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Bizarre Love Triangle: The Spending Clause, Section 1983, And Medicaid Entitlements, Nicole Huberfeld

Law Faculty Scholarly Articles

The first two terms of the Roberts Court signal a willingness to revisit precedent, even decisions that have been considered long-settled, and the United States Supreme Court may be ready to reinterpret another area of jurisprudence: the private enforcement of conditions on federal spending against states through actions under 42 U.S.C. § 1983. The most recent pre-Roberts Court precedent is Gonzaga University v. Doe, a 2002 decision that made it more difficult for individuals harmed by violations of federal laws to enforce rights through § 1983 actions. Federal courts have inconsistently and confusingly applied the Gonzaga framework, but the …

Is The Right To Vote Really Fundamental?, Joshua A. Douglas

Law Faculty Scholarly Articles

This Article poses a question at the core of our democracy: Is the constitutional right to vote a fundamental right? The answer, surprisingly, is “not always.”

For over forty years, the Supreme Court has fostered confusion surrounding the right to vote by creating two lines of election law cases. In one breath the Court calls the right to vote fundamental and applies strict scrutiny review. In another, the Court fails to recognize the right as fundamental and uses a lower level of scrutiny. These two lines of cases have coexisted, leaving lower courts and litigants with little guidance on how …

Copyright And Permissions: Sometimes They're The Same, Kopana Terry

Library Presentations

No abstract provided.

The Moral Significance Of Social Roles, James M. Donovan

James M. Donovan

Outside of specialized contexts, moral philosophy lacks an appreciation of the ethical commitments embedded within social roles such as that of "friend" and "spouse." The costs of this blindspot become especially high when considering certain problems that depend upon commonsense intuitions to discern what is or is not the "right" outcome. The problem of partiality--viewing one's relationships and projects as having intrinsic worth in themselves, rather than as a means to some other end, such as can be the case in some forms of utilitarianism--is one such example.

The present paper shows how unpacking the moral entailments of the roles …

Nihilism With A Happy Ending? The Interstate Commerce Commission And The Emergence Of The Post-Enlightenment Paradigm, Mark F. Kightlinger

Law Faculty Scholarly Articles

This Article examines early Supreme Court opinions about the Interstate Commerce Commission (ICC)—the first federal administrative agency—in an effort to identify the intellectual roots of the modern administrative state. The Article argues that the Court's effort to explain and justify the function of the newborn ICC shows the traces of a post-Enlightenment crisis in the field of moral philosophy—i.e., the growing conviction that it is no longer possible for reasonable people to agree on what constitutes a true, objective, universally valid standard of reasonable or just conduct. From this essentially nihilistic starting point, the Court helped to fashion a new …

Civil Resolution Of Ecclesiastical Disputes, Paul E. Salamanca

Law Faculty Popular Media

In this article for Bench & Bar Magazine (the Kentucky Bar Association's magazine), Professor Paul E. Salamanca discusses three historically prominent approaches to solving legal problems in ecclesiastical disputes.

Rights As Fairness, James M. Donovan

James M. Donovan

Edmundson characterizes the historical emergence of the idea of human rights out of the conceptual divergence between objective and subjective right, which he places in the Middle Ages. Objective right recognizes the justice of a given state of affairs. “Suppose I take St. Francis’ sandals without his permission. ‘Thou shalt not steal’—I have violated objective right, I have transgressed God’s commandment. But where does St. Francis come into the picture? We want to add, ‘St. Francis has a right to his sandals’” (Edmundson 2004, p. 9). He considers the appearance of this psychological foregrounding of the right-holder as a necessary …

Bumping Along The Bottom: Abandoned Principles And Failed Fiduciary Standards In Uniform Partnership And Llc Statutes, Rutheford B. Campbell Jr.

Law Faculty Scholarly Articles

Over the last decade or so, the National Conference of Commissioners on Uniform State Laws (NCCUSL) has promulgated a series of uniform laws dealing with unincorporated business entitites. The Uniform Partnership Act (1997) (RUPA), the Uniform Limited Partnership Act (2001) (ULPA (2001)), and the Uniform Limited Liability Company Act (1996) (ULLCA) are recent and important iterations of these uniform laws. One or more of these Acts have been adopted in many states and are certain to garner additional adoptions in the coming years.

Each of the Acts contains provisions that prescribe the fiduciary duties of the entity's managers. The managers' …

Succeeding In The Candidate Pool: Resources Available At Association Of American Law Schools For Persons Interested In Becoming A Law School Dean, David A. Brennen

Law Faculty Scholarly Articles

This article covers three areas that fall under the author’s supervision as Deputy Director of the Association of American Law Schools (AALS). First, the author will discuss the two Deans Databanks that he administers, which relate directly to increasing diversity among the ranks of law school deans in America: the Women Deans Databank and the Minority Deans Databank. In particular, the author will address how these two databanks reflect the core values of the AALS and how the databanks function in the deanship process. Second, the author will discuss the Law Deanship Manual an AALS publication that addresses nearly every …

Clear Notice For Conditions On Spending, Unclear Implications For States In Federal Healthcare Programs, Nicole Huberfeld

Law Faculty Scholarly Articles

This Article explores Arlington Central School District Board of Education v. Murphy, a decision rendered by the first Roberts Court that may become a benchmark for Spending Clause jurisprudence. The majority in Arlington, led by Justice Alito, adopted the standard for constitutional conditions on spending that had been the dissenting view for years during the Rehnquist Court. More specifically, under the Pennhurst and Dole regime, the Court required Congress to provide "adequate" notice of conditions on spending, which seemed to be sufficient for the clear statement rule the Court (through Justice O'Connor) was seeking to institute. Arlington refashioned …

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 …

The Flood Of Pregnancy Discrimination Cases: Balancing The Interests Of Pregnant Women And Their Employers, Jennifer Yue

Kentucky Law Journal

No abstract provided.

Myspace Is Also Their Space: Ideas For Keeping Children Safe From Sexual Predators On Social-Networking Sites, Susan Hanley Duncan

Kentucky Law Journal

No abstract provided.

Rock Of Ages: Why Kentucky's Use Of The Abandonment Test In Deciding The Ownership Of Mineral Refuse Is Inadequate, Monica Hobson Braun

Kentucky Law Journal

No abstract provided.

Reining In The Horse Racing Industry: A Proposal For Federal Regulation Of Steroid Use In Racehorses, Jennifer M. Jabroski

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Current Awareness Alerts Make The Internet Revolve Around You, James M. Donovan

James M. Donovan

Shares ways for busy lawyers to utilize tech-savvy methods to receive desired news and information.

Legal Anthropology: An Introduction, James M. Donovan

James M. Donovan

LEGAL ANTHROPOLOGY: AN INTRODUCTION offers an initial overview of the challenging debates surrounding the cross-cultural analysis of legal systems. Equal parts review and criticism, the author outlines the historical landmarks in the development of the discipline, identifying both strengths and weaknesses of each stage and contribution. LEGAL ANTHROPOLOGY suggests that future progress can be made by treating as the distinguishing feature of law the perceived fairness of structural inequalities of social systems, rather than the traditional emphasis upon sanction or dispute resolution.

The Public Trust In Private Hands: Social Security And The Politics Of Government Investment, Benjamin A. Templin

Kentucky Law Journal

No abstract provided.

Huber Winery V. Wilcher: The Commerce Clause, State Regulations And The Free Trade Of Wine, William H. Brammell Jr.

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Opening The Door: Recognizing The Many Hats Of Jockeys For Workers' Compensation Coverage, Erin N. Malony

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

State Regulation Of Complementary And Alternative Veterinary Therapies: Defining The Practice Of Veterinary Medicine In The 21st Century, Milton C. Toby

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Topping V. Commissioner: An Example Of How An Equestrian Taxpayer Can Utilize "Single Activity" To Preclude The Irs "Hobby Loss" Challenge, Anna I. Garcia

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

The New Retiree Health Vebas, Kathryn L. Moore

Law Faculty Scholarly Articles

Granted tax exempt status since 1928, Voluntary Employees' Beneficiary Associations (VEBAs) have received considerable attention since the fall of 2007 when General Motors, Ford, and Chrysler reached separate landmark agreements with the United Auto Workers union pursuant to which the companies agreed to contribute billions of dollars to VEBAs in exchange for transferring their retiree health care liabilities to the VEBAs. Specifically, General Motors agreed to contribute $31.9 billion while Ford agreed to contribute $13.6 billion, and Chrysler agreed to contribute $11 billion. Sometimes referred to as "defeasance" VEBAs, these "new," "stand-alone" retiree health VEBAs, differ significantly from traditional VEBAs …

“There's Danger Here, Cherie!”: Liability For The Promotion And Marketing Of Drugs And Medical Devices For Off-Label Uses, Richard C. Ausness

Law Faculty Scholarly Articles

Physicians often prescribe prescription drugs and other medications for uses that are not approved by the Food and Drug Administration ("FDA"), and such "off label" prescription is widely accepted within the medical community as a legitimate form of treatment. However, the federal government discourages off-label prescription and use in various ways. For example, the FDA restricts the dissemination of information by drug companies about potential off-label therapies. In addition, federally funded health insurance programs such as Medicaid do not reimburse health care providers for off-label uses. Because drug companies make large profits from off-label prescriptions, they are often tempted to …

The Future Of Social Security: Principles To Guide Reform, Kathryn L. Moore

Law Faculty Scholarly Articles

On February 12, 2008, the nation's first Baby Boomer, Kathleen Casey-Kirschling, was the first of her generation to receive a Social Security retirement benefit. Born one second after midnight on January 1, 1946, Ms. Casey-Kirschling was born just eleven years after the Social Security system was originally enacted, nine years after the first Social Security payroll taxes were collected, and six years after the system first began to pay monthly retirement benefits.

"As the nation's first Baby Boomer, Ms. Casey-Kirschling is leading what is often referred to as America's silver tsunami. Over the next two decades, nearly eighty million Americans …

The Denial Of Emergency Protection: Factors Associated With Court Decision Making, Carol E. Jordan, Adam J. Pritchard, Pamela Wilcox, Danielle Duckett-Pritchard

Office for Policy Studies on Violence Against Women Publications

Despite the importance of civil orders of protection as a legal resource for victims of intimate partner violence, research is limited in this area, and most studies focus on the process following a court’s initial issuance of an emergency order. The purpose of this study is to address a major gap in the literature by examining cases where victims of intimate partner violence are denied access to temporary orders of protection. The study sample included a review of 2,205 petitions that had been denied by a Kentucky court during the 2003 fiscal year. The study offers important insights into the …

Reflections On The Technicolor Right To Association In American Labor And Employment Law, Paul M. Secunda

Kentucky Law Journal

No abstract provided.

Thou Shall Not Hunt: A Historical Introduction To And Discussion Of The Modern Debate Over Sunday Hunting Laws, Mike Balestra

Kentucky Law Journal

No abstract provided.

Where Are You Hurt? Kentucky Redefines Workers' Compensation Injury In A Post-Traumatic Stress Disorder World, James M. Inman

Kentucky Law Journal

No abstract provided.

Giving Millennials A Leg-Up: How To Avoid The "If I Knew Then What I Know Now" Syndrome, Leslie Larkin Cooney

Kentucky Law Journal

No abstract provided.