Study urges Congress to act to ensure independence of federal judges

Thursday, January 21, 2021

LAWRENCE — Former President Donald Trump's removal of prominent officials not willing to do his bidding grabbed headlines throughout his tenure, but he also took less well-publicized steps to bring the federal bureaucracy under his control by dismantling key parts of the civil service. A University of Kansas law professor argues in a new study that these efforts, coupled with recent Supreme Court rulings, threaten the independence of a key group of agency adjudicators. The study urges Congress to take action to prevent cronyism and political bias in agency adjudications.

Richard LevyRichard Levy, J.B. Smith Distinguished Professor of Constitutional Law at the KU School of Law, and Robert Glicksman of George Washington University have published a study in the Minnesota Law Review examining the independence of administrative law judges, or ALJs. In the study, the authors outline the attacks on the independence of ALJs in federal agencies that threaten to politicize the appointment and removal of officers intended to be impartial decision-makers. They recommend a legislative solution to ensure independence that would benefit both major political parties.

The basic separation of powers between the executive, judicial and legislative branches in American government is well understood. However, there is overlap when implementing law and determining how the law applies in given situations, the authors wrote. These situations arise frequently in federal agencies such as the Securities and Exchange Commission and Social Security Administration. The agencies appoint adjudicators, including ALJs, who make rulings, but conflicts of interest can arise when agencies or employers prefer one policy but the law requires another.

“The question is, how do you properly balance the idea that the president is at the head of the executive branch and has responsibility to ensure that the laws are faithfully executed with the idea that due process and fundamental fairness in agency adjudications requires an impartial decision-maker?” Levy said.

Levy and Glicksman described recent Supreme Court decisions that have supported a strong unitary executive theory that gives the president greater control over the appointment and removal of officers in the executive branch, as well as executive actions by Trump that exempt ALJs from civil service merit selection requirements and weaken the statutory against removal for reasons other than good cause. Civil service protections for federal officers and employees have consistently expanded to prevent political patronage or a spoils system rewarding cronyism. As applied to ALJs, these protections were essential to ensure presidents and political appointees could not appoint unqualified or biased adjudicators or take disciplinary action against ALJs who refused to toe the line in their decisions.

“When we talk about a ‘war,’ we’re essentially talking about a war on the civil service,” Levy said. “The Trump administration’s argument is those protections led to the creation of the so-called deep state.”

The authors present an in-depth examination of the executive order removing ALJs from the established appointment system in which the most highly qualified judges as determined by civil service testing were presented as candidates for judicial openings. They determine the move was legally valid, yet opens the door to cronyism and the appointment of unqualified loyalists to such positions. They also discuss a recent Justice Department memo indicating that the department would only defend good cause removal protections for ALJs if those provisions allow for removal those who fail “to follow instructions” or in essence, make rulings favorable to the position of the executive branch.

“At the very least we have a looming constitutional crisis for ALJs, and a lack of protections for them for appointment and removals,” Levy said. “It seems to us a substantial threat to ALJ independence and judicial integrity.”

Given that threat, the authors argue a statutory response is required. They call for the creation of an independent ALJ corps using the “central panel” model that is already in place in numerous states’ laws. The approach would allow for independence of ALJs that adjudicate federal agency questions, while allowing for final review from the agencies. That would restore judicial independence and retain the agency’s ultimate policy authority and expertise, Levy said.

Congress could enact a law achieving those ends in a nonpartisan fashion, the authors said. Doing so would be mutually beneficial as it could prevent cronyism from whatever party is in power, retaliation upon changes of administration or unforeseen abuses of policy enacted by a preceding party.

“I think we have to start restoring safeguards that have been dismantled by partisanship,” Levy said.

While the hyperpartisan nature of American politics may make such an event difficult, it is not impossible, the authors wrote. Levy and Glicksman have already presented their arguments in a webinar sponsored by the Administrative Conference of the United States and been contacted by the National Conference of the Administrative Law Judiciary and helped draft a report in support of a resolution by the American Bar Association in support of a central panel of federal ALJs.

“Ultimately, the independence of administrative adjudication is a critical protection for the rule of law. Although other recent threats to the rule of law may deservedly garner the headlines, we should not lose sight of the critical role that impartial agency adjudication plays,” the authors wrote. “Taking reasonable steps toward securing independent and impartial adjudication by agencies is a nonpartisan issue that Congress can and should address.”

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Law professor creates privacy-focused conference

Tuesday, January 19, 2021

Najarian Peters

LAWRENCE – A new conference created by a privacy law scholar at the University of Kansas School of Law aims to explore privacy beyond abstract concepts.

Najarian Peters, associate professor at the KU School of Law, said the inaugural Privacy Praxis Conference will explore the broad spectrum of privacy expertise. The term “praxis” comes from the combination of theory and practice, Peters said.

“When we think about privacy expertise, we’re saying that this is not just scholarship — it is also inclusive of advocacy and community work that lives in the world,” Peters said.

The conference will highlight expertise in privacy by academic scholars as well as those with expertise outside of the formal academy.

The Privacy Praxis Conference, themed “The Bridge: How Does Your Scholarship/Work Live in This World?” will run from 9 a.m. to 2:30 p.m. Feb. 25 via Zoom. The event is free and open to the public. Advance registration is required. Registration closes Feb. 22.

The program will feature two panel discussions and a keynote presentation by Anita Allen, Henry R. Silverman Professor of Law and professor of philosophy at the University of Pennsylvania Carey Law School.

The KU School of Law is sponsoring the conference. Collaborators include the Berkman Klein Center for Internet & Society at Harvard University, where Peters is a second-year faculty associate, and the nonprofit research organization Data & Society.

Peters began working on Privacy Praxis after reflecting on her experiences attending other privacy conferences.

“I started thinking about how privacy conferences are structured and their approach to recognizing what privacy expertise is, and how that can be a barrier to a thicker conceptualization of privacy, how that can be exclusionary, how it creates and replicates echo chambers, and how all of that instills stagnation and gatekeeping,” Peters said. “When we really think about the work of privacy, those are things that are not conducive to privacy as a social good.”

Along with discussing privacy in its real-world applications, the Privacy Praxis Conference will serve as a platform for new ideas about privacy that are “restorative, liberative and have an anti-subordination ethos,” Peters said.

“We are centering a perspective that asserts that the communities who experience real-world impacts of privacy violations – violations that usually reinforce subordination – are at the vanguard of creating authentic solutions and new approaches to respond to those violations,” Peters said.

In addition to the conference, Peters plans to grow Privacy Praxis to include a journal and opportunities for privacy experts to publish their work.

Peters joined the KU law school faculty in July 2020 and will create two new privacy law courses, as well as teach torts for the law school. Her scholarship focuses on privacy law, technology policy and governance.

Peters was previously the inaugural faculty fellow and assistant professor of law at the Institute for Privacy Protection at Seton Hall Law School. Before entering academia, Peters practiced for more than a decade as a corporate compliance and privacy officer at several organizations in the public and private sectors.

Photo credit: Earl Richardson.

Free (Steamboat) Willie: How Walt Disney’s original mouse could be entering the public domain

Some events are so bizarre and unique that it makes one consider the role of fate. Every once in a while, the stars align to create a moment so significant that it can alter the state of the world more than a century later.

That is what happened when Walt Disney met a very special mouse at the Laugh-O-Gram studio at the corner of Forest Avenue and 31st Street in the early 1920s.

KU, K-State faculty named recipients of Higuchi-KU Endowment Research Achievement Awards

Thursday, January 14, 2021

LAWRENCE — Four faculty members at two Kansas universities have been identified as recipients of the Higuchi-KU Endowment Research Achievement Awards, the state higher education system’s most prestigious recognition for scholarly excellence. 

The annual awards are given in four categories of scholarly and creative achievement. This year’s honorees: 

  • Sharon Billings, Dean’s Professor in the Department of Ecology & Evolutionary Biology and senior scientist, Kansas Biological Survey, University of Kansas, recipient of the Olin Petefish Award in Basic Sciences 
  • Michael Hoeflich, John H. & John M. Kane Distinguished Professor of Law, KU, and professor in the homeland security master’s program, KU Edwards Campus, recipient of the Balfour Jeffrey Award in Humanities & Social Sciences          
  • Kelly Kindscher, professor in the Environmental Studies Program and senior scientist, Kansas Biological Survey, KU, recipient of the Irvin Youngberg Award in Applied Sciences 
  • Juergen Richt, Regents Distinguished Professor & University Distinguished Professor, College of Veterinary Medicine, Kansas State University, recipient of the Dolph Simons Award in Biomedical Sciences.

The four will be recognized in April along with recipients of other major KU research awards. 

This is the 39th annual presentation of the Higuchi awards, established in 1981 by Takeru Higuchi, a distinguished professor at the University of Kansas from 1967 to 1983, and his wife, Aya. The awards recognize exceptional long-term research accomplishments by faculty at Kansas Board of Regents universities. Each honoree receives $10,000 for their ongoing research.  

The awards are named for former leaders of KU Endowment who helped recruit Higuchi to KU.  

More about this year’s winners: 

Olin Petefish Award in Basic Sciences

Sharon Billings is Dean’s Professor in the Department of Ecology & Evolutionary Biology at KU and a senior scientist at the Kansas Biological Survey. 

Billings’ research seeks to understand how environmental changes influence ecosystem functioning.

She synthesizes concepts from biology and geology to help develop the field of critical zone science — the region of Earth’s crust where geological processes, water, air and biota interact to form soil and regulate climate and nutrient availability.

She has received more than $12 million to support her research and has published more than 90 peer-reviewed articles.

Billings earned a doctorate and a master’s degree in environmental science from Duke University. 

Balfour Jeffrey Award in Humanities & Social Sciences

Michael Hoeflich is the John H. & John M. Kane Professor of Law at KU and a professor in the homeland security master’s program at KU’s Edwards campus.

He has made significant research contributions to legal history and ethics. 

Hoeflich was one of the group of scholars who helped develop the subject area of comparative legal history and is considered one of the leading experts on the history of the influence of Roman and civil law on the development of American law. He has written or co-written more than 20 books and 130 articles or book chapters. 

Hoeflich received a law degree from Yale Law School, a doctorate and master’s degree from Cambridge University, and master’s and bachelor’s degrees from Haverford College.  

Irvin Youngberg Award in Applied Sciences

Kelly Kindscher is a professor in the Environmental Studies Program at KU and a senior scientist at the Kansas Biological Survey. 

Kindscher is a leading researcher on plants and vegetation in Kansas and throughout the Great Plains.

He has expanded the fields of ethnobotany — the cultural use of plants for food, medicine and other purposes — by studying edible and medicinal wild plants. Kindscher’s work has had a substantial impact on the state of Kansas. He has written five books and more than 180 publications and received more than $8.5 million in grant funding for his research. 

He is currently working on a new digital vegetation map of Kansas. Kindscher earned a doctorate and a master’s degree in systematics and ecology and a bachelor’s degree in environmental studies from KU. 

Dolph Simons Award in Biomedical Sciences   

Juergen Richt is the Regents Distinguished Professor & University Distinguished Professor in the College of Veterinary Medicine at Kansas State University. 

Richt is considered a pioneer in veterinary science and has established an internationally recognized research program in transboundary, emerging and zoonotic viral diseases of domestic and wild animals. His work has led to identifying, controlling and possibly eradicating pathogens in animals. 

His recent work focuses on studying vaccines and therapeutics in preclinical animal models of COVID-19. He has received more than $60 million in grant and fellowship awards and has published more than 260 peer-reviewed scientific manuscripts. Richt holds a doctorate in veterinary medicine from the University of Munich and a doctorate in virology and immunology from the University of Giessen, both in Germany.  

The award funds are managed by KU Endowment, the independent, nonprofit organization serving as the official fundraising and fund-management organization for KU. Founded in 1891, KU Endowment was the first foundation of its kind at a U.S. public university.

Kansas House Dems move to oust member over issues with women

TOPEKA, Kan. — Kansas legislators on Tuesday began the process to oust a newly elected lawmaker over multiple issues that include the 20-year-old’s rhetoric on Twitter and allegations that he harassed and threatened girls and women.

A formal compliant filed in the House by Democratic members about State Rep. Aaron Coleman will kick off a bipartisan investigation, culminating in a recommendation and vote on his future in the Legislature. A two-thirds majority most vote in favor of ousting Coleman, of Kansas City, Kansas, who was sworn in on Monday.

Why Raisina Hill and India Inc. need to study the Brexit Deal.

Why should the Christmas Eve 2020 Brexit Deal matter to Indian government officials, businesspersons, lawyers, students, and indeed the nation at large? The short answer is the Deal marks an historical inflection point whereby India should shift its conventional focus from seeing the United Kingdom as not only the entry point for Europe, but also as a major force in world affairs to regarding the 27-member European Union as the new gateway for Europe, and a top-tier global force.

Kansas inmates will get the COVID-19 vaccine before most of the public. Here’s why.

Jon-Wesley O’Hara didn’t get to spend Thanksgiving with his family last year.

Instead, he was quarantined with his three roommates — like him, all officers at the Topeka Correctional Facility — after one tested positive for the coronavirus. And, like many throughout the country, O’Hara canceled holiday plans because of the pandemic, including seeing his children, who live with his ex-wife.


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