Kobach: Kansas justices score lower in quality comparison

"Secretary of State Kris Kobach argued Thursday the federal model of judicial selection placed higher caliber lawyers from Kansas on the U.S. District Court and U.S. Court of Appeals than the state’s existing approach for picking justices of the Kansas Supreme Court.

Kobach and Gov. Sam Brownback believe the Kansas Constitution ought to be amended to eliminate the nonpartisan merit selection system relied upon in Kansas to evaluate applicants for the state Supreme Court and to provide governors a choice among three finalists.

. . . 

Kansas Government Fighting Same-Sex Marriage

"A legal expert contends the U.S. Supreme Court's decision to rule on same-sex marriage will determine the fate of Kansas' ban on the unions.  But University of Kansas Constitutional Law Professor Richard Levy thinks the state could still fight implementation of a judgment allowing gay marriage.

Levy said, 'It’s possible that there could be various kinds of state laws passed that test exactly what the limits are, and in the process slow its recognition.'

Professor argues standards for cutting-edge science need to consider intellectual property

Monday, January 12, 2015

LAWRENCE — The development of a new “open language,” or standard means for communicating data and results between researchers, to guide collaboration in the cutting-edge science of synthetic biology shows valuable potential. But it must take intellectual property issues into account at the outset to avoid legal problems that can be destructive to the process of standards setting, a University of Kansas law professor argues.

Andrew Torrance, also a visiting scholar at the MIT Sloan School of Management, co-authored a commentary in the leading journal Nature Biotechnology, arguing that if intellectual property concerns are not included in the development of a Synthetic Biology Open Language, or “SBOL,” scientific progress could be thwarted and wasteful legal battles ensue. The commentary was written as a response to an SBOL proposal written by Galdzicki et al., previously published in Nature Biotechnology. Torrance co-authored the commentary with professors Jorge L. Contreras of the University of Utah and Arti K. Rai of Duke University. All three specialize in law, biology, intellectual property and technical standards setting.

The Synthetic Biology Open Language is a set of technical standards intended to serve as a common language to allow diverse research groups to collaborate in the field of synthetic biology without need for technical translation. The language would be part of standards “accelerating scientific progress in synthetic biology and for the eventual commercialization of resulting technologies,” Torrance and co-authors wrote. However, patent and other intellectual property issues highly relevant to the adoption of SBOL were not mentioned and should be considered.

“Standardization and the standards setting process has greatly benefited other fields of scientific endeavor, such as engineering and computer science, and is similarly important to synthetic biology,” Torrance said. “Just as standard worldwide language for air traffic control has enhanced both efficiency and safety, thus spurring air travel, standard language for information exchange should lead progress in synthetic biology to be faster and more meaningful. However, the biological research landscape is replete with patent rights, so standard setting must grapple about intellectual property at the outset.”

Torrance and colleagues recommend including patent holders and legal experts in ongoing negotiations to develop standards such as the Synthetic Biology Open Language. Failing to do so could result in patent holders filing lawsuits, either immediately or once the standard has been adopted, thereby slowing, frustrating or thwarting scientific progress. Such dangers could also drive up the cost of innovation. Failing to consider legal issues has “bedeviled standard developers over the past two decades in industries ranging from wireless networks telecommunications to computer networking to semiconductor memory,” the authors wrote.

Designing standards without considering legal implications would be like designing a top-of-the-line automobile without ensuring there will be a road system on which to drive it, Torrance said. Not only would the vehicle be unable to show off its power and speed, it would almost certainly hit damaging potholes before it got anywhere.

One of the guiding philosophies in the field of synthetic biology is to be open and to share progress with all who are interested. The authors salute and support the “fair, reasonable and non-discriminatory” ethos this reflects, but they urge those trying to set technical standards not to overlook intellectual property issues with the potential to derail progress in service of that ideal.

“In general, I think the synthetic biology community has shown impressive awareness of potential legal hazards,” Torrance said. “Our letter was a way of reminding the synthetic biology community that issues of law, especially patents, are of vital importance and impossible to ignore. We urge such issues to be considered as an integral part of the standards-setting process so that technical standards are free from legal impediments from their initial adoption. Synthetic biology promises to be one of the great beneficial technologies, generating powerful medicines, more efficient and cleaner industrial processes, and perhaps even self-repairing consumer goods. We want to help ensure that legal impediments to achieving such worthy goals are avoided.”

Professor to argue before Supreme Court on states' rights

Monday, January 12, 2015

LAWRENCE — A University of Kansas law professor will make his second appearance before the U.S. Supreme Court this term, arguing on behalf of Kansas and more than 20 other states in a case focused on natural gas, alleged price fixing and authority between state and federal governments.

Stephen McAllister, E.S. & Tom W. Hampton Distinguished Professor of Law, will argue on behalf of the plaintiffs in ONEOK Inc. v. Learjet Inc. at 9 a.m. CST today, Jan. 12, at the Supreme Court in Washington, D.C. He also argued before the court in October on behalf of Kansas in a case regarding water rights between the state and Nebraska. A ruling in that case is expected soon.

At issue in today's case is natural gas and setting prices for the commodity. The federal government controls the wholesale part of the market, while states can regulate commercial sales, McAllister said. The states are arguing their consumer protection laws prevent federal laws on the transportation and sale of natural gas from setting prices artificially high, or “price fixing.”

“It is an interesting collection of entities represented in the suit,” McAllister said. “There are hospitals, school districts and other private entities such as Learjet. They all have a common interest here and were required to pay way more than they should have for natural gas.”

Kansas Attorney General Derek Schmidt asked McAllister, who is also solicitor general for Kansas, to write the amicus brief on behalf of the plaintiffs. McAllister, who regularly offers legal assistance to the state, will make his seventh total appearance before the Supreme Court. He will dispute the defendants’ and federal government’s position that state antitrust laws are pre-empted by the federal Natural Gas Act. The defendants argue the pre-emption extends to the retail market.

Kansas-based entities Learjet Inc. and Topeka Unified School District No. 501 are among the plaintiffs who claim the defendants illegally drove up the price of natural gas. Similar cases from across the country were consolidated into a multidistrict case in Nevada, and the San Francisco-based 9th Circuit Court of Appeals allowed the plaintiffs to proceed with their claims.

McAllister said he was drawn to the case not only for the chance to serve the state and to appear before the highest court in the land but also for the chance to relate the experience to his students. He teaches classes and conducts research in federal and state constitutional law, civil rights actions and tort law.

“It’s a thrill for me both personally and professionally,” he said. “I think it speaks well for Kansas and the voice of Kansas when cases such as this show up at the Supreme Court. Plus, it always gives me something I can bring back to the students and my scholarship.”

KU professor gives input on French newspaper attack

"French police officials say they have identified three men as suspects in a deadly attack against newspaper offices that killed 12 people and shook the nation.
. . . 

It was the deadliest attack in France in half a century.

. . . 

University of Kansas Associate Dean for International and Comparative Law Raj Bhala said that this attack can affect American communities by people misunderstanding the attacks and backlashing.

Professor: Supreme Court case illustrates problems with judicial elections, campaign fundraising

Friday, January 09, 2015

LAWRENCE — A case set to appear before the Supreme Court addresses important issues about the funding of judicial election campaigns and raises broader questions about the impartiality of judges. A University of Kansas law professor has written an article examining judicial impartiality and arguing that its core — equal application of the law — may be threatened by judicial campaign fundraising.

Stephen Ware, professor of law, has an article forthcoming in the Vanderbilt Law Review En Banc, on Williams-Yulee v. The Florida Bar, a case that will be argued in the Supreme Court on Jan. 20. The case arises out of Florida, one of many states in which voters choose among competing candidates in judicial elections much as they choose among competing candidates running for legislator or governor.

“However, states tend to regulate the conduct of judicial candidates more tightly, and these regulations are sometimes challenged in court,” Ware said.

In the case before the court, Lanell Williams-Yulee, a candidate for a Florida judgeship, violated a state law prohibiting judicial candidates from personally soliciting campaign contributions. Florida, like most states, but not Kansas, requires that judicial campaign-fund solicitation be conducted not by the candidate but instead by the candidate’s campaign committee. The Florida Bar sought to reprimand Yulee for her violation of the law, and the Florida Supreme Court convicted her. Yulee argues that the law violates her right to free speech guaranteed by the First Amendment.

The case brings three important questions to the fore, Ware said. The narrow question is whether prohibiting a judicial candidate from personally soliciting campaign funds is constitutional. This question is intertwined with broader questions about how to fund judicial election campaigns and, at the broadest level, whether to have judicial elections at all.

Ware does not believe judges should be elected, in part because the funding of judicial election campaigns is so troubling.

“Many reasonable people worry that judicial campaign contributions can threaten a judge’s impartiality,” Ware said, by tempting a judge to apply the law differently to a case involving a contributor than to a similar case not involving a contributor. This would violate the core of judicial impartiality which the Supreme Court has explained “guarantees a party that the judge who hears his case will apply the law to him in the same way he applies it to any other party.”

The serious risk judicial campaign contributions pose to judicial impartiality is not, in Ware’s view, solved by requiring contributions to be solicited by campaign committees, rather than by judicial candidates themselves, because judges can usually learn who contributed to their campaign committees, and lawyers and litigating parties know that judges can easily discover who contributed to their campaign committees.

Ware examines three possible reforms to judicial campaign funding: having judges recuse themselves from cases involving campaign donors; making donations anonymous and publicly financing judicial elections. While Ware sees in some of these reforms potential to reduce risks to judicial impartiality, he does not believe any of them would go far enough without creating other problems.

“I’m skeptical that there is a good way to fund judicial elections,” Ware said, which is one of the reasons he believes judges should be appointed rather than elected.

However, he said he differs from many of his fellow attorneys who believe that they should have special powers in appointing judges, as they currently do in appointing the supreme courts of Kansas, Missouri and several other states.

By contrast, Ware prefers the Constitution’s method of selecting federal judges — in which the president nominates and the U.S. Senate confirms judges — and points out that in about a dozen states the governor’s judicial nominee is similarly confirmed by the state senate or other democratically elected body. Ware says democratic appointment of judges, rather than an appointment process that privileges lawyers over their fellow citizens, better fits the position of state-court judge, which involves the power to make law.

As the Supreme Court said, “Complete separation of the judiciary from the enterprise of ‘representative government’ might have some truth in those countries where judges neither make law themselves nor set aside the laws enacted by the legislature. It is not a true picture of the American system. Not only do state-court judges possess the power to ‘make’ common law, but they have the immense power to shape the states' constitutions as well, which is precisely why the election of state judges became popular.”

In other words, Ware said, the Supreme Court recognizes that democracy is appropriate in selecting judges, especially the state supreme court justices whose “immense power” to hold laws unconstitutional affects a range of widely contested issues like school funding, same-sex marriage and the death penalty. Ware says constitutional language on these topics is often vague or ambiguous, so reasonable people can disagree about how to interpret it and judges' interpretations seem to correlate with their policy preferences, all of which strengthens the case for democracy in selecting judges.

“While judges make law, they do so in different ways than legislators and governors, so I think state judges should be selected by the sort of indirect democracy that selects federal judges, as opposed to the direct democracy of judicial elections," he said.

Also, doing away with judicial elections would do away with the challenges of funding judicial election campaigns and thus help ensure an impartial judiciary, he said.

KS Court Ruling Could Bolster Effort to Revamp School Funding

"In a previous ruling, the Kansas Supreme Court said the state’s finance system should be judged by determining if the spending levels achieve certain student outcomes.

University of Kansas constitutional law professor Richard E. Levy says if lawmakers decide to tackle the formula, that’s the angle they’ll probably need to take.

'The focus is on what kind of outcomes, what demonstrated student learning have you produced. The focus is on what you’re achieving, not what you’re putting into the process,' says Levy.

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