Law professor's book explores role of international development bank

Tuesday, February 17, 2015

LAWRENCE — A University of Kansas law professor has authored a book that thoroughly examines the operations of the Asian Development Bank, both to help people understand how the institution works and to help consider how the institution that invests billions of dollars every year in developing Asian and Pacific nations can improve.

John Head, Robert W. Wagstaff Distinguished Professor of Law, has written the third edition of The Asian Development Bank, part of the International Encyclopedia of Law series. This edition of the publication was co-authored by Xing Lijuan, law professor at the City University of Hong Kong and a KU Law alumna.

One of four of the world’s regional multilateral development banks, the Asian Development Bank was founded in 1967 as a way to help countries develop through infrastructure projects such as roads, airports, hospitals, schools, power generation, irrigation systems, rural credit and many others. Over the years, much criticism has been leveled at the bank for how it operates, where its funding comes from and its resistance to change and improvement.

“Enormous misunderstanding of the multilateral development banks — including the Asian Development and the World Bank as well — exists around the world,” Head said. “In other books, I have offered my own critiques of these institutions, including the ADB. In this book I try to explain more about how that particular institution works, hoping this can serve as a firm factual foundation for considering how it can and should be improved.”

Among the most frequent criticisms of the Asian Development Bank is that it is operated on a weighted voting system. Nations that invest more heavily in the bank can have more influence on what projects are funded, leading to charges of bias, favoritism and other criticisms in how funding is assigned. In the book Head and Xing explain in detail how the weighted voting system works, why that is the system in place and the legal implications it has. Similarly, many claim the United States, Canada, France and other wealthy Western nations have too much influence. The authors explain the two largest reasons Western nations are involved: First, it is in their interest to help insure a stable Asia; second, only with the involvement of rich nations can the Asian Development Bank mobilize the financial means to provide large amounts of funding for all manner of projects.

Similarly, there are common misconceptions about the sources from which the Asian Development Bank derives its funding. Most of the money is not collected from taxes but instead from private sector investors buying bonds, the integrity of which are backed by the bank’s member nations, the authors explain.

“Therefore they’re safe investments,” Head said of the investments. “A lot of people, and especially institutional investors, will buy those bonds from the Asian Development Bank, European Bank for Reconstruction and Development and others because they’re safe and have a high AAA rating.”

Head is quick to point out he is not an apologist for the Asian Development Bank or other regional multilateral development banks. His goal with the book was to increase understanding, because unfounded criticism can prevent improvement among the banks.

“There is a lot of noise, and unfortunately it drowns out much of the valid criticisms,” Head said. “The Asian Development Bank and its sister institutions are too important to allow silly or unfounded criticisms to dominate the discourse over how to bring about the dramatic reforms they need to undertake.”

An expert in international commerce and investment, international economic law and comparative law, Head is intimately familiar with the book’s topic. In the 1980s he was a staff attorney for the Asian Development Bank, headquartered in Manila, Philippines, and later served as a legal counsel for the International Monetary Fund in Washington, D.C. In those roles he learned the value of possessing a deeper understanding of varying legal systems and cultures before offering criticism. Both legal and cultural problems are much more likely to be understood and workable solutions reached, he said, when cross-cultural understanding is attempted and accomplished.

Head emphasizes that such large institutions do not change easily, but through understanding and reasoned criticism the Asian Development Bank and others can address their problems and achieve changes. In Head’s view, these would include improving the weighted voting system, broadening participation by non-state actors, strengthening funding structures and placing ever more emphasis on environmental protection, social justice and gender equity.

“The main goal that Dr. Xing and I have for this book is to provide an objective and non-value-laden descriptive account of how the institution works,” Head said. “If anyone is interested in learning about and critiquing how the Asian Development Bank works, they can take a look at what we have written in this book.”

Law school symposium to explore access to justice 50 years after passage of the Criminal Justice Act

Wednesday, February 18, 2015

LAWRENCE – In commemoration of the 50th anniversary of the Criminal Justice Act, a federal judge and scholars from across the country will explore issues surrounding access to the nation’s courts during a University of Kansas School of Law symposium this week.

“Access to Justice” will run from 8 a.m. to 2 p.m. Friday, Feb. 20, at the Adams Alumni Center, 1266 Oread Ave. Co-sponsored by the Shook, Hardy & Bacon Center for Excellence and Advocacy and the Kansas Journal of Law & Public Policy, the program is free and open to the public, but registration is required.

“Access to justice is more than just helping people approach the courts,” said Paige Blevins, third-year KU law student and senior symposium editor for the Kansas Journal of Law & Public Policy. “People have the right to seek some kind of remedy for conflicts through our legal institutions. Without access, those remedies are only available to a certain subsection of our society and not to all.”

The Criminal Justice Act of 1964 and its subsequent amendment in 1970 established a comprehensive system for appointing and compensating lawyers to represent defendants who are “financially unable to obtain an adequate defense.”

Judge Edward C. Prado of the U.S. Court of Appeals for the 5th Circuit will open the program with a keynote address on “The Criminal Justice Act: Yesterday, Today, and Tomorrow.” Other panelists, who will discuss access to justice in both criminal and civil settings, include:

  • Russell Engler, professor of law and director of clinical programs, New England Law
  • Ronald Flagg, general counsel, corporate secretary and vice president for legal affairs, Legal Services Corporation
  • David Gottlieb, professor, Wake Forest University School of Law
  • Peter Joy, Henry Hitchcock Professor of Law and director, Criminal Justice Clinic, Washington University in St. Louis School of Law
  • Rebecca Love Kourlis, executive director, Institute for the Advancement of the American Legal System, University of Denver, and former justice for the Colorado Supreme Court
  • Laurel A. Rigertas, associate professor of law, Northern Illinois University College of Law

Scholarship from the symposium will be published in a 2015 issue of the Kansas Journal of Law & Public Policy. Three hours of continuing legal education credit, including one hour of ethics, will be offered for Kansas and Missouri.

For more information and a complete agenda, visit the symposium website. Questions? Contact Paige Blevins at kjlppsymposium@gmail.com.

Professor: Amanda Knox trial shows problems with comparing legal systems

Wednesday, February 04, 2015

LAWRENCE — When American Amanda Knox was prosecuted for allegedly murdering her roommate in Italy, the trial grabbed sensational headlines on a nightly basis. Both her conviction and eventual acquittal in 2011 drew criticism from the public, who followed the trial and verdict without knowledge of the Italian criminal justice system and assumed American legal traditions applied, a University of Kansas professor has written.

John W. Head, Robert W. Wagstaff Distinguished Professor of Law at KU, has authored a journal article examining the Knox trial and the consternation it caused, both in America and Italy, and pointing out that there were two major problems — translational and transplantational — in most criticisms of the case.

“If someone is going to offer broad criticisms of an entire legal and criminal justice system, they ought to at least have an understanding of the culture of the country and its legal system,” Head said. “I doubt that was the case with most of the people who were offering the loudest criticisms in the Amanda Knox trial.”

Head was living and working in Trento, Italy, in 2009 on a Fulbright Fellowship when the Knox trial was being conducted. In Italy, as in the U.S., it garnered sensationalist coverage in the media every day for weeks. A specialist in comparative law, Head was fascinated by the trial.

“While I was in Italy, I was working on a comparative law course book. One of the angles I was working on was comparing criminal procedures in Europe, the United States and China. So this case and all the attention it was getting really grabbed my interest,” Head said.

Knox and her co-defendant, Raffaele Sollecito, were accused of murdering Knox’s British roommate, Meredith Kercher, in 2007. She was convicted in late 2009 but was granted a retrial in 2011 and was eventually found not guilty and returned to the U.S. The original verdict was widely seen as flawed, especially in the United States. The first problem with most of the criticism, Head argues, was translational in character, in the sense that many observers are not able to “translate” their own expectations of criminal procedure into a foreign cultural setting.

The complaint was often made, for instance, that the jury in the Amanda Knox trial was not sequestered. What people failed to understand was that Italian juries are rarely sequestered as they are in the States. And instead of 12 jurors of the defendant’s peers, the Italian system employs three judges and six “lay assessors of facts,” Head said. The latter are allowed to consult with the former for a number of reasons, including offsetting any potential prejudice they may have from exposure to the media.

Another fundamental difference is that in European systems, the societal expectation if someone is found guilty is to decide what the criminal justice system can do to mend the tear in the fabric of society and reintegrate the person back into that society. That concept is all but forgotten in America, Head said. Those differences failed to translate to an understandable reality for most American critics, he added.

Those complications contribute to a second problem, transplantational misunderstandings. While it is true that Italian, European and many other justice systems around the world have been “Americanized” to a certain extent over the last three decades, it is difficult to pick and choose which aspects of a legal system to “transplant” or impart into another. A prime example of that problem was an aggressive prosecutor in the first trial who was similar to what one would see in American courts.

“The rest of the system was not ready for that sort of aggressiveness,” Head said. “And many thought the other side — that is, the Amanda Knox side of the trial — was not ready for that, especially without an equally aggressive defense.”

Those problems and misunderstandings, when coupled with a changing society, can pose significant and unprecedented challenges for legal systems, such as the Italian criminal justice system. Growing immigration and multinationalism can stand at odds with nationalist and traditional understandings, Head said. While the tradition may be to re-integrate someone into society after committing a crime, people from other parts of the world may not want to be re-integrated.

“That, I think, throws questions on the tried and true system of criminal procedure and what the process will be 10, 20 years from now when things seem to be changing so quickly,” Head said.

On top of all that, the intense media scrutiny in multiple countries placed a strain on the legal system as well, he added. This also made the trial troubling

Head’s article was published in a “Festschrift,” or special journal published in celebration of the 70th birthday of Feridun Yenisey, a world-renowned legal scholar from Turkey. Yenisey, who has a long association with the KU School of Law, is well-known for his expertise in criminal procedure and in Turkey’s campaign for legal reform. This made an examination of a fascinating criminal procedure case especially appropriate, Head said.

Knox and Sollecito are still in the midst of legal battles concerning the case. Their murder conviction was reinstated, and they are awaiting a final ruling, which is expected as early as next month. In the meantime, Knox lives in Seattle and is working as a writer.

Cases such as the Knox trial are a poignant example of the value of comparative law and even more so the value of cross-cultural understanding.

“I think we simply miss a lot because we don’t pay close enough attention to the underlying cultural differences between legal systems and especially nations,” Head said. “Unfortunately, our response is often inadequate because of that.”

KU law students and Legal Services for Students assisting with free tax preparation

Thursday, February 05, 2015

LAWRENCE – As tax season gets under way, two University of Kansas groups are offering free tax preparation services for those who qualify.

KU School of Law students with the Volunteer Income Tax Assistance (VITA) program will prepare returns for taxpayers who are residents of Kansas, Missouri or Illinois; who make less than $53,000 per household per year; and who do not itemize their deductions. The program runs from Feb. 16 to April 15.

Legal Services for Students (LSS) is also offering free tax assistance through a VITA partnership with the Internal Revenue Service. Any U.S. resident taxpayer may prepare and electronically file their federal and state tax returns for free via the LSS website if their income was $60,000 or less in 2014. International students and staff at KU may also prepare their taxes using free software with no income limit.

Last year, KU Law students prepared about 200 federal and state tax returns.  LSS directly prepared 150 returns in 2014 and assisted more than 1,600 individuals in preparing their own returns through the tax workshops at the Budig computer lab. View the workshop schedule (PDF). For more information about tax assistance provided by Legal Services for Students, contact the office at 785-864-5665 or legals@ku.edu.

“The tax preparation workshops are a great way for students and staff to learn about properly preparing and filing their own tax returns,” said Jo Hardesty, director of Legal Services for Students.  “The workshops are staffed by LSS tax attorneys and KU Law student interns who are prepared to answer any questions that may arise.”

The KU Law program operates on a first-come, first-served basis, and the number of preparers varies by site. Those seeking assistance are encouraged to arrive near the start of each session. Please bring proof of identification and all relevant documentation, including proof of income, expenditures and health insurance-related documents. For more information, call 785-864-9227.

Law students Trevor Bond and Matthew Schippers are coordinating this year’s VITA program, with about 25 other law students helping to prepare returns. Stephen Mazza, dean of the law school and professor of tax-related law, serves as the VITA faculty coordinator.

“VITA provides great value to the community and KU students,” Bond said. “It gives individuals an alternative to paying a professional or risking error in preparing their own returns, and it gives KU students firsthand experience with tax law and customer service.” 

Spring 2015 Schedule

Monday 6 – 8:45 p.m., Green Hall, 3rd Floor Computer Lab, 1535 W. 15th St.
Wednesday 3 – 5:45 p.m., Green Hall, 3rd Floor Computer Lab, 1535 W. 15th St.
Thursday Noon – 2 p.m., Penn House, 1035 Pennsylvania St.
3 – 4:45 p.m., Ballard Center, 708 Elm
5:15 – 6:30 p.m., Lawrence-Douglas County Housing Authority Resident Services, 1600 Haskell Ave., #187
Saturday 10 – 11:45 a.m., Green Hall, 3rd Floor Computer Lab, 1535 W. 15th St.

Sessions run Monday, Feb. 16 through Wednesday, April 15. No sessions will be held Saturday, Feb. 21, Saturday, Feb. 28, or March 14 – 21 (spring break).

Professor: Universities underreporting sexual assault by as much as 44 percent

Monday, February 02, 2015

LAWRENCE — Universities across the country are likely underreporting on-campus sexual assault, new research by a University of Kansas researcher shows. While there is not one clear reason why the crimes might be underreported, data show that the numbers of sexual assaults were low, increased during periods of audit, only to return to the lower numbers after the audits were over. To address the problem, increased audits and fines may be necessary, said Corey Rayburn Yung, professor of law.

Yung analyzed crime-reporting data from 269 universities in the United States and found that sexual assault is likely an estimated 44 percent higher than reported numbers. More than 11,000 schools in the United States are required to submit campus crime information to the Department of Education by the Clery Act. He limited the study to schools with 10,000 or more students to get consistent, comparable statistical data. The article was published in the journal Psychology, Public Policy, and Law.

Since 2001, only 31 of the 269 institutions with 10,000 or more students were audited in regard to their crime numbers. Many schools, especially smaller institutions, often reported zero sexual assaults.

“It just seemed like the norm was to assume there is nothing wrong,” Yung said. “I looked at those 31 to see how their numbers changed before the audit, during the audit and after the audit. Based on their interactions with auditors there seems to be a systematic undercounting.”

The numbers showed that during the 31 investigations, reported sexual assaults rose nearly 44 percent. However, after the investigations the rates dropped back to a level statistically indistinguishable from the rates before the audit. Yung also examined the reported rates of aggravated assault, robbery and burglary. No statistical variations appeared for those crimes during the investigations. While they are different crimes, the numbers paint a troubling picture, he says.

“Each of those crimes has a very different dynamic,” Yung said. “I don’t mean to say they are a direct comparison. But the only one that shows this fluctuation during the audit is sexual assault.”

There are many potential reasons campuses could underreport sexual assaults, he said. While all schools need to attract new students, none want to portray themselves as a dangerous place with high crime numbers. Campus police, like municipal police departments, can often be under pressure to show they are reducing crime as well. Sexual assault, especially on a campus setting, often involves an acquaintance and questions of consent or incapacitation. Given that there are often two competing stories, sexual assault can often be more easily dismissed than other crimes due to “lack of evidence” or contradictory statements, Yung said.

Further complicating matters, campuses are required to adjudicate claims of sexual assault within 60 days; however evidence including DNA and drug and alcohol analysis are often not available within such a short timeframe. The public nature of the Clery Act crime statistics — data must be provided to both the Department of Education and students — could also be an incentive to undercount.

“I think it varies substantially from campus to campus why sexual assaults may be underreported, but the evidence shows that undercounting is taking place,” Yung said.

Two clear steps can be taken immediately to help address the problem of underreporting. First, Yung suggests that more audits take place. Currently, the Department of Education can launch an investigation either at random or if it is triggered by a specific on-campus event or notable problem. Since 2001, only 54 such audits have been conducted. Second, stronger fines should be levied against universities that are shown to have knowingly underreported crimes. Currently the cap for such fines is $35,000. Data shows that even institutions that were fined for underreporting returned to rates of reporting sexual assault before an audit. The Campus Accountability and Safety Act, currently before Congress, would increase maximum penalties from $35,000 to $150,000.

Whatever the reason for undercounting sexual assault, the biggest problem is that it can allow serial rapists to prey on more victims if they are not prosecuted for previous offenses. A 2010 study by Kimberly A. Lonsway of End Violence Against Women International showed that more than 90 percent of rapists are serial rapists, Yung said. Legislation, combined with more scrutiny and treating sexual assault as a public safety crisis could help combat the problem of underreporting as well as preventing future crimes and serving justice for victims.

“I think increased auditing and more severe punishments for those shown to be undercounting are certainly the first steps,” Yung said. “As it is, schools could undercount for decades. There’s almost no deterrent. It would be good to have an incentive for schools to count these crimes accurately.”

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.”

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.

Tribes can serve as laboratories in fight against climate change

Wednesday, November 19, 2014

LAWRENCE — Supreme Court Justice Louis Brandeis wrote that states had the opportunity to serve as laboratories, testing new ideas and policies in the American federalist system. A University of Kansas law professor has authored a study arguing that American Tribal Governments are in a unique position to serve as laboratories for the fight against climate change and innovation in environmental law, especially given the federal government’s lack of action on the matter.

Elizabeth Kronk Warner, associate professor of law and director of the Tribal Law & Government Center at KU, has authored a study examining how 74 tribes in the United States are taking the lead in forming laws and measures to fight and adapt to climate change and lead in environmental law. The tribes are embodying Brandeis’ idea at a critical time and could have lessons to teach the rest of the country.

“That’s how we have viewed states from a legal view, as laboratories for new ideas, but why can’t we view tribes the same way, especially in terms of environmental law where the federal government has really stalled out?” Kronk Warner said. “I thought it would be interesting to look and see what we can learn from tribes and how it can be applied to states.”

In previous research Kronk Warner studied tribal codes to learn how they addressed climate change. For this study, which will be published in the Arizona State Law Journal, she analyzed tribal court decisions, regulations, customary laws, vision statements, tribal constitutions and other tribal legal documents. Many tribes, such as the Nez Perce in Idaho, Confederated Salish and Kootenai of Montana and others are already taking innovative legal actions to fight climate change and develop innovative environmental law.

Many tribes have adopted or are now forming climate change adaptation plans. The plans, which spell out how the tribes will form laws to adapt to the realities of a changing climate, are notable because environmental law largely takes a mitigation stance. While a good idea in spirit, mitigation laws, which aim to stop carbon emissions and prevent further damage from climate change, are incredibly difficult to pass politically, and in many cases it may already be too late to prevent all forms of damage, Kronk Warner said.

The tribal plans also largely consider culture as part of the legal landscape. Maintaining cultural heritage is vitally important to many tribes and is reflected in one plan that calls for preserving certain plants through means such as greenhouses and similar means, for example. State and federal law could stand to gain from considering American culture as more of a factor in the formation of laws, Kronk Warner said. Her research also found that tribal governments are keenly aware of the knowledge their ancestors have of the land on which they live.

“I think that especially could be a valuable lesson for states and the federal government,” Kronk Warner said. “Environmental knowledge is intensely regional. Having people share what they’ve learned in 100 years or more of living in an area can teach many lessons.”

Tribal governments are in a unique position to experiment with environmental law because they often are not bound by the same restrictions and regulations state and federal lawmakers are. That freedom to act not only allows tribes to be creative, it allows them to act more quickly.

“In theory, you could argue that they have more authority than states. They are sovereign entities, and they did exist before the formation of the federal government,” Kronk Warner said. “Tribes can also embrace the idea ‘we don’t need the federal government to be productive. We can do a lot on our own.’”

There are numerous examples throughout U.S. history of states experimenting, both successfully and unsuccessfully, with legal ideas. Slavery, legal drinking ages, speed limits, same-sex marriage, abortion and taxing philosophies all fit the mold.

Some of the tactics tribes are experimenting with have already started to show up in state and local governments. Cities such as Seattle and Miami, which face serious threats of salt water infiltrating fresh city water, have begun to enact climate change adaptation plans.

In future research, Kronk Warner plans to study how and whether tribes can use treaty rights to address climate change threats and how tribes enforce their environmental laws.

“I think it’s great and very empowering,” Kronk Warner said of tribes experimenting with environmental law. “It’s largely what the United States was intended to be, a group of states that can experiment with laws and ideas and the best ones are adopted. We’ve gotten away from the idea of states taking the lead. But this is a chance for tribes, states and local governments to seize the lead on environmental law.”

Constitution Day program to address same-sex marriage

Wednesday, October 15, 2014

LAWRENCE — The Dole Institute of Politics at the University of Kansas and KU School of Law will welcome guest speakers Tom Fisher and Roberta Kaplan, and moderator Stephen McAllister, for the 2014 Constitution Day program “Same-sex Marriage – Constitutional Right or the State’s Decision.” This program will explore U.S. Supreme Court cases surrounding the issue of same-sex marriage.

The event will take place at 7:30 p.m. Tuesday, Oct. 21. The event is free and open to the public.

The panelists will discuss the state of constitutional law regarding same-sex marriage, the arguments in favor of and against the recognition of a constitutional right to same-sex marriage, the Supreme Court’s decision not to hear several recent decisions on this issue, and the likely future direction of litigation and the law.

Recent refusal to rule by the Supreme Court on cases in Indiana, Oklahoma, Utah, Virginia and Wisconsin seeking to keep same-sex marriage bans in place has cleared the way for same-sex unions in those states. This development has increased the current number of states allowing same-sex marriage to 19.

“The topic is obviously very timely,” said Barbara Ballard, Dole Institute associate director. “Additionally, the representation of both sides highlights the process of constitutional law that we celebrate with this program each year.”

The annual Dole Institute Constitution Day program features attorneys or practitioners on opposite sides of timely constitutional issues who will discuss specific cases, as well as the constitutional law more generally. Stephen McAllister, E.S. & Tom W. Hampton Distinguished Professor of Law, will moderate this year’s discussion between Fisher and Kaplan.

“I am pleased we will be able to host speakers who have both been involved in the recent litigation at the highest level,” McAllister said.

Thomas Fisher is the solicitor general for Indiana, acting as the chief litigation policy adviser to the attorney general and providing oversight of state and federal litigation. A two-time recipient of the National Association of Attorneys General Best Brief Award for excellence in U.S. Supreme Court brief writing, Fisher has argued three times before the court, most recently in 2008 when he successfully defended Indiana's voter ID law in Crawford v. Marion County Election Board and persuaded the court to permit states to require mentally ill criminal defendants to have trial counsel in Indiana v. Edwards. He has also argued significant Indiana constitutional law cases involving abortion regulations, same-sex marriage, toll road leasing, educational funding and attorney general authority over charitable trusts.

Fisher has taught as an adjunct professor at Indiana University Maurer School of Law and is a frequent speaker at a variety of continuing legal education forums. Prior to joining the Attorney General’s Office, Fisher worked in private practice in Indianapolis and Washington, D.C., and clerked for Judge Michael S. Kanne of the U.S. Court of Appeals for the Seventh Circuit.

Roberta Kaplan is a partner in the litigation department of law firm Paul Weiss, New York office, with extensive experience representing a diverse group of clients on high-profile matters ranging from stock recommendations, mutual funds, credit regulations, data confidentiality and constitutional rights. She has been selected as one of “The 100 Most Influential Lawyers” and one of the top “40 Under 40” lawyers in the United States, as well as a 2013 “Litigator of the Year” by The American Lawyer and 2013 "Lawyer of the Year" by Above the Law. She was ranked as number 5 in this year's "Politico 50." Kaplan has also been profiled in a documentary produced by the PBS MAKERS series.

Kaplan successfully argued before the United States Supreme Court on behalf of her client Edith Windsor in United States v. Windsor, the landmark Supreme Court case. In Windsor, the nation's highest court ruled that a key provision of the Defense of Marriage Act violated the U.S. Constitution by barring legally married same-sex couples from enjoying the wide-ranging benefits of marriage conferred under federal law.

The Dole Institute of Politics is dedicated to promoting public service, civic engagement and politics.  It is located on KU’s west campus and, in addition to the Robert J. Dole Archive & Special Collections, offers free public programming with world-renowned guest speakers on a variety of topics that intersect politics, as well as opportunities for students of all ages. 

For more information on this or any Dole Institute events, visit www.doleinstitute.org or call (785) 864-4900. The Dole Institute of Politics is dedicated to promoting public service, civic engagement and politics. It is located on KU’s west campus next to the Lied Center.

 

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