Washburn Law Journal
Editor's Note
Volume 48, No. 3 (Spring 2009)
It has been more than 100 days since President Barack Obama took office. Although his office has renounced a number of Bush Administration policies, many Bush Administration practices are still in place. For example, even though President Obama condemned the Bush Administration's use of rendition, he has reserved rendition as an option when dealing with foreign nationals. Additionally, despite his criticism of the Military Commission process during his candidacy, President Obama has decided to keep the Commissions with some changes intended to beef up the legal process afforded detainees. Surprising even to the judges involved, the Obama Administration recently invoked the "state secrets" privilege while arguing for the dismissal of a civil suit alleging the government used a Boeing subsidiary to arrange flights for rendition of detainees. In front of the United States Court of Appeals for the Sixth Circuit, the government attorney utilized the exact same argument as the Bush Administration. These continued practices, in particular President Obama's recent decision to maintain the Military Commissions, should cause us to question whether the practices are inappropriate, as originally argued by many politicians and scholars, or whether they are in fact necessary. Do the practices cause more harm than good? Or are they truly essential to keeping the United States safe?
This is the second issue dedicated to the The Rule of Law and the Global War on Terrorism: Detainees, Interrogations, and Military Commissions symposium, in which several of these questions have been addressed. In Everybody Talks: Evaluating the Admissibility of Coercively Obtained Evidence in Trials by Military Commission, Professor Christopher Behan considers whether coercive interrogation ever produces truly accurate and reliable information, and proposes a four-step process by which a judge presiding over a trial by Military Commission could decide whether to admit such evidence. This article is especially relevant considering President Obama's decision last month to retain Military Commissions.
Taking a very different approach, Professor Amos Guiora argues for the creation of an entirely new court for the trial of detainees. In Creating a Domestic Terror Court, Professor Guiora contends that the best and most feasible way to ensure detainees held by the United States-in Guantanamo, Bagram prison, and other post-9/11 detention facilities worldwide-receive due process and access to courts is to create a terror court. This article builds on Professor Guiora's previous scholarship by articulating the processes, procedures, and makeup of such a court.
In Fanning the Flames of Hatred: Torture, Targeting, and Support for Terrorism, Professors Michael O'Connor and Celia Rumann consider the practical effect of recent U.S. detention and interrogation practices. Professors O'Connor and Rumann argue that regardless of the legality of such practices, they have hindered the United States in its fight against terrorism. They contend that the controversial practices have strengthened recruiting by terrorist organizations and exacerbated "difficulties in obtaining human intelligence from Arab or Muslim sources."
Finally, this issue and this volume conclude with several student-written articles on a variety of topics. In Revising Model Rule 5.4: Adopting a Regulatory Scheme that Permits Nonlawyer Ownership and Management of Law Firms, Matthew Bish considers the viability and wisdom of allowing nonlawyers to purchase or receive as compensation an ownership interest in a law firm, a change that has already taken hold in Australia and England. Next, Brett Busch argues, in Workers' Compensation Benefits Go from Bad to Worse: The Kansas Supreme Court Eliminates the Parallel Injury Rule, that a recent Kansas Supreme Court decision reduced already meager workers' compensation benefits to an inadequate level and that the Kansas Legislature must respond to protect injured workers. Jennifer Horchem discusses a recent United States Court of Appeals for the Federal Circuit case in Water Scarcity: The Need to Apply a Regulatory Takings Analysis to Partial Restrictions on Water Use. She argues that courts should not apply a physical takings analysis to restrictions on water rights because it would prevent states from regulating the use of increasingly scarce water resources. In Correlative Rights Doctrine, Not the Rule of Capture, Provides Correct Analysis for Resolving Hydraulic Fracturing Cases, Theresa Poindexter argues that the Texas Supreme Court incorrectly applied the rule of capture in holding that subsurface trespass caused by the hydraulic fracturing of oil wells is not actionable. She concludes, nevertheless, that proper application of the doctrine of correlative rights reaches the same result, thereby permitting the continued use of hydraulic fracturing.
T.M.B.
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 John J. Francis was the recipient of this honor for the 2008-2009 academic year.
Professor John J. Francis
Professor of Law and Director of Washburn Law Clinic
Washburn University School of Law
William O. Douglas Outstanding Professor of the Year 2008-2009
Professor Francis' teaching responsibilities include the Washburn Law Clinic, Pretrial Advocacy: Criminal, Pretrial Advocacy: Civil, and Criminal Law. He received his B.A. in 1985 from Lafayette College and his J.D. from The American University, Washington College of Law in 1989. Following law school, he was a trial attorney at The New York City Legal Aid Society, Criminal Defense Division until 1994. Subsequently, he continued his practice as a Supervising Attorney with the clinical programs at Hofstra University Law School, where he supervised students in the Criminal Justice Clinic and Housing Rights Clinic. In 1999 Professor Francis came to Washburn to direct its nationally-renowned law clinic. He has taught in various trial practice programs and has coached the Washburn trial team. On a national level, he is active in clinical legal education, serving on the planning committee for the 2008 AALS Conference on Clinical Legal Education and as administrator for the national listserv for clinical professors. He was active on the Kansas Legal Services Board of Directors, serving as the board's vice president in 2004. He is admitted to practice in New York, Kansas, the District of Columbia, the United States District Court for Eastern District of New York and the District of Kansas, and the United States Court of Appeals for the Tenth Circuit.
The class of 2009 selected Carl William "Bill" Ossmann, as Adjunct Professor of the Year. Professor Ossmann is the Chief of Litigation at the Kansas Department of Social & Rehabilitation Services and teaches Trial Advocacy, Cross-Examination Techniques, and Taking & Defending Depositions.
The Washburn Law Journal is pleased to recognize the contributions of Professors Francis and Ossmann by acknowledging them in Volume 48, Issue 3.
