Gov. Brownback's Selection Of Stegall Stirs Debate Over Judge Selection Process

A recent change in Kansas law has re-ignited the debate on how judges are selected to the bench. In this edition of Up to Date, Steve Kraske examines the methods for seating judges, and who should hold the final say in how they are chosen.

Guests:

Stephen Ware is a Professor of Law at the University of Kansas.

Matthew Menendez is counsel for the Democracy Program at the Brennan Center for Justice at the New York University School of Law.

Cargill case highlights foreign regulatory influence in U.S. : experts

Andrew Chung wrote:

"Major U.S. grain exporter Cargill Inc's lawsuit against Syngenta AG over losses stemming from China's rejection of genetically modified corn demonstrates how U.S. markets are becoming increasingly subject to foreign rules, legal experts said on Tuesday.

Cargill sued Syngenta on Friday in Louisiana state court for "negligence" in selling U.S. farmers a genetically modified seed that had not yet been approved for import in China.

Kansas Supreme Court hears Chad Taylor lawsuit Tuesday

The Kansas Supreme Court will decide whether or not Democrat Chad Taylor's name may be removed from the November ballot for U.S. Senate. Taylor withdrew from the race, drawing criticism from Republicans who claim that the move was an attempt to bolster Independent Craig Orman's campaign against the incumbent, Senator Pat Roberts. Kobach refused to remove Taylor's name from the ballot, asserting that Taylor's withdrawal letter did not include a declaration that he is incapable to serve. 

Bryan Lowry wrote:

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.

Sheriff: Investigation of Stewart crash complete

Carolyn Thomspon wrote, "Three-time NASCAR champion Tony Stewart will find out no later than next week whether authorities will pursue charges in the death of a driver he struck during a sprint car race in upstate New York last month.

. . . 

Stewart's car struck and killed 20-year-old Kevin Ward Jr. at Canandaigua Motorsports Park during a nighttime race Aug. 9. Ward had climbed out of his car and walked onto the dirt track to confront Stewart after he spun out while the two raced side by side.

. . . 

The New Justice In Kansas: Judicial Selection And The Governor’s Race

Frank Morris wrote, "The candidates for governor in Kansas are sparring over taxes, health care and school funding. But in many ways there’s a more fundamental issue that separates  Gov. Sam Brownback from his Democratic challenger, Paul Davis. Both stand on opposing sides of a running battle over how state Supreme Court justices should be chosen.

. . . 

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.

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.”

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