Law Commons^™

Burdine V. Johnson -- To Sleep, Perchance To Get A New Trial: Presumed Prejudice Arising From Sleeping Counsel, James M. Donovan

James M. Donovan

Few images slice as deeply into our self-image as a fair society than that of a defendant on trial for his very life depending upon the services of an attorney who naps throughout the proceedings. Although this scenario is not new, the courts have yet to resolve definitively how they should respond to a defendant burdened with snoozing counsel. This note discusses the outcome of the latest attempt. UPDATE: While a conscious lawyer is presumably a requirement of due process, some jurisdictions make no similar demand that judges remain awake: see http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2007/273.html

10th Biennial Judge Joe Lee Bankruptcy, Office Of Continuing Legal Education At The University Of Kentucky College Of Law

Continuing Legal Education Materials

Materials from the 10th Biennial Judge Joe Lee Bankruptcy Institute held December 2001.

Communis Opinio And The Methods Of Statutory Interpretation: Interpreting Law Or Changing Law, Michael P. Healy

Law Faculty Scholarly Articles

Interpretive methodology lies at the core of the Supreme Court's persistent modern debate about statutory interpretation. Supreme Court Justices have applied two fundamentally different methods of interpretation. One is the formalist method, which seeks to promote rule-of-law values and purports to constrain the discretion of judges by limiting them to the autonomous legal text. The second is the nonformalist or antiformalist method, which may consider the legislature's intent or purpose or other evidence as context for understanding the statutory text. The debate within the current Court is commonly framed and advanced by Justices Stevens and Scalia. Justice Scalia is now …

Burdine V. Johnson -- To Sleep, Perchance To Get A New Trial: Presumed Prejudice Arising From Sleeping Counsel, James M. Donovan

Law Faculty Scholarly Articles

Few images slice as deeply into our self-image as a fair society than that of a defendant on trial for his very life depending upon the services of an attorney who naps throughout the proceedings. Although this scenario is not new, the courts have yet to resolve definitively how they should respond to a defendant burdened with snoozing counsel. This note discusses the outcome of the latest attempt. UPDATE: While a conscious lawyer is presumably a requirement of due process, some jurisdictions make no similar demand that judges remain awake: see http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2007/273.html

Discriminatory Housing Statements And §3604(C): A New Look At The Fair Housing Act’S Most Intriguing Provision, Robert G. Schwemm

Law Faculty Scholarly Articles

Today, more than three decades after the 1968 Fair Housing Act ("FHA") banned such behavior, blatant discrimination—often accompanied by racist slurs and other explicitly discriminatory statements—continues to plague America's housing markets. The FHA not only outlawed discrimination in most housing transactions on the basis of race, color, religion, and national origin, but also contained a specific prohibition, § 3604(c), banning all discriminatory housing statements. Unlike the FHA's more traditional prohibitions against discriminatory refusals to deal and discriminatory terms and conditions, § 3604(c)'s ban on discriminatory statements has not been the subject of much litigation or debate.

Part I of the …

Trade Secrets, Non-Competes, And Unfair Competition, Office Of Continuing Legal Education At The University Of Kentucky College Of Law

Continuing Legal Education Materials

Materials from the conference on Trade Secrets, Non-Competes, and Unfair Competition held by UK/CLE in October 2001.

Evidence And Trial Practice, Office Of Continuing Legal Education At The University Of Kentucky College Of Law

Continuing Legal Education Materials

Materials from the conference on Evidence and Trial Practice held by UK/CLE in October 2001.

Baby Steps Or One Fell Swoop?: The Incremental Extension Of Rights Is Not A Defensible Strategy, James M. Donovan

Law Faculty Scholarly Articles

The problem of incrementalism emerges from the common practice of limiting certain rights only to groups on certified lists. Section I reviews this problem of the list, and how the failure of lists to include gay men and lesbians profoundly impacts their daily lives. Possible strategic responses to this problem (such as doing nothing, interpreting the current list to include us, eliminating the list altogether, or expanding the list to include us explicitly) are considered in Section II, concluding by focusing on a special kind of gradualism, list incrementalism. List incrementalism occurs when a right is extended to new groups …

Baby Steps Or One Fell Swoop?: The Incremental Extension Of Rights Is Not A Defensible Strategy, James M. Donovan

James M. Donovan

The problem of incrementalism emerges from the common practice of limiting certain rights only to groups on certified lists. Section I reviews this problem of the list, and how the failure of lists to include gay men and lesbians profoundly impacts their daily lives. Possible strategic responses to this problem (such as doing nothing, interpreting the current list to include us, eliminating the list altogether, or expanding the list to include us explicitly) are considered in Section II, concluding by focusing on a special kind of gradualism, list incrementalism. List incrementalism occurs when a right is extended to new groups …

Collection Law In Kentucky, Office Of Continuing Legal Education At The University Of Kentucky College Of Law

Continuing Legal Education Materials

Materials from the conference on Collection Law in Kentucky held by UK/CLE in September 2001.

Textualism’S Limits On The Administrative State: Of Isolated Waters, Barking Dogs, And Chevron, Michael P. Healy

Law Faculty Scholarly Articles

In Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, the U.S. Supreme Court recently held that the U.S. Army Corps of Engineers (the Corps) does not have authority under the Clean Water Act (the Act or the CWA) to regulate the filling of “other waters.” This decision demonstrates a major shift in the Court's approach to statutory interpretation, particularly in the context of reviewing an agency’s understanding of a statute. The significance of the case is best gauged by contrasting it with United States v. Riverside Bayview Homes, Inc. There, the Court, acting …

28th Annual Midwest/Midsouth Estate Planning Institute, Office Of Continuing Legal Education At The University Of Kentucky College Of Law

Continuing Legal Education Materials

Materials from the 28th Annual Midwest/Midsouth Estate Planning Institute held by UK/CLE in July 2001.

Estate Litigation In Kentucky, Office Of Continuing Legal Education At The University Of Kentucky College Of Law

Continuing Legal Education Materials

Materials from the conference on Estate Litigation in Kentucky held by UK/CLE in July 2001.

Raising The Social Security Retirement Ages: Weighing The Costs And Benefits, Kathryn L. Moore

Law Faculty Scholarly Articles

The Social Security program faces a long-term funding deficit. The Board of Trustees of the Federal Old-Age and Survivors and Disability Insurance ("OASDI") Trust Funds predicts that unless corrective action is taken, Social Security benefit payments will exceed dedicated tax revenues by the year 2015, and the Social Security program will become insolvent—unable to pay promised benefits in full-by the year 2037. As a result of this projected deficit, Social Security has become "a lightning rod for far reaching reform proposals."

Proposals range from "traditional" proposals that would maintain the basics of the program's revenue and benefit structure but would …

Case Note: The Office Of The Independent Counsel And Grand Jury Secrecy, Melissa N. Henke

Law Faculty Scholarly Articles

In In re Sealed Case No. 99-3091, the D.C. Circuit ruled on a motion for summary reversal of an order entered by the U.S. District Court for the District of Columbia ("District Court"), where such order required the Office of Independent Counsel Kenneth Starr ("OIC") to provide evidence as to why the OIC should not be held in contempt for violating the grand jury secrecy rule, Rule 6(e). The alleged violation of grand jury secrecy concerned a New York Times article that contained information about the grand jury investigation of President William J. Clinton, and which named the OIC as …

21st Annual Conference On Legal Issues For Financial Institutions, Office Of Continuing Legal Education At The University Of Kentucky College Of Law

Continuing Legal Education Materials

Materials from the 21st Annual Conference on Legal Issues For Financial Institutions held by UK/CLE in April of 2001.

3rd Annual Computer & Technology Law Institute, Office Of Continuing Legal Education At The University Of Kentucky College Of Law

Continuing Legal Education Materials

Materials from the 3rd Annual Computer & Technology Law Institute held by UK/CLE in March 2001.

The Best Of Times And The Worst Of Times: Lessons From Recent Reforms Of The French Retirement System, Kathryn L. Moore

Law Faculty Scholarly Articles

Principally because of increasing life expectancy and the fact that the baby boom generation is reaching retirement age and is followed by a much smaller generation, the American social security system is facing a long-term funding deficit. The Board of Trustees of the Federal Old-Age and Survivors and Disability Trust Funds predicts that unless corrective action is taken, social security benefits will exceed dedicated tax revenues by the year 2016, and the social security system will become insolvent, that is, unable to pay benefits in full, by the year 2038.

The United States is not alone in facing these circumstances. …

Introduction: From Sheet Music To Mp3 Files—A Brief Perspective On Napster, Harold R. Weinberg

Law Faculty Scholarly Articles

The Napster case is the current cause celebre of the digital age. The story has color. It involves music-sharing technology invented by an eighteen-year-old college dropout whose high school classmates nicknamed him "The Napster" on account of his perpetually kinky hair. The story has drama. Depending on your perspective, it pits rapacious big music companies against poor and hardworking students who just want to enjoy some tunes; or it pits creative and industrious music companies seeking a fair return on their invested effort, time, and money against greedy and irreverent music thieves. And the case has importance. Music maybe intellectual …

Trademark Law, Functional Design Features, And The Trouble With Traffix, Harold R. Weinberg

Law Faculty Scholarly Articles

This article concerns trademark law's functionality doctrine and the Supreme Court's troublesome opinion concerning it in TrafFix Devices, Inc. v. Marketing Displays, Inc. The doctrine provides that if a producer's useful or aesthetic design feature is "functional," then competitors can lawfully copy it even if the feature otherwise would be protected against copying by trademark principles. In order to introduce the functionality doctrine and the trouble with TrafFix, it is helpful to describe the nature of design features, the simultaneous roles they may play as source-identifying trade symbols and as useful or aesthetic product elements, and trademark law's place …

Equal Opportunity For Employers: Elevating The Adverse Employment Action Standard To Allow Only Meritorious Retaliation Claims, Wendy Hyland

Kentucky Law Journal

No abstract provided.

Pharmaceutical Patent Protection: More Generic Favored Legislation May Cause Pioneer Drug Companies To Pull The Plug On Innovation, Mandy Wilson

Kentucky Law Journal

No abstract provided.

Judging And Democracy, Diarmuid F. O'Scannlain

Kentucky Law Journal

No abstract provided.

Does Apprendi V. New Jersey Change The Standard Of Proof In Criminal Forfeiture Cases?, Stefan D. Cassella

Kentucky Law Journal

No abstract provided.

Religion, Establishment, And The Northwest Ordinance: A Closer Look At An Accommodationist Argument, Thomas Nathan Peters

Kentucky Law Journal

No abstract provided.

Who Said Nothing In This World Is Free? A&M Records, Inc. V. Napster, Inc.: Problems Presented, Solutions Explored, And Answers Posed, Ryan C. Edwards

Kentucky Law Journal

No abstract provided.

From Outlaws To In-Laws: Issues Surrounding The Evolving Legal Status Of Lesbian And Gay Individuals, Christopher S. Hargis

Kentucky Law Journal

No abstract provided.

Procedural Rules Or Procedural Pretexts?: A Case Study Of Procedural Hurdles In Constitutional Challenges To The Texas Sodomy Law, Christopher R. Leslie

Kentucky Law Journal

No abstract provided.

"Simply So Different": The Uniquely Expressive Character Of The Openly Gay Individual After Boy Scouts Of America V. Dale, Nancy J. Knauer

Kentucky Law Journal

No abstract provided.

Tribute To Frederick W. Whiteside, Jr., Robert G. Lawson, William H. Fortune, Rutheford B. Campbell Jr.

Law Faculty Scholarly Articles

A series of tributes to Frederick W. Whiteside, Jr., a professor at the University of Kentucky College of Law.