University of Louisville Law Faculty Blog

Duke Speech

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On February 20 I gave a speech entitled "High Functioning": Successful Professionals with Severe Mental Illness at an interdisciplinary symposium put on by the Duke Forum for Law and Social Change at Duke Law School in Durham, NC.  The speech is now available for viewing on YouTube at https://www.youtube.com/watch?v=QqSWC7NeBmI

The Logan Act's Kentucky Connections

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The current controversy over a congressional letter to Iran (signed by Kentucky senators Mitch McConnell and Rand Paul) has revived interest in the obscure 1799 law barring “correspondence or intercourse with any foreign government” known as the Logan Act. The doubtful Constitutionality of this relic of the Alien & Sedition Act era  is for another forum; this brief post is meant to highlight the law’s Kentucky connections.

The first and perhaps only bill of indictment under the Logan Act occurred in 1803 when a grand jury indicted Francis Flournoy, a legally trained Kentucky farmer from Scott County. Writing in the short-lived Frankfort newspaper "Guardians of Freedom" under the guise of “A Western American, ” Flournoy advocated that Kentucky secede from the union and ally itself  to France. With no adequate roads east and upriver steamboat cartage as yet just a dream, Kentucky farmers sent their produce on rafts as the river flowed, down the Ohio and Mississippi rivers to the port of New Orleans, which then was under the control of then First Consul Napoleon Bonaparte. Even with the Democrat-Republican Thomas Jefferson as president, Kentucky farmers were still deeply suspicious that Easterners would sell out their interests.

The United States Attorney for Kentucky, Joseph Daviess, a dyed-in-the-wool Federalist, convinced the grand jury to indict Flournoy, but, as in many of his cases, it floundered and never made it to trial. Daviess (for whom counties are named in Kentucky, Indiana, Illinois, and Missouri) was not a favorite of Thomas Jefferson but the tradition of U.S. Attorneys resigning upon the election of a new president had not yet been established. Daviess later indicted Aaron Burr for treason, but Henry Clay was able to have that indictment quashed.

Napolean’s sale of the Louisiana Territory to the U.S. later in 1803 satisfied the fears of farmers like Flourney. As his Federalist Party died out, Daviess became unpopular, but he later was able to achieve great acclaim by getting himself spectacularly killed in General William Henry Harrison's campaign against Tecumseh’s Shawnee Confederacy in 1811.

City of Los Angeles v. Patel: "Tranquility" in the Text

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This morning the U.S. Supreme Court heard oral arguments in City of Los Angeles v. Patel.

Patel addresses the constitutionality of a municipal ordinance requiring hotel operators to maintain guest registry information, and to make such information available to police officers on request without consent, a warrant, or other legal process. 

During argument, Tom Goldstein (on behalf of respondents) had an interesting back-and-forth with Chief Justice Roberts regarding "tranquility" and the Fourth Amendment. 

MR. GOLDSTEIN:  [T]he question is … the loss of the sense of tranquility provided by the Fourth Amendment, that we don’t know how frequently and for what harassing purpose and how—and for what reasons at all that a police officer is just going to come in over and over again.

CHIEF JUSTICE ROBERTS: Have we used that phrase before?

MR. GOLDSTEIN:  Which one, Your Honor?

CHIEF JUSTICE ROBERTS:  Tranquility.

MR. GOLDSTEIN:  I don’t think that word is---

CHIEF JUSTICE ROBERTS:  We talk about privacy and all that, but I’m not sure that the Fourth Amendment should be expanded to protect the sense of tranquility.

MR. GOLDSTEIN:  I’m trying to --

JUSTICE SCALIA:  I have a problem imagining tranquil hotel owners.  It’s not what I associate with owning a hotel.

MR. GOLSTEIN:  [Tranquility] is the sense of certainty that the Fourth Amendment provides that what you do know is that there are going to be limits on when the police come in and say, show us your papers.  Okay?  And that’s what we’re talking about. 

As I was reading today’s transcript I found myself shouting at my computer screen:  “Tranquility's right there!  It's in the text!  It's right there!  In the text!”  

I’ve argued for some time that the Fourth Amendment does not simply recognize a “right against unreasonable searches and seizures.”  After all, the text of the Fourth Amendment explicitly goes further, providing for a “right to be secure against unreasonable searches and seizures.”  And the original meaning of “secure” (i.e., “free from fear”) is likely broad enough to include something along the lines of “tranquility” (which meant “free from agitation”).   

A “right to tranquility” is moreover consistent with constitutional structure, literary uses of "secure," and the colonial discourse surrounding the writs of assistance (not to mention the creation of the exclusionary rule in Boyd v. United States and Weeks v. United States). 

I recently developed these arguments in The Forgotten Right to Be Secure, 65 Hastings L.J. 713 (2014). The article was discussed in this case in an amicus brief filed by the Electronic Frontier Foundation.  Hopefully the "right to be secure" plays a part in Chief Justice Roberts's deliberations on “tranquility” and the Fourth Amendment.   

 

2015 Kentucky Legislative Update

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One of the most anticipated programs of the Greater Louisville Sierra Club is its annual legislative update presented by Tom Fitzgerald, Director of the Kentucky Resources Council (KRC). 

Since 2015 is a short legislative session, which runs from January 6 to February 3, the presentation, which is free and open to the public, will be held earlier than usual. On Tuesday, January 20, Fitz, who is also an adjunct professor at the law school, will provide a list of bills the KRC is monitoring, which are of particular interest to environmentalists and social justice advocates.
 
At last year's meeting, he stated that the Commonwealth is one of the more favorable states with regards to welcoming citizen input and provided the following tips for contacting your legislators. Phone calls and personalized correspondence are much more effective than online petitions and pre-packaged messages. 
 

How to Take Action

 

Writing a Research Paper for Writing Requirement Credit: Handouts and Additional Information

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On Tuesday, September 1, I once again had an enjoyable opportunity to present for the 2L & 3L Academic Success Program. The program was on "Writing a Research Paper for Writing Requirement Credit." If you attended and want to see a copy of the presentation slides and hand-outs, skip to the bottom. If you couldn't make you are also welcome to look at the handouts. 

The one-hour session began by discussing the student handbook section that sets out the writing requirement, noting its importance as a core requirement of a professional degree.  Then I provided general advice on picking a topic, with some emphasis on library resources like subject-specific legal newsletters, ProfBlogs, and general legal news sources that may helpful in generating topics. Researching the policy aspects of legal issues that come up in seminar papers was briefly discussed, leading next to a treatment of issues involved in writing of a research paper.  Issues discussed included creating outlines, constructing a thesis, resolving common style and grammar issues, proofreading, and avoiding plagiarism by the proper use of quotation and citation.  Given the limited time to discuss these matters, liberal mention was given to resources like Eugene Volokh’s Academic Legal Writing: Law Review Articles, Student Notes, and Seminar Papers, and the collection of other legal writing books on reserve in the law library, as well is in the Academic Success Office's library.

The handouts are here:

  • Powerpoint Slides (see below)
  • Examples of UofL Law Review Student Notes with One Example Outlined (see below)

If you want more assistance, I strongly urge you to go to a September 15th program on Bloomberg Law by Pam Morgan on accessing BL (she will help you get an account & password) and on the use of BNA Bloomberg legal newsletters—an excellent source for researching cutting-edge legal issues. Watch the Docket for specific time and place. (I'll post here when I know those deatils).

If you have any questions or want follow-up assistance don't hesitate to come by the law library or to email me any questions to kurt.metzmeier@louisville.edu.

Picking a Student Note Topic

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Due to an illness, I was unable to offer a presentation on Finding a Student Note Topic at the University of Louisville Law Review orientation. I apologize for this. I regret it myself; I always enjoying doing it and meeting the new members. In order to substitute for the program in small measure, I have attached the following documents below. In addtion, I hope to be able to add a video version of the presentation if I can work out the technical details. 

While I'm not available much in June, in July I'll be back full time (8-5 M-Th). Please call (852-6082) or email (kurt.metzmeier@louisville.edu) if you have any questions on picking or researching your topic.

 

 

2014 Kentucky Legislative Update

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Last night, I attended the Greater Louisville Sierra Club's annual legislative update, presented by Tom Fitzgerald, Director of the Kentucky Resources Council (KRC) and an adjunct professor at the law school.

The Kentucky legislature convened for its regular session on January 7 and will adjourn on March 31. Tom provided a list of legislation that the KRC is monitoring. Many pertain to power providers, coal mining, ethics, and eminent domain. The one Fitzgerald's watching closest is SB 99 relating to telecommunications, aka "The AT&T Bill". The latest version would end the obligation to offer basic local exchange phone service for exchanges with over 15,000 or more housing units in rural Kentucky, thereby increasing the digital divide.

Tom said the state's budget shortfall has been especially difficult for conservation programs because they aren't governed by federal mandates. He also mentioned that each agency's expenses have increased since the pension reform that was passed last year.

The following may be of particular interest to environmentalists and social justice advocates:

HB 28: relating to the Code of Legislative Ethics, to amend KRS 6.611 to implement the "no cup of coffee" rule for legislators.

HB 31/SB 14 & HB 60/SB 21: each relating to eminent domain. 

HB 36: relating to tax credits for noise abatement, to establish a tax credit for noise insulation installed in a residential structure that is located within a designated airport noise contour.

HB 63: relating to utilities, to create a new section of KRS Chapter 278 to require retail electric suppliers to maintain a 30-day supply of fuel for electricity generation. Opposed by the Sierra Club (watch recap at KET).

HB 195: relating to energy, to create new sections of KRS Chapters 278 and 96 to require retail electric suppliers to use increasing amounts of renewable energy.

HB 203 & HB 394: both relating to outdoor advertising devices. Tom referred to HB 203 as the perennial "trees v. billboards" bill that has yet to leave a committee. House Speaker Greg Stumbo, quoted the late Representative Paul Mason, D-Whitesburg, who also opposed the bill, “Laws are made by fools like me, but only God can make a tree.”

HB 241: relating to the disposal of coal combustion wastes. 

HB 288: relating to surface mining, to prohibit disposal of overburden in streams. Written by Tom Fitzgerald.

HB 376: relating to tax credits promoting land conservation.

HB 381: relating to the Kentucky Infrastructure Authority, to remove for-profit water company representative from Kentucky Infrastructure Authority Board.

HB 387: relating to natural gas liquids pipelines.

HCR 17/SCR 95: to urge Congress to propose an amendment to the Constitution of the United States of America authorizing legislation to establish reasonable limits on contributions and expenditures in political campaigns and to prohibit noncitizen contributions and expenditures. One of the Sierra Club members in the audience who authored the orginal version of the bill, referred the group to Bill Moyer's collection of reports on campaign finance reform

HCR 93: to direct the LRC to establish a Timber Theft and Trespass Reduction Task Force to study issues regarding timber theft and trespass and to develop consensus recommendations to address those issues.

HR 126: a simple resolution to urge the Transportation Cabinet to withdraw recently filed administrative regulations covering outdoor advertising devices and work with the Interim Joint Committee on Transportation and Economic Development and Tourism to craft regulations with public input prior to the drafting of regulations.

SB 10: relating to voter identification. If passed, Kentucky would become a "strict" voting law state.

SB 31: relating to the prohibition against implementing the United Nations Agenda 21, the Rio Declaration on Environment and Development.

SB 35: relating to the Public Service Commission. Tom said this was a reaction to serial rate increases by power providers.

SCR 131: to establish a task force to study the costs of administering the death penalty in Kentucky.

The list of proposed legislation is quite exhaustive and runs the gamut from alcoholic beverages & casino gaming (HB 52), to dog ownership (SB 78), medical cannabis (SB43) and even a few related to attorneys and the bar association. HB 1, a proposal to raise the state's minimum wage, has received a lot of press. One that hasn't received enough in my opinion is SB 5, which relates to controlled substances and would increase treatment options for heroin and other opiate addiction.

Those that interest me most pertain to civil rights. HB 70 seeks to restore voting rights for felons. Oddly, an amendment to HB 8 that would allow dating partners to obtain domestic violence orders also calls for strict changes to Kentucky's abortion laws.

Since I'm concerned about the future of my family's farm, I'm also monitoring some agricultural bills, especially those related to eminent domain that Tom mentioned and hemp production. As a librarian, I'm also intersted in legislation relating to education. HB 341 would provide funds for the "Books for Brains" project, SB 20 seeks to increase anti-bullying awareness, and SB 16 would allow computer programming language courses to meet foreign language requirements in the public schools. 

At last year's meeting, Tom Fitzgerald implored the crowd to action by stating, "It's never been easier to get involved." This year, he reiterated that the Commonwealth is one of the more favorable states with regards to welcoming citizen input. He provided the following tips for contacting your legislators and mentioned that phone calls and personalized correspondance are much more effective than online petitions and pre-packaged messages. Since we're already half way through the current session, it's best to call or email rather than send snail mail.

How to Take Action

Writing a Research Paper for Writing Requirement Credit--Spring 2014

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Today, Wednesday January 15, I once again had an enjoyable opportunity to present for the 2L & 3L Academic Success Program. The program was on "Writing a Research Paper for Writing Requirement Credit." If you attended and want to see a copy of the presentation slides and handouts, skip to the bottom. If you couldn't make you are also welcome to look at the handouts. 

IThe one-hour session began by discussing the student handbook section that sets out the writing requirement, noting its importance as a core requirement of a professional degree.  Then I provided general advice on picking a topic, with some emphasis on library resources like subject-specific legal newsletters, ProfBlogs, and general legal news sources that may helpful in generating topics. Researching the policy aspects of legal issues that come up in seminar papers was briefly discussed, leading next to a treatment of issues involved in writing of a research paper.  Issues discussed incuded creating outlines, constructing a thesis, resolving common style and grammar issues, proofreading, and avoiding plagiarism by the proper use of quotation and citation.  Given the limited time to discuss these matters, liberal mention was given to resources like Eugene Volokh’s Academic Legal Writing: Law Review Articles, Student Notes, and Seminar Papers, and the collection of other legal writing books on reserve in the law library, as well is in the Academic Success Office's library.

The handouts are here:

If you have any questions are want follow up assistance don't hesitate to come by the law library or to email me any questions to kurt.metzmeier@louisville.edu.

Consumer Surveys in Trademark Cases

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Here are a couple of blog posts (here and here) about Judge Posner's criticism of consumer surveys trademark cases. The case at issue is Kraft Foods Group Brands LLC v. Cracker Barrel Old Country Store, Inc., 2013 WL 6017396 (7th Cir. Nov.  14, 2013).

 I thought the postings, and the Kraft case itself, were interesting. Judge Posner's main concern is that such surveys are prone to bias because they are designed by experts hired by the parties, and many surveys are conducted in a way that is very different from how consumers encounter marks in the market place. He recommends perhaps relying on more objective, scientifically valid statistical analyses, or experts in the industry. Perhaps this case will push the develpment of more consistent standards of what consititutes a valid consumer survey. I think courts need the help.