Graphic: Masthead for Washburn Law Journal (WLJ) Online.

Washburn Law Journal Online Archive

Dismantling the Great Writ [Gage v. Chappell, 793 F.3d 1159 (9th Cir. 2015).]

Brigid E. Markey | April 7, 2021 | Read this comment

Summary: George Gage was convicted of sex crimes against a minor. Although evidence at his first trial was enough to hang the jury, he faced another trial. Ultimately, Gage was convicted and sentenced to 70 years of imprisonment. A close inspection of his case reveals a growing trend in the criminal justice system—federal legislation has created intensive barriers to claims of innocence. The Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”) has worked to dismantle citizens’ ability to petition against their incarceration through habeas corpus. Before the AEDPA’s introduction, prisoners had vast freedom to petition their sentences at a federal level. Now, states are largely left alone in their criminal adjudications. This deference and added barriers from the AEDPA create a startling framework of Americans’ rights within the penal system.

Preferred Citation: Brigid E. Markey, Dismantling the Great Writ, 60 Washburn L.J. Online 83 (2021), https://washburnlaw.edu/wljonline/markey-dismantling-great-writ.

Myth Buster: Private Student Loans May Now
Be Discharged in States Within the Tenth
Circuit [McDaniel v. Navient Sols., LLC (In re
McDaniel), 973 F.3d 1083 (10th Cir. 2020).]

Madlaine N. Farmer | March 26, 2021 | Read this comment

Summary: The United States Court of Appeals for the Tenth Circuit affirmed the Colorado Bankruptcy Court’s discharge of private student loans because the debtor did not use the loans exclusively to pay for education, and as a result, the loans were found not to be within the meaning of 11 U.S.C. § 523(a)(8). All courts should adopt the Tenth Circuit’s discharge of private student loans, which should be treated similarly to general consumer loans. Discharging private student loans promotes the purpose of the bankruptcy system—to supply a debtor with a fresh start—and equitable application of the law. Additionally, discharge of debt stimulates the economy and reduces universities’ incentive to increase tuition costs.

Preferred Citation: Madlaine N. Farmer, Myth Buster: Private Student Loans May Now Be Discharged in States Within the Tenth Circuit, 60 Washburn L.J. Online 69 (2021), https://washburnlaw.edu/wljonline/farmer-private-student-loans.

Nonbiological Parents Beware: How the Court in In re W.L. Incorrectly Applied Frazier v. Goudschaal as a Result of Its Prejudice for a Nonbiological Parent [In re W.L., 441 P.3d 495
(Kan. Ct. App. 2019), review granted (Sept. 3,
2019).]

Rylee M. Broyles | March 17, 2021 | Read this comment

Summary: In In re W.L., a Kansas appellate court confidently proclaimed that Kansas law requires a written co-parenting agreement in order to recognize parentage of a nonbiological parent in an artificial reproductive technology (“ART”) case because the Kansas Supreme Court in Frazier v. Goudschaal said so. The only problem? That was not the holding in Frazier v. Goudschaal. An analysis of both cases suggests that the appellate court misstated the law in order to procure a particular outcome against an unfavorable nonbiological parent. As a result, it is likely that the Kansas Supreme Court will reverse the appellate court’s holding in In re W.L. when it reviews the case because the appellate court’s holding fails to consider Kansas’s public policy in ART cases.

Preferred Citation: Rylee M. Broyles, Nonbiological Parents Beware: How the Court in In re W.L. Incorrectly Applied Frazier v. Goudschaal as a Result of Its Prejudice for a Nonbiological Parent, 60 Washburn L.J. Online 57 (2021), https://washburnlaw.edu/wljonline/broyles-nonbiological-parents-beware.

Am I Going Insane or Did Kansas Abolish the Insanity Defense? [Kahler v. Kansas, 140 S. Ct.
1021 (2020).]

Emily R. Brandt | March 5, 2021 | Read this comment

Summary: The U.S. Supreme Court held that due process does not require states to adopt an insanity test that turns on a criminal defendant’s ability to recognize that their crime was morally wrong. A criminal defendant faces a high bar because a state rule about criminal liability violates due process only if it offends some principle of justice so rooted in the traditions and conscience of our people. The scope of criminal liability is complex and ever-changing, so its regulation is best left to states. The insanity defense is particularly complex due to the ever-evolving understandings of mental illness. Therefore, a particular version of the insanity defense cannot be constitutionalized.

However, the appropriate guiding factor in a due process analysis is history. Here, the Court analyzed the due process claim using complexity as its guiding factor. The complexity of a legal issue cannot replace the established rule that fundamental rights and liberties are those that are deeply rooted in this Nation’s history and tradition, implicit in the concept of ordered liberty, and essential to maintaining a fair and enlightened system of justice.

Preferred Citation: Emily R. Brandt, Am I Going Insane or Did Kansas Abolish the Insanity Defense?, 60 Washburn L.J. Online 45 (2021), https://washburnlaw.edu/wljonline/brandt-insanity.

To Appear or Not to Appear: An Explanation of General Appearance and When the Right to Object to Personal Jurisdiction Can Be Waived [In re Marriage of Williams, 417 P.3d 1033 (Kan. 2018).]

Benjamin S. Bigham | February 24, 2021 | Read this comment

Summary: In In re Marriage of Williams, the court found an implied waiver of the right to object to personal jurisdiction through a general appearance but failed to articulate any definition for it. The court concluded that a physical appearance by a defendant may constitute a general appearance, but it offered little precedential value for practitioners trying to establish or defend the occurrence of a general appearance that waived a defendant’s right to object to personal jurisdiction. This Comment clarifies what actions by a defendant will constitute a general appearance, thereby waiving the right to object to personal jurisdiction, by consolidating all available Kansas caselaw to create a workable definition for Kansas practitioners moving forward.

Preferred Citation: Benjamin S. Bigham, To Appear or Not to Appear: An Explanation of General Appearance and When the Right to Object to Personal Jurisdiction Can Be Waived, 60 Washburn L.J. Online 35 (2021), https://washburnlaw.edu/wljonline/bigham-generalappearance.

The Kansas Corporate Practice of Medicine [H.B. 2119, 88th Leg., Reg. Sess. (Kan. 2019).]

Christopher L. Grause | December 2, 2020 | Read this comment

Summary: The Kansas Corporate Practice of Medicine Doctrine forbids a general corporation from employing a physician with few exceptions. However, in 2019, the Kansas Legislature passed H.B. 2119, which recognizes such exceptions and allows corporations to employ physicians upon certification from the Board of Healing Arts. H.B. 2119, however, has not been interpreted by the Kansas Supreme Court. This newly-enacted bill could restrict the corporate practice of medicine, rather than expand it as intended.

Preferred Citation: Christopher L. Grause, The Kansas Corporate Practice of Medicine, 60 Washburn L.J. Online 29 (2020), https://washburnlaw.edu/wljonline/grause-medicine.

Post Wayfair: The Unconstitutionality of Kansas’s Taxation of Online Retailers [South Dakota v. Wayfair, Inc., 138 S. Ct. 2080 (2018).]

Kayla Dieker | November 11, 2020 | Read this comment

Summary: The United States Supreme Court, in its Wayfair decision, changed the way states tax online retailers. The Court overruled its prior physical presence requirement and, instead, held South Dakota had authority to tax retailers who exceed $100,000 in gross revenue or have more than 200 transactions in a calendar year. However, the Court was unclear about what quantity of business constitutes a substantial nexus. The Kansas Department of Revenue, in its Notice 19-04, likely does not satisfy the substantial nexus test because it does not include a safe harbor for online retailers doing small quantities of business in Kansas.

Preferred Citation: Kayla Dieker, Post Wayfair: The Unconstitutionality of Kansas’s Taxation of Online Retailers, 60 Washburn L.J. Online 19 (2020), https://washburnlaw.edu/wljonline/dieker-wayfair.

Damage Without Damages Caps [Hilburn v. Enerpipe Ltd., 442 P.3d 509 (Kan. 2019).]

Evan Hathaway | October 21, 2020 | Read this comment

Summary: The Kansas Supreme Court ruled that capping the recovery of noneconomic damages violates the right to a jury trial found in the Kansas Constitution. In so ruling, the court disregarded precedent, violating the doctrine of stare decisis. This ruling could result in invalidating laws that are beneficial to the public and the undermining of judicial stability.

Preferred Citation: Evan Hathaway, Damage Without Damages Caps, 60 Washburn L.J. Online 11 (2020), https://washburnlaw.edu/wljonline/hathaway-hilburn.

Filling in the Gaps: A Refutation of the Supreme Court’s Most Recent Partisan Gerrymandering Decision in Rucho v. Common Cause, 139 S. Ct. 2484 (2019).

Dylan P. Wheeler | September 30, 2020 | Read this comment

Summary: In Rucho v. Common Cause, the United States Supreme Court once again took on the issue of partisan gerrymandering, and whether such claims are justiciable at all. As with its previous decisions addressing this issue, the Court found that such claims present political questions the judiciary is not empowered to resolve due to a lack of politically neutral and manageable standards for resolving them. This Comment proposes that such standards do in fact exist, and suggests how these standards should be applied in future cases addressing partisan gerrymandering.

Preferred Citation: Dylan P. Wheeler, Filling in the Gaps: A Refutation of the Supreme Court’s Most Recent Partisan Gerrymandering Decision in Rucho v. Common Cause, 60 Washburn L.J. Online 1 (2020), https://washburnlaw.edu/wljonline/wheeler-gerrymandering.