Law school symposium to explore election law, voting rights

Tuesday, February 09, 2016

LAWRENCE – With presidential election season in full swing and voting laws in flux in states around the country, legal scholars will gather in Lawrence next week to explore election law and its effect on citizens’ right to vote.

The 2016 Kansas Journal of Law & Public Policy Symposium, “The Right to Vote: Examining Election Law,” will run from 9 a.m. to 3 p.m. Feb. 19 at the University of Kansas School of Law, 1535 W. 15th St. The program is free and open to the public, but registration is required.

“Examining election law, and issues related to election law, is important because the ability to elect our representatives is a vital component of our democracy,” said Cody Branham, third-year KU Law student and senior symposium editor for the Kansas Journal of Law & Public Policy. “This event brings together some of the leading authorities in election law and provides an opportunity to analyze whether our voting system is working as intended. Election laws that promote equal representation have helped this nation evolve into a more just democracy and ensure that it continues to do so in the future.”

The symposium will examine election law over time and consider future developments. Panels will cover: 1) The History and Future of Contested Elections, 2) The Conduct of Election and Protection of Voting Rights and 3) Kansas-Specific Election Law Issues.

Panelists include:

  • Dean Joseph Aistrup, Auburn University
  • Doug Bonney, ACLU of Kansas
  • Beth Clarkson, Wichita State University
  • Professor Derrick Darby, University of Michigan
  • Professor Ed Foley, Ohio State University Moritz College of Law
  • Mark Johnson, Dentons, KU School of Law
  • Professor Richard Levy, KU School of Law
  • Mike O’Neal, Kansas Chamber of Commerce

Scholarship from the symposium will be published in a 2016 issue of the Kansas Journal of Law & Public Policy. 

For more information and a complete program, visit the symposium website. Contact Cody Branham at kjlppsymposium@gmail.com with any questions.

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

Monday, February 08, 2016

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

KU Law students with the Volunteer Income Tax Assistance (VITA) program will prepare returns for taxpayers who are residents of Kansas, Missouri or Illinois; who earn less than $54,000 per household per year; and who do not itemize their deductions. The program runs from Feb. 17 through 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 $62,000 or less in 2015. 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 225 federal and state tax returns. LSS directly prepared 203 returns in 2015 and assisted more than 1,500 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. “LSS tax attorneys and KU Law student interns are available at the workshops to assist and answer any questions that may arise.”

The VITA program operates on a first-come, first-served basis, and the number of preparers varies with the site. Those seeking assistance are encouraged to arrive near the start of each session. Taxpayers should 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 Matthew Schippers and Andrew Jorgenson 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,” Schippers said. “It gives KU Law students practical experience with tax law and customer service while also helping individuals who seek an alternative to paying a professional or risking error in preparing their own returns.”

Taxes are due on Monday, April 18, instead of Friday, April 15, this year due to the federal observance of Emancipation Day.

Spring 2016 Schedule

Monday 6:00 – 8:45 p.m., Green Hall, Wheat Law Library, 3rd Floor Computer Lab, 1535 W. 15th St.
Wednesday 3 – 5:45 p.m., Green Hall, Wheat Law Library, 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., Apt. 187

Saturday 10 – 11:45 a.m., Green Hall, Wheat Law Library, 3rd Floor Computer Lab, 1535 W. 15th St.

Sessions run Wednesday, Feb. 17, through Monday, April 18. No sessions will be held on Feb. 27 (Saturday), March 5 (Saturday), or March 12-19 (University of Kansas spring break).

*Sessions will be held at Penn House on Feb. 18, March 3, March 24, April 7 and April 14.

**Sessions will be held at Ballard Center on Feb. 25, March 10, March 31, April 7 and April 14.

KU Mock Trial Team to host Jayhawk Invitational tournament in Lawrence

Tuesday, December 01, 2015

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 KansasUMockTria​l@gmail.com.

The Jayhawk Invitational is sponsored by the KU School of Law.

Treaties could be key in helping indigenous communities fight effects of climate change

Tuesday, November 17, 2015

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.”

Professor calls for centrist approach to arbitration against citizens

Tuesday, October 06, 2015

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. 

Examining European Union through domestic lens offers insights, professor says

Friday, October 23, 2015


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.

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