Law professor calls for centrist approach to arbitration, removing it from 'class-action battlefield'

Monday, November 13, 2017

LAWRENCE — After a hard-fought political battle so close that an evenly divided U.S. Senate required the tie-breaking vote of Vice President Mike Pence, President Donald Trump recently signed the repeal of a Consumer Financial Protection Bureau rule that would have prevented banks from using arbitration agreements to insulate themselves from class-action lawsuits. This news shows the enduring divisiveness of class actions — in which a lawyer combines claims of many consumers — and the spillover effects on arbitration, said University of Kansas law professor and arbitration expert Stephen Ware. His forthcoming article in the Harvard Negotiation Law Review argues for a centrist approach to arbitration law that would remove arbitration from what he calls the “class-action battlefield.”

“Powerful interest groups fighting about class actions is the longstanding norm,” Ware said, “but newer is the centrality of that fight to debates about arbitration law.”

The CFPB studied consumer arbitration for years and could have greatly restricted it but instead chose to issue a rule that would significantly affect only one aspect of it: class actions.

Arbitration’s connection to class actions grew in 2011 when the Supreme Court’s conservative majority approved arbitration agreements requiring disputes to be resolved individually, rather than as part of a class, even though similar “class waivers” in nonarbitration agreements were rarely enforced. The CFPB rule — issued by a bureau directed by a Democrat — would have ended enforcement of arbitration agreements’ class waivers had it not been overridden by the Republican Congress and president.

The predictably partisan pattern of Republicans and business groups opposing class actions, while Democrats and progressive groups support them, increasingly extends to arbitration debates, according to Ware’s research. In contrast, his centrist position on arbitration would not take sides on whether to enforce arbitral class waivers but instead would instruct courts to enforce arbitral class waivers only when they would enforce a class waiver in a similar nonarbitration contract. This would allow courts in different states to have different standards about when to enforce class waivers and would allow such standards to evolve over time as views about class actions develop. Most beneficially for arbitration law, Ware believes, this approach would allow arbitration law to stop choosing sides in the long interest group fight over class actions, as arbitration law would simply adopt whatever approach other areas of law take to class waivers.

More broadly, Ware’s article in the Harvard Negotiation Law Review is the third in a trilogy arguing for a centrist approach to consumer arbitration law, in contrast with both current conservative arbitration law and progressive proposals to prohibit consumer arbitration agreements entirely.

“The law has been dealing for generations with a variety of provisions on consumers’ form contracts,” Ware said. “Few people want courts always to enforce all the words on these forms, and few people want courts never to enforce any of those words. Most people want the law to keep finding a happy medium.”

Courts presumptively enforce most terms on consumer contracts in most cases but sometimes find a particular provision “unconscionable,” or overly harsh, and thus unenforceable. Also, state and federal regulatory agencies such as the Federal Trade Commission and CFPB sometimes prohibit contract terms harsh to consumers.

“The CFPB apparently decided an agreement to arbitrate is not necessarily harsh to consumers,” Ware said. “And for good reason. The Bureau is receptive to the standard economic argument that arbitration agreements tend to lower businesses’ costs and some of these savings are passed through to consumers in the form of lower prices. In addition, the most relevant empirical evidence does not show consumers faring worse in arbitration of one-on-one disputes than they do in litigation of such disputes.”

The better-documented disparity between arbitration and litigation, Ware said, is the potential for a class action.

Activist Tamika Mallory will give annual Jana Mackey Distinguished Lecture

Monday, October 30, 2017

LAWRENCE – The 10th annual Jana Mackey Distinguished Lecture Series returns next month with an activist who served as national co-chair for the Women’s March in Washington D.C.

Tamika Mallory will speak about violence against women and those who hold marginalized identities from an intersectional perspective. She will address the role of guns in perpetuating this violence, encouraging a discussion of effective ways of building power to bring about change. The lecture will take place at 7 p.m. Nov. 7 in Woodruff Auditorium in the Kansas Union, with a reception to follow in the union’s Big 12 Room.

Mallory is an advocate and speaker on issues related to equal rights for women, health care, LGBTQIA rights, ethical police conduct and stronger gun restrictions, with a focus on creating space for underrepresented voices in social activism. She worked closely with the Obama administration on civil rights issues and has been nationally recognized and awarded for her work. Her message related to the intersection of gender violence and gun violence is particularly relevant and timely.

There will be a follow-up discussion to Mallory’s presentation, titled “Coming to the Table to Make a Difference,” from 4 to 5:30 p.m. Nov. 10 in Alderson Auditorium in the union. This event is a collaboration among the Emily Taylor Center, Students United for Reproductive & Gender Equity, Multicultural Student Government and Student Senate.

These events are free and open to the public.

The University of Kansas established the Jana Mackey Distinguished Lecture Series in honor and memory of a former student. Mackey, a feminist and activist, was murdered in 2008 by her ex-boyfriend. She dedicated her life to social justice and equality for all women. She was also the president of the student activist organization now called Students United for Reproductive & Gender Equity. Mackey was well-known in Kansas for her advocacy for women’s rights and victims of sexual assault and domestic violence.

The lecture series strives to raise awareness about issues that were important to Mackey. The Emily Taylor Center for Women & Gender Equity, Students United in Reproductive & Gender Equity, Mackey’s family, and other campus and community organizations collaborate every year to bring a guest speaker for the lecture series. Past lecturers include Pulitzer Prize winner Connie Schultz; author and advocate Leslie Morgan Steiner; director of the NW Network for Bisexual, Trans, Lesbian, and Gay Survivors of Abuse Connie Burk and television host Melissa Harris-Perry. The lecture series’ goal is to have difficult but necessary conversations about sexual violence and promoting gender equity.  

This lecture series is sponsored by the Emily Taylor Center for Women & Gender Equity in collaboration with the departments of African & African-American Studies, Communication Studies, Political Science and Women, Gender & Sexuality Studies; Dole Institute of Politics;  Jana’s Campaign; Multicultural Student Government; Office of Diversity & Equity;  Office of Integrity & Compliance; Office of Multicultural Affairs; Pepsi Program Funding; the schools of Law and Social Welfare; Sexual & Gender Diversity Center; Sexual Assault Prevention & Education Center; Sexual Trauma & Abuse Care Center; Student Senate; Students United for Reproductive & Gender Equity and Willow Domestic Violence Center.

Law students win top honors in 2 national moot court competitions

Tuesday, October 24, 2017

LAWRENCE – The nationally ranked University of Kansas School of Law moot court program is off to a stellar start in the 2017-2018 season, snagging a national championship and a second-place finish.

Third-year KU Law students Megan Carroll, of Wichita, and Sangeeta Shastry, of St. Louis, bested 27 other teams from across the country to win the Burton D. Wechsler First Amendment Moot Court Competition, held Oct. 19-21 at American University Washington College of Law in Washington, D.C. Shastry was named the best oral advocate in the competition.

“Every round showcased how well-prepared, engaged, and knowledgeable all of the competitors and judges were, which made for a truly rewarding experience at such a well-organized competition,” Shastry said. “Participating in moot court has allowed me to develop arguments and oral advocacy skills alongside highly experienced professors and practitioners, and I’m so grateful to have access to such practical training before graduating.”

Carroll and Shastry prevailed in the final round before a distinguished three-judge panel that included Judge Timothy Dyk of the U.S. Court of Appeals for the Federal Circuit, Judge Reggie Walton of the U.S. District Court for the District of Columbia, and former U.S. Solicitor General Paul Clement. KU Law Professor Tom Stacy coached the KU team.

Carroll, who brought home second place and the prize for best oral advocate in last year’s National Native American Law Students Association Moot Court Competition, said moot court competitions have been the highlight of her law school experience.

“Some of the practice rounds with our professors were more difficult than the final round of the competition,” Carroll joked. “But the feedback and constructive criticism provided by the faculty as guest judges and moot court coaches is invaluable. Moot court is a very practical application of law school skills, and because of moot court, I now feel much more comfortable behind a podium in front of distinguished judges.” 

On Oct. 14, third-year KU Law students A.J. James, of Concord, North Carolina, and Charles Bogren, of Portage, Michigan, finished second in the Leroy R. Hassell Sr. Constitutional Law Moot Court Competition at Regent University School of Law in Virginia Beach, Virginia. This is the first time KU Law has participated in the Hassell competition. Professor Steve McAllister coached the team.

KU Law’s moot court program ranks 17th in the nation, according to rankings published by the University of Houston Law Center. KU Law students accumulated enough points during the 2016-2017 season to break into the top 20 for the second year in a row, rising two spots above KU Law’s No. 19 ranking for the 2015-2016 season. Moot court competitions simulate appellate court proceedings, with students submitting a written brief and presenting oral arguments to judges.

Photo: Third-year KU Law students Megan Carroll, of Wichita, left, and Sangeeta Shastry, of St. Louis, bested 27 other teams from across the country to win the Burton D. Wechsler First Amendment Moot Court Competition. Shastry was named the best oral advocate in the competition.

KU to host legal education conference

Tuesday, October 10, 2017

LAWRENCE — Legal educators from across the country will gather in Lawrence this week to explore access to justice and the lawyer’s role in promoting the rule of law.

The 2017 Midwest Clinical Legal Education Conference, “Justice, Professionalism, and the Lawyer as Public Citizen: Teaching Across Learning Experiences,” will take place Friday and Saturday at the University of Kansas School of Law.

“As experiential legal educators, we play a significant role in transmitting the core values of our profession,” said Jean Phillips, director of KU Law’s clinical programs. “This conference will bring together clinic and field placement program educators who teach about justice, professionalism and our duties as public citizens in an array of learning experiences. Participants will reflect upon issues of race, class, gender and access to justice, and consider how to teach students to embrace our professional responsibility to speak for those who are least heard.”

Plenary sessions taught by expert legal educators will focus on expansion of experiential learning pedagogy, the role of experiential education in the law school curriculum and best practices for teaching the professional skills required of public citizen lawyers. Other sessions will highlight innovative teaching and service models, techniques for addressing race and the role of collaboration in public service lawyering. 

Floyd Bledsoe, a former KU Law Project for Innocence client released from prison after serving 16 years for a murder he did not commit, will provide the keynote address. Quinton Lucas, KU Law lecturer and Kansas City, Missouri, city councilman, will share an update on community policing in Kansas City.

Clinical legal educators provide hands-on learning opportunities by teaching and advising law students engaged in practical experiences such as field placements and live-client experiences.

Visit the KU Law website for a complete schedule and list of presenters. Support for this program is provided, in part, by the Association of American Law Schools Section on Clinical Legal Education; CLEA, the Clinical Legal Education Association; and by Clio legal software.

Law review symposium will examine inequity and the law

Thursday, October 19, 2017

LAWRENCE — While the law is equated with justice, it is not free from the inequities that exist in society. Legal scholars and thinkers from around the country will gather in Lawrence this week to explore how inequity affects their fields of expertise, including education, immigration and business.

The 2017 Kansas Law Review Symposium, “Inequity and the Law,” will run from 9 a.m. to 4 p.m. Friday, Oct. 20, at Green Hall. The event is free and open to the public, but registration is required. Register and preview the complete schedule online.

“Understanding how inequity permeates the legal system provides a foundation for combating societal inequities and for working to achieve justice for all,” said Symposium Editor Meghan Harper, a third-year KU Law student.

Speakers will include:

  • Alia Al-Khatib, law fellow, Southern Poverty Law Center
  • Richard Hynes, John Allan Love Professor of Law, University of Virginia
  • Jamila Jefferson-Jones, associate professor of law, University of Missouri-Kansas City School of Law
  • Jayesh Rathod, professor of law, American University Washington College of Law
  • Bertrall Ross, professor of law, Berkeley Law
  • Matthew Shaw, assistant professor of law, assistant professor of education, Vanderbilt University
  • Yolanda Vazquez, associate professor of law, University of Cincinnati College of Law
  • Lua Yuille, associate professor of law, KU

Scholarship associated with the symposium will be published in a spring 2017 issue of the Kansas Law Review. For more information, contact Symposium Editor Meghan Harper at kulawrevsymposium@gmail.com.

KU Law a partner in grant to establish intelligence, national security curriculum

Wednesday, October 11, 2017

LAWRENCE — The University of Kansas has received a grant to develop an intelligence and national security curriculum to provide students with the capabilities crucial to the national security interest of the United States.

KU has partnered with Dodge City Community College, Donnelly College and Seward County Community College to form the Kansas Consortium for Intelligence and Security Studies, which is the recipient of a $1.5 million Defense Intelligence Agency grant.

The grant is made possible through the DIA’s Intelligence Community Centers for Academic Excellence (IC CAE) program, which was established in 2005 to support the need for qualified intelligence professionals to carry out the United States’ national security initiatives. Through the program, a select group of about 40 institutions across the nation is educating students to better understand the intelligence community and its role in securing the nation. By instituting intelligence-focused curricula, supporting cultural immersion, and advancing critical skills education, IC CAE schools are considered by the intelligence community to be important partners in meeting the nation’s need for multi-disciplinary job applicants.

KU’s investigating team includes Paul Atchley, associate dean in the College of Liberal Arts & Sciences; Mike Hoeflich, John H. & John M. Kane Distinguished Professor of Law; Carl Taylor, director of security, and Mike Denning, director of graduate military studies.

“This grant will allow KU and our partner schools to assist in building a culturally and ethnically diverse intelligence community, which contributes to our nation’s security,” said Atchley, the principal investigator for the award. “In turn, KU benefits from having greater understanding of how the intelligence community works and assisting our students in finding meaningful internships and jobs. This was a competitive grant process, and it speaks well of KU’s capabilities that the Defense Intelligence Agency selected us to be part of this program.”

The five-year grant includes funding for minority student scholarships, faculty research grants and curriculum development.

New class takes first-of-its-kind approach to applying literature to international law, improving legal writing

Monday, October 09, 2017

LAWRENCE — William Shakespeare is no stranger to college campuses. But his works and those of Albert Camus, William Butler Yeats, James Joyce, Franz Kafka and E.M. Forster are usually read and discussed more in theater and English classrooms than in law schools.

A new University of Kansas School of Law class is mixing the bard and the bar to help budding lawyers consider how classic literature applies to all manner of international law and how history’s great writers can help them become better legal writers.

International Law and Literature is a first-of-its-kind class now in its first semester at KU Law. It is taught by Raj Bhala, associate dean for international and comparative law and Brenneisen Distinguished Professor. The class takes the idea of a relatively standard law class and puts an international spin on it, considering work of authors from around the world and how their work can help the understanding of treaties,international law and improve legal writing.

The course has three sections: law as literature, law in literature and rhetoric. For the first, students read legal documents like the General Agreement on Tariffs and Trade, known as GATT, and apply literary theories and schools of thought to them as a better means of understanding. In a recent class, students considered how post-structuralism, deconstruction and Marxist literary interpretation could help in the understand of China’s nonmarket economy status and legally ambiguous wording that has led to anti-dumping lawsuits working through the World Trade Organization, U.S. Court of International Trade and U.S. Commerce Department.

An expert on international trade law and long-time literature lover, Bhala said courses have looked at law in literature for roughly a century. However, by scanning syllabi from law schools across the country, he found few that applied international law to literature, viewed law as literature, or took a comparative look at legal systems of different cultures.

“I wanted to put together a course that was international and comparative, that had a heavy dose of treaties and statutes and preserved the best of other courses, and that met the American Bar Association standards for practical legal writing training,” Bhala said. “The ABA has been encouraging law professors to develop courses that help students learn how to draft documents better. This study of some of the world’s greatest authors — coupled with the perspective that treaties, decisions and memos are a genre of literature susceptible to insights from literary interpretative methodologies — helps them write and get more of that practice.”

The writing practice comes throughout the course, both in reading legal and literary work and by written assignments melding the two as well in the course’s rhetoric section. The students are required to write a speech on a topic of international legal significance. That includes the South China Sea dispute over the “Nine Dashed Line,” balancing their points in a thoughtful, legally sound argument, having studied Aristotle’s principles of rhetoric, as well as speeches on international crises, such as President Kennedy’s October 1962 address on the Cuban Missile Crisis.

For the law in literature requirement, students read works including Shakespeare’s “Merchant of Venice” and “Othello”; Camus’ “The Stranger;” Forster’s “Passage to India;” and Kafka’s “The Trial”; selections of novels from George Bernard Shaw and James Joyce; and poems from William Butler Yeats, Seamus Heaney and Rabidrath Tagore. The works are all selected for not only their discussion of law, but also for their law-related themes such as justice, poverty, discrimination, wealth, racism, commerce, misogyny and others, all of which are regular topics addressed in international law.

By considering law in literature, along with law as literature, students appreciate how one style of writing can inform the other. Plus, courses have tended to focus on work almost solely by U.S. authors or works originally written in English, leaving out a vast amount of work applicable to international law.

The focus on writing not only helps give students a unique way to approach the practice, but it also meets the ABA’s call for more globalization, better writing and more practical, clinical training for law students. Plus, the landscape of law firms and K-12 education has changed over the years, with less time for professional mentoring and reduced education funding contributing to students needing more help in writing and critical thinking.

“Practicing lawyers don’t have the time to train junior lawyers that they used to,” Bhala said. “The old-fashioned way of senior partners as mentors is under pressure from the expectation of the role of senior partner as rainmaker. We at KU have to be innovative in responding to these needs, both in writing and practical education.”

The class has drawn a wide swath of law students interested in humanitarian, international, nonprofit and other areas of law, as well as students interested in international problems such as aiding re-unification of North and South Korea via commerce. Others say they have always loved literature or were intrigued by the idea of applying the lens of literature to legal writing.

For many, literature is an escape, something done in personal time for enjoyment. Bhala said the course is intended to be fun, just as much as it is to improve legal writing and broaden horizons of legal thought. Law students make a big investment of money, time and work in their education and should expect to be able to enjoy what they do. That goes for the teacher as well.

“It’s a huge challenge and great stimulation,” Bhala said of the class. “I have to learn or re-learn works of literature and literary theory that I haven’t read for many years in some cases. And there’s a great deal of cross pollination among these topics that I really enjoy.”

While many of the students have read some of the assigned works in high school or studied literature before coming to law school, re-reading classics and considering them in a different light opens up new perspectives and helps consider ideas in a new way, a useful tool for a practicing lawyer.

“Experiencing great works again and re-reading opens you up to new things and can give you a new appreciation for something you may have already read,” Bhala said. “I’ve read GATT a million times; I love it. And I always learn something new.”

New law professorship honors memorable KU educator

Wednesday, September 20, 2017

LAWRENCE — University of Kansas School of Law alumnus Art Piculell of Scottsdale, Arizona, has made a $500,000 gift to establish a professorship honoring the late Professor William R. Scott, who taught law at KU from 1947 to 1979.

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

The William R. Scott Law Professorship is the third professorship Piculell has established at KU Law. In 2014, Art and his late wife, Dee, established a law professorship honoring late Professor Earl Shurtz, and in 2004 they created the J.B. Smith Distinguished Professor of Constitutional Law.

KU Law Dean Stephen Mazza expressed his gratitude for the gift.

“Art and Dee have been incredibly generous toward KU Law over the years,” Mazza said. “They have chosen to name the chairs they’ve established as tributes to Art’s former professors. But it’s the legacy of the Piculell family that will live on and benefit the next generation of KU Law faculty.”

Art met Dee at Emporia State University, where in 1959 they both earned bachelor’s degrees, Dee in music education and 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.

After Art’s graduation, the couple moved to Cimarron, where Art practiced law. In 1972, they moved to Portland, Oregon, where they started companies that focused on real estate development and investment. He and Dee divided time between Oregon and their home in Arizona before Dee’s death in 2014.

William Scott, affectionately known as “Scottie,” was a graduate of Harvard College and Harvard Law School. He joined the U.S. Air Force in 1942 and served in the Judge Advocate General’s Corps until 1946, when he left the service to join the faculty at KU. He taught more than 2,000 students during his 32 years as a professor at KU Law, and Art was among them. Scott earned a reputation as an authority on property law and contributed articles to the Kansas Law Review and the Kansas Bar Journal.

Scott, who was born in 1908 in Nevada, Missouri, died in 2002 in North Andover, Massachusetts. A remembrance by KU Law Professor John Peck after Scott’s death said, “Professor Scott was a rare individual: kind, compassionate, brilliant, happy, and witty; deeply religious, but never wearing his religion on his sleeve. He taught us property law so we could practice property law. Perhaps more importantly, he left us with many funny stories and happy memories.”

Scott’s dry witticisms were so well-known, Peck recalled a booklet of Scottie stories and jokes compiled by law students. Recollections included Scott’s conversations with students who complained about grades and his witty replies.

Piculell said he was fortunate to be able to take every course that Scott taught at KU and fondly recalled Scott’s passion and sincerity mixed with laughter. He recently recalled a story from a class: 

“It was a Saturday morning class, and some students in the back row were falling asleep.  Professor Scott quietly walked to the back of the room and said, ‘I have something very important to tell you in understanding the law, then you can go back to sleep. You will get a call one Saturday morning, and it will be a client. You will be in bed. All you have to say is, ‘The keys go with the house.’ Now you can go back to sleep.’”

KU Endowment is 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.

Photo: Art and Dee Piculell.

Business law professor receives Chancellors Club Teaching Award

Wednesday, September 13, 2017

LAWRENCE — A University of Kansas Medical Center cancer researcher and a longtime business law professor will be honored respectively for their research and teaching by KU Endowment’s Chancellors Club.

Shrikant Anant has been selected as the 2017 Chancellors Club Research Award recipient. Edwin W. Hecker Jr. has been selected as the 2017 Chancellors Club Teaching Award recipient. Each will receive a $10,000 award and will be recognized at the Oct. 6 Chancellors Club celebration in Lawrence.

Shrikant Anant

Shrikant Anant, a leading researcher in the biology of cancer, cancer prevention and new therapies, has been a faculty member at KU Medical Center since 2010. He is the Tom and Teresa Walsh Professor of Cancer Prevention, the Kansas Mason Professor of Cancer Research and vice chair of research in the Department of General Surgery at the KU Medical Center. He also is the associate director of Prevention and Cancer Control at The University of Kansas Cancer Center, a National Cancer Institute designated center.

Anant came from, as he put it, a “family of overachievers” — mathematicians, physicists, engineers — and he was the only biologist.

Dr. Roy Jensen, director of the KU Cancer Center, is glad Anant took that path and enthusiastically nominated him for the Research Award. Jensen said Anant played a critical role in bringing the National Cancer Institute designation to the cancer center.

“He is not only an outstanding scientist but also a person with servant leadership qualities. When Shri gets involved, good things happen, not only for him, but also for all those around him and the entire institution,” Jensen said.

Much of his research focuses on cancer biology, RNA-editing proteins and the discovery and evaluation of products for cancer prevention and therapy, especially in the field of colon cancer. He also teaches, advises and mentors medical students, graduate students and postdoctoral fellows. 

“This recognition is not just for me, but also for my mentees and the people in my lab,” Anant said. “I believe that successful mentoring pairings are reciprocal relationships, for I learn as much if not more from mentees as they learn from me.”

Career highlights:

  • Anant worked with the Institute for Advancing Medical Innovation and the KU School of Medicine’s Urology Department to develop CicloMed, a new drug to treat bladder cancer. It is positioned to go to clinical trials.
  • Anant has 132 publications of his research, most of it in peer-reviewed journals.
  • He has developed several cutting-edge research projects, including a “tumor in a dish” method to study tumor metastasis, and the discovery of a cancer stem cell in the intestine along with a protein that marks those cells and suppresses them.

 

Edwin Webster Hecker Jr.

Edwin Hecker, who goes by Webb, joined the faculty of KU Law in August 1972. His focus is primarily on business law, including mergers and acquisitions.

He went into teaching because “law practice didn’t have enough law.” A reluctant public speaker, he couldn’t sleep the night before he taught his first class; now thousands of students have taken his courses. He encapsulates his experience in two words: Students first.

Hecker considers the Teaching Award recognition a great honor.

“Teaching, broadly defined, has been my life for 45 years,” Hecker said. “To be singled out in this respect is very emotional. People talk about being honored and humbled, and those words just can’t describe how important this is.”

KU Law School Dean Stephen Mazza appreciates Hecker’s influence on students during and after law school.

“Webb personifies ‘teaching’ broadly construed as encompassing not only classroom teaching and student mentoring, but much more as well. To him, ‘teaching’ means putting students, and the interests of students, first in everything he does professionally,” KU Law Dean Stephen Mazza said in his nomination letter.

Career highlights:

  • Hecker serves as inaugural co-director of the Polsinelli Transactional Law Center, which is a hub for transactional law courses, symposia and programming related to business transactions.
  • KU Law alumnus J.R. Walters established the Edwin W. Hecker Jr. Teaching Fellowship in 2015 through KU Endowment to show his appreciation for Hecker’s influence during Walters’ time at KU as well as Hecker’s help in encouraging Walters’ daughter to attend KU Law.
  • Among many honors, he received the Immel Award for Teaching Excellence in 1996 and the W.T. Kemper Fellowship for Teaching Excellence in 2000. He was chosen for the Frederick J. Moreau Advising Award in 2008 in recognition of his commitment to counseling students, and he was named Centennial Teaching Professor of Law in 2015.

The Chancellors Club, formed in 1977 by KU Endowment, recognizes both donors of major gifts designated for specific purposes on any of KU’s campuses and annual donors to the Greater KU Fund.

KU Endowment is 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.

Environmental justice overlooked in Dakota pipeline saga, legal expert says

Monday, September 11, 2017

LAWRENCE — Even though there have already been leaks since oil began flowing through the Dakota Access Pipeline this spring, American Indian tribes still have a chance to stop it, according to a University of Kansas professor.

In her new article, “Environmental Justice: A Necessary Lens to Effectively View Environmental Threats to Indigenous Survival” — published in the Transnational Law & Contemporary Problems Journal — Elizabeth Kronk Warner writes that there are a number of bases under which affected American Indian tribes might reasonably challenge the pipeline in court. Kronk Warner is a professor at the KU School of Law and director of the school’s Tribal Law & Government Center.

A court has already ruled that the U.S. Army Corps of Engineers, the federal agency that approved and permitted a segment of the pipeline’s cross-country route, met the requirements of the National Historic Preservation Act and adequately consulted the Standing Rock Sioux Tribe as to that path, which brushes up against the tribe’s reservation.

But Kronk Warner writes that there are other issues over which the tribes might sue and prevail, including the basic unfairness of re-routing the pipeline away from the mostly white city of Bismarck, North Dakota, for fear of contaminating its water supply and toward the Standing Rock reservation.

“The environmental justice claim has not yet been fully adjudicated,” Kronk Warner said. “There are still cases ongoing.”

Then, too, Kronk Warner writes, there are legal issues related to the fact that American Indian tribes have national sovereignty.

It is well-established, she writes, that the federal government has a “trust responsibility” to American Indian tribes owing to the tribes’ “many cessions of both land and external sovereignty” in years past. Courts, she writes, have ruled that the federal government has “fiduciary obligations related to the management of tribal trust lands and resources” and that “statutes affecting Indians are to be construed liberally in favor of the Indians...”

Thus, under certain circumstances, “the federal government owes to Native nations a duty that it ensures natural resources are sustained.”

The pipeline, portions of which are buried below Lake Oahe and the Missouri River, threatens not only those water resources on which the tribes depend, but also land that was originally American Indian territory.

Kronk Warner devotes a section of her article to outlining the “Unique Tribal Connection to the Land and Environment,” stating that indigenous communities’ claims differ from others in that “indigenous cultures and traditions are tied to the environment in a manner that traditionally differs from that of the dominant society.” For American Indians, she writes, land is “the source of spiritual origins and sustaining myth which in turn provides a landscape of cultural and emotional meaning.”

If that weren’t enough, Kronk Warner writes, tribes opposed to the pipeline might challenge it based on international law. The U.N. Declaration on the Rights of Indigenous Peoples, which the United States has signed, provides guidance meant to preserve “indigenous self-determination,” she writes, including restitution or compensation “for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent.”

Finally, Kronk Warner writes, the Standing Rock Tribe’s current case before the Washington, D.C., Court of Appeals questions whether the government adequately consulted the tribe under a nationwide system of water-crossing permits established under the Clean Water Act. Tribal representatives failed to appear at several scheduled meetings.

“The big takeaway from this is that even if you disagree with the method of consultation, you should show up,” Kronk Warner said.

Even so, Kronk Warner believes there are flaws in the consultation process involved in DAPL. She writes that the Army Corps’ Nationwide Permit No. 12, issued in 2012, “pre-approved construction without any consultation on the pipeline’s impacts on the tribe’s sacred sites.” “That permit authorized Dakota Access to make a unilateral determination of impacts and hence the tribe never had an opportunity to participate in the National Historic Preservation Act process except in a handful of areas.” The consultations that did occur “focused only on the narrow area of the Corps’ direct Clean Water Act jurisdiction, ignoring the pipeline route outside these jurisdictional areas,” she writes.

A challenge to the national permit might be a fruitful avenue for the tribes to pursue, Kronk Warner said.

“How do you engage in effective consultation with a nationwide permit?” Kronk Warner asked rhetorically. “I’d encourage tribes and municipalities to come together to push for an end to these nationwide permits for pipelines.”

Photo: Screenshot from "#NoDAPL - Water protector "Happi" American Horse in North Dakota" at about 0:09.

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KU’s Project for Innocence: 2 wrongfully convicted citizens serving life sentences freed in 2015
7,700+ alumni in all 50 states, D.C., 3 U.S. territories, and 20 foreign countries
91 percent overall employment rate for Class of 2015 – top 23.3 percent nationally
23rd in the nation for most-improved employment rates
One-third of full-time faculty have written casebooks and treatises
25th nationwide for lowest debt at graduation
21st: “Best Schools for Practical Training”
77 percent of upper-level law classes have 25 or fewer students
National Champions: 2016 National Native American Law Students Association Moot Court Competition
#19 moot court program in the nation
#17 “best value” law school in the nation — National Jurist Magazine
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