Washburn Law Journal Online, Volume 62

Oklahoma’s ‘Painful’ Opioid Litigation Reversal May Spell Trouble for Big Pharma Settlements

Yvonne Theresa SparrowSmith | October 4, 2023 | PDF Version (253 KB)

Preferred Citation: Yvonne Theresa SparrowSmith, Oklahoma’s ‘Painful’ Opioid Litigation Reversal May Spell Trouble for Big Pharma Settlements, 62 Washburn L.J. Online 4 (2022), https://washburnlaw.edu/wljonline/sparrowsmith-opioid.

Becerra v. Empire Health Found., 142 S. Ct. 2354 (2022) or: How I Learned to Stop Deferring and Forget Chevron

Nathan T. Seltzer | October 4, 2023 | PDF Version (205 KB)

Summary: On June 24, 2022, the Supreme Court decided a relatively obscure case over a Medicare provision.  The case marks another step in the trend of the Supreme Court ignoring Chevron deference. The Supreme Court had granted certiorari to resolve a circuit split in which the Ninth Circuit diverged from other circuits over the application of Chevron deference.  The Ninth Circuit applied Chevron analysis to overrule changes promulgated by the United States Department of Health and Human Services (“HHS”), while the Sixth and D.C. Circuits came to the opposite conclusion. But—in a surprising twist—the Supreme Court issued a decision without so much as a whisper of Chevron deference.  Instead, the Court applied general rules of statutory interpretation.

Preferred Citation: Nathan T. Seltzer, Becerra v. Empire Health Found., 142 S. Ct. 2354 (2022) or: How I Learned to Stop Deferring and Forget Chevron, 62 Washburn L.J. Online 3 (2023), https://washburnlaw.edu/wljonline/seltzer-chevron.

Free to Gerrymander the Free State: How Rivera v. Schwab Guarantees Partisan Gerrymandering in Kansas.

Lindsay N. Kornegay | March 28, 2023 | PDF Version (166 KB)

Summary: In Rivera v. Schwab, the Kansas Supreme Court held that partisan gerrymandering issues constitute nonjusticiable political questions in Kansas because state law does not provide discernible standards for adjudication.  Because the Kansas Legislature is unlikely to enact laws prohibiting partisan gerrymandering—and because a federal remedy does not currently exist—Rivera v. Schwab essentially guarantees a continuation of partisan gerrymandering in Kansas.

Preferred Citation: Lindsay N. Kornegay, Free to Gerrymander the Free State: How Rivera v. Schwab Guarantees Partisan Gerrymandering in Kansas, 62 Washburn L.J. Online 2 (2023), https://washburnlaw.edu/wljonline/kornegay-gerrymander.

No Static Solution: Does The Kansas Constitution Protect and Evolving Common Law?

Taylor Murray | Dec. 15, 2022 | PDF Version (175 KB)

Summary: In Tillman v. Goodpasture, the Kansas Supreme Court held that the Kansas Legislature could ban the tort of "wrongful birth" because the Kansas Constitution only protects torts that were established at common law when the Kansas Constitution was ratified.  The Kansas Constitution should instead be interpreted as protecting an evolving common law

Preferred Citation: Taylor Murray, No Static Solution: Does the Kansas Consitution Protect an Evolving Common Law, 62 Washburn L.J. Online 1 (2022), https://washburnlaw.edu/wljonline/murray-static.

The Right Pipeline for all the Wrong Reasons

John Spisak | November 10, 2022 | PDF Version (142 KB) Read this comment

Summary: The United States Supreme Court reversed the Third Circuit's ruling that Eleventh Amendment sovereign immunity barred private parties from exercising delegated federal eminent powers.  PennEast Pipeline Company held a Federal Energy Regulatory Commission certificate for public convenience and necessity authorizing the construction of a natural gas pipeline from Pennsylvania to New Jersey.  Even though the Court correctly held that the federal government can delegate its power to sue the nonconsenting states, the Court's reasoning did not rationally support its holding.

Preferred Citation: John Spisak, The Right Pipeline for All the Wrong Reasons, 62 Washburn L.J. Online 1 (2022), https://washburnlaw.edu/wljonline/spisak-pipeline.

The Bankruptcy Cheat Code: How Bad Actors Are Escaping Liability Through the Bankruptcy Code

Britani Potter | November 2, 2022 | PDF Version (166 KB) Read this comment

Summary: The U.S. District Court for the Southern District of New York vacated Purdue Pharma’s settlement plan that the Bankruptcy Court had approved because the plan included a release of liability in existing and potential future opioid related civil cases for individuals that are not parties to the bankruptcy proceeding.  The court found that there is no existing statutory authority to allow bankruptcy courts to authorize such third-party releases for non-debtors.  Allowing such releases provides for an escape of liability for knowingly bad acts—a purpose outside of what the bankruptcy system is intended to do.

Preferred Citation: Britani Potter, The Bankruptcy Cheat Code: How Bad Actors Are Escaping Liability Through the Bankruptcy Code, 62 Washburn L.J. Online 1 (2022), https://washburnlaw.edu/wljonline/potter-bankruptcy.