Law Commons^™

Reviving The Federal Crime Of Gratuities, Sarah N. Welling

Law Faculty Scholarly Articles

The federal crime of gratuities prohibits people from giving gifts to federal public officials if the gift is tied to an official act. Both the donor and the donee are liable. The gratuities crime is dysfunctional in two main ways. It is overinclusive in that it covers conduct indistinguishable from bribery. It is underinclusive in that it does not cover conduct that is clearly dangerous: gifts to public officials because of their positions that are not tied to a particular official act.

This Article argues that Congress should extend the crime of gratuities to cover gifts because of an official’s …

Property In Law: Government Rights In Legal Innovations, Stephen Clowney

Law Faculty Scholarly Articles

One of the most enduring themes in American political thought is that competition between states encourages legal innovation. Despite the prominence of this story in the national ideology, there is growing anxiety that state and local governments innovate at a socially suboptimal rate. Academics have recently expressed alarm that the pace of legal experimentation has become "extraordinarily slow," "inefficient," and "less than ideal." Ordinary citizens, too, seem concerned that government has been leeched of imagination and the dynamic spirit of experimentation; both talk radio programs and newspapers remain jammed with complaints about legislative gridlock and do-nothing politicians who cannot, or …

Pfo Law Reform, A Crucial First Step Towards Sentencing Sanity In Kentucky, Robert G. Lawson

Law Faculty Scholarly Articles

The purpose of this article is to engage in some analysis and discussion of the part of this sentencing law that cries out loudest for reform (the state's persistent felony offender law), reform that in short order would begin to deflate the population that has our prisons and jails grossly overcrowded. In this analysis and discussion, there is some brief consideration of the justifications used to support repeat offender laws (Part I), a segment on the history and evolution of Kentucky's law (Part II), an examination of a selection of repeat offender laws from other states (Part III), a report …

Tell Me What You Eat, And I Will Tell Whom To Sue: Big Trouble Ahead For “Big Food"?, Richard C. Ausness

Law Faculty Scholarly Articles

Overweight consumers are seeking damages from purveyors of fast food for obesity-related health problems. Plaintiffs claim that products that are high in fat, sugar, salt and cholesterol are defective. Other potential liability theories include product category liability, failure to warn, failure to disclose nutritional information, deceptive advertising, and negligent marketing. However, in order to prevail at trial, plaintiffs must overcome problems with causation, duty and proximate cause, shifting responsibility, federal preemption, comparative fault, and assumption of risk. If such litigation is successful, it may induce fast-food companies to produce healthier products. Nevertheless, this Article concludes that the problem of obesity, …

Legislative Intent And Statutory Interpretation In England And The United States: An Assessment Of The Impact Of Pepper V. Hart, Michael P. Healy

Law Faculty Scholarly Articles

Statutory interpretation is the process of discerning the meaning of legislation, and U.S. law has permitted courts to find meaning through a variety of often contradictory interpretive approaches. As a result, U.S. litigants often are uncertain about the interpretive approach a court will apply to a statute, even though the choice of the interpretive approach may determine the outcome of the litigation. Until the recent decision in Pepper (Inspector of Taxes) v. Hart, English approaches to statutory interpretation were more circumscribed because English courts foreclosed the intentionalist approach. This Article considers the impact that Pepper has had on statutory …

The Case For A "Strong" Regulatory Compliance Defense, Richard C. Ausness

Law Faculty Scholarly Articles

Federal administrative agencies have established safety standards or licensing procedures for airplanes, motor vehicles, pesticides, drugs, medical devices, and a variety of other products. At the same time, product sellers are subject to tort liability even though their products comply with applicable federal safety standards. Product sellers maintain that compliance with federal safety standards ought to protect them from liability under state tort law and have relied upon several legal principles to support this claim. The first, and most successful, theory is federal preemption. Under this concept, Congress may expressly or impliedly assert the primacy of federal law under the …

Legislative Process And Commercial Law: Lessons From The Copyright Act Of 1976 And The Uniform Commercial Code, Harold R. Weinberg, William J. Woodward Jr.

Law Faculty Scholarly Articles

Overlap and conflict are inevitable in any legal system in which a federal government and state governments both have authority to enact laws. In our federal system, the Constitution's Supremacy Clause identifies federal law as preeminent in case of conflict. When conflict develops and litigation is required to determine whether state or federal law controls the issue at hand, our system analyzes the problem using the term preemption as a basis for analysis.

This Article explores the federal legislative process that precedes judicial preemption decisions. By studying the legislative process for its sensitivity to preemption issues, possible ways to modify …

Water Rights Legislation In The East: A Program For Reform, Richard C. Ausness

Law Faculty Scholarly Articles

Expanding municipal and Industrial demand, along with increasing use of supplemental irrigation have escalated consumptive water use dramatically In the Eastern United States since World War II. This escalated use already has caused water shortages in some parts of the East, and experts predict more widespread water supply problems In the future.

As the inadequacies of the common law water rights system in a water-scarce environment have become evident, many eastern states have supplemented or replaced common law rules with some form of statutory water allocation system. Typically, these statutes establish a permit system administered by a state water resources …

Water Use Permits In A Riparian State: Problems And Proposals, Richard C. Ausness

Law Faculty Scholarly Articles

Although adequate supplies of water are generally available in Kentucky, the law governing its use and allocation is much less satisfactory. At present, Kentucky water law is a complex mixture of common law and statutory water rights. The purpose of this article is to evaluate these water rights and suggest a number of improvements. Part I will examine the common law rules as they relate to both surface water and ground water. Part II will focus upon Kentucky's present system of statutory water use regulation and will identify some of its more serious deficiencies. Part III will recommend some short-range …

Kentucky Law Survey: Commercial Law And Consumer Credit, Harold R. Weinberg

Law Faculty Scholarly Articles

This article is a survey of commercial law and consumer credit in the Commonwealth of Kentucky. The most significant development during the past survey year was the demise of the holder in due course doctrine and other related doctrines which insulated creditors financing consumer sales from consumer claims and defenses. As a result of this development, consumers will now be able to assert claims or defenses arising out of the sale financed against the financer under certain circumstances. Other developments also surveyed herein relate to the Uniform Commercial Code statutes of frauds and prejudgment creditors’ remedies.

State Ex Rel. Swann V. Pack: Self-Endangerment And The First Amendment, Sarah N. Welling

Law Faculty Scholarly Articles

For many years there has been some controversy over whether an individual has the right to endanger himself if his conduct threatens no direct harm to others. This issue has come up in a number of contexts including committing suicide, wearing a helmet while riding a motorcycle, engaging in endurance contests, and refusing a medically indicated blood transfusion. Recently it was raised again when the Holiness Church of God in Jesus Name in the mountains of Tennessee went to court over the right of its members to drink poison. On September 8, 1975, the Supreme Court of Tennessee handed down …

A Survey Of State Regulations Of Dredge And Fill Operations In Nonnavigable Waters, Richard C. Ausness

Law Faculty Scholarly Articles

Several states have recently enacted legislation regulating dredge and fill operations in certain classes of nonnavigable waters. Professor Ausness examines some of the decisions arising under these acts to determine if any distinguishable trend has emerged regarding the nature and extent of constitutional limitations on the regulation of such activities.

Sentencing: The Good, The Bad, And The Enlightened, Rutheford B. Campbell Jr., Bill Cunningham

Law Faculty Scholarly Articles

In June, 1968 the Kentucky Crime Commission, in keeping with legislative instruction, made certain recommendations for a change in Kentucky's current treatment of crime and punishment. Within its report was a suggestion that sentencing in all non-capital criminal cases be rendered by the judge instead of the jury. Thus, it must be emphasized that this discussion is confined only to sentencing in noncapital cases.

The authors have arrived at a definite recommendation which is offered at the conclusion of the paper. It is our opinion that the suggestion outlined is not only the most efficient and proper but also the …