LAWRENCE — Teams from across the Midwest will gather in Lawrence this weekend for the Jayhawk Invitational Mock Trial Tournament. Students from 17 schools will compete Saturday, Dec. 5, and Sunday, Dec. 6, in simulated courtroom trials, pitting their analytic skills against the region’s top undergraduate advocates.
"We are thrilled there is so much interest in this year's competition," said Chelsi Hayden, KU Mock Trial Team adviser and clinical associate professor of law. "We hope the tournament proves to be an engaging experience that helps competitors on all 30 teams develop their trial skills."
Mock Trial competitors build cases based on a packet of evidence given to all teams, crafting strategies to present information and counter arguments from competitors. Each team portrays both sides, with members acting as both attorneys and witnesses. Judges select winners based on performance.
This year’s Jayhawk Invitational marks a return to tradition as the competition resumes in Lawrence for the first time since 2004. Teams will compete in preliminary and elimination rounds, with the top five teams receiving awards. Top individual competitors will also be recognized as well as the team that demonstrates exemplary sportsmanship.
Universities host mock trial tournaments throughout the academic year, with the top teams qualifying for regional and national competitions in the spring. KU’s Mock Trial Team has enjoyed a resurgence in recent years, quadrupling its team roster and expanding its tournament schedule. The squad qualified for the preliminary rounds of the 2015 American Mock Trial Association National Championship Tournament in Louisville, Kentucky.
“The skill set you develop applying rules to a given set of facts are exactly what you will be doing in law school,” said Will Admussen, the team’s public relations director and a junior majoring in economics and political science. “There’s so much room for creativity and a lot of fun.”
The Mock Trial Team relies on the support of volunteer judges to ensure a successful tournament, which will take place on campus. If you would like to serve as a judge, contact the team at KansasUMockTrial@gmail.com.
The Jayhawk Invitational is sponsored by the KU School of Law.
LAWRENCE — Some may view treaties between indigenous peoples and the federal government as a relic of the 19th century, but they just might provide a way for tribes to mitigate the effects of climate change on their lands and communities. A University of Kansas law professor has authored a study showing that provisions of treaties can lead the way to fighting the effects of climate change, which often hit native communities earliest and most severely.
Elizabeth Kronk Warner, associate dean of academic affairs, professor of law and director of the Tribal Law and Government Center at the KU School of Law, has authored “Everything Old is New Again: Enforcing Tribal Treaty Provisions to Protect Climate Change Threatened Resources.” The article examines provisions of two native treaties and how they have been successfully argued to require the federal government to address damages done to fishing resources of the Swinomish and Nez Perce tribes. The cases are proof that treaties, which were no longer drafted after the 1870s, could be a new way to fight the effects of climate change on native communities.
“I don’t think anyone has ever looked at treaties for this reason,” Kronk Warner said. “It may not be a cure-all, but it could certainly be part of a larger solution. It’s applying what has been a very successful solution to a new context.”
In the case of the Swinomish and Nez Perce tribes, their treaties with the federal government contained specific provisions that their fishing access and rights be maintained as they were a vital part of their culture, daily life and very survival. When those rights were infringed, the tribes were successful in bringing action that eventually required the federal government ensure fulfillment of those rights.
There are more than 500 federally recognized tribes in the United States, many of which have treaties with the federal government. Those who are negatively affected by climate change could potentially use the treaties as a legal tool to mitigate those effects, Kronk Warner said. For example, tribes with provisions regarding hunting rights whose lands are affected by drought, wildfires, rising coastlines or other effects of climate change could bring suit arguing the federal government is bound by its treaty to protect those rights.
Federal courts have proven in recent history to be very protective of hunting and fishing rights protected by treaties. Kronk Warner said provisions related to infrastructure and many other aspects of native life could potentially be part of a legal strategy as well. She added that, in her legal opinion, the argument that climate change was not a foreseeable issue when the treaties were signed would not be an argument relieving the federal government of its obligation to uphold the agreement.
Kronk Warner compares the approach to litigation against big tobacco companies. It took decades to find the right legal strategy to eventually hold the companies liable for health damages their products caused. Similarly, using treaty provisions to mitigate the negative effects of climate change could be the next step in an ongoing battle, in which climate change is already devastating the lands and resources of tribes across the country. Looking to treaties could be a valuable tool, as litigation and adaptation plans have had varying levels of success.
Kronk Warner, a citizen of the Sault Ste. Marie Tribe of Chippewa Indians, has written extensively on climate change, native law and indigenous knowledge’s role in the fight against climate change. She was also recently appointed a district judge for the Prairie Band Potawatomi Nation and will serve on the Healing to Wellness Court. Her most recent article will be published in the University of Nebraska Law Review and is available online.
While climate change has already begun having negative effects on native lands, communities and resources, the legal fight to ameliorate the effects is still fairly new. Looking to treaties, which many have failed to view as a solution to a modern problem, could be key.
“How climate change impacts tribes will continue to change, and how tribes react to that will change as well,” Kronk Warner said. “Examples are highly localized, but I think this is an approach that any tribe with a treaty could look to use.”
LAWRENCE — In the wake of the 2008 financial crisis and subsequent call for Wall Street reform, Congress enacted the Dodd-Frank Act, which created a new federal agency, the Consumer Financial Protection Bureau. Among the CFPB’s charges is to consider new rules on the often-controversial business practice of arbitration clauses in consumer contracts. While such consumer arbitration agreements divide judges, legislators and interest groups along predictable political lines (progressive vs. conservative), a University of Kansas law professor argues in a new article that a centrist approach makes more sense.
The article, forthcoming in the Harvard Journal on Legislation, is titled “The Politics of Arbitration Law and Centrist Proposals for Reform.” Its author, Professor Stephen Ware, has also been invited by the CFPB to participate in its field hearing Wednesday, Oct. 7, in Denver.
Ware’s forthcoming article proposes centrist reforms for law regarding “adhesion contracts,” the agreements that businesses present as “take it or leave it” to consumers.
“Although some contracts are the result of negotiated drafting by two parties represented by lawyers, most contracts that individuals have are adhesion contracts, drafted by businesses, and the individual simply decides whether or not to consent,” Ware said.
Many of these consumer adhesion contracts now have clauses providing that disputes will be resolved in arbitration rather than litigation.
These “adhesive arbitration clauses” in consumer contracts are at the center of a variety of hotly contested legal issues that are much more controversial than the issues raised by arbitration agreements between businesses.
The conservative approach is to stay with the status quo established by the 1925 Federal Arbitration Act and broad interpretations of that act by the Supreme Court. Some of these broad interpretations were made by the Supreme Court’s five justices appointed by Republican presidents over dissenting votes from the court’s four justices appointed by Democratic presidents. A particularly key 5-4 decision interpreted the Federal Arbitration Act to pre-empt states’ efforts to preserve consumer class actions from adhesive arbitration clauses prohibiting such lawsuits.
At the other end of the political spectrum are those who would simply ban all arbitration clauses in consumer contracts. This approach, advocated by many progressives, is contained in a bill supported by most congressional Democrats. While enactment of that bill is unlikely while Republicans control Congress, the CFPB already has the power to ban all arbitration clauses in an important category of consumer contracts — financial services, such as credit cards, checking accounts and payday loans. So, Ware says, “the action has shifted now from Congress to the CFPB.”
Ware’s article goes beyond proposing reforms to offer the CFPB drafting specifics — the language of a rule — with which the CFPB could enact into law the reforms he proposes.
In between the conservative status quo of broadly enforcing consumer arbitration clauses and the progressive approach of banning them entirely, Ware advocates an intermediate position. It rests on the principle that “adhesive arbitration agreements should be treated like other adhesion contracts,” Ware said. “This approach, which I’ve been developing incrementally in a series of articles for over 20 years, is for courts to enforce consumer arbitration clauses unless one of three exceptions applies.”
Exceptions Ware calls for:
- When a party to the contract argues the contract containing the arbitration clause was induced by fraud, duress or other misconduct;
- When the arbitration clause prohibits class actions under circumstances in which a contract lacking an arbitration clause but otherwise prohibiting class actions would be unenforceable;
- When arbitration has already occurred and a party argues that the arbitrator made an error of law, the court should review the arbitrator’s ruling closely before enforcing it.
Ware’s arguments are timely as the CFPB has completed its study of consumer arbitration and is expected to issue new rules soon. Ware said he is glad the CFPB is interested enough in his views to invite him to participate in Wednesday’s field hearing. He hopes the current political climate is one in which the CFPB will be attracted to his centrist approach.
“The basic principle behind these positions — behind the centrist position — is that, with few and relatively uncontroversial exceptions, adhesive arbitration agreements should be as enforceable as other adhesion contracts, but not more so,” Ware wrote. “In other words, this article rejects conservative-supported anomalies that enforce adhesive arbitration agreements more broadly than other adhesion contracts, and proposes — contrary to progressives — that once these anomalies are fixed, adhesive arbitration agreements should be as generally enforceable as other adhesion contracts.”
Ware is an expert on arbitration law who has authored two books and dozens of journal articles on the topic. His scholarship has been cited by the Supreme Court and in at least 28 other federal and state cases. Ware has testified on arbitration before both houses of Congress and in court as an expert witness.
LAWRENCE — Multinational organizations like the European Union are unique in many ways, but examining such bodies through a lens commonly used to study domestic governmental systems can shed light on why such groupings work and the directions they may be headed. Richard E. Levy, J.B. Smith Distinguished Professor of Law at the University of Kansas, has authored a foundational article applying collective action theory to analyze the institutional structure of the European Union.
The article appears in an issue of the European Journal of Law and Economics honoring the work of Judge Richard Posner, an internationally acclaimed judge and legal scholar known for his work in law and economics. Levy, a former clerk for Posner, who has lived and taught in Europe and written extensively on federalism, has long been drawn to the similarities between federalism in the United States and the structure of the European Union.
“My main focus is on U.S. constitutional law, but I like to think about comparative institutional structures, how they’re parallel to each other and how they’re different,” Levy said. “By doing that I think you can better understand why constitutional systems are structured the way they are.”
Collective action theory explores how groups work together to create common benefits even though they have individual incentives to act as “free riders” that enjoy the benefits of group activity without contributing to it. Although collective action theory originated as a tool for understanding the behavior of individuals, particularly in relation to political processes, Levy has been a pioneer in applying the theory to the relationships among states in the American federal system. This approach is beginning to take root in Europe as well, and Levy hopes that his article will contribute to the use of collective action theory to analyze the European Union.
Like the United States, the EU creates a structure for collective action by member states through which the collective can enact legally binding rules without the unanimous consent of the member states. Nonetheless, the scope of EU authority and the power of EU institutions is more constrained than that of the federal government in the U.S. Levy said he is interested to see if the EU will eventually move further in toward the creation of a federal system such as the U.S., which would require the adoption of a kind of European constitution that transformed the EU from a set of agreements among member states to a social contract among the people of Europe.
Of course, many differences exist in the case of the EU; namely linguistic, cultural and historical differences that currently keep the member states from considering themselves part of a larger entity, as opposed to independent nations, with a shared bond. States often want to retain autonomy and power, but in the EU, as in the United States, power has gravitated to the center, Levy writes.
For example, the supremacy of federal power in the U.S. was not fully established in practice until after the Civil War, and the practical scope of federal power expanded greatly during the 20th century. One important distinguishing characteristic is the EU’s use of the subsidiarity principle to counter the centralization of power. The principle holds that decisions are handled centrally only when they cannot be handled effectively by the member states.
While new economic and legal situations continue to come about, Levy said he is interested to watch how collective action theory can teach us more about the EU and the decisions it makes. The initial concerns such as free trade among members, interstate relations and external relations will continue to be at the forefront, but new issues such as monetary policy for the euro and the ongoing debate about whether the United Kingdom will separate from the EU will continue to shine a light on how the body evolves.
By examining the EU’s makeup through the lens of collective action theory, Levy said, we will be able to see if the organization moves toward a federal system or maintains its current state of a group of national states. Conversely, using collective action theory as a comparative lens will also help us gain a better understanding of the American federal system.
“One of the essential points of comparative law is you gain a better understanding of your own system when you study another,” Levy said. “Studying the EU might help us to think about how, if we do care about member states, might we structure our system to better balance the autonomy of the states against the need to address national issues at the federal level?”
Photo: European flag outside the Commission. By Xavier Hape, via WikiCommons.
LAWRENCE – Recent studies indicate that nearly one in four female students experience sexual violence during their college years – troubling figures that are attracting national media attention and serious evaluations by universities of how they handle such crimes.
Legal scholars and advocates from across the country will contribute to that conversation this week during the 2015 Kansas Law Review Symposium. “Sexual Assault on Campus” will run from 9 a.m. to 4:30 p.m. Friday, Oct. 23, at the University of Kansas School of Law, 1535 W. 15th St. The event is free and open to the public, but registration is required. Register and preview the complete schedule at law.ku.edu/assault.
Speakers will discuss anti-rape culture, campus sexual violence reform, the gendered use of legality, sexual assault as sexual harassment, the myth of the “perfect victim,” the Title IX “mistake” and other topics.
“In September 2014, President Obama launched the ‘It’s on Us’ initiative to address the pressing issue of campus sexual assault. Just over one year later, the Kansas Law Review will provide needed attention to the discussion about the proper governmental, cultural and university responses to sexual violence at America’s institutions of higher education,” said Corey Yung, a KU law professor who teaches a course on sex crimes. “With experts from across the nation, we hope to shed light on the complex topics of how campuses should handle sexual assault complaints, create a culture that discourages rape and ensure student safety.”
Speakers will include:
- Katharine K. Baker, professor of law, IIT Chicago-Kent College of Law
- Tamara Rice Lave, associate professor, University of Miami School of Law
- Corey Rayburn Yung, professor of law, KU School of Law
- Chrissy Heikkila, executive director, Sexual Trauma & Abuse Care Center, Lawrence
- Aya Gruber, professor of law, University of Colorado Law School
- Chrysanthi S. Leon, associate professor of sociology and criminal justice, women and gender studies, and legal studies, University of Delaware
Scholarship associated with the symposium will be published in a spring 2016 issue of the Kansas Law Review. Questions? Contact Symposium Editor Abby Hall at firstname.lastname@example.org.
LAWRENCE — The time has come for a philosophical change in the way the American legal system, government and private business view innovations created by private citizens, a University of Kansas professor argues in a new law review article. “Citizen innovators” have the legal right to develop new and better technologies without fear of interference from overregulation and excessive intellectual property. The “right to innovate” flows from the U.S. Constitution, the common law, federal laws called “organic statutes” and presidential executive orders.
Andrew Torrance, Earl B. Shurtz Research Professor at KU School of Law and visiting scientist at the MIT Sloan School of Management, and his colleague, Eric von Hippel, T. Wilson Professor of Management at the MIT Sloan School of Management, have co-authored “The Right to Innovate,” a Michigan State Law Review article that offers three approaches to protecting “citizen innovators” and their right to engage in noncommercial innovation to satisfy their own needs and to share their innovations freely for the betterment of society.
Technology has greatly leveled the playing field of innovation. Whereas private companies and government were formerly believed to create almost all new products and technologies, von Hippel’s pioneering economic research on “user innovation” has revealed that private citizens can, and do, also produce new medicines, medical devices, software, automotive improvements, educational methods and myriad other useful inventions in their own homes. As long as they are not endangering anyone or profiting from their work, their innovative activities are largely beyond the jurisdiction of regulatory agencies and intellectual property owners, the authors argue.
“Citizens have a robust legal right to innovate in all sorts of ways. From medical devices to drones, to better ways to irrigate fields, the sky is the limit,” Torrance said. “The pressure they face from government is unwelcome, chilling and often illegitimate. The right to innovate benefits all of society and is one of the rights of citizenship.”
The authors use the metaphor of “innovation wetlands” in their work. Historically in the United States, wetlands were viewed as barriers, wastefully unusable lands or even health hazards. They were denigrated at “malarial swamps” and feared as breeding grounds for diseases. The only good swamp was a drained or filled-in swamp. However, biological science eventually discovered they, in fact, provide numerous vital ecological amenities, such as cleaning water, providing refuge for migrating birds, acting as nurseries for young fish and buffering against floods. These discoveries in time led to the Clean Water Act of 1972 that protects wetlands.
Whereas private citizens who develop their own products and improve existing products, were long thought to pose nuisances or cause harm to businesses and government, a vast body of empirical evidence now shows that citizen innovation is, in fact, greatly beneficial to society, Torrance says. Some studies suggest that most useful innovation originates from noncommercial citizen innovation rather than corporate and governmental research and development efforts.
Torrance shares the example of NightScout, a group of software engineers who successfully hacked a Food and Drug Administration-approved medical device designed to make careful measurements of blood sugar in individuals with Type-1 diabetes. NightScout then was able to improve the device by allowing its output to be viewed on any smartphone via a custom-written app. Using this app, loved ones could monitor the blood-glucose levels of their children, spouses or friends. In fact, NightScout is named after the need to monitor blood-glucose levels of Type-1 diabetics while they sleep – a dangerous time for these people due to the constant threat of falling into a diabetic coma, or dying, while asleep. Though the technology was made available to anyone for free, the FDA initially tried to stop such innovation, which they see as potentially dangerous. In the end, the FDA seemed to conclude that they lack jurisdiction to stop such innovation.
“Even the FDA realizes there is not much you can do to stop citizen innovation. If you think about it from an ethical perspective, regulatory agencies should generally celebrate, not try to stop, such improvements,” Torrance said. “As a default position, government agencies often assume they have the legal right to stop citizen innovation. A proper reading of the law, including both constitutional and venerable common law principles concerning commerce, liberty, autonomy, privacy, free association and free speech, shows this socially harmful attitude to be legally unjustified. The right of citizens to innovation to satisfy their own needs, and then freely share their innovations with others, is quite strong.”
Private companies do need governmental permission when developing new technologies because they intend to profit from them. If money crosses state lines in association with such innovation, regulatory agencies do have jurisdiction over such activities. Noncommercial citizen innovation, however, is largely free of such oversight.
Citizen innovators often abandon inventing when faced with governmental scrutiny or legal action because they are either unaware of their rights or lack the resources to hire attorneys to defend them. This sort of overregulation and overlitigation stifles innovation and harms society, the authors argue. To combat this chilling effect, the authors include a “toolkit” for innovators to help them understand their rights.
The toolkit outlines the right to liberty; privacy; First Amendment rights to free speech, press and association; the Fourth Amendment, and rights reserved to the people, among other legal principles protective of citizen innovation. Innovators often are not aware of their rights, such as a right to privacy, which discourages governments and others from prying into activities carried out in citizens’ own homes. Knowledge of those rights is vital as there are millions of citizen innovators, and their activities vastly outweigh those of all private and governmental research and developmental employees combined, Torrance said.
The authors also outline common law rights that protect innovation among private citizens, discuss ways in which governments should account for the benefits of citizen innovation and the costs of overregulating it, in their own cost-benefit analyses, and the benefit of designing regulations that citizen innovators can comply with at very low costs.
Technology has rapidly evolved, drastically changing the paradigm of innovation. As von Hippel has written, this has “democratized” innovation. Whereas only government or academics were able to access computers and sophisticated technical equipment in the past, people can now program software on their smartphones, scan and replicate physical objects at home, and even engage in biotechnological research and development once impossible outside expensive laboratories. Torrance and von Hippel argue it is time for the law to evolve and recognize that a “democratization of innovation” is not only legal, but it is beneficial as well.
“The fact that innovation is coming from new sources is wonderful for society,” Torrance said. “But the legal system is better at crushing citizen innovation than fostering and protecting it. What Eric and I are concerned about is that, if you don’t recognize this vital source of innovation, and protect it from overregulation and overzealous application of intellectual property, you risk destroying it just as we used to destroy wetlands. In both cases, we need to celebrate these valuable amenities and enlist the law to ensure they survive and thrive.”
LAWRENCE – The University of Kansas School of Law is the No. 18 Best Value Law School in the country and one of the top 20 law schools nationwide for students graduating with the least debt, according to National Jurist magazine and U.S. News & World Report. KU finished first in both rankings among law schools in Kansas and the Kansas City area.
The Best Value ranking highlights affordable law schools whose graduates perform exceptionally well on the bar exam and have had success finding legal jobs. National Jurist ranked the top 20 schools and assigned a letter grade to the other 45 honorees.
“We are pleased that we continue to excel in this ranking because we pride ourselves on delivering an affordable legal education that prepares our graduates for successful careers,” said Stephen Mazza, dean of the law school. “At KU Law, value isn’t just about reasonable tuition. Our graduates pass the bar exam at a rate that consistently exceeds the state average, and they secure quality employment at a rate that stacks up against the top quarter of law schools in the country.”
And law students reach those achievements while avoiding excessive student loans. U.S. News ranked KU Law 20th in the nation among law schools whose graduates finish school with the least debt.
“It’s a relief to know that I’ll have choices when I graduate that aren’t defined by financial burdens,” said Julia Leth-Perez, a third-year KU Law student. “I’m getting a great education at KU, and I know I’m prepared for my career in law.”
National Jurist gives employment success the greatest weight in the Best Value rankings. The magazine also looks at a number of other academic and financial variables, including price of tuition, student debt accumulation, bar passage rate and cost of living.
KU Law graduates in the Class of 2015 passed the bar examination in Kansas and Missouri at rates that far exceeded state averages. They also ranked first among all Kansas and Missouri law schools for performance on the Missouri exam. KU law tuition for the 2014-15 academic year for a first-year Kansas resident was $19,985. More than 75 percent of the incoming class receives scholarships.