Washburn Law Journal
Editor's Note
Volume 42, No. 3 (Spring 2003)
Following tradition, the third issue of the Washburn Law Journal is the compilation of scholarship presented at the 2002 Ahrens Advanced Tort Seminar. This year’s seminar focused on the timely issues of genomic torts, genetic testing, and privacy of genetic information. The Board appreciates Professor Charlene Smith’s assistance in coordinating the seminar articles.
The Journal is honored to present such a distinguished group of scholars in this issue. Professor Roger Brownsword from England's University of Sheffield; Dean David F. Partlett of Washington and Lee University School of Law; Mr. Thomas Parker Redick from the St. Louis law firm Gallop, Johnson & Neuman, L.C.; and Professor Heidi Li Feldman from Georgetown University Law Center provide a diverse discussion of genomic tort issues.
Accompanying some of this year’s articles are responses, which provide additional analysis on key issues. Washburn University School of Law Dean, Dennis R. Honabach, and Stephen F. Fink from the Dallas firm Thompson & Knight, LLP comment on Dean Partlett’s article. Professor Brownsword, along with Washburn University Professor of Law William J. Rich and Victoria M. Kumorowski, Associate Director of Pastoral Services, Forum Health, critique Professor Feldman’s analysis.
In addition to the lead articles, we present two Notes written by third-year students from the Washburn University School of Law. Geoffrey C. Sonntag analyzes the destruction of evidence exigency in Probable Cause, Reasonable Suspicion, or Mere Speculation?: Holding Police to a Higher Standard in Destruction of Evidence Exigency Cases. Lawrence W. Williamson, Jr. proposes a framework for protecting victims of pretexual searches in Profiling, Pretext, and Equal Protection: Protecting Citizens From Pretextual Stops Through the Fourteenth Amendment.
Additional student scholarship is presented through two case Comments written by second-year law students from the Washburn University School of Law. Steven J. Crossland critiques a recent Kansas Supreme Court case interpreting the landmark Apprendi v. New Jersey decision in Durational and Dispositional Departures Under the Kansas Sentencing Guidelines Act: The Kansas Supreme Court’s Uneasy Passage Through Apprendi-land. Abigail E. Robinson analyzes a United States Supreme Court case reviewing sexual abuse treatment programs in Kansas prisons in Treating the Sex Offender at Any Cost: Fifth Amendment Privilege Against Compelled Self-Incrimination in the Prison Context.
GNIP-GNOP Awards
The Free Society of GNIP-GNOP was formed in 1947 by nine Washburn University School of Law graduates. The group’s name is derived from its fondness for ping-pong. Originally, GNIP-GNOP was formed to recognize the top instructor at the law school. Once the group was dispersed throughout the United States, it became more difficult to keep track of faculty achievement. Consequently, they redirected their generosity toward the Washburn Law Journal.
Each year, the Board of Editors narrows all of the staff-written papers down to the top three Notes and Comments. The nominated works are then shipped to the GNIP-GNOP members for review. After consultation, the group awards significant cash prizes to the best Note and Comment each year at the annual awards banquet. One of the interesting award requirements is that the winner must be present at the banquet to claim the prize. If the winner is absent, the cash award goes to the runner-up.
This year’s Note prize recipient is John W. Broomes, for Maintaining Honor in Troubled Times: Defining the Rights of Terrorism Suspects Detained in Cuba. Receiving the Comment award is If You’ve Been Kissed, Who Do You Tell? Notice of Sexual Harassment Under a Title IX Claim written by Robin K. Carlson.
John F. Kuether Awards
Each year, the faculty recognizes the top Note and Comment with the John F. Kuether Awards. These awards are named after longtime Washburn Law Journal advisor, John F. Kuether. The Washburn Law Journal faculty committee reviews all published works and also awards cash prizes at the annual banquet. This year’s winners were John W. Broomes’ Note and Donald H. Snook’s Comment entitled Preserving Federalism or Perverting Constitutional Principles: A Conservative Critique of the Conservative Majority.
John D. Ensley Memorial Writing Award
The Washburn University School of Law presents the John D. Ensley Memorial Writing Award semi-annually to the student who writes the top memo in the Washburn Law Journal writing competition. The award memorializes John D. Ensley, a 1983 graduate of the Washburn University School of Law, whose experience on the Journal made him a careful practitioner of the craft of legal writing. The Spring 2002 recipient was Judith A. Taylor, and Steven J. Crossland was the Fall 2002 winner.
On a personal note, I would like to express my thanks to our secretary Tonya Worley for all of her assistance this year. She is an invaluable resource for every Board in more ways than most people know. Additionally, I extend my sincerest appreciation to Professor Myrl Duncan for his assistance and guidance. His desire to make the Washburn Law Journal the best it can be is infectious. I would be remiss if I did not thank the staff writers for everything they did to make this Volume a success. Their patience and hard work shows in the final product. A publication is only as good as its staff, and I believe our staff was truly exceptional.
Unlike previous volumes of the Washburn Law Journal, the third issue will not be the final installment of Volume 42. A special issue commemorating the centennial of the Washburn University School of Law has been planned and organized by the Volume 42 Editorial Board. It will be published as a special issue. Because the centennial will not be celebrated until 2004, the final issue of Volume 42 will be finalized by the incoming Editorial Board. We are grateful to Robin Carlson, Volume 43 Editor-in-Chief, for her cooperation and willingness to follow our plans for the final stages of the Centennial Issue.
From the beginning, this Board had visions to make the Washburn Law Journal better than when we found it. I am confident we were successful. Many of the innovations implemented were sweeping and dramatic, while others simply fine-tuned the process. To facilitate better writing, pre-writing roundtables were implemented with the Faculty Committee to assist writers early in the writing process. A case library was developed to help spark Comment writers in case selection. The source checking procedures were completely transformed into a group process. To maintain staff morale, an incentive program was started to recognize achievements by our staff members. To streamline the process, all production editing was computerized for the first time. Undoubtedly, however, this Board’s lasting contribution will be the new cover design for the Washburn Law Journal. This new "look" symbolizes our desire to make long-term contributions to the Washburn Law Journal.
There is no question that my job was made infinitely more enjoyable because I was able to work with such fine editors. Implementing so many changes would not have been possible without their insight and energy. Angie, Chip, Duston, Kari, Amy, Andy, Jeremy, Michelle, and Amanda have each contributed their dedication, skill, and heart to this publication. They performed their duties professionally, and that is evident in this Volume. Overall, we charted a new course for the Washburn Law Journal, and it is a course we hope leads it to even greater heights.
G.C.G.
Washburn Law Journal Dedicates This Issue to Professor James Wendell Bayles
The Washburn Law Journal is pleased to dedicate this issue of Volume Forty-Two to Professor James Wendell Bayles. After twenty years of teaching at the Washburn University School of Law, Professor Bayles is retiring. This issue is a special thank you from the Journal staff and editors, past and present, for Professor Bayles’ hard work and dedication.
Professor Bayles has had a rich and varied legal career. After graduating from the University of Utah and completing his LL.M. degree at New York University, he practiced in Salt Lake City. After several years practicing, he returned to his alma mater to teach. While at the University of Utah, Professor Bayles served as professor, associate dean, and CLE director. Years later, he returned to private practice, but taught as an adjunct professor at both Brigham Young University and the University of Utah. For the past two decades, Professor Bayles has taught at the Washburn University School of Law.
During his time at Washburn, Professor Bayles taught classes in taxation, property, and business associations. He also advised the Washburn Tax Law Society and oversaw the Volunteer Income Tax Assistance (VITA) program. He traveled with students to London to teach comparative real estate planning. He also served on the Washburn Law Journal faculty committee.
Professor Bayles’ own experience with law journal as a student provided him a unique perspective as an advisor. While at the University of Utah, he served as both articles editor and notes editor. He also edited the Tax Law Review as he worked toward his LL.M. degree at New York University. Professor Bayles continued to write once he graduated. He published several law review articles and authored a chapter on capital expenditures for a book on taxation.
His passion for the Journal is extraordinary. He spent countless hours assisting student writers. He offered topic ideas, commented on writing, located additional resources, and answered questions. He provided valuable advice and a kind, patient ear when writers needed to vent frustrations. He followed the writing to its finish; he mirrored students’ excitement when months of hard work materialized in published form. The Washburn Law Journal was indeed fortunate to have such an energetic and committed advisor.
Professor Bayles, as you retire, we are sure you feel a variety of emotions. One thing we certainly hope you are feeling is accomplishment. You have done what many professors and teachers everywhere strive to do. You have shared knowledge, you have challenged minds, and you have touched lives.
M.J.S.
Professor of the Year
Each year, the graduating class votes to honor a member of the Washburn University School of Law faculty as the William O. Douglas Outstanding Professor of the Year. Professor Gregory Pease was the recipient of this honor for the 2002-2003 academic year.
Professor Pease received his B.A. from Wichita State University and his J.D. from the University of New Mexico. Professor Pease served as Law Clerk to the Honorable Oliver Seth, Judge of the U.S. Court of Appeals for the Tenth Circuit. Prior to joining the Washburn Law School faculty, he taught at Ohio Northern Law School. Professor Pease's teaching responsibilities include Decedents' Estates, Trusts and Future Interests, Property, and Law and Literature.
The class of 2003 selected Brian J. Moline as Adjunct Professor of the Year. Mr. Moline received his B.A. from Wichita State University, a J.D. from Washburn University, and an M.P.A. from the University of Kansas. He teaches Insurance and Legal History. Mr. Moline is a Commissioner at the Kansas Corporation Commission.
The Washburn Law Journal is pleased to recognize the contributions of Professors Pease and Moline by acknowledging them in Volume 42, Issue 3.
