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HOT OFF THE PRESS: VOLUME 87.1

Volume 87.1, our symposium issue focusing on criminal sentencing reform, is headed your way!

If you are a current subscriber, we appreciate your support and we look forward to your feedback! If you are interested in subscribing to the UMKC Law Review, please follow the link, https://umkclawreview.org/subscribe/.

Forthcoming, Volume 87.2 a general issue! We will keep you posted on when to anticipate its delivery.

Yours truly,

The UMKC Law Review Board

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Summer 2018 Student Comment Selections

On behalf of the UMKC Law Review, We are excited to announce the summer comment writers whose papers were selected for publication:

Rachel Zender, Bud, Bongs & Bank: The impact of state legalized marijuana on financial institutions

Cody Weyhofen, Scaling the Meta-Mountain: Deep Reinforcement Learning Algorithms and the Computer-Authorship Debate

Jessica Lile, FCC Privacy Protection and the Carpenter Decision

Renee Warden, Where is the Empathy? Understanding Offenders’ Experience of Empathy and its Impact on Restorative Justice

We are so thankful for all of your hard work!

Congratulations to our very own, Jonathan Brown! Winner of the Warren E. Burger Prize for Writing!

The Warren E. Burger Prize for Writing is a writing competition designed to promote scholarship in the areas of professionalism, ethics, civility, and excellence. The American Inns of Court invites judges, lawyers, professors, students, scholars, and other authors to participate in the competition. One of our Managing Editors, Jonathan Brown is the 2018 winner. Jonathan will receive a cash prize, his essay will be published in the South Carolina Law Review, and the prize will be presented to him at the American Inns of Court annual Celebration of Excellence at the Supreme Court of the United States.

Jonathan’s essay “Two Approaches to the Modern Reality of Temporary Cross-Border Legal Practice: The United States and the European Community” can be found in Volume 70 of the South Carolina Law Review.

Jonathan would like to say thank you to his wife, Megan, for her support and encouragement and Professor Nanney for his expertise and valuable input.

Congratulations Jonathan!

J.Brown Headshot

Forthcoming Release: Volume 87, Issue 1

The latest volume of the UMKC Law Review will be available in print in the coming weeks! Volume 87, Issue 1 is a symposium edition that focuses on Criminal Sentencing Reform. If you are a current subscriber, it’ll be on it’s way and we appreciate your commitment! If you are interested in subscribing to the UMKC Law Review please follow the link, https://www.umkclawcle.org

Website TOC 87.1

The Bryan Cave/Edward A. Smith Symposium: The Green Economy

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The Green Economy Symposium is a partnership of the Edward A. Smith/Bryan Cave Symposium, the UMKC Urban Entrepreneurship Initiative, The University of Missouri-Kansas City (UMKC) Law Review and several academic units of UMKC. The symposium focused on the responsibility of preserving a livable environment in an age of environmental challenges such as climate change, water shortages, and other issues.

PROGRAM SCHEDULE

Thursday, October 5, 2017

All sessions will be held in the E.E. “Tom” Thompson Courtroom or the Student Lounge on the Ground Floor of the UMKC School of Law.

8:00 – 8:30 AM   Check-In & Welcome Breakfast

8:30 – 8:55 AM   Welcoming Remarks
Summary: Introduction; tribute and silence in honor of Professor Fred Cheever

  • Sly James, Mayor, Kansas City, MO
  • Barbara Bichelmeyer, Interim Chancellor and Provost, UMKC
  • Anthony Luppino, UMKC School of Law
  • Irma Russell, UMKC School of Law
  • Chris Muehlberger, Environmental Protection Agency

9:00 – 10:30 AM   Resilient Communities – Kansas City Smart City Infrastructure

Summary: Data-driven municipal decision-making, facilitated by deployment of sensors and other data gathering mechanisms, has great potential to improve public safety and health and efficient and effective delivery of public services. “Open data” portals and “living lab” endeavors can disseminate information to innovators and entrepreneurs that they can use to address societal challenges. However, these technology-assisted endeavors come with risks to the protection of personal privacy.

A team led by UMKC in a City of KCMO-initiated project, also involving collaborators from other institutions, is exploring the types of data smart city deployments and open data initiatives collect, how it is being collected, stored and released, and the relative roles and responsibilities of various participants in the associated processes. The project, in the MetroLab Network portfolio and in the UMKC-led Legal Technology Laboratory (LTL), involves applying people-first approaches to fashioning model policies that include timely citizen participation and representation, along with robust oversight, and seeks to develop a technology-based toolkit to gauge and facilitate compliance with such policies. A second project to be described in this session (which is part of the LTL portfolio) is an interactive website that is being designed to help potential buyers of Land Bank properties select locations and properties that best fit their individual needs and preferences. The underlying data are drawn from the KCMO open-data portal and include such factors as trends in crime rates, property violations, 311 calls, building permits, and other property-specific and neighborhood indicators of interest to potential buyers.

This panel will discuss both key elements of those two projects and, more broadly, how they evolved from a multidisciplinary and inter-institutional approach to projects-based learning that has spawned other curriculum additions at UMKC that other universities might replicate.

Presenters/Facilitators:

  • Anthony Luppino, UMKC School of Law
  • Michael Robak (via Skype), University of St. Thomas School of Law
  • Kate Garman (via Skype), City of Seattle
  • Jim DeLisle, Lewis White Real Estate Center, Bloch School of Management
  • Ellen Suni, UMKC, Dean Emerita, Moderator

10:40 – 11:50 AM   An Inclusive Green Economy

Summary: A green economy promises to bring with it thousands of jobs—many more than will be lost because of the regulation needed to mitigate and adapt to climate change. But the green economy will exacerbate wealth inequality in some areas of the United States because the people who lose jobs when pollution rules tighten will not likely be the ones getting them when the green economy blooms. If the green economy is to be inclusive, the country must reconcile the goals of Regulatory State (concerned with health, safety, and environmental protection) with the goals of the Social Welfare State (concerned with social and economic well being). If Americans are to be capable of operating in the market economy, participating in civic society, and coping with life’s inevitable struggles, they will need both government protections and economic security. Without this unified package, which we identify with “social resiliency,” the United States will not be fairer or safer.

Presenters/Facilitators:

  • Robert R.M. Verchick, Loyola University New College of Law
  • Sidney Shapiro, Wake Forest University School of Law
  • Julie Cheslik, UMKC School of Law, Moderator

12:00 – 1:15 PM   Luncheon: Corporate Climate Action and Socially Responsible Investing

Summary: Concerns have mounted in recent years with respect to issues such as climate change, social inequity, and other environmental, social and governance (“ESG”) factors. Investors and financial institutions are becoming increasingly mindful of those concerns and are looking to Corporate America to contribute towards solving them. Responding to such pressures, and consistent with good management practice, corporations are rising to the challenge. They are tapping into private resources to undertake sustainability initiatives that can transform cities. The speakers will discuss the business, investor relations and other factors driving this trend, and provide examples on how businesses are stepping in to improve the urban environment. As one case in point, they will focus on how businesses are working with other sectors in New York City to assist the City government in achieving its commitment to achieve an 80 percent reduction in City-wide carbon emissions by 2050.

Presenters/Facilitators:

  • Kevin Healy, Bryan Cave LLP
  • Steven Poplawski, Bryan Cave LLP

1:30 – 2:10 PM P3 – Opportunities for America’s Infrastructure

Summary: For much of the 20th century, America’s Infrastructure was the envy of the world. Crisis borne of the Great Depression and leadership during and following WWII combined to deliver, among other infrastructure, the Hoover, Grand Coulee and Tennessee Valley Authority Dams that still today deliver power to large sections of our country. This also includes the construction of the Interstate Highway System in the 1950’s and 1960’s and DARPA’s seminal work on the Internet in the 1960’s. The themes of this conference are sustainability, entrepreneurship and innovation and all three were on vivid display in each of these projects. This session will explore the challenge of renewing America’s infrastructure in light of these themes by framing some of the issues the Trump administration could consider in formulating an infrastructure plan for America. The considerations will focus on the opportunities and challenges public private partnerships present and feature several case studies that demonstrate lessons learned from both successful and unsuccessful P3 projects. It will conclude with a number of specific recommendations federal, state and local units of government could consider in their desire to attract capital and engage private sector know-how in creating infrastructure for America in the 21st century worthy of our country’s past efforts.

Presenters/Facilitators:

  • Greg Hummel, Bryan Cave LLP

2:20 – 3:50 PM   Sustainable Energy and Constitutionalism

Summary: This session’s presentation will deal with constitutionalism and the environment. The growth of both the need and will to preserve environmental values is apparent in a multitude of contexts. Many countries around the world now expressly recognize the right to a clean and healthful environment as a matter of their constitutions. In the United States, though the U.S. Constitution does not expressly state this right, sustainability, in form and policy, is observable in interrelated American arenas. For example, Indian tribes and their ceremonial practices on aboriginal sacred lands and National Parks pledge to protect lands for future generations. As the urgency of water scarcity increases, state disputes about water allocations under interstate compacts are bound to increase as well and to raise constitutional issues relating to the right to water, state sovereignty, and sustainability. More broadly, the Juliana v. U.S. case recognizes the federal trust and the constitutional basis of protection to a healthful environment, affirming standing of children to assert a public trust in federal resources that would compel federal protection of sustainability against climate change. The panel’s focus and discussion of application of the Due Process Clause, the Equal Protection Clause and other aspects of the constitution to the green economy encompasses a range of legal developments in the law and society.

Presenters/Facilitators:

  • John Ragsdale, UMKC School of Law
  • James R. May, Widener University
  • Burke Griggs, Washburn University School of Law, Commentator/Moderator
  • Irma Russell, UMKC School of Law, Moderator

4:00 – 4:45 PM  Microgrids: Sustainability, Resiliency, and Economics

Summary: Panelists (representatives from government, utilities and utility customers) will discuss the benefits that microgrids can provide to industrial customers in terms of: 1) resilience (primarily the ability to island the microgrid during grid outages); 2) integrating renewable generation resources into the microgrid to meet the customer’s sustainability goals; and 3) economic advantages (generating from the microgrid resources when doing so is cheaper and taking service from the grid when that is cheaper, and selling power into the grid when that is advantageous).

Presenters/Facilitators:

  • Lewis Mills, Bryan Cave LLP
  • Ed Hedges, Kansas City Power & Light Company
  • Jason Holsman, Missouri State Senator, 7th District in Jackson County
  • Chris Holman, UMKC School of Law, Moderator

5:00 – 6:00 PM   Reception

6:00 – 7:00/7:30 PM   A Groundswell of Change in the Heartland:

Summary: We are uniquely positioned to transform the vitality and resilience of our community.

The nationally-recognized growth of Kansas City’s entrepreneurial ecosystem, remarkable investment, growth and re-development in the urban core, combined to create a unique opportunity to fundamentally redefine the vitality and resilience of our Heartland region. Examples of the innovation and commitment of our region abound and include the new streetcar system, participation in smart city initiatives, pioneering efforts in neighborhood revitalization projects, healthy urban food systems, social equity programs, improvements in the performance and reduced cost of renewable energy

Systems thinking and a collaborative community dialogue are required to overcome the inertia of obsolete systems, laws and practices that limit our potential to create a new regenerative urban ecosystem. There are strong reasons for hope as evidence is growing that the heartland region has the capacity and can muster the will to build on the current groundswell to change the trajectory of our future at the most important moment in human history. This unique opportunity to design systems, policies, laws and investments to create a regenerative future for life, can assure the vitality and resilience of our citizens and the natural capital that supports our cities. Such efforts advance the benefits in our region and, additionally, provide national exposure and leadership for other communities committed to protecting the environment to serve the public good.

Presenters/Facilitators:

  • Introduction by Barbara Glesner Fines, UMKC School of Law
  • Introduction by Irvin Belzer, Bryan Cave
  • Bob Berkebile, BNIM

Friday, October 6, 2017

All sessions will be held in the E.E. “Tom” Thompson Courtroom or in the Student Lounge on the Ground Floor of the UMKC School of Law.

8:15 AM Introduction by Barbara Glesner Fines, Interim Dean, UMKC School of Law

8:30 – 9:30 AM   Resilience Justice and Public-Private Partnerships with Community-Based Organizations for Green and Blue Infrastructure

Summary: This session addresses the intersection of three important aspects of local communities, environments, and economies: 1) green and blue infrastructure (e.g., parks and open space, trees and vegetation, well-functioning waterways and watersheds, agricultural lands and soils, biotic stormwater controls, greenways and trails, and others) as essential natural capital to facilitate and build the adaptive capacity and resilience of communities to disturbances, shocks, and changing conditions; 2) partnerships between government agencies and community-based organizations, especially in marginalized communities, to build social capital and participatory, collaborative problem-solving; and 3) attention to disparities in the resilience, adaptive capacity, and vulnerabilities of marginalized communities, especially low-income communities and communities of color.

Presenter/Facilitator:

  • Introduction by Irma Russell, UMKC School of Law
  • Tony Arnold (via Skype), Louis D. Brandeis School of Law – University of Louisville

9:40 – 11:50 AM   Forms of Doing Business in the Green Economy

Summary: This session explores legal issues in choosing and implementing an organizational structure for a social venture. The discussion will examine attributes of traditional for-profit and non-profit entities and recently emerging hybrid entities (including L3Cs and benefit corporations, and proposals for other forms), and significant issues in capital structure and tax planning. Particular emphasis will be placed on considering the fiduciary duties of managers with missions that include the pursuit of social benefits, addressing some popular misconceptions about hybrid entities and “program related investments,” and exploring policy debates.

Presenters/Facilitators:

    • Anthony Luppino, UMKC School of Law, Moderator
    • John Tyler, Ewing Marion Kauffman Foundation
    • Chris Hoyt, UMKC School of Law

Joan Heminway, The University of Tennessee College of Law

12:00 – 1:30 PM   Luncheon: Acting as if Tomorrow Matters: A Conversation with the Next Generation

Summary: This session will explain why we are facing an emergency with respect to climate and that emergencies force people to change the things that they have been doing, in order to respond effectively. The presentation will then identify at least seven things that individuals should do differently now in order to address climate change.

Presenters/Facilitators:

  • John Dernbach, Widener University Commonwealth Law School
  • Brandon Weiss, UMKC School of Law, Moderator
  • UMKC Faculty Commentators: Clara Irazabal-Zurita, Molly Davies, and Jimmy Adegoke
  • UMKC Students, including officers of the Environmental Law Society (President: Courtney Ruby) and the Law Review student editors.

1:30 PM Closing Remarks by Irma Russell, UMKC School of Law

You can access the presentations from both days here.

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2018-2019 Staff Members

Law Review Staff

 

Fall Student Comment Selections

Congratulations to the following students for being chosen to publish with UMKC Law Review this Fall.

Emily Bittiker, The Borderlands of copyright: the Useful-Article Doctrine in light of Star Athletica v. Varsity Brands. Faculty Advisor: Professor Holman

Jennifer Cacchio, What You Don’t Know Can Hurt You: The Legal Risk of Peering Into the Gene Pool with Direct-to-Consumer Genetic Testing. Faculty Advisor: Professor AK

Robert Hoeven, Kansas Public School Funding: Problems and Possible Solutions. Faculty Advisor: Professor Wiseman

Courtney Ruby, Let It Grow. Faculty Advisor: Professor Holman

Diane Plantz, The Patient Safety and Quality Improvement Act:  A Total Eclipse. Faculty Advisor: Professor Levit

Jonathan Brown, The Modern Foreign Commerce Clause: U.S. v. Baston and Extraterritorial Sex Trafficking Statutes. Faculty Advisor: Professor Cantu

2018-2019 Executive Board Named

Congratulations to the newly named 2018-2019 UMKC Law Review Executive Board!2018lawreviewboard

Dukes of Hazard: Rule 23(a)(2) Commonality Post Wal-Mart v. Dukes by Padraic Corcoran

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Dukes of Hazard

“[T]here are questions of law of fact common to the class…” In 2011, the Supreme Court ruled that a class of 1.5 million class members, spanning all fifty states, did not meet the required commonality quoted above. The Court ruled that commonality required plaintiffs to establish that all class members suffered the same injury. The Court interpreted the above quotation to require potential members’ claims have a common contention capable of resolution among the entire class. This means “determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” The Court went on to quote a law review article that stated,

…Read the Full Text…

No Fault Means No Benefits: “Misconduct” as Defined by Missouri’s Employment Security Law by Zachary J. Cloutier

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Employment Security Law

Paul works for Nee’s Auto Shop, a local automobile service center. Nee’s Auto Shop hired Paul a few months ago for a seasonal position as a customer service associate, because Nee’s Auto Shop is especially busy during the holiday season. After demonstrating a strong work ethic and an aptitude for the position, Nee’s Auto Shop offered Paul full-time employment, which Paul gladly accepted. Paul’s duties include all initial tasks relevant to repairs, such as drafting work orders and assisting the Shop’s customers.

Three years later, Paul still works for Nee’s Auto Shop. Like previous years, the holiday season brings increased business. However, unlike previous years, Nee’s Auto Shop did not hire additional, seasonal employees. As a result, Paul is responsible for handling an ever-increasing workload and is struggling to maintain the shop’s books. Paul fails to charge a group of customers for parts and services, including a customer that Nee’s Auto Shop knows to be Paul’s close friend. Despite the mistake, Nee’s Auto Shop has a very successful holiday season and fails to notice any billing discrepancies.

Three months after Paul’s billing error, Nee’s Auto Shop reviews its past work orders in preparation to file its taxes, and notices a discrepancy in its billing records. The Shop’s owner tracks the customer data to work orders originated by Paul and concludes Paul failed to bill the customers at the shop’s expense. Soon thereafter, the owner confronts Paul about the billing errors. Paul denies knowledge of them and claims that he would never purposefully failed to bill a customer. But, the owner is unsatisfied with Paul’s denial and believes Paul did not charge the customers so that his friend could receive free repairs. The owner also knows his unemployment tax rate will increase if he arbitrarily discharges Paul. To protect his company’s interests, the owner finds an obscure company rule prohibiting preferential billing and discharges Paul citing the billing rule as his basis.

…Read the Full Text…

Affirmative Action and the Struggle Against Systematic Oppression: How Race-Based Admissions are not a Threat to America by Linda Adeniji

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Systematic Oppression

In June 1965, President Lyndon B. Johnson delivered the commencement address at Howard University, where he said:

Freedom is not enough . . . You do not take a person, who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say, ‘you are free to compete with all the others,’ and still justly believe that you have been completely fair. Thus it is not enough just to open the gates of opportunity.

President Johnson delivered this speech as formal discrimination came to an end in the 1960s with the passage of The Civil Rights Act and as many African-Americans were still confronted with informal and debilitating discrimination. As a result, Affirmative Action was born, giving preferences to African-Americans in higher education admissions and hiring practices, and igniting a fierce debate over the constitutionality of such policies that continues today.

Opponents of Affirmative Action argue that such consideration of race in the admission and hiring of African-Americans violates the Equal Protection Clause of the Constitution.

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The Central Tibetan Administration: Legal State or Mere Organization by Jennifer Tuel

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Central Tibetan Administration

Over the years, celebrities and individuals have advocated to “Free Tibet,” such as Sharon Stone’s scandalous suggestion that the 2008 Sichuan earthquake was a result of “bad karma” due to Chinese mistreating the Tibetans. Such individuals are referring to the Tibet Autonomous Region (“TAR”) within China when chanting “Free Tibet” or commenting on the mistreatment of Tibetans. The Central Tibetan Administration (“CTA”) does not receive as much attention even though it may be considered a free, independent state for Tibetans.

In 1949, the People’s Liberation Army of China entered the area now known as the TAR. The CTA was established in 1959 by His Holiness the Fourteenth Dalai Lama and about eighty thousand Tibetans who fled the TAR because they disagreed with Chinese rule. The CTA went on to establish a government in Dharamsala, India for Tibetans.

….Read the Full Text…

A Comparison of Kansas and Missouri Health Care Grievance Procedures, and the Need for a Unified Process at the Federal Level by Zhiyuan Liao

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Health Care Grievance Procedures

People purchase health insurance for the purpose of managing unexpected economic loss resulted from medical sufferings. In today’s medical field, many patients and physicians feel frustrated and powerless when a Managed Care Organization (“MCO”) refuses to pay for treatment, often because the insurer is playing a game of denial, delay and deceit to help the company avoid issuing big outgoing paychecks. Allegedly, private insurers are making payment decisions rather than medical decisions. This creates an issue because the denial of insurance coverage is often equivalent to a denial of medical care to the patient. The beneficiaries, of course, can always visit a different doctor not covered by the insurance policy if the insurer denies their claims, but this would be at the beneficiaries’ own cost, and most people cannot afford the huge expense.

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Comparative Adoption Approaches of Missouri and Kansas: Termination of Parental Rights and Equitable Adoptions by Najmeh Mahmoudjafari

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ComparativeAdoption Approaches

At the very least, there is one thing that unifies the states on their adoption policies: it is encouraged. The battles are in the details. Kansas and Missouri are wonderful examples of how two states can differ in their adoption policies, albeit having similar geographic and demographic make-ups. This note will discuss two key differences between Missouri and Kansas adoption laws: (1) the termination of parental rights during an adoption and (2) the use of equitable adoptions. The purpose of this note is to show that, arguably, Missouri has a better approach to the analysis of terminating parental rights; however, in regards to equitable adoption, Kansas has a more plausible argument against equitable adoption.

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Numbers Never Lie by Tyler Hargis

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Numbers Never Lie

Over the last twenty-years, public support for legalizing medical and recreational marijuana use has increased substantially, leading to a growing number of states enacting marijuana laws that clash with federal drug law. Increasing opposition to federal marijuana prohibition has become a popular topic of debate across America. An aspect of the marijuana debate of lesser notoriety however, is the multiple failed efforts to change the Schedule I status of marijuana through the drug classification provisions of the Controlled Substances Act (CSA).

This note looks at that process with a narrow focus on the classification scheme for determining the abuse potential of a drug. Part I briefly discusses the CSA’s classification of drugs and describes the evidence the DEA relies on for assessing AP of a drug. Part II then presents a more in depth evaluation of this evidence and argues that removal of marijuana from the CSA is proper, as it does not meet the requirements for inclusion in any of the schedules.

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Ending the War on Death and Embracing End-of-Life Quality Concerns: The Affordable Care Act’s Failure to Address End-of-Life Health Care by Leah Miyamoto

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Embracing End of Life Concerns

The war on death has not yet been won. Everyone, so far, has died and the American way of death is expensive. Although death is guaranteed for every human being, end-of-life costs for Americans can be high and often do little to improve the quality of death and dying. With 52.3 million beneficiaries adding up to $583 billion in health care expenditures in 2013 alone, Medicare faces the seemingly impossible feat of creating a sustainable health care system. Medicare’s high financial burden stems from America’s inability to balance the expensive, rapidly increasing advances in medicine with the need to embrace death thereby improving end-of-life care.

Although the US spends the most money per capita for total care after age 65, we rank poorly in comparison to the rest of the world in end-of-life quality. The international community has developed creative solutions to improve accessibility to end-of-life care with scarce resources, even in developing countries.

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Review Can Wait: Orders Denying Pro Se Plaintiffs’ Requests for the Assistance of Council Should Only be Reviewed After Final Judgments by Nicholas Draper

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Review Can Wait

Two correctional officers sprayed Kevin Ward with pepper spray during an altercation in which Ward refused to comply with orders. The correctional officers sprayed Ward, a prisoner at the South Central Correctional Center in Licking, Missouri, multiple times, initially when Ward refused to allow the officers to place him in handcuffs and again after a nurse determined Ward could endure more pepper spray.

Ward filed suit one month after the incident in the United States District Court for the Western District of Missouri. Ward alleged that the two correctional officers and the nurse violated his civil rights by using excessive force and by failing to provide him with medical care. Ward filed his complaint pro se, or without the assistance of a lawyer, and asked the trial court for appointed counsel three different times. There is no “constitutional or statutory right to appointed counsel” in civil cases. Nevertheless, Ward requested the assistance of counsel because he said he needed “counsel to assist with preparing his case for trial” and that he could not “litigate his case without professional assistance.” The district court denied each request. Ward appealed the denial to the United States Court of Appeals for the 8th Circuit.

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Voter Competence and the Exile of Donald Trump by Casey Crawford

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Voter Competence

The 2012 presidential election was the most expensive election in U.S. history. The Federal Election Committee reported that the election cost approximately $7 billion. Ellen Weintraub, the FEC Chairwoman stated that candidates spent an estimated $3.2 billion, political parties spent $2 billion, and political action committees another $2.1 billion. Observers of the election coverage undoubtedly recognized that the media often spent countless (and expensive) amounts of national airtime on seemingly far-fetched election topics that had little to do with the candidates’ policies or positions on issues. Donald Trump frequently graced the populace with his interviews with various media outlets that were aimed at garnering support for the proposition that President Barack Obama was possibly not a natural born citizen of the United States and therefore ineligible for the office of the presidency. This “birther” movement gained so much popularity, that in 2011, 25% of Americans believed the President Obama was not a natural-born citizen. While this distraction kept many people busy, another large portion of the election coverage was dedicated to Governor Mitt Romney’s release of his federal tax returns.

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Racist Racism: Complicating Whiteness Through the Privilege and Discrimination of Westerners in Japan by Dagmar Rita Myslinska

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Full Text

With no anti-discrimination legislation, strong Confucian-inspired in- group mentality, and a belief in their mono-ethnicity, Japan is marred by a culture of widespread discrimination. Although it has ratified the International Convention for the Elimination of All Forms of Racial Discrimination, and guarantees equality in its Constitution, all those who differ from the closely circumscribed norm are excluded culturally, and legally. Whites’ position in this milieu is complicated because of the West’s unique historical relationship with Japan, and due to the perception of white global dominance. Although admired and arguably privileged over other outsiders, Caucasians are nevertheless mocked and discriminated against—openly, frequently, and with impunity. The concept of racism, as funneled through critical race theory’s (“CRT”) reliance on homogeneous white privilege, lacks dialectic space to address their experiences of discrimination. Yet both CRT analytical tools and desire for praxis, and Confucian respect for human dignity have much to offer in expanding discrimination discourse, exposing the concept of racism as Western-centric, supporting equality, and giving voice to victims who do not fit the victim norm. In the process, this enlarged theoretical and analytical space can help alleviate Japan’s labor shortage, prompting multi-faceted reforms, and achieving true Confucian harmony and democracy. I propose to create new discourse, situated within expanded CRT and whiteness studies, while providing analytical coverage to a group of Caucasians rarely mentioned in popular or scholarly literature. Definitions of “the other” and “white privilege” need to move away from monolithic notions of race and power, which are white-centric and racist themselves.

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