Kansas Law Research Articles

Front Matter: The University of Kansas Law Review Vol. 66 Number 1

Front Matter: The University of Kansas Law Review Vol. 66 Number 1

Anti-rape Culture

This essay, written for the Kansas Law Review Symposium on Campus Sexual Assault, critically analyzes “anti-rape culture” ― a set of empirical claims about rape’s prevalence, causes, and effects and a set of normative ideas about sex, gender, and institutional authority ― which has heralded a new era of discipline, in all senses of the word, on college campuses. In the past few years, publicity about the campus rape crisis has created widespread anxiety, despite the fact that incidents of sexual assault have generally declined and one-in-four-type statistics have been around for decades. The recent surge of interest is due less to an escalation of rape culture than to a new found anti-rape culture ― a distinctly feminist rape intolerance. Feminist political activism is normally ground for progressive rejoicing and, indeed, society should be rape intolerant. However, here, one might wonder whether feminism has reincarnated as a single-issue movement that centers on punishing sex ranging from violent to ambiguous and embraces illiberal positions and institutions. The essay focuses on the costs of anti-rape culture’s construction of the status quo as one in which at least a quarter of college women will be brutalized by a sexual predator and left traumatized, possibly for life. In addition to creating the risk that the sex that college women inevitably have is a minefield of mental distress, the rhetorical strategy has other costs, including punitive over-correction, bureaucratic management of students stripped of their subjectivity, and speech restrictions. In the end, the essay counsels reformers to be cautious lest their commendable concern for safety and equality creates a culture in which drunken sex is ruinous to women, administrative power distributes burdens randomly, or worse, to marginalized men, and silence is the norm in an area desperate for open discussion.

Legal Challenges in Government Imposition of Water Conservation: The Kansas Example

This article deals with legal challenges in conserving water in the United States, using Kansas as an example. The focus is on one aspect of American water allocation law—the extent to which a state can force reductions in pumping by holders of water rights. It explains the hybrid nature of water rights, which on the one hand are “real property rights,” and yet on the other hand they are viewed as rights only to use water and not to own the water itself. Because they are a kind of property right, they are protected by the fifth amendment to the U.S. Constitution against “takings” by the government without compensation. The question becomes: to what extent, then, can states demand reductions in pumping without having to pay compensation? The answer is difficult for both water right holders and government officials to predict. The law of groundwater rights in Kansas illustrates the problem. The article describes the Kansas law in the context of other states on this issue, including the historic changes in Kansas' water law doctrines, water management under the appropriation doctrine, the public trust doctrine, groundwater management districts, and intensive groundwater use control areas, as well as recent attempts to foster voluntary actions by water right holders that avoid government imposition of restrictions. Questions remain in Kansas and elsewhere about where the line can be drawn, between acceptable government restrictions and unacceptable takings of property. Future drought caused by climate change will focus even more attention on this question.

The Eurozone Crisis-Defining a Path to Recovery

Editor’s Note: The following essay is drawn from the Diplomat’s Forum lecture presented at the University of Kansas School of Law on November 1, 2012, by Mr. Sean Hagan, the General Counsel of the International Monetary Fund (IMF). The Diplomat’s Forum is a component of the School’s multi-faceted International and Comparative Law Program. Earlier lectures presented in the Diplomat’s Forum have featured prominent public servants who have dedicated their careers to diplomacy of various sorts—all working toward an overall goal of improving international relations at all levels. Those individuals have typically served as representatives of their own national governments, including Japan, Austria, the Philippines, and Saudi Arabia, to name a few. The 2012 Diplomat’s Forum featured a somewhat different sort of diplomat. The General Counsel of the International Monetary Fund serves in a key diplomatic role, for the IMF itself represents a multilateral effort by nearly all nations in the world to collaborate on an ever-increasing range of international economic issues. In doing so, the IMF—and its Legal Department, of course—continually grapples with some of the world’s most difficult problems involving deep cultural, political, and ideological divides, as well as opportunities to bridge those divides. It should be noted that, since this talk was delivered almost five years ago, the Eurozone crisis has abated to a considerable degree. This is due, in large part, to the implementation of the policies that were recommended in these remarks. In keeping with common practice followed by the KANSAS LAW REVIEW in publishing lectures of this sort, and consistent with the character of the Diplomat’s Forum lecture in particular, this article is

Key Points from the Oral Arguments of the Scott Roeder Case

George Tiller was a Kansas abortionist who specialized in late-term abortions, which are legal under Kansas law only under special circumstances. Scott Roeder killed him, and on trial for murder, wished to plead that he was defending third persons against imminent and unlawful death at the hands of Tiller. He was prepared to present evidence to that effect to the jury, but the trial judge blocked both the plea and the evidence. If the evidence were persuasive, the jury could either have acquitted Roeder altogether, if they decided that his belief that he was defending third persons was reasonable, or convicted him just of voluntary manslaughter, if they decided he had a sincere but unreasonable belief. Since the blocked plea and evidence were Roeder’s only defenses, he was convicted of murder. He appealed to the Kansas Supreme Court, which had it oral argument on January 29, 2014. This paper discusses the oral argument.

Balancing Employer Business Interests and Employee Privacy Interests: A Survey of Kansas Intrusion on Seclusion Cases in the Employment Context

In recent decades, employers are using more sophisticated, high tech methods to monitor employee behavior. Employers test employees for AIDS and drug use; videotape them; electronically monitor their computer use, internet use, emails, text messages, and phone calls; and track their movements with Global Positioning Surveillance technology. While employers clearly have the right to monitor employee behavior, that right is not limitless. The tort of intrusion on seclusion creates one such limit.The extent to which the intrusion on seclusion tort protects employee privacy under Kansas law is somewhat of a mystery because the Kansas Supreme Court has not analyzed an employee’s intrusion on seclusion claim against an employer. The Kansas Supreme Court’s analysis of intrusion on seclusion claims in the creditor debtor context does, however, suggest how the Court would approach an intrusion on seclusion claim in the employment context. Numerous federal court cases analyzing intrusion on seclusion claims under Kansas law in the employment context also serve as a guide to predicting how Kansas courts will rule on these claims. This Article synthesizes current intrusion on seclusion law in Kansas and explains how it applies to the employment context. It also collects and reviews existing federal cases analyzing intrusion on seclusion claims in the employment context under Kansas law. It concludes that Kansas courts should approach an intrusion on seclusion claim in the employment context as they have approached these claims in the creditor-debtor context and balance the respective rights and interests of the parties. To determine whether an employer has invaded an employee’s privacy, courts must determine whether the employer’s legitimate business interest in the information outweighs the employee’s privacy interest.

Alternative Means Jurisprudence in Kansas: Why Wright is Wrong

Untied from any mooring, alternative means jurisprudence in Kansas has drifted into a strange and confusing world where “secondary matters” infest every corner of the criminal code. Who knew the Kansas legislature intended to create a class system for criminal elements in this state? A breakdown in the application of Kansas’s ordinary canons of statutory and constitutional construction is to blame. 1 This breakdown has led the state into a morass of artificial and unnecessary distinctions impossible to otherwise conceive. Any discussion about the breakdown now begins with what was meant as a clarifying point in Kansas law with the holding of State v. Wright. 2

Arbitration and Inalienability: A Critique of the Vindication of Rights Doctrine

Courts and scholars have long struggled to harmonize the Federal Arbitration Act and other federal statutes. Currently, judges invalidate arbitration clauses that prevent a plaintiff from vindicating her public law rights. This principle, the vindication of rights doctrine, is an arbitration-specific application of the statutory waiver rule: the idea that parties cannot prospectively waive congressionally-created entitlements. However, because the policy basis of the statutory waiver rule has never been clear, jurisdictions disagree about how to implement the vindication of rights doctrine. In this contribution to the Kansas Law Review’s Perspectives on the Current State of Arbitration Law Symposium, I seek to understand the statutory waiver rule and the vindication of rights doctrine by situating them within a larger context: the debate over inalienability. Infants, sexual services, body parts, and basic civic duties cannot be exchanged for consideration. I consider whether common justifications for these fissures in the market — concern about information failures, externalities, and commodification — can explain why future federal statutory claims are immune from freedom of contract. I conclude that, to some degree, each rationale for inalienability also underlies the statutory waiver rule and the vindication of rights doctrine. Nevertheless, I argue that these principles are best explained as an attempt to preserve the distinctive qualities of congressional lawmaking in an era where private parties exercise legislative-like power. I claim that courts can further this goal by nullifying one-sided arbitration clauses that do not serve arbitration-related purposes and thus are blatant attempts to rewrite the public laws.

"You Crossed the Fog Line!" Kansas, Pretext, and the Fourth Amendment

This article examines orders recently decided in the District of Kansas to show, circumstantially, that Kansas police are using traffic infractions as an excuse to stop out-of-state cars driven by people of Hispanic ethnicity and to investigate for drug trafficking. If a stop uncovers contraband, the defendant is charged with a crime, sometimes in federal court. At a subsequent hearing to evaluate a defendant’s motion to suppress the contraband, the officer testifies to his reason for the stop – “You crossed the fog line,” “drifted from your lane of travel,” or “failed to maintain a single lane.” The officer typically makes no mention of the reasons for selecting this particular car for careful scrutiny. Given the limited data, there is no way to know whether Kansas police are engaging in lawful, but controversial, pretextual stops or, conversely, dishonestly claiming to witness lane drifts that never occurred. In either event, Kansas officers appear to be acting on unreliable stereotypes, such as skin color and out-of-state status, in choosing which cars to stop. In Whren, the United States Supreme Court sanctioned pretextual traffic stops. In permitting pretextual stops, the Court ignored the risk that such practices will encourage police to distort the truth; it overlooked the cost of under-enforcement of the laws; and it ignored the consequences to the criminal justice system of race and ethnicity based discrimination. Kansas law exacerbates these risks by making fog-line stops a model for protecting ulterior motives from a sifting judicial inquiry. In Kansas, it makes no difference that every driver occasionally crosses the fog line or that an individual driver left his lane without presenting any danger to another person, object, or animal. As long as a Kansas officer can credibly testify that the weather and road conditions made it practicable to stay within a single lane but that the defendant/driver did not, the officer has grounds for a stop, which gives the officer a chance to ask to search.

The End of Reparations Talk: Reparations in an Obama World

Several years ago, I wrote an article on reparations for disparities in Black health in the United States. The world did little note nor long remember what I said in that article. But, the University of Kansas Law Review has rescued my thoughts from obscurity, at least temporarily. My thesis proceeded in three parts: (1) U.S. disparities in Black health are dangerous and persistent; (2) Black health disparities cannot be viewed in isolation from our history of slavery, racism, and legal segregation; and (3) superficial remedial efforts are not likely to be

Does Sustainability Require a New Theory of Property Rights?

By demanding stewardship of natural capital over exploitation, sustainability envisions a property regime less committed to individual property rights than are the traditional and economic theories of property. While the traditional property theories of Blackstone, Locke, and U.S. constitutional doctrine tolerate restrictions on private property rights for the sake of public welfare, they resist the strongest versions of sustainability, which promote generational and social justice. Similarly, an economic analysis of property recognizes the values of resource conservation and welfare for future generations, but only to the limited extent the economist can calculate future value. As a result, economic analysis may overlook or undervalue the interests of remote generations. Moreover, the goal of a more egalitarian distribution of resources, which informs the social justice model of sustainability theory, runs counter to the dominant economic analysis of property. Only relational principles at the fringes of property theory in the United States can fully embrace the strongest versions of sustainability. Thus, absent an unlikely theoretical revolution in the U.S., the sustainable development agenda cannot succeed in this country at the level required by the international community. Forthcoming in The Kansas Law Review, vol. 58, no. 1 (2009)

Watch Your Language! The Kansas Law Review Survey of Official-English and English-Only Laws and Policies

In recent years, immigration has become an increasingly controversial political issue and the “Official-English” movement has gathered steam. Many state and local governments have enacted Official-English laws or constitutional amendments, employers have promulgated English-only workplace policies, and the treatment of nonnative English speakers in the schools, the courts, and other aspects of public life has come under increasing public scrutiny. Such initiatives have led to an increasing number of legal challenges and an increasing number of judicial decisions addressing the implications of OfficialEnglish and English-only laws and policies. The student authors of this survey article therefore perform an important and useful service by reporting and describing Official-English and English-only laws and policies of various kinds, and gathering, organizing, and analyzing decisions that address these laws and policies in a variety of settings and under a variety of legal theories. We may think of these developments as recent phenomena fueled by modern conditions, but language issues are as old as the United States itself. Even before the Revolutionary War, for example, Benjamin

Remarks on Human Biological Enhancement

The area of law and biology, or the biosciences broadly, is an explosively growing area, and is an area that has potentially explosive consequences, both legally and politically. We may call it different things. At Stanford, we have a Center for Law and the Biosciences rather than a Biolaw Center, but our student group involved in this is called BioLaw. And we may focus on somewhat different things. We are hosting a conference in December 2008 on neuro-imaging, pain, and the law in order to explore the impacts of neuroscientific discoveries on the law. But in many different places, people are beginning to realize that our vastly expanded knowledge about biological systems, particularly, but not exclusively, human biological systems, is and will continue to have increasing consequences for the law. Today, I would like to talk about one of those areas—the area of human biological enhancement. I am sure that Dean Agrawal here at Kansas Law is happy to see another former clerk for Judge John Minor Wisdom. I know she will enhance the Kansas Law School during her tenure here as Dean, and nobody worries about that because enhancement is generally a good thing. To enhance means to improve or to make better. But when we talk about human biological enhancements, people become much more concerned, and the controversies are much greater. I can sum up the reason in one name: Barry Bonds. People are concerned, not only in the area of sports, but also in the context of broader social and biological areas. People are concerned about intentional modifications of human biology as a result of scientific developments, and that concern has prompted an awful lot of heat. My argument is that thus far it has not prompted as much light as it should

A Study of Tanning Operators in the State of Kansas: Their Attitudes and Stated Practices Regarding Minors and Tanning.

Methodology: The purpose of this study was to evaluate the basic demographics, attitudes and stated practices regarding youth access to tanning among Kansas tanning operators. A survey was mailed to Kansas tanning facilities regarding these questions and results were analyzed using descriptive statistics. Results: The survey response rate was 28% (n=651). The majority of the respondents felt that there was none to a little risk with indoor tanning (60%). Most did feel that someone can be too young to tan yet only 65% have ever discouraged one from tanning because of their age. This study shows 92% of operators support written parental consent, yet they are not practicing that a parent needs to accompany them on there first visit. Conclusion: It was shown that the majority of operators believed that written parental consent and age regulations for indoor tanning should be required. This study attempted to give information regarding the need to enforce youth access to tanning to Kansas law makers.

Cost of Remediation of Nitrogen-Contaminated Soils Under CAFO Impoundments

Wastewater in manure storage basins or anaerobic treatment lagoons at confined animal feeding operations (CAFOs) may contain high levels of nitrogen, primarily in the ammoniacal form. Kansas law allows seepage from such impoundments at a rate of 1/8 to 1/4 inch per day (3.2 to 6.4 mm/d). Kansas State University researchers have recently characterized an ammonia plume at a depth of 10 feet or more under several CAFO lagoons and have modeled the potential for deeper penetrations in sandy subsoils. If the plume is not removed or contained after wastewater is removed from the impoundment, then exposure to oxygen from air or dissolved in precipitation will drive the transformation of ammonium to nitrate, which is mobile in the vadose zone. Based on a cleanup standard of 25 mg/kg of NH4-N, the total cost to remove or contain the nitrogen beneath federally permitted swine and dairy wastewater management basins now in operation in Kansas would be about $56 million. In most cases, the preferred remedial option would be the excavation and spreading of the contaminated material on farmland. However, deep plumes in sandy soils and limited access to farmland may dictate use of the backfill-and-cover option. The remedial cost for some operations not currently required to provide financial assurance for closure is estimated to range from $500,000 to $650,000.

Groundwater Management Institutions in Kansas

This paper deals with the management of groundwater in Kansas through the statutory mechanism of the groundwater management district (GMD). A description of the location of water in Kansas and of relevant Kansas law is followed by a short discussion of the history of the development of the law establishing GMD's and by a description of the location of these GMD's. The paper then describes the powers of GMD's, discusses how GMD's have used these statutory powers, and raises legal questions about these powers. Lastly, some innovative measures being taken by GMD's are discussed.

Water Right Included Reasonable Losses

The Frontier Ditch Company in Kansas was issued an order to cease diversion in excess of its vested right. Frontier argued that under Kansas law it was allowed its vested right plus an additional amount to make up for waste, seepage, and evaporation. The Supreme Court of Kansas ruled that the vested right of a company was determined from what the company was actually diverting prior to 1945, and that an additional allowance for waste, seepage, and evaporation was not within the legislative intent of the law.

Working with Administrators of Nursing Homes

IN KANSAS AS EVERYWHERE else, the increase in numbers of aged has created many new problems in public health. Not the least of these is where shall the elderly live and who shall care for them. Homes for the aged have sprung up in vast numbers throughout the country. In Kansas, there are approximately 460 licensed nursing and boarding homes, 94 percent of which are proprietary, that is, maintained by the administrator as a means of livelihood. According to Kansas law, anyone must be licensed to keep more than two persons other than relatives who, because of illness, aging, or physical or mental infirmity need treatment and nursing care. Also according to the law, homes are classed as skilled nursing homes only when a registered professional nurse or licensed practical nurse is in charge of nursing. The licensing agency was the department of social welfare until July 1961 but is now the Kansas State Board of Health. The eight district public health nurses employed by the board of health go into these homes in their districts to evaluate the nursing care and give or withhold approval from the nursing standpoint. In the three most populous counties where there are health departments, they do the evaluation, and district nurses do not go into the homes. The district public health nurses travel through the remaining 102 of the 105 counties, with a territory of 5 to 25 counties each, depending on the size and population of the counties. They give consultant service to county public health nurses in 38 counties. Their work is generalized, but much of their time is spent in nursing homes. Because the nurse represents the licensing agency, she meets some of the problems that a policeman meets. Occasionally, an administrator tries to conceal the truth from the nurse or resents the fact that certain rules must be followed. Here the nurse finds use for all the tact and

A BACTERIOLOGICAL AND CHEMICAL STUDY OF ICE MILK

Fifty-four pint samples of a frozen product, defined by Kansas law as ice milk, were examined for sanitary qualities and composition. The average quality of these samples was found to be equal or superior to state and local regulations for ice cream, ice milk, and similar products. Although containing less fat, the large amount of milk solids and low overrun make the caloric value of ice milk almost equal to that of ice cream. The data obtained indicate the use of quality materials, proper sanitation, and care in the manufacture and marketing of this product.

Drug Prices in Cities with and without a Fair Trade Law

The present article is designed to add to the growing but still meager body of factual information, regarding the influence of fair trade laws on price behavior.2 Since Missouri does not have a fair trade law, whereas Kansas has had such a law in effect since March 1937,1 Kansas City, Kansas, and Kansas City, Missouri, are well located for a price comparison. The two cities form one metropolitan center, but are divided by the state line. A comparison of retail prices in the two cities should, therefore, throw some light upon the effects of the Kansas law.