Legal scholars explore evolution of the modern class action

Wednesday, October 12, 2016

LAWRENCE — Fifty years ago, the modern class action lawsuit was born. When the U.S. Supreme Court amended Rule 23 of the Federal Rules of Civil Procedure in 1966, it radically transformed the way plaintiffs could sue on behalf of a group. Half a century later, legal scholars will gather in Lawrence to discuss the changing effects of the guidelines. 

The 2016 Kansas Law Review Symposium, “50th Anniversary Perspectives on the Modern Class Action,” will run from 9 a.m. to 5:30 p.m. Friday, Oct. 14, at the University of Kansas School of Law. The event is free and open to the public, but registration is required. Register and preview the complete schedule online.

Speakers will discuss the ascertainability of class members, post-Comcast heightened scrutiny of class damage models, dual certification of money damages and injunctive class actions, application of the cy-pres doctrine to class actions and the expansion of class actions globally.

“Class actions involve high-stakes litigation, potentially millions of plaintiffs, and important consumer and civil rights,” said Laura Hines, a KU law professor who studies aggregate litigation. “This symposium brings together nationally prominent class action scholars, judges and attorneys from both sides of the bar to discuss recent Supreme Court cases, emerging trends and the global expansion of class actions.”

Speakers will include:

  • Myriam Gilles, professor of law, Cardozo School of Law
  • Suzette Malveaux, professor of law, The Catholic University of America Columbus School of Law
  • Robert Bone, G. Rollie White Teaching Excellence Chair in Law, University of Texas School of Law
  • Laura Hines, professor of law, KU School of Law
  • Deborah Hensler, Judge John W. Ford Professor of Dispute Resolution and Director of Law and Policy Lab, Stanford Law School
  • Adam Zimmerman, professor of law, Gerald Rosen Fellow, Loyola Law School

A judges’ panel will feature Judge Robert Dow of the U.S. District Court for the Northern District of Illinois, Judge John Lungstrum of the U.S. District Court for the District of Kansas and Judge Laura Denvir Stith of the Supreme Court of Missouri.

A practitioners’ panel will feature Eric Barton of Wagstaff & Cartmell; Molly Carella of Shook, Hardy & Bacon; Robert Coykendall of Morris Laing; Rex Sharp of Rex A. Sharp PA; Holly Pauling Smith of Shook, Hardy & Bacon; Victoria Smith of Stinson Leonard Street and Patrick Stueve of Stueve Siegel Hanson.

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

KU law alumnus, state budget commissioner makes the case for progressive taxation

Tuesday, October 11, 2016

LAWRENCE — As the 2016 presidential candidates outline their tax plans and revenue shortfalls prompt Kansans to consider the effects of recent tax cuts, tax policy has become a central issue in this year’s national and state elections. 

A public administrator and University of Kansas School of Law alumnus will examine these themes Thursday at the inaugural Dean Martin Dickinson Tax Policy Lecture. Myron Frans, a 1983 graduate of the KU School of Law and management and budget commissioner for the state of Minnesota, will return to Lawrence to present “Progressive Taxation: Historical Context and Contemporary Examples,” at 4 p.m. Oct. 13 in 104 Green Hall. The lecture is free and open to the public. A reception will follow the event.

Experts regard progressive taxation, a system in which tax rates increase with income, as the most equitable and economically effective tax structure. While some states have developed a more progressive tax structure in recent years, others — including Kansas — have established more regressive policies. Frans will examine the historical case for progressive taxation and share contemporary success stories of progressive tax policies in action.

Myron Frans was appointed commissioner of Minnesota Management & Budget in 2015. He previously served as Minnesota commissioner of revenue and has three decades of private practice experience in tax law. Frans served as president of Leeds Precision Instruments, a company in Golden Valley, Minnesota, that designs, manufactures and sells forensic microscopes around the world.

The Dean Martin Dickinson Tax Policy Lecture pays tribute to Dickinson’s 48-year legacy of teaching KU Law students and providing excellent analysis of tax policy and changes in tax laws in Kansas and beyond.  

Tribal law can provide examples of innovative ways to address environmental challenges

Monday, October 10, 2016


LAWRENCE — New environmental challenges continue to threaten the air, water and lands Americans depend on, yet innovative federal government initiatives to combat them have disappeared in the last 30 years, a University of Kansas professor has written in a new article. In this void, tribal law can provide inspiration in new ways to develop and enforce laws to address issues such as climate change, as well as water, air and solid waste pollution.

Elizabeth Kronk Warner, professor of law and director of the Tribal Law & Government Center at the School of Law, has authored an article, forthcoming in Michigan Journal of Environmental and Administrative Law, in which she surveyed nine sovereign tribes in four states about environmental laws they have enacted and how they enforce them. The article also examines how such tribal laws can provide guidance for local, state and federal governments looking to address environmental threats.

Consideration of tribal environmental law is important because federal innovations in environmental law have stagnated since the 1980s, Kronk Warner writes. That comes after the 1970s, arguably the most innovative decade in the country’s history in terms of environmental advancement, with the formation of the Environmental Protection Agency and measures like the Clean Air Act and Clean Water Act.

There are 567 federally recognized tribes within the United States, sovereign and capable of developing their own laws, and many may be experimenting with new environmental laws. In her article, Kronk Warner surveyed tribes in Arizona, Montana, New York and Oklahoma to find out what laws they have on the books and how they are enforced, as well as provide an account of what tribes are doing in the words of their own people.

Kronk Warner notes several similarities among tribal, federal and state laws. Tribal laws often use many of the same tools as federal laws, such as requiring permits for certain actions, issuing fines and making arrests for those who violate them. Where they differ are in instances where tribes may close off tribal lands in order to protect areas with vulnerable water, lands or areas of spiritual significance.

“Laws that are originally tribal can provide inspiration for ideas at other levels,” Kronk Warner said. “I think that’s important to consider in this era when the federal government has stalled in environmental law innovation. One interesting way of dealing with environmental law enforcement is restricting who can and cannot access lands. That’s something we don’t typically see in federal law.”

Another unique enforcement tactic Kronk Warner found in her review of tribal law was banishment. If a non-native person has been found to commit violations of tribal environmental law, they can be banished from tribal lands under civil authority, giving tribal police the right to remove them if they return. Such practices are also uncommon on state and federal lands, but it would be worthwhile to see agencies try the approach under the right circumstances, she added.

The reason a lack of innovation is especially troubling now is because new environmental challenges have arisen since the 1970s. While measures enacted then are still effective at preventing disasters such as rivers being so polluted that they catch fire like the Cuyahoga in Cleveland, there are new challenges. Climate change was not well understood in the ‘70s, and forms of pollution such as non-point source water pollution, agricultural runoff and many air pollutants were not addressed in the Clean Water and Clean Air acts.

“We still have challenges today, though, and new challenges that weren’t even contemplated in those acts,” Kronk Warner said.

Tribal law can be an effective example for new innovations for several reasons.

Kronk Warner has published research on tribal law serving as an incubator for climate change policy and how climate change often affects indigenous populations around the world first and sometimes most severely, forcing them to take action. Meanwhile, political gridlock has prevented progress on a federal level.

However, states and local governments have shown more willingness to act on climate change and environmental protection laws. Nearly one-third of the tribes in the survey are taking action on water and air pollution, and more are enacting new laws regulating solid waste, all with enforcement guidelines. Many more around the country that were not contacted for the survey are likely doing the same, she said.

The most important step in turning tribal examples into inspiration for larger laws is simply to make more people aware of them and expand the conversation to those in power to make changes, Kronk Warner said. One of the best examples of new approaches is from tribes that have created assessments of natural resources and made hierarchies of what they want to protect. She’d like to see the federal government create such an assessment designating what is most important for the United States to protect, whether it’s water designations such as the Ogallala Aquifer or the Great Lakes and consider new ways to enforce existing in new laws to ensure they are effective.

“I think that would be a wonderful exercise to see the federal government engage in,” Kronk Warner said. “You can’t protect everything everywhere, but it would be worthwhile to establish priorities for our most precious resources. I’m sure it would be heavily debated, but it is certainly worth considering.”

Law professors to participate in voting rights program

Thursday, September 08, 2016

LAWRENCE — The Dole Institute of Politics announced today the addition of a Constitution Day program on voting rights featuring Kansas Secretary of State Kris Kobach and KU Law adjunct professor Mark P. Johnson.

The annual Constitution Day program is titled “Protecting Election Integrity, Voter Suppression, or Something Else?” and will take place at 6:30 p.m. Tuesday, Sept. 13. It will feature a discussion between Johnson and Kobach on the Constitution and voting rights, including voter ID laws, proof of citizenship laws, the Interstate Crosscheck system and more. Stephen McAllister, KU Law professor and solicitor general of Kansas, will serve as the program’s moderator.

“Voting rights is in the news and in the courts all across the nation, and now it’s at the Dole Institute,” said Associate Director Barbara Ballard.  “This exciting panel will discuss voting rights, and we know the public will want to attend and ask their questions as well.”

The event will be free, open to the public and located at the Dole Institute. It is co-sponsored by the KU School of Law.

The Robert J. Dole Institute of Politics is dedicated to promoting political and civic participation as well as civil discourse in a bipartisan, philosophically balanced manner. It is located on KU’s West Campus and houses the Dole Archive and Special Collections. Through its robust public programming, congressional archive and museum, the Dole Institute strives to celebrate public serve and the legacy of U.S. Senator Bob Dole.

More information on all programs, as well as ongoing additions to the schedule, can be found on the Dole Institute’s website, www.doleinstitute.org.

Law professor named 2016-17 KU senior administrative fellow

Thursday, August 04, 2016

LAWRENCE — The Office of the Provost has selected the 2016-2017 senior administrative fellows.

The program identifies and cultivates current and potential leaders already on the University of Kansas faculty. Now in its 24th year, the Senior Administrative Fellows Program was expanded to prepare even more tenured faculty for leadership at KU.   

“This year we had an extraordinary degree of interest in the program from faculty in disciplines across KU,” said Mary Lee Hummert, vice provost of faculty development. “We are fortunate to have so many faculty eager to learn more about academic leadership.”

The Senior Administrative Fellows Program offers tenured faculty interested in leadership roles the opportunity to see the nuts and bolts of administrative activities and responsibilities. In addition to learning more about major units of the university, fellows meet with KU’s senior leadership and take part in discussions surrounding academic leadership, public policy and the future of higher education.

“Previous participants in the program have gone on to administrative leadership positions at KU, so this level of interest bodes well for KU’s future,” Hummert said. “I look forward to working with this year’s fellows.”

The class of fellows is selected from applications solicited late in the spring semester of the previous academic year. This year to accommodate interest, two cohorts of fellows have been formed. 

2016-17 senior administrative fellows

Wednesday cohort

  • Jim Backes, professor, pharmacy practice; associate dean, School of Pharmacy
  • Caroline Bennett, associate professor, civil, environmental and architectural engineering; School of Engineering
  • Chris Brown, professor, environmental studies and geography; director of environmental studies, College of Liberal Arts & Sciences
  • Florence DiGennaro-Reed, associate professor and chair, applied behavioral science, College of Liberal Arts & Sciences
  • David Fowle, associate professor, environmental studies and geology; associate director of environmental studies, College of Liberal Arts & Sciences
  • Mugur Geana, associate professor, William Allen White School of Journalism & Mass Communications
  • Liz MacGonagle, associate professor, history, College of Liberal Arts & Sciences
  • Amy Mendenhall, associate professor, School of Social Welfare
  • Laura Mielke, associate professor and associate chair, English, College of Liberal Arts & Sciences
  • Jeremy Shellhorn, associate professor, design; associate dean, School of Architecture, Design and Planning
  • Eric Stomberg, professor, bassoon; associate dean, School of Music
  • Margot Versteeg, associate professor, Spanish & Portuguese, College of Liberal Arts & Sciences

Thursday cohort

  • Genelle Belmas, associate professor, School of Journalism
  • Nate Brunsell, professor and chair, geography and atmospheric science, College of Liberal Arts & Sciences
  • Stephanie Fitzgerald, associate professor, English; director of indigenous studies, College of Liberal Arts & Sciences
  • Chris Gamblin, professor, molecular biosciences, College of Liberal Arts & Sciences
  • Heidi Hallman, associate professor, curriculum & teaching, School of Education
  • Nicole Hodges Persley, associate professor and chair, theatre, School of the Arts, College of Liberal Arts & Sciences
  • Elizabeth Kronk Warner, professor and associate dean, School of Law
  • Michelle Johnson-Motoyama, associate professor and associate dean, School of Social Welfare
  • Paola Sanguinetti, associate professor and chair, architecture, School of Architecture, Design and Planning
  • Milena Stanislavova, professor, mathematics, College of Liberal Arts & Sciences
  • Mike Wehmeyer, professor, special education, School of Education; director, Bureau of Child Research
  • Bryan Young, associate professor, civil, environmental and architectural engineering; director, University Honors Program, College of Liberal Arts & Sciences

Hummert leads the program with Jenny Mehmedovic, executive associate to the vice provost for faculty development.

KU-LMH partnership to provide free legal services to hospital patients

Wednesday, September 07, 2016

LAWRENCE – A new partnership between the University of Kansas School of Law and Lawrence Memorial Hospital will offer free legal assistance to low-income patients while providing invaluable hands-on training to law students.

The KU Medical-Legal Partnership at LMH is part of a national movement of hospitals integrating legal services into patient care. The model recognizes that health problems often have solutions rooted in the law, but many patients cannot afford to hire an attorney.

“For example, often patients can improve their health by ensuring they have appropriate medical leave from work or by obtaining a legal guardian who can look out for their best interests,” said Lou Mulligan, associate dean for faculty and professor of law. “This partnership is a triple win. First, it provides a great benefit for our community. Second, it improves the level of holistic care that LMH can deliver to its patients. Third, it provides an outstanding opportunity for our law students.”

Lawrence Memorial Hospital Chief Operating Officer Karen Shumate said LMH was pleased to partner with the law school to improve health care for the community’s most vulnerable members.

“We appreciate the considerable time and energy of the KU Law faculty and staff who helped get this service started at the hospital,” she said. “We anticipate a long collaboration which we hope will lead to other initiatives between KU and LMH.”

Through the partnership, LMH provides office and meeting space for the Medical-Legal Partnership and funds the salary of managing attorney Juliann Morland DaVee, a KU Law graduate with years of experience in the MLP setting.

“Working in the hospital will make it easier for us to meet with patients when they need us most,” DaVee said. “I believe this setting will also be beneficial to students as they learn to interact with patient-clients dealing with very difficult and pressing health and legal needs.”

DaVee began taking clients in late August. Under her supervision, between four and eight law students will start working on cases in the spring. Those students will have the opportunity to conduct intake interviews, develop case strategies, conduct legal research, prepare legal documents, and provide representation in administrative hearings and court – all skills that will be useful in whatever legal career they eventually pursue.

As the students hone their advocacy abilities, they will be helping clients confront difficulties with housing, employment and education; resolve insurance and benefits issues; navigate complications related to immigrant status; bolster personal and family stability, and more.

The LMH partnership builds on the success of a similar arrangement between KU Law and the Department of Family Medicine at the KU Medical Center in Kansas City, Kansas. Third-year law student Sylvia Hernandez said she gained confidence, case management skills and a wide range of legal experience in the program.

“In the MLP, you never know what type of case you will get. It all depends on what legal services the patient needs,” she said. “I prepared an application for citizenship and a health care power of attorney. Two of my clients spoke only Spanish. Their faces lit up when they realized I could truly understand their situation. It was fulfilling to put people at ease while I advocated on their behalf.”  

In the past year, KU students at the KU Med location led by managing attorney Dana Pugh achieved positive outcomes for more than 250 clients. In one case, the MLP helped terminate the lease of a patient whose severe anxiety was exacerbated by a pest infestation at his apartment complex that property managers had ignored for three months. The patient was able to move to another apartment with safe, stable conditions, and his health issues have improved significantly.

Professor analyzing decades of data to determine patent value

Tuesday, August 30, 2016

LAWRENCE — For more than two centuries, patents have been considered a key governmental policy tool for economic innovation. And for just as long numerous assumptions have been made about what they mean to an innovation’s value, where the most important ones are litigated and numerous other questions. A University of Kansas law professor is part of a project that is providing definitive answers to these and other patent questions for policy makers through a unique, big-data approach.

Andrew Torrance, the Earl B. Schurtz Research Professor at the University of Kansas School of Law, and colleagues have developed an approach to analyze mountains of detailed U.S. patent data from 1976 to the present day. One application of their research, commissioned by Canada's Ministry of Innovation, has been a comprehensive analysis of how patents having either Canadian inventors or owners compare with those without such connections. One of their most striking findings is that patents listing at least one Canadian inventor are more than 15 percent more valuable, on average, than other patents.

In a separate study, they have shown that litigated patents tend to be much more valuable than those that avoid court, and that federal courts in the southern midsection of the U.S. play host to litigations involving the most consistently valuable patents. Current studies involve comparisons of patent values of so-called “patent trolls” and companies whose goods or services are covered by their patents, an exploration of which parts of the U.S. give rise to inventors of more valuable patents, and which areas of technology give rise to the most valuable patents.

The U.S. Patent Office recently made decades of patent data available online. Torrance and colleagues Jevin West and Carl Bergstrom of the University of Washington used this data to build a huge database which they can use to analyze the data from a myriad of perspectives. Through this approach, they hope to test many questions arising from the perceived wisdom about patents.

“We’ve put that data together in a giant database and added other data to it as well that includes information on every U.S. patent from 1976 until last Tuesday (the day new patent data is released by the United States Patent & Trademark Office each week),” Torrance said. “We have transformed it into an easy-to-use form that allows us to run many different types of analyses.”

The Canadian Ministry of Innovation approached Torrance to learn more about the value Canadian inventors add to American patents. Their goal was to learn more about how Canadian inventors and companies perform in the U.S. patent system. The data provided a number of fascinating insights possible only through a big data approach, including one that should make Canada quite happy.

“We found that, when you add a Canadian to a U.S. patent as an inventor, that patent tends to increase in value by more than 15 percent,” Torrance said. “When you add a generic, non-American from another country, the average patent value actually tends to go down. This raises intriguing questions about how Canada fosters more successful inventors.”

What’s not clear is why Canadian inventors tend to increase a patent’s value. It could be due to the particular technology fields in which Canadians tend to invent, characteristics of science and technology education in Canada, or Canadian skill at collaborating with other talented inventors, Torrance said. But he and colleagues are beginning to analyze the data to calculate the average values of patents generated by inventors from every other country to compare them all.

The findings are unique because the data they are drawn from was largely unavailable for decades, which forced people to make assumptions about the patent system and value of patents it issued. Additionally, because the data accessed is comprehensive, the analyses can provide objective answers based on all the data rather than just small random samples.

Torrance compared it to polling: Political polls ask a sample of people questions such as which candidate they plan to vote for, then report who has a lead, based on the representative sample of people they polled. That method, widely used in research for many years, can provide a good idea of the answer to a question, but it comes with built-in error margins. The method Torrance and his colleagues are using, however, gives definitive answers because it relies on all the data. It is akin to being able to access every voter and get a definitive answer on whom they voted for.

“Having these gigantic data sets finally allows us to answer questions about which, until now, people could only speculate – and often speculate wildly,” Torrance said. “Now we can formulate a question about patent law, such as, ‘How valuable do design patents tend to be compared to utility patents,’ write a software script to analyze our huge data set and then see what answer the data give. That simply was not possible before the era of big data.”

Torrance and colleagues have already submitted their preliminary analyses of Canadian inventors and patent owners to the government of Canada, which then hopes to use the resulting insights in future policy decisions regarding the Canadian patent system and how it influences innovation. Torrance and colleagues plan to publish these findings and plan to carry out many more analyses using their data.

“Our big patent data research should keep us busy for a while,” Torrance said. “There are myriad basic questions we can now answer.”

Two projects they’ve already begun are looking at the value of patents that are litigated and where litigation of the most valuable patents takes place. In the former case, there has long been a school of thought that holds patents that are litigated in court are not inherently more valuable than those left unlitigated but are acquired by companies with the resources to hire teams of attorneys to assert those patents against others in legal proceedings.

In the latter, it has long been assumed that most patents are litigated on the coasts, and that the middle of the country is a “patent flyover country” of sorts. Contrary to this assumption, the big patent data analysis has showed that both assumptions, though long-held, are extremely inaccurate. For example, the highest concentration of valuable-patent litigation occurs in the southern middle of the country, with the coasts and the north lagging behind. Publications are forthcoming on both topics.

Torrance was also recently named a senior fellow with the Center for International Governance Innovation, or CIGI, International Law Research Program. The international, nonpartisan think tank focuses on improving international governance through research on the global economy, global security and politics, and international law. The organization brings scholars from around the world together to provide governments information on innovation and how it can address problems such as human rights, avoiding war, fighting terrorism and poverty, improving development and the standard of living for people worldwide.

Torrance hopes his ongoing research, both into patent systems and user, open, collaborative and free innovation, through CIGI, will be valuable in contributing to CIGI’s goals and to questioning assumptions that may not survive rigorous scrutiny.

“It’s great to be able to ask basic questions, then look at the data and see what they say, compared to what the assumptions are,” Torrance said. “We’re already in the age of data and are increasingly able to answer questions that were infeasible to tackle before. My background is in science, and it’s gratifying to be able to apply the scientific method to legal questions, especially when the answers upend long-held, but unjustified, assumptions. This is a great way to improve the law.”

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