University of Louisville Law Faculty Blog

Final Exam Content

The following is "fair game" for the final exam:

 The first introductory lecture plus anything from medical staff structure (Feb. 14) through tax exemption (April 8) including "Sicko."  You will not be tested on antitrust.

Tips for a Successful Student Oral Argument

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My students put together a very helpful list of tips for other students engaging in their first appellate oral argument.  (Students doing their second or third one might also find it helpful, as might practitioners doing their first.)  Their google document can be linked to here

Equal Pay Day

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Did you know women in the United States are still paid only 77 cents for every dollar earned by men? For women of color, the numbers are even worse - African American women earn 63 cents and Latinas earn 52 cents for every dollar paid to white men.

To commemorate Equal Pay Day, which will be recognized on Tuesday, April 22, the US Senate is expected to vote on the Lilly Ledbetter Fair Pay Act (HR 2831) soon. The bill will amend Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 (Pub. L. 90-202), and reverse the Supreme Court’s recent decision in Ledbetter v. Goodyear Tire & Rubber Co. (No. 05-1074) to restore adequate protection against pay discrimination.

The Lilly Ledbetter Fair Pay Act was passed by the House in July 2007 and is now on the Senate’s calendar. Senators Hillary Clinton and Barack Obama are among the bill’s cosponsors.

Take Action & Get Informed

Blog for Fair Pay

  • Use this online form to contact your Senators and tell them you support the Fair Pay Restoration Act (S 1843).
  • Compare your salary to that of your coworkers with the Courier-Journal’s Government Salary Database.

References

Pay Equity Fact Sheet

Supreme Court Ruling & Fair Pay Restoration Act Fact Sheet

Corporate Practice of Medicine

The question asked was how to distinguish between Bartron V. Codington County and Berlin v. Sarah Bush Lincoln Health Center.  There are 2 factors that make a difference between these 2 cases.
 
The first is that this is governed by state law and there is still a lot of variation from state to state.  The cases come from 2 different jurisdictions.  

The second factor is that this is an old doctrine that is now going out of favor.  The Bartron case is 1942 and the Berlin case is 1997.  I don't know if the Bartron case would still be good law today in most states.  The reason to study this is just to have an awareness that employment contracts with physicians and physician groups may be treated differently from state to state depending on whether that state has a corporate practice of medicine doctrine.

Flavor Flav for Kentucky State Senate!

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As the train wreck that was the 2008 session of the Kentucky General Assembly screeched and clanked to the constitutionally mandated deadline of midnight April 15, it suddenly became clear that it needed more time. Drawing on the omnipotent power conveyed upon them by the citizens of Kentucky, Senate leader David Williams and House leader Jody Richards raised their hands high and commanded time to stand still!

OK, actually they unplugged the clocks and went on to pass at least five bills after the day of April 16th had dawned, if WHAS' Mark Hebert and the Lexington Herald-Leader's Ryan Alessi are counting correctly. There is talk of someone asking Attorney General Jack Conway to write an opinion as to whether this is legal. (This could be the oddest OAG since Attorney General Squire Boone opined on whether the 1826 legislature could repeal the law of gravity).*

"And yet it moves." Or so muttered Galileo after recanting his daft idea that the sun did not revolve around the earth. However, no timid Tuscan can teach the legislature the lesson it truly needs. No, they need someone to tell them (straight up, boyee) what time it is. Flavor Flav is the man for the job.** First, he brings his own personal clock (like to see someone get up in his grill to silence that time-piece). Second, he has the resume that indicates he will stand up to the legislative leaders to end pork-barrel politics and support state priorities. Let his friend, Chuck D explain:

Gettin' small makin' room for it all
Flavors on the phone so he can...
Make the call
I know you're clockin' the enemy
You should be clockin' the time
Checkin' records I'm wreckin' you
For defecting my rhyme
No provokin', no jokin', you know the stage is set
If you're thinkin' I'm breakin'
He ain't rocked it yet
My education is takin' you for a long ride
I'll have you brain slip and do the slide
Glide into infinity, it's infinite
With your hands in your pockets
I know your money is spent
Like this, like that, butter for the fat
If you kill my dog, I'ma slay your cat
It's like that y'all, can you handle it son
I'm public enemy number one

From "Terminator X To The Edge Of Panic"

Under Sen. Flav, fat (as well as butter) will be cut and education will supported (from the two infinity references, I assume that science education is a priority). And finally, somebody to put David Williams' tabby on notice!

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* Not actually true.

** Once he establishes residency--how hard could that be? Stephenson v. Woodward, 182 S.W.3d 162 (Ky., 2005).

Another Approach to Constitutional Issues

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Unlike the United States, South Africa has a special Constitutional Court devoted solely to hearing matters arising under the constitution.  The Constitutional Court opened on February 14, 1995 and has 11 members.  These members are appointed by the President after consultation with the Chief Justice and leaders of the political parties in Parliament.  The Justices who serve nonrenewable 12 to 15 year terms are a mix of academics, advocates and lower court judges.  The Judges sit in Braamfontein and wear distinctive green robes.

 

Americans may be interested in knowing about some of the landmark cases this court has already addressed in its short history.  I mention just two here.

 

The Death Penalty:  Although much debate ensued when drafting the constitution about the death penalty, the drafters chose not to decide whether it would be permitted in South Africa.  The Constitutional Court abolished the death penalty during one of the first cases heard by it in 1995.  The decision can be found at http://www.constitutionalcourt.org.za/uhtbin/cgisirsi/20080415073642/SIRSI/0/520/J-CCT3-94

 

Gay Marriage: The common law definition and section 30(1) of the Marriage Act of 1961 were ruled unconstitutional because they did not permit same-sex couples to enjoy the same status, entitlements and responsibilities accorded to married heterosexual couples.  To learn more about the case go to http://www.constitutionalcourt.org.za/uhtbin/cgisirsi/20080415075522/SIRSI/0/520/S-CCT60-04.

 

Many more interesting cases can be found at http://www.constitutionalcourt.org.za/site/thecourt/history.htm#cases.  Some of the issues addressed involve the right to housing, right to health care and access to HIV/Aids treatment, and the right of prisoners to vote.  For those of you interested, this website also gives an excellent history and overview of the South African Constitutional Court.  I found it fascinating as the Court is dealing with many issues and topics currently raging in the United States.  Seeing another nation’s perspectives on these topics may make our debates more meaningful.

A Plea to South Africa and the World

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The words may not be identical but the plea is always the same:

 

“Please South Africa, we are crying unto you and hoping that you will follow your God-given instinct and bring to an end all this chaos in Zimbawe.  I am a Zimbabwean person, and I know that we are rather fearful, we are not as brave as you are.  We are too scared to go to the streets.  Please we need your help, intervene on our behalf and the Lord will bless you.
 
Thank you South Africa, please help!” posted on http://www.sabcnews.com/features/zimbabwe_elections_2008/

 

Yet President Thabo Mbeki’s response remains inexplicable.  After meeting with Mugabe this past weekend, President Mbeki reported to the world that there was no crisis and the world should be patient for the results.  And yet I hope every morning that The United Nations or other world powers will do something to help.  Normally, I would probably barely notice what is happening but being right next door to Zimbabwe has made it all too real for me.  Seeing this tragedy unfold in front of me is so heartbreaking as you read the desperation in the voices of the Zimbabweans.  The world can wait no longer.  Already retired military have terrorized the farmers and more violence is promised.  How can South Africa, the United States and the rest of the world do nothing?  We must answer these pleas before it is too late.  Africa, please do not abandon this country which once was the bread basket of the continent.  It makes one seriously question what we would do if there was oil under the ground.

  

Legal Writing Consultants

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E. Joan Blum and Kathleen Elliot Vinson have recently posted their article Teaching in Practice: Legal Writing Faculty as Expert Writing Consultants to Law Firms.  If you, your law firm, or other legal organization are thinking about hiring a writing consultant, you will likely find the article highly informative. 

 

The article discusses the pros and cons of using a consultant and the various types of consulting.  The pros include permitting senior lawyers to focus on tasks other than intensive mentoring and tapping a full-time professor's legal writing expertise.  The cons include the necessity for a long-term relationship between the firm and the consultant and the potential for the professor's other demands to detract from the relationship.

The types of consulting are group seminars for supervisors, group seminars for associates, group seminars for summer associates, and individual coaching.  The seminar for supervisors trains senior lawyers to serve as legal writing mentors to associates.  The seminars for associates and summer associates focus on particular writing skills.  Individual coaching consists of either one-on-one long-term coaching of a particular individual or of individual meetings with the professor during weekly office hours.

The article mentions continuing legal education ("CLE") as another option for learning from the expertise of legal writing faculty.  I believe that, in some jurisdictions, attorneys can receive CLE for auditing law school classes.  Additionally, legal writing faculty speak often at university and academic events which practitioners would likely be more than welcome to attend.

Biodiversity and Climate Change Presentation

The powerpoint slides from my recent faculty workshop on the links between biodiversity and climate change are available here.  Among other things, I discussed the importance of forests to both issues and the potential for using the momentum and incentives of the international climate change regime to foster biodiversity preservation.  Thanks so much to those who attended and for the valuable comments I received.  

Clean, Wet, and Smart, Part III

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Land use affects water quality, water use, and the integrity and health of watersheds.  The last few years have seen a growing level of attention to how aquatically responsible land use and development might be defined and actually achieved.  This blog posting is the third in a series of posts highlighting articles that address the legal and policy intersections of land and water.  In this posting, I provide a link and the abstract to an article that addresses an often-overlooked topic: the importance of land trusts and government agencies acquiring water rights to accompany the conservation easements or conservation lands that they acquire. 

 

The article is: Mary Ann King and Sally K. Fairfax, "Beyond Bucks and Acres: Land Acquisition and Water," 83 Texas Law Review 1941 (June 2005).  Available at SSRN: http://ssrn.com/abstract=874789 

 

Abstract:       

 

This Article will use historical experience and current practice to do three things. First, we chronicle early acquisitions' tendency to overlook water. Second, we will offer a precise account of the confusion that can arise from combining conservation easements and water as property, most particularly in the western United States. Finally, we look at some tools that might minimize the confusion.

 

In Part II we first use a brief history of land acquisitions - from Niagara Falls in the 1880s to the Land and Water Conservation Fund Act of 1965 - to establish the context in which land-acquiring conservationists have long overlooked water. Perhaps the fact that land acquisition as a conservation tool, both full-fee and conservation-easement-based, first took hold in the eastern United States, where riparian doctrine prevails, explains the rather off-hand approach to water in these early acquisitions, what we call the riparian mindset. We also note some basic constraints on just buying it associated with these historic acquisitions of land-in-fee.

 

We briefly put water aside in Part III to introduce land trusts and conservation easements. First, we discuss state statutes that adjusted the common law of servitudes to accommodate conservation easements. Then we point to issues that would arise in any modern conservation easement, issues that intensify the concerns we raise regarding acquisition of land-in-fee.

 

In Part IV, the heart of our discussion, we ask what happens if conservation easements are used when water is a primary or necessary element of the conservation benefit. We begin by examining the easiest case: municipal and land trust programs that use conservation easements to protect water quality. In these programs, the basic features of the conservation easement are relatively unaltered by its connection to water, and problems seem no more onerous than with most other conservation easements. We address the harder issue of water quantity by examining experiences using less-than-fee interests to restrict water rights. Depression era flowage and post-World War II wetland easements acquired by the Bureau of Biological Survey (BBS) and the United States Fish and Wildlife Service (FWS) are instructive. The contemporary use of conservation easements that address water quality by restricting water rights is more problematic, particularly when the federal government's enormous advantages in litigation are taken into account.

 

Part V offers some starting points for future discussion. We look at water trusts' experience trying to integrate instream values and water rights into transactions. We then briefly discuss a recent Colorado statute aimed at strengthening conservation easements as a tool for protecting water on eased lands. We conclude that conservation easements that protect water quality by controlling land use are not obviously more vexed than the familiar conservation easement protecting open space, habitat, or historic sites. In fact, all of these goals frequently overlap handily. Trying to use conservation easements to address issues involving water rights - water as property - is more complicated. When easements attempt to tie water to land, particularly in ways that are not fully supported by state water, property, and easement law, the results can be disappointing. If the energetic - and still rapidly growing - land trust community is to play a positive role in water-related or water-dependent resource protection, practitioners must overcome the riparian mindset and directly address the interplay between land and water law.

 

We conclude that addressing water quantity goals with conservation easements is both complex and risky. But conservation easements are the current tool of choice for good reason, and not using them at this point in history may leave even worse problems. The task remains to choose tools that effectively integrate land and water conservation.