psychology and journalism, as well as members of the judiciary. Discussing topics ranging from Justice Blackmun's legal legacy, to the public's perception of the courts, to the role of politics, judgment and psychology in judicial decisionmaking, the symposium hopes to provide greater insight into the act of judging.

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Fear and Risk in Times of Democratic Crisis

February 20-21, 2004

The events of September 11, 2001, and the recent war with Iraq have sparked renewed interest in questions pertaining to decision-making in times of crisis, including issues such as the balance between security and liberty, executive authority and separation of powers, increased government secrecy and public health responses. Much of this renewed debate focuses on constitutional and democratic theory and doctrine without examining broader influences on the creation and application of those theories and doctrines. Specifically there has been minimal discussion of the effects of fear and risk perception on law in times of democratic or constitutional crisis. This symposium will bring together interdisciplinary perspectives from specialists in the fields of history, political science, psychology, and law and will explore social science perspectives on law during constitutional or democratic crises and engage in historical analyses of various crises or judicial responses to crises.

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