Law professor to argue before Supreme Court on water dispute

Tuesday, September 16, 2014

LAWRENCE — A University of Kansas law professor has authored a study and will argue before the Supreme Court on a water rights case via a method that can be thought of as a more civil version of civil war.

Stephen McAllister, E.S. & Tom W. Hampton Distinguished Professor of Law, will argue on behalf of Kansas before the Supreme Court on Oct. 14 in a dispute about water rights and the Republican River. Lower courts have determined that Nebraska has pumped too much water from the river before it flows into Kansas and that Nebraska should pay Kansas $5.5 million. Nebraska claims that amount is too steep, while Kansas claims the payment should be higher. McAllister is arguing at the request of Kansas Attorney General Derek Schmidt, who will join McAllister at counsel table for the oral argument.

McAllister also has written a new article to be published this fall in the law journal The Green Bag about original jurisdiction procedures, the process by which disputes between states often are initiated and decided in the Supreme Court.

“One of the ways to think of original jurisdiction is as ‘the other civil war,’” McAllister said. “Instead of states taking action against each other, militarily or otherwise, they can go to the Supreme Court and get a resolution of their dispute. Original jurisdiction gives the Supreme Court the chance to keep such disputes from ever reaching the point of violence or other punitive actions between states.”

Original jurisdiction was used only sparingly before the Civil War, but since then it has been used frequently to determine all manner of disputes between states over water rights, fishing rights, boundaries and occasionally other issues such as interstate pollution. One of the most famous recent cases was a dispute between New York and New Jersey over which state owned Ellis Island, home to the historic center that processed millions of immigrants to the United States.

This isn’t the first time McAllister has been involved in a water rights case that ended up at the Supreme Court via original jurisdiction. Kansas v. Colorado was a dispute over water rights to the Arkansas River. In that case, Kansas sued Colorado for taking more than Colorado’s share of the water in the river before it reached Kansas. McAllister worked on the case near its conclusion, assisting then-Kansas Attorney General Steve Six, writing briefs and providing consultation. McAllister’s work on that case and the Supreme Court’s decision prompted him to write another article in The Green Bag, agreeing with Chief Justice John Roberts that the Supreme Court alone had the constitutional power to determine the procedures for original jurisdiction cases and that Congress could not and should not get involved in such matters.

Some have argued that Congress has the power to dictate the procedures the Supreme Court uses in these state versus state cases, but McAllister in responding has noted that Congress has never purported to do so directly in the nation’s history.

“History suggests that Congress has never really thought they could or needed to get involved in these cases,” McAllister said. “I don’t see how Congress getting involved could make things any better. The court has developed procedures and provided a forum that has worked for the states.”

While some claim that the Necessary and Proper Clause of the Constitution, which gives Congress the authority to set certain parameters on the court, gives Congress the power to determine original jurisdiction procedures, McAllister disagrees.

“The logical extension of that argument is that Congress could completely control every aspect of the Supreme Court’s original jurisdiction, which would do away with separation of powers. The Supreme Court does not try to control or change the procedures Congress uses.”

In his upcoming arguments before the Supreme Court, McAllister will argue because it has been established that Nebraska pumped too much water from the Republican River and violated a previous compact between the states on water usage, Nebraska should have to pay Kansas significant damages, both to compensate for the loss to Kansas and to deter Nebraska from committing future violations.

“The upstream states always have an advantage, as far as first shot at the water and the ability to use what they want,” McAllister said. “You often end up with disputes arising from interstate water compacts arising decades down the road. I think one of the questions is, ‘How much remedy is appropriate in this situation? It’s an interesting question to argue because there aren’t really hard and fast rules here.”

The case will be both a chance for a KU professor to argue before the Supreme Court and for KU Law students to observe the preparation process firsthand. McAllister will take part in several moot court sessions before the October arguments in order to practice and prepare. In one of those sessions, KU faculty will represent the Supreme Court justices who will hear the case. Students will observe and be able to ask questions following the session.

This particular case will also be part of McAllister’s distinguished professor lecture, which he will present Oct. 6. His Supreme Court experiences, consulting with the Kansas Attorney General’s office and the intersection of the two with service, teaching and scholarship will all be part of the presentation.

Media advisory: KU law expert available to discuss KS Supreme Court’s consideration of offender registry case

Thursday, September 11, 2014

LAWRENCE — Corey Rayburn Yung, a University of Kansas School of Law professor with expertise in criminal law and sex crimes, is available to speak with the media about today’s Kansas Supreme Court hearing in Doe v. Thompson. The case addresses the constitutionality of the state’s Kansas Offender Registration Act, a 2011 law that retroactively lengthened the time one has to remain on the criminal offender registry. The plaintiff in the case is a convicted child molester in Johnson County. The U.S. Constitution bans “ex post facto,” or after-the-fact, punishments.

YUNG CAN DISCUSS: how similar cases have been resolved in other jurisdictions and any issues related to the ex post facto clause in relation to sex offender restrictions.

To schedule an interview, contact Mindie Paget at mpaget@ku.edu or 785-864-9205.

BIOGRAPHY: Corey Rayburn Yung’s research focuses on criminal law, sex crimes and judicial decision-making. His scholarship has been cited by several federal courts, including the U.S. Supreme Court. Yung is regularly consulted by the media and has been quoted in the Chicago Tribune, New York Times, Wall Street Journal and Washington Post, among other outlets.

KU law school selects Dean’s Fellows to mentor incoming class

Friday, September 12, 2014

LAWRENCE — Nine students at the University of Kansas School of Law have been chosen as Dean’s Fellows for the 2014-15 academic year. 

The Dean’s Fellows are a group of second- and third-year law students selected to mentor first-year peers. Fellows offer academic support and guidance, serving as resources for students navigating the transition to law school. Fellows are selected through an application and interview process that considers their academic performance, campus and community involvement, and rapport with classmates.

“The program matches 1Ls with students who have gone through what they are about to go through,” said Paige Blevins, head Dean’s Fellow. “It encourages community, and community creates a more supportive system where students can succeed.”

The program is administered by the school’s Office of Admissions. The 2014-15 Dean’s Fellows are listed below by hometown.

BARTON COUNTY

Paige Blevins, a third-year law student from Great Bend, is this year’s head Dean’s Fellow. She earned a bachelor’s degree in English at KU and has participated in Women in Law and the Public Interest Law Society. Blevins served as a staff editor for the Kansas Journal of Law and Public Policy and events coordinator for the Public Interest Law Society. She graduated from Great Bend High School and is the daughter of Ralph and Laura Blevins. 

JOHNSON COUNTY

Second-year law student Abby Hall, Overland Park, is a member of Women in Law, OUTlaws and Law Students for Reproductive Justice. She is a staff member on the  Kansas Law Review. Hall holds a bachelor’s degree in social welfare from KU. She attended Leavenworth High School and is the daughter of Jackie Millin.

Ben Ashworth, a third-year law student from Prairie Village, earned a bachelor’s degree in journalism and political science at KU. He is a member of Phi Alpha Delta law fraternity and writes a sports column for the University Daily Kansan. Ashworth served as the chief of defense for Traffic Court and as a staff editor on the Kansas Journal of Law and Public Policy. He also conducts research about international arbitration. Ashworth graduated from Shawnee Mission East High School and is the son of William and Gayle Ashworth. 

Maureen Orth is a second-year law student from Prairie Village. She is a member of the Kansas Law Review staff and the Native American Law Students Association. She participates in the Judicial Clinic. Orth holds a degree in English literature from Kansas State University and graduated from Shawnee Mission East High School. She is the daughter of Jim and Trish Orth.

SEDGWICK COUNTY

Grant Brazill, a third-year law student from Wichita, completed a bachelor’s degree in secondary education at Wichita State University. He has been involved in the Environmental Law Society and the 1L Mentor Program. He served on the staff of the Kansas Law Review and is a member of the Hispanic American Law Students Association. Brazill graduated from Wichita Northwest High School and is the son of Rick and Marlene Brazill. 

Julia Leth-Perez is a second-year law student from Wichita. She has a bachelor’s degree in history and philosophy from Wichita State University and serves as a KU Law Student Ambassador and member of the Dean’s Council, Women in Law and the Hispanic American Law Students Association. Beyond Green Hall, she serves on the Willow Domestic Violence Center Finance and Funding Committee. Leth-Perez is the daughter of John and Ellen Leth-Nissen and graduated from Circle High School.

WYANDOTTE COUNTY

Crystal Ellison, third-year law student from Kansas City, is vice president of the Black Law Students Association and a member of Phi Alpha Delta law fraternity and Women in Law. She serves as a Traffic Court judge. Ellison volunteers with Big Brothers Big Sisters and CASA. She holds a bachelor’s degree in legal studies with a minor in political science from Park University. Ellison graduated from Wyandotte High School and is the daughter of Patricia Ellison and Cleveland Ellison.

Out-of-state students

ARIZONA

Annette McDonough, a third-year law student from Phoenix, holds a bachelor’s degree in physics from the University of Wyoming. She has been involved in Traffic Court, Women in Law, Native American Law Students Association and the Phi Alpha Delta law fraternity. McDonough served as the Westlaw student representative and participated in the In-House Moot Court Competition. She graduated from North High School and is the daughter of David Cox and Emily Jordan. 

UTAH
  
Jason Harmon, a third-year law student from Orem, completed a bachelor’s degree in business management with a minor in Spanish and Portuguese at Utah Valley University. He has been involved in the J. Reuben Clark Law Society and served as a teaching assistant for the Lawyering Skills course and a staff editor on the Kansas Law Review. He graduated from Timpanogos High School and is the son of Phillip and Janet Harmon.

Study finds despite stereotypes, Muslim nations take nuanced approach to 'haram' imports

Tuesday, September 02, 2014

LAWRENCE — When the terms “Sharia” law or “Islamic law” pop up in the media, they are often misunderstood. New research from a University of Kansas School of Law professor and alumna shows that, even among the legal world, there is confusion of how Islamic law applies to international trade.

Islamic law declares the consumption of certain items such as alcohol, pork and pork products forbidden, or “haram.” Raj Bhala, associate dean for international and comparative law and Rice Distinguished Professor at the law school, and Shannon Keating, a recent KU Law grad, authored an article showing that the majority of Islamic nations do not ban the import of those three product groupings, even though World Trade Organization law allows them to do so. The reasons they found are numerous and nuanced.

Bhala and Keating analyzed the tariff schedules of every Islamic country in the world with a majority Muslim population who are members of both the Organization of Islamic Conference and the WTO to see how they handled the importation of the three haram product categories. The findings, published in the International Lawyer, the most widely circulated international law journal in the world, show “diversity within unity.”

“We thought perhaps most Muslim countries would invoke the General Agreement on Tariffs and Trade (GATT) Article XX(a), or the public morality clause to ban importation of haram goods,” Bhala said. “Indeed that is true for Saudi Arabia and Yemen, but it’s not true for most of the 57 countries of the OIC.”

The unity the researchers found is that all the countries in question identify as Muslim and consider alcohol, pork and pork products haram. The diversity is that most allow their import but employ different kinds of import restrictions. Some nations did not know they could ban the import of such goods when they joined GATT. So many used tariffs, but of a wide range, to influence how the goods are lawfully brought into their countries.

Some nations imposed steep tariffs of 1,000 percent or more to effectively ban their import because virtually no one would be willing to pay that rate to have their product imported. However, that practice is rare as it largely encourages smuggling and black markets for haram goods.

Secularism and moral relativism are the two most intriguing reasons the researchers found for allowing importation of haram goods. While it might not be widely known in the West, many OIC countries are in fact secular societies. Not everyone in the nation, especially young people, routinely practices an orthodox version of Islam. Therefore they do not apply strict Islamic interpretations to their trade rules. Bhala gave the example of having traveled to Muslim countries around the world and being able to order alcohol in public venues.

“We wondered, ‘If this product is haram, why is it relatively easy to consume?’” Bhala said. “It turns out if a society is pretty secular in its attitudes, it’s not surprising that its trade policies would be less strict than the classical theory of the Shari’a might suggest.”

Moral relativism also largely influences the decision not to ban imports of haram goods. Muslim scholars have long debated the question of absolutes in the faith. Whether they exist, how they can be applied and consequences of their application, such as the banning of certain goods for everyone, are far from consensus ideas in many of the nations. The idea of moral relativism and how it applies to alcohol has gone back and forth in the United States as well, Bhala said, citing the nation’s era of Prohibition and the fact that there are still dry counties across the nation that prohibit alcohol sales.

Bhala and Keating began their research collaborations while the latter was a law student. She took Bhala’s Islamic law and international trade law classes and was a research assistant on his two-volume treatise project, “Modern GATT Law.” Keating took on the task of analyzing tariff schedules line-by-line for each of the countries in the OIC. The task was beneficial both for the research project and her career with New Markets Lab, a Washington, D.C., nonprofit that focuses on trade and commercial law in developing countries.

“It was, at times, tedious, but I’m so enthusiastic about studying trade law and it was a great learning opportunity and chance to dig deeper into how it is applied around the world,” Keating said. “I went in without much expectation on what we’d find, but I think there are assumptions and expectations surrounding many of these countries. People might be surprised that there is no ban on haram products in most of the nations.”

Assumptions and stereotypes are often incorrect, even when applied to law, the researchers said.

“What that led us to conclude was, despite the stereotype of extremism and intransigence, most of the Muslim countries treat trade law and policy just like everybody else,” Bhala said. “There is greater maturity in these societies than we often recognize. And it’s reflected in their import rules. That is definitely not to say ‘they’re bad Muslims’ if they allow importation of haram goods. Not at all. It shows they’re thinking in a modern way, the same as so many other countries.”

KU ranked No. 18 among ‘best value’ law schools by National Jurist magazine

Thursday, August 14, 2014

LAWRENCE – The University of Kansas School of Law is the No. 18 “best value” law school in the nation, according to National Jurist magazine.

The ranking highlights affordable law schools whose graduates perform exceptionally well on the bar exam and have had real success finding legal jobs. National Jurist ranked the top 20 schools and assigned a letter grade to the other 33 honorees.

“We are proud of this ranking because it reflects our broader definition of value – one that goes beyond our affordable tuition to consider how well our graduates are prepared to excel in their careers,” said Stephen Mazza, dean of the law school.

KU was one of only four schools on the “best value” list to also appear in the top 25 percent of law schools whose 2013 graduates were hired by the nation’s largest law firms, according to a ranking published in February by the National Law Journal.

“Employers know that a KU Law degree is synonymous with in-depth training and a strong work ethic,” Mazza said. “We also have reduced our class size to better reflect job opportunities in a recovering legal market and launched innovative career placement programs that we hope will only improve our students’ employment success.”

For example, seven students spent two days interviewing and networking in Dallas this week through the law school’s new Traveling “On-Campus” Interview Program, an initiative that allows students to interview with employers in select cities and have all of their expenses underwritten by the law school.

“While on-campus interviews will always be important, new and innovative efforts like the Traveling OCI Program ensure our students have direct access to top employers in some of the most dynamic legal markets across the country,” said Arturo Thompson, assistant dean of career services, who accompanied the students in Dallas. “As we expand the program to new cities, it will place our students on a level playing field with schools in Texas, Colorado and the Washington, D.C., region.”

National Jurist gives employment success the greatest weight in the “best value” rankings. The magazine also looks at a number of other academic and financial variables, including price of tuition, student debt accumulation, bar passage rate and cost of living.

KU law tuition for the 2013-14 academic year for a first-year Kansas resident was $19,623.

See the complete list of honorees and learn more about the ranking methodology

Media advisory: KU law expert can discuss Supreme Court's ruling in Hobby Lobby case

Monday, June 30, 2014

LAWRENCE — Rick Levy, the J.B. Smith Distinguished Professor of Constitutional Law at the University of Kansas School of Law, is available to discuss the upcoming Supreme Court ruling in Sebelius v Hobby Lobby Stores. The case addresses the question of whether Hobby Lobby Stores can be required to provide contraception to employees as part of the Affordable Care Act.

LEVY CAN DISCUSS: The court’s ruling, the decision’s constitutional implications and what it means for the constitutionality of the Affordable Care Act.

To schedule an interview, contact Mindie Paget at mpaget@ku.edu or (785) 864-9205.

BIOGRAPHY: Richard Levy speaks frequently with the media on constitutional topics and cases, such as school finance litigation, abortion rights and other controversial decisions. He joined the KU Law faculty in 1985, having received his law degree with honors from the University of Chicago Law School. Before joining the faculty, he served as a clerk for Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit. In teaching and research, he has focused on constitutional law, administrative law and government institutions. Levy is a prolific scholar who was named a Postlethwaite Research Fellow, 1996-1999, and was named the inaugural J.B. Smith Distinguished Professor of Constitutional Law in 2007.

Professorship honors former law faculty member

Wednesday, July 02, 2014

LAWRENCE — University of Kansas School of Law alumnus Art Piculell of Portland, Oregon, and his late wife, Dee, have made a $500,000 gift to establish a professorship honoring the late Professor Earl B. Shurtz, who taught at KU Law from 1955 to 1977.

Art said he appreciated the opportunity to spend time with Professor Shurtz.

“We would discuss the subjects of law and the subjects of life,” Art said. “He had a genuine concern for his students. For instance, if he saw you sitting in the library, he would come over and talk to you. That’s who he was.”

Art and Dee met at Emporia State University, where in 1959 they earned bachelor’s degrees, Dee in music education, Art in psychology and sociology. The couple married and moved to Wichita, where Art became a social worker with the Sedgwick County Board of Social Welfare and Dee was a grade school teacher. Later, they moved to Scott City, where Art was the county welfare director of both Scott and Wichita counties and Dee taught school. In 1962, they moved to Lawrence so that Art could attend law school. Dee taught grade school in Lawrence and served as president of the law wives’ club.

“We just basically are paying back for what we got,” Art said. “Dee and I were very fortunate to get our educations and to benefit from that.”

In 1965, after Art earned his law degree, the couple returned to western Kansas, where Art practiced law in Cimarron. In 1972, Art and Dee moved to Portland, Oregon, where Art was admitted to practice law in the state. In Portland, the couple developed residential communities and invested in commercial buildings in Oregon, Washington and Arizona through their companies, Homesite Development and the Piculell Group.

“I enjoyed practicing law, but I knew that wasn’t my bent in life,” Art said. “The benefits that I received from studying the law were applicable to the real estate businesses we ventured into.”

This is the second professorship Art and Dee Piculell established at the law school; in 2004, they created the J.B. Smith Distinguished Professor in Constitutional Law.

Stephen Mazza, dean of the School of Law, expressed appreciation for the gift.

“As so many of our graduates have, Art took the analytical skills he learned in law school and used them to gain success in an area outside of a traditional legal practice. His earlier gift to the law school was incredibly generous, and to follow that with another major gift speaks to his and Dee’s love for the school and their generosity,” Mazza said.

The gift counts toward Far Above: The Campaign for Kansas, the university’s $1.2 billion comprehensive fundraising campaign. Far Above seeks support to educate future leaders, advance medicine, accelerate discovery and drive economic growth to seize the opportunities of the future.

The campaign is managed by KU Endowment, the independent, nonprofit organization serving as the official fundraising and fund-management organization for KU. Founded in 1891, KU Endowment was the first foundation of its kind at a U.S. public university.

Media advisory: KU trademark and Indian law experts available to discuss Redskins ruling

Thursday, June 19, 2014

LAWRENCE — University of Kansas School of Law experts in Indian law and trademark law are available to discuss today’s U.S. Patent & Trademark Office ruling that cancels the Washington Redskins trademark registration, calling the football team’s name “disparaging to Native Americans.” Elizabeth Kronk Warner, associate professor of law and director of KU’s Tribal Law & Government Center, can discuss the ruling itself and related efforts to eradicate the name and mascot. Andrew Torrance, professor of law, can discuss all aspects of the ruling.

To schedule an interview, contact Mindie Paget at mpaget@ku.edu or (785) 864-9205.

BIOGRAPHIES: Elizabeth Kronk Warner is a citizen of the Sault Ste. Marie Tribe of Chippewa Indians and serves as an appellate judge for the tribe’s appeals court in Michigan. In 2012, she joined the faculty at KU Law, where she teaches courses in federal Indian law, Native American natural resources and property. Before entering academia, Warner practiced environmental, Indian and energy law in Washington, D.C. She previously served as chair of the Federal Bar Association Indian Law Section and was elected to the Association’s national board of directors in 2011. She received her law degree from the University of Michigan Law School and her bachelor’s from Cornell University.

Andrew Torrance speaks frequently with the media on topics and cases in patent, trademark, copyright, trade secrecy and Internet law. A visiting scholar at the Massachusetts Institute of Technology and a fellow of the Gruter Institute, Torrance has delivered more than 100 scholarly presentations at universities, research organizations, governments, and intergovernmental agencies in seven countries. Before joining the KU Law faculty in 2005, Torrance practiced biotechnology patent law at Fish & Richardson PC, the world’s largest intellectual property law firm, and served as in-house patent counsel at Inverness Medical Innovations and Stirling Medical Innovations. He received his doctorate from Harvard University, his law degree from Harvard Law School and his bachelor’s from Queen’s University, Canada.

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