Texas abortion decision could have Kansas implications

"News of the Supreme Court striking down Texas' strict regulations of abortion clinics may have a trickledown effect in Kansas. Texas rules require abortion providers to have admitting privileges at nearby hospitals and forced clinics to meet hospital-like standards for outpatient care.

The nation's highest court held Monday that those regulations are medically unnecessary and unconstitutionally limit a woman's right to an abortion. Some law experts say that regulations in Kansas are quite similar.

Obscure 2005 law emerges as possible tactic in Kansas schools fight

"When the Kansas Supreme Court and state legislature faced off over school finance more than a decade ago, many lawmakers insisted that judges had overreached.

So much so that they passed a law banning courts from closing schools if the issue ever got to that point again.

And now that we’re there, with a June 30 deadline looming and the threat of a school shutdown real, some legislators insist judges should go back and abide by that 2005 law.

...

Gov. Kathleen Sebelius appointee penned anti-abortion Court of Appeals ruling

"Former Kansas Gov. Kathleen Sebelius is a foe in the eyes of anti-abortion advocates in Kansas, and yet it was a Sebelius appointee who issued the Kansas Court of Appeal’s anti-abortion minority opinion Friday.

Richard Levy, a professor of constitutional law at the University of Kansas, said lower court judges have less discretion to pursue personal predilections because they are bound by higher court rulings.

After 149 years, Kansas lawmakers still grappling with 14th Amendment

The 14th Amendment was one of three post-war amendments that were supposed to put the issues of slavery and racial discrimination to rest. It’s the one that says, among other things, that states may not deprive their citizens of life, liberty or property without due process of law, nor deny to any of them equal protection under the laws.

...

But today, 149 years later, issues that are embedded in the 14th Amendment continue to stir controversy in statehouses around the country, on issues ranging from abortion to gay rights, and from even voting rights to school finance.

Kansas Supreme Court strikes down judicial selection law, putting funding for courts in jeopardy

"In a case that threatens all funding for the entire state judicial branch, the Kansas Supreme Court on Wednesday struck down a new law that changes the way chief judges in the lower courts are selected.

In a 43-page opinion in the case of Solomon v. Kansas written by Justice Eric Rosen, the court upheld a lower court decision that said the new law violates the separation of powers doctrine as well as Article 3 of the state constitution, which gives the Supreme Court “general administrative authority over all courts in this state.”

Is it legal? How could it work? Legal experts say Trump would need to use 'most reviled' decision in Supreme Court history

"It is widely regarded as one of the most shameful episodes in America's history.

But the internment of Japanese citizens during WWII would be Donald Trump's best hope of passing his ban on Muslims entering the US.

Constitutional experts said that internment was the closest precedent that Trump could turn to were he to try and implement his policy - even though it would be 'constitutionally dead on arrival'.

...

Examining European Union through domestic lens offers insights, professor says

Friday, October 23, 2015


LAWRENCE — Multinational organizations like the European Union are unique in many ways, but examining such bodies through a lens commonly used to study domestic governmental systems can shed light on why such groupings work and the directions they may be headed. Richard E. Levy, J.B. Smith Distinguished Professor of Law at the University of Kansas, has authored a foundational article applying collective action theory to analyze the institutional structure of the European Union. 

The article appears in an issue of the European Journal of Law and Economics honoring the work of Judge Richard Posner, an internationally acclaimed judge and legal scholar known for his work in law and economics. Levy, a former clerk for Posner, who has lived and taught in Europe and written extensively on federalism, has long been drawn to the similarities between federalism in the United States and the structure of the European Union.

“My main focus is on U.S. constitutional law, but I like to think about comparative institutional structures, how they’re parallel to each other and how they’re different,” Levy said. “By doing that I think you can better understand why constitutional systems are structured the way they are.”

Collective action theory explores how groups work together to create common benefits even though they have individual incentives to act as “free riders” that enjoy the benefits of group activity without contributing to it. Although collective action theory originated as a tool for understanding the behavior of individuals, particularly in relation to political processes, Levy has been a pioneer in applying the theory to the relationships among states in the American federal system. This approach is beginning to take root in Europe as well, and Levy hopes that his article will contribute to the use of collective action theory to analyze the European Union.

Like the United States, the EU creates a structure for collective action by member states through which the collective can enact legally binding rules without the unanimous consent of the member states. Nonetheless, the scope of EU authority and the power of EU institutions is more constrained than that of the federal government in the U.S. Levy said he is interested to see if the EU will eventually move further in toward the creation of a federal system such as the U.S., which would require the adoption of a kind of European constitution that transformed the EU from a set of agreements among member states to a social contract among the people of Europe.

Of course, many differences exist in the case of the EU; namely linguistic, cultural and historical differences that currently keep the member states from considering themselves part of a larger entity, as opposed to independent nations, with a shared bond. States often want to retain autonomy and power, but in the EU, as in the United States, power has gravitated to the center, Levy writes.

For example, the supremacy of federal power in the U.S. was not fully established in practice until after the Civil War, and the practical scope of federal power expanded greatly during the 20th century. One important distinguishing characteristic is the EU’s use of the subsidiarity principle to counter the centralization of power. The principle holds that decisions are handled centrally only when they cannot be handled effectively by the member states.

While new economic and legal situations continue to come about, Levy said he is interested to watch how collective action theory can teach us more about the EU and the decisions it makes. The initial concerns such as free trade among members, interstate relations and external relations will continue to be at the forefront, but new issues such as monetary policy for the euro and the ongoing debate about whether the United Kingdom will separate from the EU will continue to shine a light on how the body evolves.

By examining the EU’s makeup through the lens of collective action theory, Levy said, we will be able to see if the organization moves toward a federal system or maintains its current state of a group of national states. Conversely, using collective action theory as a comparative lens will also help us gain a better understanding of the American federal system.

“One of the essential points of comparative law is you gain a better understanding of your own system when you study another,” Levy said. “Studying the EU might help us to think about how, if we do care about member states, might we structure our system to better balance the autonomy of the states against the need to address national issues at the federal level?”

Photo: European flag outside the Commission. By Xavier Hape, via WikiCommons.

Former AG Phill Kline's law license a matter of constitutional debate

"The Kansas Supreme Court must consist of seven justices, the state’s constitution says, and 'not fewer than four justices shall be necessary for a decision.'

...

"In May 2012, as Kline faced a hearing before the high court that would determine whether he could practice law in Kansas, his attorneys requested two Kansas Supreme Court justices — Carol Beier and Lawton Nuss — recuse themselves from his case because of their previous rulings against Kline. The attorneys also suggested that three other justices consider recusing themselves.

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