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2009

University of Kentucky

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Articles 1 - 30 of 49

Full-Text Articles in Law

Back Away From The Survey Monkey!, James M. Donovan Nov 2009

Back Away From The Survey Monkey!, James M. Donovan

James M. Donovan

In an environment of too many—and too many ill-designed—surveys, our twin aims should be to reduce the number of surveys overall and to improve the quality of those that do circulate. This burden falls on both those who distribute questionnaires—to make them as efficient as possible—and those answering—to decline to participate in any project that shows signs of unthoughtful design, thereby forcing surveyors to “up their game.” Good surveying, a difficult task in the best of circumstances, becomes even more complicated when pushed through the favored medium of the online discussion list (commonly called a listserv), a choice that can …


Performing Discretion Or Performing Discrimination: An Analysis Of Race And Ritual In Batson Decisions In Capital Jury Selection, Melynda J. Price Oct 2009

Performing Discretion Or Performing Discrimination: An Analysis Of Race And Ritual In Batson Decisions In Capital Jury Selection, Melynda J. Price

Law Faculty Scholarly Articles

Research shows the mere presence of Blacks on capital juries--on the rare occasions they are seated--can mean the difference between life and death. Peremptory challenges are the primary method to remove these pivotal participants. Batson v. Kentucky developed hearings as an immediate remedy for the unconstitutional removal of jurors through racially motivated peremptory challenges. These proceedings have become rituals that sanction continued bias in the jury selection process and ultimately affect the outcome of capital trials. This Article deconstructs the role of the Batson ritual in legitimating the removal of African American jurors. These perfunctory hearings fail to meaningfully interrogate …


Broun Is Mere Opportunist, James M. Donovan May 2009

Broun Is Mere Opportunist, James M. Donovan

James M. Donovan

Only Congressman Paul Broun could compress so many misleading statements and factual errors into such a brief space, beginning with his appeal to the Founding Fathers.

Online version available at http://www.onlineathens.com/stories/051509/let_439920953.shtml


The Significance Of The Shift Toward As-Applied Challenges In Election Law, Joshua A. Douglas Apr 2009

The Significance Of The Shift Toward As-Applied Challenges In Election Law, Joshua A. Douglas

Law Faculty Scholarly Articles

Election law is experiencing immense change. The Supreme Court’s recent approach to election law cases has significant implications for the scope of the right to vote and the meaning of political participation and self-governance. This Article examines the importance of the Court’s recent pronouncement that plaintiffs can bring election law challenges only as applied to a particular political actor for a particular situation, instead of challenging a law in its entirety. The “as-applied only” rule may seem like simply a procedural method for construing election laws or a mere semantic distinction, but, as I show, in reality the Court’s decisions …


Who's Afraid Of Redistribution? An Analysis Of The Earned Income Tax Credit, Jennifer Bird-Pollan Apr 2009

Who's Afraid Of Redistribution? An Analysis Of The Earned Income Tax Credit, Jennifer Bird-Pollan

Law Faculty Scholarly Articles

In the 2008 Presidential campaign, the American public was reminded time and again of the differences in the economic policies of the nominees: John McCain would cut taxes, and Barack Obama would raise them, although only on those earning over $250,000. In the final days of the campaign, the McCain camp accused Obama of proposing “redistribution,” and the Obama camp quickly denied that description. So why do presidential candidates run so quickly from the r-word? McCain’s senior policy advisor equated redistribution with socialism, but redistribution, in the form of the federal income tax system, is a central tenet of American …


Advancing The Study Of Violence Against Women: Evolving Research Agendas Into Science, Carol E. Jordan Apr 2009

Advancing The Study Of Violence Against Women: Evolving Research Agendas Into Science, Carol E. Jordan

Office for Policy Studies on Violence Against Women Publications

Decades of research produced by multiple disciplines has documented withering rates of violence against women in the United States and around the globe. To further an understanding of gendered violence, a field of research has developed, but recent critiques have highlighted weaknesses that inhibit a full scientific exploration of these crimes and their impacts. This review extends beyond prior reviews to explore the field’s unique challenges, its community of scientists, and the state of its written knowledge. The review argues for moving beyond “research agendas” and proposes creation of a transdisciplinary science for the field of study of violence against …


Advancing The Study Of Violence Against Women: Response To Commentaries And Next Steps, Carol E. Jordan Apr 2009

Advancing The Study Of Violence Against Women: Response To Commentaries And Next Steps, Carol E. Jordan

Office for Policy Studies on Violence Against Women Publications

No abstract provided.


Gay Marriage: The Issue, James M. Donovan Feb 2009

Gay Marriage: The Issue, James M. Donovan

James M. Donovan

Comment in response to Bob Ostertag, "Why Gay Marriage Is the Wrong Issue," Flagpole, January 14, 2009.

Slightly different version available online at http://flagpole.com/Weekly/Comment/GayMarriageTheIssue.11Feb09


401(K) Plan Fees: A Trifecta Of Governmental Oversight, Kathryn L. Moore Jan 2009

401(K) Plan Fees: A Trifecta Of Governmental Oversight, Kathryn L. Moore

Law Faculty Scholarly Articles

Arguably, 401(k) plan fees are the biggest policy issue in the retirement world today. They potentially raise questions about the fundamental business underpinnings of the principal form of retirement savings for the last twenty years. As an indication of their significance, three branches of the federal government: administrative, judicial, and legislative are currently and simultaneously addressing 401(k) plan fees.

This Article will not attempt to provide a comprehensive discussion of 401(k) plan fees and all of the issues that they raise. Instead, the Article will focus on recent governmental activity regarding 401(k) plan fees. It will begin by discussing three …


Product Liability's Parallel Universe: Fault-Based Liability Theories And Modern Products Liability Law, Richard C. Ausness Jan 2009

Product Liability's Parallel Universe: Fault-Based Liability Theories And Modern Products Liability Law, Richard C. Ausness

Law Faculty Scholarly Articles

Strict liability has always been the heart and soul of American products liability law. As early as 1963, Justice Roger Traynor in Greenman v. Yuba Power Products, Inc. stated that "[a] manufacturer is strictly liable in tort when an article he places on the market, knowing that it will be used without inspection for defects, proves to have a defect that causes injury to a human being." Shortly thereafter, the drafters of section 402A of the Restatement (Second) of Torts made it clear that the exercise of due care would not shield sellers from liability when their products caused injury. …


A Reappraisal Of Attorneys' Fees In Bankruptcy, Michelle Arnopol Cecil Jan 2009

A Reappraisal Of Attorneys' Fees In Bankruptcy, Michelle Arnopol Cecil

Kentucky Law Journal

No abstract provided.


Judicially Fusing The Pinkerton Doctrine To Rico Conspiracy Litigation Through The Concept Of Mediate Causation, Dean Browning Webb Jan 2009

Judicially Fusing The Pinkerton Doctrine To Rico Conspiracy Litigation Through The Concept Of Mediate Causation, Dean Browning Webb

Kentucky Law Journal

No abstract provided.


A Confused Concern Of The First Amendment: The Uncertain Status Of Constitutional Protection For Individual Academic Freedom, Neal H. Hutchens Jan 2009

A Confused Concern Of The First Amendment: The Uncertain Status Of Constitutional Protection For Individual Academic Freedom, Neal H. Hutchens

Educational Policy Studies and Evaluation Faculty Publications

The question of whether the First Amendment protects the individual academic freedom of faculty members at public colleges and universities has resulted in divergent views among courts and legal scholars. In joining the ongoing discourse regarding constitutional protection for academic freedom, this article considers using academic freedom policies and standards voluntarily adopted by institutions as a basis to provide First Amendment protection for faculty speech at public colleges and universities. The article proposes that such policies present one alternative to help clear some of the legal fog regarding First Amendment protection for individual academic freedom, especially in relation to the …


Preserving The Independence Of Public Higher Education: An Examination Of State Constitutional Autonomy Provisions For Public Colleges And Universities, Neal H. Hutchens Jan 2009

Preserving The Independence Of Public Higher Education: An Examination Of State Constitutional Autonomy Provisions For Public Colleges And Universities, Neal H. Hutchens

Educational Policy Studies and Evaluation Faculty Publications

In American higher education, the need to make public colleges and universities responsive to the public interest is often in tension with the necessity of providing institutions with the requisite authority to manage their internal affairs. In seeking to strike a balance between acceptable state oversight versus the need to safeguard the authority of public colleges and universities to manage their own affairs, some states rely on constitutional provisions to limit excessive state governmental intrusion. Specifically, these provisions vest constitutional authority in public higher education governing boards to direct the affairs of institutions or systems under their direction. In contrast …


Cell Phones Pose A Distraction To Drivers But Legislative Ban Is Not The Answer, Annie Barret Wallin Jan 2009

Cell Phones Pose A Distraction To Drivers But Legislative Ban Is Not The Answer, Annie Barret Wallin

Kentucky Law Journal

No abstract provided.


Buying Or Selling A Horse In France: An Introduction To The Legal Context Proposed To The Attention Of U.S. Equine Lawyers, Philippe E. Corruble Jan 2009

Buying Or Selling A Horse In France: An Introduction To The Legal Context Proposed To The Attention Of U.S. Equine Lawyers, Philippe E. Corruble

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.


The New Jersey Supreme Court Distinguishes The Humane Treatment Of Animals And Routine Husbandry Practices In New Jersey Society For The Prevention Of Cruelty To Animals V. New Jersey Department Of Agriculture, Julie M. Mcgill Jan 2009

The New Jersey Supreme Court Distinguishes The Humane Treatment Of Animals And Routine Husbandry Practices In New Jersey Society For The Prevention Of Cruelty To Animals V. New Jersey Department Of Agriculture, Julie M. Mcgill

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.


Libraries As Doppelgängers: A Meditation On Collection Development, James M. Donovan Jan 2009

Libraries As Doppelgängers: A Meditation On Collection Development, James M. Donovan

James M. Donovan

Debates about the balance between electronic and paper resouces typically employ points on economics or patron access. That line of argument can be shown to depend upon an understanding of libraries as reducible to their contents. After showing that this premise must be discarded as logically inconsistent with the broader assertions made in favor of digital materials, the question is posed as to what qualities of libraries are not reducible to the materials they contain. The attractiveness of digital content, even if conclusive from a merely economic perspective, may still founder on the intrinsic properties of library qua "library."

One …


Juror Incomprehension: Advocating For A Holistic Reform Of Jury Instructions, J. Brittany Cross Jan 2009

Juror Incomprehension: Advocating For A Holistic Reform Of Jury Instructions, J. Brittany Cross

Kentucky Law Journal

No abstract provided.


Procedural Due Process Implications Of Kentucky's Thoroughbred Medication Regulations, W. Chapman Hopkins Jan 2009

Procedural Due Process Implications Of Kentucky's Thoroughbred Medication Regulations, W. Chapman Hopkins

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.


The Right Of Defendant-Owners Under Zero-Tolerance Anti-Doping Horse Racing Regulations As Explained In Pierce V. Texas Racing Commission, Donald Smith Jan 2009

The Right Of Defendant-Owners Under Zero-Tolerance Anti-Doping Horse Racing Regulations As Explained In Pierce V. Texas Racing Commission, Donald Smith

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.


Horse Sense And High Competition: Procedural Concerns In Equestrian Doping Arbitration, Holly Rudolph Jan 2009

Horse Sense And High Competition: Procedural Concerns In Equestrian Doping Arbitration, Holly Rudolph

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.


Protecting Farm Workers' Rights: The Broad Construction Of The Migrant And Seasonal Agricultural Worker Protection Act In Chavez V. Riceland Foods, Inc., Adrianne C. Crow Jan 2009

Protecting Farm Workers' Rights: The Broad Construction Of The Migrant And Seasonal Agricultural Worker Protection Act In Chavez V. Riceland Foods, Inc., Adrianne C. Crow

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.


"Prejudgment" Rejudgment: The True Story Of Antoniu V. Sec, Douglas C. Michael Jan 2009

"Prejudgment" Rejudgment: The True Story Of Antoniu V. Sec, Douglas C. Michael

Law Faculty Scholarly Articles

In Antoniu v. SEC, the Eighth Circuit found that Charles C. Cox, then a member of the Securities and Exchange Commission (SEC or Commission), had "impermissibly tainted" an SEC administrative proceeding against Antoniu by a speech Cox gave while the proceeding was pending. In this way, Commissioner Cox is now joined with former Federal Trade Commission (FTC) Chairman Paul Rand Dixon of Texaco, Inc. v. FTC and Cinderella Career & Finishing Schools, Inc. v. FTC fame as an administrative law casebook poster child for "prejudgment" by an administrative agency.

After a brief discussion of the factual background of the …


The Voting Rights Act Through The Justices' Eyes: Namudno And Beyond, Joshua A. Douglas Jan 2009

The Voting Rights Act Through The Justices' Eyes: Namudno And Beyond, Joshua A. Douglas

Law Faculty Scholarly Articles

The most surprising action from the Supreme Court's latest term may be what it did not do: strike down Section 5 of the Voting Rights Act (VRA) as unconstitutional. After the oral argument in Northwest Austin Municipal Utility District Number One v. Holder (NAMUDNO), most Court observers expected the Court to issue a strongly divided opinion invalidating Congress's reauthorization of the provision that requires certain "covered jurisdictions" to seek preapproval, or preclearance, before enacting any change that affects voting. Instead, the Court issued an 8-1 opinion that avoided the constitutional question and decided the case on a narrower statutory …


Lessons In Legal Ethics From Reading About The Life Of Lincoln, Eugene R. Gaetke Jan 2009

Lessons In Legal Ethics From Reading About The Life Of Lincoln, Eugene R. Gaetke

Law Faculty Scholarly Articles

Abraham Lincoln is an icon of American history. He is prominently named in various opinion polls as among the best Presidents in the history of the United States. His stature as a great President is perhaps best reflected currently in the stream of events constituting a national two-year celebration of his 1809 birth. Even before that, however, scholarly and popular interest and Lincoln’s life and Presidency continued unabated, as indicated by the steady publication and success of books about him. Notable among these works is David Herbert Donald’s best-selling biography of our sixteenth President titled Lincoln.

Although Mr. Donald’s …


Strader V. Graham: Kentucky's Contribution To National Slavery Litigation And The Dred Scott Decision, Robert G. Schwemm Jan 2009

Strader V. Graham: Kentucky's Contribution To National Slavery Litigation And The Dred Scott Decision, Robert G. Schwemm

Law Faculty Scholarly Articles

In 1841, three Kentucky slaves in Louisville boarded a steamboat bound for Cincinnati. Within days, they had made their way to Detroit and then to permanent freedom in Canada. Their owner, a prominent central Kentucky businessman, soon tracked them down and tried to lure them back to bondage in the United States. When these efforts failed, he sued the steamboat owners for the value of the lost slaves in a Kentucky court. After ten years of litigation, this case reached the U.S. Supreme Court. The Court’s decision in favor of the Kentucky slaveholder would prove to be an important precedent …


On Restating Products Liability Preemption, Mary J. Davis Jan 2009

On Restating Products Liability Preemption, Mary J. Davis

Law Faculty Scholarly Articles

This Article provides a brief explanation of the state of preemption doctrine and explains how the Court altered, quite dramatically, its treatment of preemption of common law tort actions in the last two decades. The Court's almost exclusive focus on the interpretation of express preemption provisions, which never specifically address common law tort claims one way or the other, turned "traditional" preemption analysis of common law tort claims on its head. The Court then, almost as suddenly, signaled a retreat from the emphasis on express preemption analysis and returned, awkwardly, to implied preemption doctrine. The Court has only recently begun …


The “New” Fiduciary Standards Under The Revised Uniform Liability Company Act: More Bottom Bumping From Nccusl, Rutheford B. Campbell Jr. Jan 2009

The “New” Fiduciary Standards Under The Revised Uniform Liability Company Act: More Bottom Bumping From Nccusl, Rutheford B. Campbell Jr.

Law Faculty Scholarly Articles

Between 1995 and 2001, the influential National Conference of Commissioners on Uniform State Laws (NCCUSL) promulgated iterations of uniform laws pertaining to partnerships, limited partnerships and limited liability companies. One or more of those acts have been widely adopted by state legislatures.

Each of the three acts—the Uniform Partnership Act (1997) (RUPA), the Uniform Limited Partnership Act (2001) (ULPA (2001)), and the Uniform Limited Liability Company Act (1996) (ULLCA)—contains identical fiduciary duty provisions. The acts all adopt the same standards for the duty of care and the duty of loyalty, and offer parties the same limited rights to opt out …


The Decline Of Edible Equine: A Comment On Cavel International Inc. V. Madigan, Bradley J. Sayles Jan 2009

The Decline Of Edible Equine: A Comment On Cavel International Inc. V. Madigan, Bradley J. Sayles

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.