Law Commons^™

Grounding Cyberspeech: Public Schools' Authority To Discipline Students For Internet Activity, Sarah O. Cronan

Kentucky Law Journal

No abstract provided.

Creative Development: Helping Poor Countries By Building Creative Industries, Mark Schultz, Alec Van Gelder

Kentucky Law Journal

No abstract provided.

An Analysis Of Horse Racing Jockeys Riding Under Kentucky's Workers' Compensation Laws, Ian C. B. Davis

Kentucky Law Journal

No abstract provided.

Readin', 'Ritin','Rithmetic, And Responsibility: Advocating For The Development Of Controlled-Choice Student-Assignment Plans After Parents Involved, Sarah Sloan Wilson

Kentucky Law Journal

No abstract provided.

The True Colors Of Trademark Law: Greenlighting A Red Tide Of Anti Competition Blues, Ann Bartow

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.

The 2007 Amendments To The Kentucky Business Entity Statutes, Thomas E. Rutledge

Kentucky Law Journal

No abstract provided.

Telemarketers Gone Mobile: The Telephone Consumer Protection Act Of 1991 And Unsolicited Commercial Text Messages, J. Wesley Harned

Kentucky Law Journal

No abstract provided.

The African-American Child Welfare Act: A Legal Redress For African-American Disproportionality In Child Protection Cases, Jessica Dixon Weaver

Faculty Journal Articles and Book Chapters

This article proposes a radical change in the way African-American children and families are handled within the legal system when abuse and neglect are at issue. African-American disproportionality in child protection cases is significant for the United States because documentation shows that African-American children are overrepresented in the child welfare system in forty-eight states, although research shows that there is no difference in the occurrence of child abuse and neglect among the races. The first part of the article presents an overview of disproportionality by presenting the national statistics and research, revealing where racial bias and disparate treatment occurs within …

Henry F. Johnson, Professor Of Law (1981-2008), St. Mary’S University School Of Law, Bonita K. Roberts

Faculty Articles

As a way to deal with his loss, this eulogy honors Henry Johnson (1942-2008) by focusing on ten good things about him. As a former English teacher, he valued clarity and precision, which reflects another good thing about Henry: the importance of strong organization. His zest for travel enabled him to share voluminous details about countless countries around the world, including where the best restaurants and wineries were. No description would be complete without emphasizing his love for golf, but the most important thing about Henry was the way he cared for his family, friends, and animals.

A Tribute To Ernest A. Raba, Dean (1946 – 1978), St. Mary’S University School Of Law, Aloysius A. Leopold

Faculty Articles

Dean Ernest A. Raba was instrumental in establishing and building St. Mary’s University School of Law during his thirty-two year tenure as Dean of the Law School. He obtained accreditation for the law school from the American Bar Association and membership in the Association of American Law Schools. He obtained financing for three new buildings with the help of Governor John Connally, and then President Johnson. He also started the framework for $7.5 million grant from the Sarita Kenedy East Foundation for a new law library, and a new faculty building was named in his honor. In 1967, he helped …

The Law As Bard: Extolling A Culture's Virtues, Exposing Its Vices, And Telling Its Story, Adam J. Macleod

Faculty Articles

Before literacy rates in the English speaking world reached their apex (and long before they dropped into the trough they are now thought to occupy), before we commoners read newspapers (and long before we wrote blogs), before autobiographies crowded book shelves (and long before reality television created celebrities out of rather mean raw material), our cultural forebears appointed a rather singular individual to preserve for their children a record of their values, rituals, institutions, and assumptions: the bard.

The bard told stories. But the bard didn't tell just any stories. The bard told stories drawn from the fabric of which …

Why We Do The Things We Do? The Role Of Ethics In Water Resource Planning, Amy Hardberger

Faculty Articles

Water provides a natural framework in the role of ethics because ethical issues are present in every facet of water management. The value of water and the creation of ethics dictate decisions regarding water resource management. Value can be assessed from factors including happiness, well-being, or intrinsic value. Once a value is assessed, obligations that dictate actions regarding this issue are generated, and an ethic is created.

Various domestic and international policies have, both explicitly and implicitly, called for a human right to water. The presence of domestic and international policies that recognize or protect a person’s right to water …

Immigration Reform From The Outside In, Bill Piatt

Faculty Articles

Immigration reform is made up of two differing extreme positions, but by seeking common ground, a more fair and balanced approach may be adopted in the best interests of all.Rather than trying to analyze positions as conservative or liberal, it makes more sense to view the extremes as a “closed border” versus “open border” approach. The extreme positions will not work, so a more middle-ground position would require a thoughtful examination of a number of issues. Those issues are what are the costs and benefits of removing those already illegally here; what role should the federal, state, and local governments …

Corruption In Education: A Global Legal Challenge, Vincent R. Johnson

Faculty Articles

In every educational institution, in every country and generation, there is a struggle between corrupt practices and the continuing quest for high ethical standards. An educational institution is poorer if its members engage in corrupt practices. Such misfeasance wastes limited resources, demoralizes participants, and adversely affects productivity. The nature of this corruption is multi-faceted, and observes no geographic boundaries. It exists in every culture.

In some of these cases, educational corruption can be quite subtle. This is true where conduct that is neither criminal, fraudulent, nor a breach of fiduciary duty nevertheless undercuts the moral foundations of the educational enterprise. …

Data Security And Tort Liability, Vincent R. Johnson

Faculty Articles

Established tort principles carefully applied to the contemporary problems of cybersecurity and identity theft can perform a key role in protecting the economic foundations of modern life. Tort law offers an appropriate legal regime for allocating the risks and spreading the costs of database intrusion-related losses. It can also create incentives, on the part of both database possessors and data subjects, to minimize the harm associated with breaches of database security.

In considering this field of tort law, it is useful to differentiate three questions. The first issue is whether database possessors have a legal duty to safeguard data subjects’ …

Panel: Ethics-Based Decision-Making In Societal Water Management, Amy Hardberger

Faculty Articles

There is an ethical overlay to water-related decision-making and management, frequently drawing on personal experiences with water and the ubiquitous need for water. The modern South African Bill of Rights, ensuring its people’s access to water; the movement towards recognizing water as a basic human right; and even occurrences in Texas, including the passage of “environmental flows legislation” and the efforts to preserve and protect the Edwards Aquifer, reflect the presence of ethics in decision-making with respect to water management. Ethics are a part of water management decision-making.

From Policy To Reality: Maximizing Urban Water Conservation In Texas, Amy Hardberger

Faculty Articles

Ensuring that Texas is sustainable in the 21st century depends in large part on smart management of the state’s water resources. A central element of that challenge is improving the efficiency of water use in the rapidly growing urban areas of the state. More efficient water use technologies, more sophisticated understanding of water pricing, and the ability to more carefully measure water use at both the individual and municipal level provide new opportunities to reach advanced levels of water use efficiency.

Water supply planning is constantly evolving and forces such as population growth and climate change are making it more …

Anna R. Igra, Wives Without Husbands: Marriage, Desertion, & Welfare In New York, 1900-1935, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

No abstract provided.

The Failure Of Title Vii As A Rights-Claiming System, Deborah L. Brake, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

This Article takes a comprehensive look at the failure of Title VII as a system for claiming nondiscrimination rights. The Supreme Court's recent decision in Ledbetter v. Goodyear Tire & Rubber Company, 127 S. Ct. 2162 (2007), requiring an employee to assert a Title VII pay discrimination claim within 180 days of when the discriminatory pay decision was first made, marks the tip of the iceberg in this flawed system. In the past decade, Title VII doctrines at both ends of the rights-claiming process have become increasing hostile to employees. At the front end, Title VII imposes strict requirements on …

Patients Without Borders: The Emerging Global Market For Patients And The Evolution Of Modern Health Care, Nathan Cortez

Faculty Journal Articles and Book Chapters

This article addresses the unique legal, policy, and ethical questions that arise when patients travel to foreign jurisdictions for medical care. A growing number of patients are leaving the United States, and employers, insurers, and even government payors are beginning to explore whether they can reduce spending by utilizing hospitals and physicians in developing countries. Because this is a dramatic leap, it has generated countless media stories, and has drawn attention from the WHO, WTO, World Bank, and U.S. Senate - many of which believe so-called medical tourism may transform health care here and abroad.

Despite this attention, the market …

The Curious Appellate Judge: Ethical Limits On Independent Research, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

Appellate judges in the twenty-first century find themselves in a world in which litigation - both civil and criminal - involves a vast array of complex and technical factual disputes. These lawsuits, in turn, may cause judges to seek a greater level of expertise in order to deal competently with the evidence that will be relevant to the disputes. At the same time, advances in communication technology have brought the world's library to the courthouse, requiring no onerous trips across town or index searches but only the click of a mouse. This combination of felt need and ready access has …

Judicial Hellholes, Lawsuit Climates, And Bad Social Science: Lessons From West Virginia, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

The American Tort Reform Association (ATRA) was founded in 1986 by the American Medical Association and American Council of Engineering Companies, and now has hundreds of corporate members. Every year, ATRA releases a list of Judicial Hellholes: court systems alleged to be unfair to defendants. The name is definitely catchy: the thought of a judicial hellhole invokes images of Kafka, Satan and the Queen of Hearts. No wonder ATRA's hellhole campaign has embedded itself in media vocabulary. And no wonder state courts and state legislatures bend over backwards to get out from under the hellhole label. Similarly, the U.S. Chamber …

Punishing Family Status, Jennifer M. Collins, Ethan J. Leib

Faculty Journal Articles and Book Chapters

This Article focuses upon two basic but under-explored questions: when does, and when should, the state use the criminal justice apparatus to burden individuals on account of their familial status? We address the first question in Part I by revealing a variety of laws permeating the criminal justice system that together form a string of family ties burdens, laws that impose punishment upon individuals on account of their familial status. The seven burdens we train our attention upon are omissions liability for failure to rescue, parental responsibility laws, incest, bigamy, adultery, nonpayment of child support, and nonpayment of parental support. …

Caregiving And The Case For Testamentary Freedom, Joshua C. Tate

Faculty Journal Articles and Book Chapters

Almost all U.S. states allow individuals to disinherit their descendants for any reason or no reason, but most of the world's legal systems currently do not. This Article contends that broad freedom of testation is defensible because it allows elderly people to reward family members who are caregivers. The Article explores the common-law origins of freedom of testation, which developed in the shadow of the medieval rule of primogeniture, a doctrine of no contemporary relevance. The growing problem of eldercare, however, offers a justification for the twenty-first century. Increases in life expectancy have led to a sharp rise in the …

A Traditionalist Case For Gay Marriage, Dale Carpenter

Faculty Journal Articles and Book Chapters

This article presents an argument for same-sex marriage within traditionalism or Burkeanism school of conservatism. The author begins by describing briefly Burkean conservatism. Second, he sketches, based on that description, a case against the recognition of gay marriages. Third, the author outlines an affirmative argument for same-sex marriage. Fourth, he reconsiders, in the light of those arguments, the Burkean case against same-sex marriage. Finally, he discusses what a Burkean conservative ought to say about the pace and the process for achieving same-sex marriage.

Straight Acting, Dale Carpenter

Faculty Journal Articles and Book Chapters

This article explores the meaning of “straight acting,” a term one often hears among gay people. How, why, and by whom is it used? What purposes does it serve and what purposes does the reaction to it serve? How does its use by gays compare to the use of the term “acting white” by blacks? And, since this is a law journal, there's the necessary question: what is law's role in straight acting?

The Enigma Of Standing Doctrine In Texas Courts, William V. Dorsaneo Iii

Faculty Journal Articles and Book Chapters

This Article examines federal and Texas standing doctrine and makes recommendations for the principled application of the traditional non-jurisdictional approach of the procedural defense of standing under Texas law for common law claims and statutory rights of action and for the concomitant restriction of the jurisdictional aspects of standing to litigation brought by private persons and governmental units to enforce public rights or compel the performance of public duties. This Article also explains how the concepts of standing and capacity can be reconciled and harmonized.

Taming The Beast: Payday Loans, Regulatory Efforts, And Unintended Consequences, Mary B. Spector

Faculty Journal Articles and Book Chapters

This Article examines the payday loan phenomenon, reviews state and federal attempts to regulate it, and explores its most recent appearance under the protection of state CSO laws designed to protect overextended consumers. Part II examines the transaction and the parties involved: what is a payday loan; who makes them; and who are the customers? Part III describes state and federal attempts to regulate payday lending. Part IV explores states' attempts to protect credit-seeking consumers with laws designed to regulate CSOs and the payday loan's emergence between the lines of this regulation. Part V concludes with some thoughts on approaches …

Rethinking Recycling, Jeffrey M. Gaba

Faculty Journal Articles and Book Chapters

Subtitle C of the Resource Conservation and Recovery Act (RCRA) establishes the so-called “cradle to grave” regulatory program over hazardous “solid wastes.” Although not obviously wastes, the United States Environmental Protection Agency (EPA) has consistently asserted jurisdiction to regulate some class of recyclable materials under Subtitle C. It has done this through a regulatory definition of “solid waste” that establishes a complex and confusing scheme that includes, excludes, and exempts recyclable materials from regulatory requirements in an almost incomprehensible fashion. In 2008, EPA added to this complexity by promulgating a new set of conditional exclusions that exempts certain reclaimed materials …