2011 News Index
Professor Michael Hunter Schwartz and his Contracts I and II courses have been selected by the Educating Tomorrow's Lawyers initiative (ETL) as "Innovative Courses" that serve as a model of exemplary innovative teaching. An in-depth profile of the courses, including a full description, information about course design, an outline of teaching methods, and handouts and related materials, is available on the ETL website. The website also has video interviews with Professor Schwartz. See the full story. (Posted November 5, 2011)
Professor Ali Khan's article, "Taking Ownership of Legal Outcomes: An Argument Against Dissociation Paradigm and Analytical Gaming," has been published at 55 Saint Louis University Law Journal 887 (2011). Professor Khan argues that professional responsibilities arise within the connectionist web of laws, ethics, and personal conscience. Lawyers, judges, and law professors must not renounce personal responsibility in providing professional services. Willful reasoning derived from personal conscience alone, however, cannot be the driver of legitimate reasoning. Legal professionals must pursue cognitive coherence by connecting personal responsibility with the knowledge of laws and ethics. Lawyers must not accept the dissociation paradigm that forces them to game the system or surrender personal responsibility in serving clients. Judges must not accept the dissociation paradigm that forces them to game legal reasoning or serve as conscience-free enforcers of laws. If legal reasoning derived from binding legal sources yields multiple solutions to a legal problem, judges must choose the solution most compatible with their conscience. Of all legal professionals, law professors are in the most privileged position to teach and write in the connectionist domain of laws, ethics, and personal conscience. A legal profession, which values legal professionals as fully integrated human beings rather than mere service-providers separated from their inner values, cannot owe rigid adherence to the dissociation paradigm. (Posted November 3, 2011)
Washburn University School of Law's Gay-Straight Legal Alliance (GSLA) donated $1,438.37 to the Lawrence/Topeka Parents, Families, and Friends of Lesbians and Gays in memory of Jason Dockins during a program held at the law school on October 20, 2011. Funds were raised through donut and bake sales and a substantial donation was also received from the Topeka law firm of Palmer, Leatherman, White & Dalton. See the full story. (Posted October 30, 2011)
Professor Patricia Judd's article, "Toward a TRIPS Truce," has been published at 32 Michigan Journal of International Law 613 (2011). This article suggests that the conventional wisdom pitting developed countries against developing countries in arguments over intellectual property rights (IPR) protection is beginning to break down. It challenges longstanding assumptions that developed countries want IPR harmonization and developing countries want maximized flexibilities governing judgments of domestic enforcement of international intellectual property norms. Professor Judd illustrates how "pro-IPR" no longer necessarily means "anti-flexibilities" in the enforcement realm. In fact, those espousing strong IPR protection can employ enforcement flexibilities to their own ends, as they adapt both their enforcement mechanisms and their international policy positions to a digital age. The article uses language from a recent dispute between the United States and China involving the World Trade Organization's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to add contour to the TRIPS enforcement obligations, thus breathing new life into TRIPS flexibilities and illustrating how those flexibilities can benefit developed and developing countries alike. The resulting mutual benefit starts the process of bridging the divide between groups whose opposing positions on IPR have brought TRIPS negotiations to a standstill. Professor Judd also illustrates how the dispute has strengthened TRIPS as an intellectual property enforcement instrument–an ironic outcome given that the United States lost on its principal claim. Finally, the article argues that giving dispute settlement panels a mandate, and the power, to take a flexible approach to judging compliance with the Agreement can help TRIPS remain useful and relevant in an age in which the internet is driving rapid technological advances and changing global business. (Posted October 7, 2011)
Former Senator Bob Dole, '52, was the first Kansan to be honored on the Kansas Walk of Honor. Sen. Dole and his wife, Elizabeth, joined Governor Brownback and the First Lady to witness the unveiling of the bronze plaque on Friday, September 30, 2011 at 10:00 a.m. at the southeast corner of the Statehouse south lawn. The Walk of Honor is located within the sidewalks on the Statehouse grounds and features people who have contributed on a state and national level and have significant connections to Kansas. (Posted September 30, 2011)
Professor Craig Martin's article, "The Japanese Constitution as Law and the Legitimacy of the Supreme Court's Constitutional Decisions: A Response to Matsui" has been published at 88 Washington University Law Reveiw 657 (2011). This article, from a conference at the Washington University School of Law on the Supreme Court of Japan, responds to an article by Shigenori Matsui, "Why is the Japanese Supreme Court so Conservative?." Professor Matsui's article makes the argument that a significant factor is the extent to which the judges fail to view the Constitution as positive law requiring judicial enforcement. It is novel in its emphasis on an explanation grounded in law, and the decision-making process, rather than the political, institutional, and cultural explanations that are so often offered. In this article, borrowing from Kermit Roosevelt's arguments on judicial activism, Professor Martin suggests that rather than framing the question in terms of the Court's "conservatism", Matsui's argument would be that much more powerful by asking whether the Court's constitutional decision-making is "legitimate." The article explores why the term "conservative" can have various different meanings and is ultimately not a very useful basis for evaluating a court. It examines how the concept of legitimacy might be more meaningful, and explores how such legitimacy might be analyzed under various approaches to constitutional interpretation and theories of judicial review. Professor Martin employs two very different but well established analytical models, from the proportionality principle approach and from process theory, to analyze the 2006 Tokyo Metropolitan Government case for the purposes of illustrating how the court's reasoning might be assessed for legitimacy. The exercise demonstrates that the judgment would not meet the legitimacy requirements under either approach, and indeed the reasons provide some compelling evidence to support Matsui's central claim. The point is not, of course, that all of the Court's constitutional jurisprudence is illegitimate, but that a systematic examination of the Court's decisions from this perspective could provide powerful evidence in support of Matsui's argument that many of the judges do not view the Constitution as positive law requiring judicial enforcement. Given that Matsui's argument focuses on the operation of the Court as a legal institution, rather than as a political entity engaged in competition with the other branches of government, reframing the inquiry to examine the legitimacy of the decision-making process of judges would enhance the normative power of his claims. (Posted September 16, 2011)
Professor Amy Deen Westbrook's article, "The Inadequate Disclosure of Business Conducted in Countries Designated as State Sponsors of Terrorism," has been published at 39 Securities Regulation Law Journal 15 (2011) (fulltext not provided due to copyright restrictions). U.S. investors unknowingly may invest in companies with business operations in countries the U.S. Department of State designates as State Sponsors of Terrorism (SSTs), currently Cuba, Iran, Sudan and Syria. In most circumstances, U.S. companies are prohibited from doing business in SSTs. However, such U.S. sanctions generally do not apply directly either to foreign companies or to foreign subsidiaries of U.S. companies. If a company is organized under the laws of a foreign jurisdiction that does not sanction an SST, then that company may conduct business in the SST. That company, or its parent, may also raise capital in U.S. markets. A well functioning disclosure regime could both reduce opportunities for regulatory arbitrage and strengthen U.S. efforts to isolate SSTs through economic sanctions. Although the Securities and Exchange Commission (SEC) lacks authority to prevent foreign companies from doing business in SSTs, the SEC may require such companies to disclose their business if they offer securities in U.S. public markets. As an empirical matter, however, disclosure of operations in or with SSTs has been limited. Review of company filings indicates that many companies are not disclosing their operations in or with SSTs. Even when companies disclose the existence of such operations, substantive information about the nature and extent of operations is often withheld. In correspondence between non-disclosing companies and the SEC, companies often argue that their operations are not material because they represent a small percentage of overall revenue. This approach to materiality is both reductive and inconsistent with Supreme Court articulations of the standard. As a result of the narrow interpretation of materiality used by many reporting companies, their disclosure may be inadequate and their conduct may not be disciplined by public scrutiny. U.S. investors unwittingly may support activities that are contrary to U.S. security policy, and that would be illegal for the investor, as a U.S. person, to undertake directly. (Posted September 1, 2011)
Professor Ali Khan's article, "A Portfolio Theory of Foreign Affairs: U.S. Relations with the Muslim World," has been published at 20 Transnational Law & Contemporary Problems 377 (2011). The portfolio theory presents foreign policy as a series of financial, military, diplomatic, and ideological investments in international relations. Portfolios protect and promote the state's interests through beneficial treaties, such as trade agreements, security measures, such as peace pacts and defense alliances, foreign assistance programs, cultural exchanges, and diplomatic initiatives to resolve global, regional, and bilateral problems. The portfolio theory explains how vested portfolios survive political changes and ideological shifts, preserving the foreign policy inertia and continuity. Contrary to popular expectations that the U.S. foreign policy would change with new administration, many portfolios do not change. U.S. portfolio managers frequently fortify key portfolios with federal legislation. The legislative fortification of portfolios makes it harder for subsequent portfolio managers to affect fundamental changes in foreign policy. The Obama administration, therefore, has limited options to reverse the portfolios that prior administrations launched, mostly in the form of economic and trade sanctions, to modify the behavior of Muslim states and militant groups that do not support, or out-right impede, U.S. global or regional interests. Unfortunately, the future relations between the U.S. and the Muslim world are full of contentions. U.S. special stakeholders and epistemic groups continue to paint Islam as a threat to American interests and values at home and abroad. Even U.S. general stakeholders hold an unfavorable view of Muslims and find connections between Islam and violence. On the other side, Muslims perceive U.S. portfolio managers as anti-Islamic, inclined to punish Muslim states and degrade Islam. Frustrated with ineffectual and non-representative governments, Muslim militants, as special stakeholders, continue to challenge international peace and security. Great effort is needed to readjust and discard failed international portfolios. (Posted August 18, 2011)
Professor Michael Schwartz's article, "Improving Legal Education by Improving Casebooks: Fourteen Things Casebooks Can Do to Produce Better and More Learning," has been published at 3 Elon Law Review 27 (2011). Legal education has enough scholar-driven casebooks. What legal education needs are learning-centered casebooks written by experts in law teaching, casebooks that engage students in all three Carnegie apprenticeships, casebooks that make it easy for law professors to adopt best practices, casebooks that offer law teachers a different model. Professor Schwartz asserts that law teachers need casebooks that translate well-documented principles of instructional design to the creation of law school casebooks. Professor Schwartz uses the core, guiding principles of the Context and Practice Casebook Series as a mechanism for arguing for a new model of law school casebook design. He identifies fourteen features of casebooks in the Context and Practice Series that distinguish the books from some, most, and, in some instances, all other casebooks currently available in the legal education marketplace. Professor Schwartz describes innovations aimed at increasing the likelihood that practice-ready lawyers graduate from law school. He articulates what casebooks can take from the field of instructional design and addresses the most challenging aspect of the design, creating learning experiences that assist students in synthesizing their existing value systems with the value systems implicitly and explicitly taught in law school. Finally, Professor Schwartz describes the ways in which series books assist law teachers in being more effective as day-to-day classroom teachers, and explains what the books in the Context series do to assist law professors in providing students meaningful opportunities for practice and feedback and to make it easier for law teachers to conduct multiple and varied summative assessments. (Posted August 9, 2011)
Professor Linda Elrod's article, "A Child's Perspective of Defining a Parent: The Case for Intended Parenthood," has been published at 25 BYU Journal of Public Law 245 (2011). A child's sense of belonging begins soon after birth as the child learns to rely on caregivers for food, shelter, and love. The child does not care how those persons are labeled, only that there is stability and continuity in everyday life. The child does not know whether he or she was the product of sexual intercourse or assisted reproductive technologies (ART), whether he or she was born into a marriage or born to unmarried persons. Professor Elrod briefly reviews attachment theory as it relates to the importance of maintaining continuity and stability in parent-child relationships. She then looks at the increasing use of assisted reproductive technologies to produce children and explores the ways legislatures and courts have struggled to define the term "parent." A review of cases illustrates that some courts are broadly interpreting their statutes or fashioning a variety of equitable remedies to protect the child's relationship with a non-biological intentional parent. Professor Elrod concludes that in the absence of specific legislation, the state should use its role as parens patriae to protect children from harm by preventing disruption of existing intentionally-created parental relationships. The time has come for legislatures and courts to recognize a new category of parent - the intended parent. Especially when a child results from the use of assisted reproductive technologies, the best interest of the child requires the law to create non-modifiable parental rights to protect the emotional reality of the child and to preserve the child's attachment bonds. (Posted August 1, 2011)
Professor Ali Khan's article, "Fana and Baqa Infinities of Islam: Approaches to Islamic Law and Behavior," has been published at 7 University of St. Thomas Law Journal 511 (2010). Professor Khan draws two main conclusions. First, meeting both the permanent and evolutionary needs of Muslim communities, Islamic law is a normative composite of baqa (eternal) and fana (transient) sources of law. Islamic law founded on the Quran and the Prophet's Sunnah (Basic Code) offers normative permanence to the extent that fundamental values of the Basic Code cannot be amended or repealed. However, Islamic positive law, comprised of fiqh, legislation, case law, local customs, and international law, evolves under the submission principle, a principle that requires positive law to submit to the Basic Code. Accordingly, no rule of positive law can breach the Basic Code. No rule of positive law is Islamic unless it submits to the supremacy of the Basic Code. This study rejects text-skepticism under which the interpretation of a legal text can achieve the same purpose as textual amendment. Second, Islamic baqa and fana temporalities, interweaving the worldly life with afterlife, offer instructive insights into Muslim behavior. Because Muslims comply with laws to please God and to maximize personal rewards in the afterlife, their behavior cannot be fully explained, much less manipulated, through a worldly system of rewards and sanctions. Pleasing God, in some cases, can lead to unacceptable forms of self-righteousness. (Posted May 16, 2011)
Professor Amy Deen Westbrook's article, "Enthusiastic Enforcement, Informal Legislation: The Unruly Expansion of the Foreign Corrupt Practices Act," has been published at 45 Georgia Law Review 489 (2011). The Foreign Corrupt Practices Act (FCPA) was enacted over 30 years ago to prohibit bribery of foreign officials by U.S. persons. In the last few years, the Securities and Exchange Commission (SEC) and the Department of Justice (DOJ) have brought dramatically more cases than was the norm for the FCPA's first few decades, with dramatically increased penalties. At the same time, the substantive reach of the law has been extended. In short, the FCPA has been substantively rewritten – expanded – through the patterns of its recent enforcement. Expanding the reach of the FCPA can be understood as an agency response to complex developments in law, the global economy, and agency politics. Whatever the impetus, however, the transformation of the FCPA has been brought about by ad hoc enforcement actions, rather than legislation, judicial decision, or regulation. In the absence of formal process or reasoned articulation, the actual scope of the law is unclear. Consequently, businesses have little guidance in designing effective compliance programs, and may be more likely to violate the FCPA. Unruly enforcement is likely to inhibit, rather than promote, compliance. Therefore, the SEC and the DOJ should encourage compliance, and the establishment of effective compliance programs, by providing the business community with clear and general guidance on the scope of the FCPA. Professor Westbrook concludes with specific questions about the FCPA that the agencies should resolve. (Posted April 27, 2011)
Washburn University held its annual Employee Recognition Ceremony Tuesday, April 19, 2011. A number of Washburn Law staff and faculty were recognized for their years of service: Penny Fell (Faculty Support, 5 years); Sylvia Hurla (Library, 10 years); Mary Ramirez (Faculty, 10 years); Curtis Von Lintel (Library, 10 years); Rebecca Alexander (Library, 15 years); Nancy Gray (Library, 15 years); Cherie Bauer (Advancement, 25 years); Donna Haverkamp (Student Records, 25 years); and Martin Wisneski (Library, 25 years). Jewel Brueggeman-Makda was nominated in the administrative category for the Outstanding Service Award. Penny Fell, Shirley Jacobson, Donna McMurry and Kerri Pelton were nominees in the secretarial/clerical category for the Outstanding Service Award. (Posted April 25, 2011)
Washburn Law Journal celebrated the 50th anniversary of publication at a banquet held Saturday, April 16, 2011 at the Capitol Plaza Hotel in Topeka, Kansas. In addition to recognition of law journal members and presentation of awards the evening was highlighted by remarks from past editors. See the full story. (Posted April 20, 2011)
Award-winning author and human rights advocate Dr. Rose-Marie Belle Antoine gave two public presentations at Washburn University School of Law. She presented "Caribbean Human Rights" on Thursday, April 7, and "The Barbados Legal System" on Thursday, April 8. Professor Antoine's presentations were part of the visiting scholar program at Washburn Law and are sponsored by the law school's Study Abroad Program. See the full story. (Posted April 6, 2011)
Professor Aïda Alaka's article, "Learning Styles: What Difference Do the Differences Make?," has been published at 5 Charleston Law Review 133 (2011). As the legal academy contemplates education reform, many scholars are looking to education theory and best practices to guide curriculum and course design. This has resulted in the publication of several law journal articles discussing different aspects of learning theory, including learning styles. Broadly speaking, "learning styles" have been defined as "those cognitive, affective, and psychological behaviors that indicate how learners interact with and respond to the learning environment and how they perceive, process, store, and recall what they are attempting to learn." Most of law journal articles on learning styles presume the validity of the concept. The concept of learning styles is, and always has been, controversial, however. Many education psychologists and others involved in researching educational theories are highly critical of the notion that students possess fixed learning styles, which teachers must address so that the students can learn. In the last few years, two comprehensive literature reviews have been conducted to assess the theoretical and research bases underlying the spectrum of learning style theories. These two are just the most recent. And yet, many in legal education think of the existence of learning styles as being settled fact. They also think of them rather narrowly – primarily as a question of whether one has a visual, auditory, or kinesthetic style – although many different learning style theories exist. In her article Professor Alaka introduces the controversy surrounding the issue of learning styles and presents the critical bases for the controversy. She explains that most disinterested researchers are particularly skeptical of the "matching hypothesis"; that is, that one must teach to specific styles. As the first to address these issues in the context of legal education, Professor Alaka's article presents a unique perspective for those who seek to enhance teaching and learning in law schools. (Posted March 14, 2011)
Professor Jeffrey Jackson's article, "Putting Rationality Back into the Rational Basis Test: Saving Substantive Due Process and Redeeming the Promise of the Ninth Amendment," has been published at 45 University of Richmond Law Review 491 (2011). Substantive due process as currently practiced is broken. This doctrine, which provides that the Due Process Clauses of the Fifth and Fourteenth Amendments contain substantive limits on the power of federal and state governments, has been an important protector of rights since its beginnings in English law. However, as currently practiced by the Supreme Court of the United States, the tiered scrutiny formulation of substantive due process is illusory. Because a finding that a right is fundamental almost always leads to the conclusion that the law infringing it is invalid, courts are understandably cautious in recognizing new rights. However, the only alternative available is the rational basis test. This test, under its current interpretation, is too weak to protect important rights. The legitimacy problems with substantive due process as it is currently practiced have prompted many legal scholars to urge the abandonment of due process altogether in favor of other mechanisms of protecting unenumerated rights. As well-thought out as these proposed solutions are, however, they all share a fundamental problem as a practical manner: they would all require a substantial overhaul of the entire body of case law that has evolved around the due process doctrine in the last century and a half. Because of the practical problems involved with such an overhaul, these solutions are unlikely to be adopted. There is, however, another way in which substantive due process can be revitalized to better protect rights and provide a more consistent doctrine. The answer lies in strengthening the rational basis test. Professor Jackson examines the development of substantive due process from its English roots to its practice today. He concludes that, while substantive due process is currently broken, it can be revived through strengthening the rational basis test to allow courts to inquire into the purpose behind the legislation and to look at the link between the ends and means. Strengthening the rational basis test will provide a more consistent test and allow for better protection of important rights. (Posted February 11, 2011)
Professor Alex Glashausser's article, "A Return to Form for the Exceptions Clause," has been published at 51 Boston College Law Review 1383 (2010). This article challenges the prevailing doctrinal, political, and academic view that the Exceptions Clause - which provides that "the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make" - gives Congress a license to strip the Supreme Court of jurisdiction. Properly interpreted, the facially ambiguous clause instead allows Congress to shift cases within the Court's jurisdiction from appellate to original form. The word "Exceptions," that is to say, applies not to "Jurisdiction" but rather to "appellate." In its initial draft, the clause unmistakably affected only the form, not the existence, of jurisdiction: "This supreme jurisdiction shall be appellate only, except in those instances, in which the legislature shall make it original ... ." Professor Glashausser traces the devolution of that clear language into the final nebulous version, explaining at each step of the editing process why the Constitutional Convention delegates tinkered with the wording. As a result of what they thought were innocuous changes, the legislative exceptions power became susceptible to the misconception that it was confiscatory. It was meant to be transformative, allowing Congress to empower the Supreme Court by shifting important cases from appellate to original form. In short, the clause was designed not to eliminate cases, but to expedite them. (Posted February 11, 2011)
Professor William J. Rich's book, Modern Constitutional Law, 3rd ed. (West 2011) has been published. Professor Rich was invited by Professor Chester J. Antieau to write the second edition in 1994. After completion of the second edition Professor Rich continued to provide annual supplements. Several years ago it became apparent that a new edition was needed. The third edition benefits from a thorough reorganization as well as updating. The three volume set covers the broad areas of Liberty and Equality; Civil and Criminal Justice; and Government Structure. The work discusses such issues as: individual and government, societal interests in communication, association, religion, private property, freedom of enterprise, freedom of contract, equality, resolving clashes between societal interests in First Amendment freedoms, equal protection, the right to justice, the states and the federal government, federalism, separation of powers, and constitutional litigation. (Posted January 14, 2011)
