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Kentucky Law Journal

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Full-Text Articles in Law

What Is Sexual Orientation?, Mary Ziegler Jan 2018

What Is Sexual Orientation?, Mary Ziegler

Kentucky Law Journal

At a time when the Supreme Court seems closer than ever before to treating sexual orientation as a suspect classification, consideration of the legal definition of sexual orientation is both timely and important. The Court’s 2015 decision in Obergefell recognizes two guideposts for defining sexual orientation: its immutability and normalcy. While other scholars offer rich and nuanced accounts of the fight for gay, lesbian, transgender, and bisexual rights, they do not fully analyze the history of sexual orientation as a legal category. This Article closes that gap, illuminating the hidden costs of the definition of sexual orientation that Obergefell ...


Justice Against Sponsors Of Terrorism: Why Suing Terrorists May Not Be The Most Effective Way To Advance United States Foreign Policy Objectives, Drew Watkins Jan 2018

Justice Against Sponsors Of Terrorism: Why Suing Terrorists May Not Be The Most Effective Way To Advance United States Foreign Policy Objectives, Drew Watkins

Kentucky Law Journal

No abstract provided.


Removing Recalcitrant County Clerks In Kentucky, Shawn D. Chapman Jan 2017

Removing Recalcitrant County Clerks In Kentucky, Shawn D. Chapman

Kentucky Law Journal

Events in 2015 surrounding Rowan County Clerk Kim Davis showed how removing county clerks from office is not a simple task in Kentucky. At present, removal can be accomplished only by the same dfficult means required to remove a state-wide executive offlcer, meaning the county clerk has the same tenure as the governor and attorney general. Historically, however, the county clerk was removable by other, lesser means, as were all other county officers. Today, the other county offcers are still removable by those lesser means, but the county clerk is not, resulting in a removal gap. That gap first appeared ...


Certificate Of Need In The Post-Affordable Care Act Era, Emily Whelan Parento Jan 2017

Certificate Of Need In The Post-Affordable Care Act Era, Emily Whelan Parento

Kentucky Law Journal

Certifcate of need ("CON") programs were conceived approximately fifty years ago as supply constraint mechanisms for healthcare services, in an environment that is essentially unrecognizable today. Every aspect of the healthcare landscape has changed dramatically, particularly in the years since the enactment of the Affordable Care Act. The historical rationales in support of CON programs have been vigorously questioned by scholars across disciplines, roundly criticized by the federal government, and largely disproven by research. Yet the status quo persists with thirty-five states retaining CON laws, due in large part to a combination of entrenched interests and polrical inertia that prevents ...


Improving Protections For Whistleblowers: Why Congressional And Agency Intent Helped Provide The Second Circuit With The Correct Answer Of Encouraging Reporting Of Securities Violations, Alison M. Zeitlin Jan 2017

Improving Protections For Whistleblowers: Why Congressional And Agency Intent Helped Provide The Second Circuit With The Correct Answer Of Encouraging Reporting Of Securities Violations, Alison M. Zeitlin

Kentucky Law Journal

No abstract provided.


What The Polls Produce: Why Kentucky Should Retain Nonpartisan Elective Selection Of Its Supreme Court Justices, Nolan M. Jackson Jan 2017

What The Polls Produce: Why Kentucky Should Retain Nonpartisan Elective Selection Of Its Supreme Court Justices, Nolan M. Jackson

Kentucky Law Journal

No abstract provided.


Predictors Of Municipal Bankruptcies And State Intervention Programs: An Exploratory Study, Laura N. Coordes, Thom Reilly Jan 2017

Predictors Of Municipal Bankruptcies And State Intervention Programs: An Exploratory Study, Laura N. Coordes, Thom Reilly

Kentucky Law Journal

Why do some struggling cities file for bankruptcy while others, facing simiar circumstances, do not? This Article builds on the literature examining the causes and consequences ofmunicipal fiscal distress by exploring specific factors that lead municipalities to seek help from the state and federal government. Viewing municipal opportunities and constraints through political, economic, and legal lenses, this Article helps to explain the nuances ofmunicival decision making.

After identifiing eight factors that may serve as predctors of municipal insolvency, the authors studied cities in Fiscal distress with an eye toward uncovering the circumstances that led each of these cities into and ...


Legalzoom And Online Legal Service Providers: Is The Development And Sale Of Interactive Questionnaires That Generate Legal Documents The Unauthorized Practice Of Law?, Emily Mcclure Jan 2017

Legalzoom And Online Legal Service Providers: Is The Development And Sale Of Interactive Questionnaires That Generate Legal Documents The Unauthorized Practice Of Law?, Emily Mcclure

Kentucky Law Journal

No abstract provided.


Expanding Reach: The Importance Of Batson V. Kentucky Thirty Years On, Melynda J. Price J.D., Ph.D. Jan 2017

Expanding Reach: The Importance Of Batson V. Kentucky Thirty Years On, Melynda J. Price J.D., Ph.D.

Kentucky Law Journal

No abstract provided.


The Smug Assumption Of Reverse Discrimination: Abigail Fisher And Fisher V. University Of Texas At Austin, R. Nicholas Rabold Jan 2017

The Smug Assumption Of Reverse Discrimination: Abigail Fisher And Fisher V. University Of Texas At Austin, R. Nicholas Rabold

Kentucky Law Journal

Many expected Fisher v. University of Texas at Austin (Fisher I), 133 S. Ct. 2411 (2013)—an appeal from the Court ofAppeals for the Fifth Circuit upholding the University of Texas at Austin's race-conscious admissions program—to sound the death knell for race-based affirmative action in higher education. Instead, in remanding the case back to -the Fifth Circuit, the Supreme Court of the United States upheld the consideration of race in college admission programs, so long as such use could satisfy strict scrutiny. Nonetheless, Fisher I concerned academics and practitioners with its potentially limiting language, leaving the future of ...


Government As Investor: The Case Of Immediate Expensing, Rebecca N. Morrow Jan 2017

Government As Investor: The Case Of Immediate Expensing, Rebecca N. Morrow

Kentucky Law Journal

For more than sixty years, tax scholars have recognized conditions under which the government ceases to be a mere taxing entity—imposing a rate of tax on a business’s profits—and through the operation of tax law becomes more like an investment partner—contributing its fair share of capital to new investments and proportionately sharing in losses as well as gains. These conditions, which are satisfied by immediate expensing policies, are now common.

The investment partner analogy has been analyzed from the perspective of a taxpayer who, as a result of partnership-like treatment, enjoys returns on investment that are ...


The Cost Of Hope At The End Of Life: An Analysis Of State Right-To-Try Statutes, Tamara J. Patterson Jan 2017

The Cost Of Hope At The End Of Life: An Analysis Of State Right-To-Try Statutes, Tamara J. Patterson

Kentucky Law Journal

No abstract provided.


Taking A Step Back. Racial Injustice In America, Mark Peffley, Jeffrey Mondak Jan 2017

Taking A Step Back. Racial Injustice In America, Mark Peffley, Jeffrey Mondak

Kentucky Law Journal

No abstract provided.


Implementing Medicaid Health Homes To Provide Medication Assisted Treatment To Opioid Dependent Medicaid Beneficiaries, Page M. Smith Jan 2017

Implementing Medicaid Health Homes To Provide Medication Assisted Treatment To Opioid Dependent Medicaid Beneficiaries, Page M. Smith

Kentucky Law Journal

No abstract provided.


Multiple Claims, Limited Funds, And Conflicting Duties: Kentucky's Need For Clarity In Liability Insurance And Claims Of Bad Faith, James Grant Sharp Jan 2017

Multiple Claims, Limited Funds, And Conflicting Duties: Kentucky's Need For Clarity In Liability Insurance And Claims Of Bad Faith, James Grant Sharp

Kentucky Law Journal

No abstract provided.


A Call To Criminal Courts: Record Rules For Batson, Catherine M. Grasso, Barbara O'Brien Jan 2017

A Call To Criminal Courts: Record Rules For Batson, Catherine M. Grasso, Barbara O'Brien

Kentucky Law Journal

No abstract provided.


Bringing In The Sheaves: Combating Televangelists' Abuse Of The Internal Revenue Code, Cody S. Barnett Jan 2017

Bringing In The Sheaves: Combating Televangelists' Abuse Of The Internal Revenue Code, Cody S. Barnett

Kentucky Law Journal

No abstract provided.


Immigrant Passing, Andrew Tae-Hyun Kim Jan 2016

Immigrant Passing, Andrew Tae-Hyun Kim

Kentucky Law Journal

The metaphor of America as a "melting-pot" is as old as this country's founding. In its aspirational reach and inclusive vision, this storied narrative is alluring. This assimilationist norm is deeply woven into our culture and laws. But the demand to assimilate can easily cross the ine into unlawful discrimination and exact untold harms on an individual's identity For over eleven million undocumented immgrants in the United States, many of whom have lived here for generations, the story of inclusion smacks of fiction. To remedy their daily fear of deportation and obviate the need to hide, the Obama ...


Front Matter For Volume 105, Kentucky Law Journal Jan 2016

Front Matter For Volume 105, Kentucky Law Journal

Kentucky Law Journal

No abstract provided.


No State Left Behind: An Analysis Of The Post-Egtrra Death Tax Landscape And An Argument For Kentucky To Repeal State Death Taxes, Mary Ellen Wimberly Jan 2016

No State Left Behind: An Analysis Of The Post-Egtrra Death Tax Landscape And An Argument For Kentucky To Repeal State Death Taxes, Mary Ellen Wimberly

Kentucky Law Journal

No abstract provided.


Tinker Tortured: The Scope Of Student Off-Campus Viral Speech Rights In The Federal Circuits, Kevin Nathaniel Troy Fowler Jan 2016

Tinker Tortured: The Scope Of Student Off-Campus Viral Speech Rights In The Federal Circuits, Kevin Nathaniel Troy Fowler

Kentucky Law Journal

No abstract provided.


The Use Of False Dna Evidence To Gain A Confession During Interrogation Is Classic Coercion: Why Such Coerced Confessions Should Not Be Admissible In A Criminal Trial, Andrea Reed Jan 2016

The Use Of False Dna Evidence To Gain A Confession During Interrogation Is Classic Coercion: Why Such Coerced Confessions Should Not Be Admissible In A Criminal Trial, Andrea Reed

Kentucky Law Journal

No abstract provided.


Governmental Acquiescence In Private Party Searches: The State Action Inquiry And Lessons From The Federal Circuits, Eugene L. Shapiro Jan 2016

Governmental Acquiescence In Private Party Searches: The State Action Inquiry And Lessons From The Federal Circuits, Eugene L. Shapiro

Kentucky Law Journal

In an area characterized by a significant potential for governmental abuse, judicial examination of whether governmental acquiescence in a specific private party search constitutes state action, consequently subject to Fourth Amendment constraints, has often lacked appropriate focus and depth. An examination of the standards used among the federal circuits reveals prevalent approaches which identify the circumstances bearing upon the matter, but which address them under "multi-factored" totality of the circumstances standards. The result has too often been a lack of specificity in discussing the issues and a failure to provide needed clarity for law enforcement.

This article examines the analyses ...


#Advocacy: Social Media Activism's Power To Transform Law, Stacey B. Steinberg Jan 2016

#Advocacy: Social Media Activism's Power To Transform Law, Stacey B. Steinberg

Kentucky Law Journal

Attorneys influence the actions of legislators, courts, and community leaders by working alongside social movements. Together, these advocates seek to challenge the status quo by setting precedent that will ensure equality and justice for all individuals. While social movements often use social media to convey their message or to gather support for their cause, many attorneys are unfamiliar with leveraging this powerful new technology.

Social media platforms provide a low-cost, fast, and easy-to-use tool that effectively disseminates information and helps advocates garner support for their cause. However, some social change advocates, including lawyers and policymakers, are hesitant to get involved ...


Judicial Review Of Direct Democracy: A Reappraisal, Michael E. Solimine Jan 2016

Judicial Review Of Direct Democracy: A Reappraisal, Michael E. Solimine

Kentucky Law Journal

In his dissent in Arizona State Legislature v. Arizona Independent Redistricting Commission in 2015, Justice Clarence Thomas argued that the Supreme Court had been inconsistent in the rigor it employs when considering constitutional challenges to the products of direct democracy, i.e., referenda and initiatives. Some cases seemed to use stricter scrutiny, and others lesser scrutiny, as compared to challenges to ordinary legislation. Justice Thomas argued that the review of direct democracy should be the same as for ordinary legislation, a proposition with which this Article agrees. This Article challenges the position advanced by Professor Julian Eule over twenty-five years ...


Batson V. Kentucky Reflections Inspired By A Podcast, Nancy S. Marder Jan 2016

Batson V. Kentucky Reflections Inspired By A Podcast, Nancy S. Marder

Kentucky Law Journal

An episode of More Perfect, a podcast devoted to the US. Supreme Court, focused on Batson v. Kentucky, which just marked its thirtieth anniversary. This podcast serves as the starting point for reflections on Batson v. Kentucky, a case in which the Court maintained the peremptory challenge while trying to eliminate discriminatory peremptory challenges. The podcast contributes to our understanding of Batson in several ways. First, it allows listeners to hear from participants in the case and how they viewed their situation at the time. Second, it considers whether Batson has been effective in ridding jury selection of race-based peremptory ...


Letter From The Editor, R. Nicholas Rabold Jan 2016

Letter From The Editor, R. Nicholas Rabold

Kentucky Law Journal

No abstract provided.


Human Development As A Core Objective Of Global Intellectual Property, J. Janewa Osei'tutu Jan 2016

Human Development As A Core Objective Of Global Intellectual Property, J. Janewa Osei'tutu

Kentucky Law Journal

Global intellectual property obligations shape domestic laws and policies. More than twenty years since the first multilateral trade-based intellectual property agreement, critics contend that global intellectual property law prioritizes intellectual property rights over other interests, and profits over people. Faced with international intellectual-property obligations, nations have been forced to justify laws and policies designed to promote human development in areas such as health and education as exceptions to intellectual property protection. This is the result of legal interpretations that treat the objectives of intellectual property protection and human development as inconsistent with one another. Drawing on the objectives of trade ...


Digging Out Of The Hole: Arguments Against The Use Of Juvenile Solitary Confinement In Kentucky, Mary Ann Lee Jan 2016

Digging Out Of The Hole: Arguments Against The Use Of Juvenile Solitary Confinement In Kentucky, Mary Ann Lee

Kentucky Law Journal

No abstract provided.


An Unconventional Approach To Reviewing The Judicially Unreviewable: Applying The Dormant Commerce Clause To Copyright, Donald P. Harris Jan 2016

An Unconventional Approach To Reviewing The Judicially Unreviewable: Applying The Dormant Commerce Clause To Copyright, Donald P. Harris

Kentucky Law Journal

No abstract provided.