University of Louisville Law Faculty Blog
Senator McConnell’s recent campaign ad has once again got me hot under the collar. No, it is not any particular claim he makes (that would be a different blog), but instead something that he has repeated in every commercial since he began ad buys at the beginning of 2008: that he is “only the second Senate leader from Kentucky” (the other being Alben W. Barkley).
Admittedly, this claim is backed up by the Senate Historical Office which dates the history of this title (arbitrarily, I believe) back until 1920 when they declare that the title “leader” was formally applied to the chairmen of the Democratic and Republican caucuses. This clearly neglects the increasing importance of this party office in Senate politics starting at the end of the 19th century and at the same removes three additional Kentuckians from the roll of leaders: John W. Stevenson (1873-77), James B. Beck (1885-90) and Joseph C. S. Blackburn (1906-07). Moreover, this determination ignores what some of these men were actually called by the press: leader.
The reason that Senate historians have fixed on the 1920 date is that it is admittedly hard to determine when the caucus chair went from being a mere presiding officer to the chief organizer of the party’s legislative activity. It is fairly clear that former Kentucky governor Stevenson’s role when he held the Democratic Senate caucus chair in the 1870s was to gavel the infrequent meetings to order. However, when Jo Blackburn let loose the leadership reins in 1907, his fellow Democrats prepared to jockey for a position of real power.
Reading through contemporary accounts of the caucus chairmanships of Senators Beck and Blackburn in the free New York Times archive (1851-1923), it is clear to me that McConnell is the fourth, not second Kentucky Senate leader, and that if re-elected he needs to give his other predecessors their due.
Leader Blackburn (with senatorial 'stache):
I read with interest the recent power outage at University of Louisville. Currently I am on exchange at the University of Natal in Pietermaritzburg. I must draft this entry quickly because a scheduled power outage will shut down all electricity at the university for the entire afternoon. Last night the power was out at my residence from 7:30 p.m.-9 p.m. As the University of Louisville struggles during these difficult budget times, I wondered what we would do if our power went out every other day. Some schools in South Africa are actually using coal miner hats with lights to teach the classes! The best estimate is this will continue until 2012.
But power shortages are not the only issue that challenges this nation. Just a month ago students staged protests because the university did not have adequate housing forcing students to share single beds. Even more alarming, the student newspaper reports 800 people die of HIV/Aids related illnesses every day and that by the time one was done reading the short article four women will have been raped. They continue to struggle with race relations and how to co-exist. A recent video of university students (not from Pietermaritzburg) showing students forcing university domestic workers to drink warmed dog food containing urine shows they have a long way to go.
Yet I have found the South Africans very resilient and still full of hope. Their spirit and desire to attain a better tomorrow gives them strength and is inspiring. The professors here are making the best of the situation and are still trying to educate their students even though they now need to be even more creative in delivering lectures. They remain positive even during these challenges. As I get ready to go into darkness again, it puts some of our problems in perspective.
One characteristic of blogs that I have not figured out how to get around is that the medium disfavors citation to print-only sources. Bloggers are eager to link to support for their propositions from online references but they (and I count myself in this) are loathe to pull out the Harvard citator or Chicago Manual and drop a hoary old bibliographic citation on their readers. In a recent post, “John McKinley: Louisville's Lost Supreme Court Justice," I made several assertions that seemed to cry out for a footnote but I could not figure out how to insert such references without messing up the flow and (more importantly) detracting from my cool graphic layout. First, I numbered Louis D. Brandeis among the greatest justices to have sat on the court, a very defensible position, but a source or two might be nice. Second, I suggested that Justice John McKinley was perhaps not as well-respected. This might not strike readers who have not heard of him (a sizeable subset of humanity) as needing a citation, but there is actually excellent authority for the statement (from the University of Chicago Law Review, no less). Finally, I argued that McKinley is not usually counted among the list of Kentucky Supreme Court justices. Some might say: There’s a list?! Oh yes, my dear, there is a list. In fact, a little bibliography answering all these questions might be in order…
Top Supreme Court Justices:
Ranking judges is perhaps the most entertaining useless exercise in the legal world (Doris Kearns Goodwin and Michael Beschloss can keep the president-ranking game). In 1992, University of Texas Law Librarian Roy Mersky and a UT colleague bibliographically surveyed all of the judge-ranking efforts up to that date. Roy M. Mersky and Gary R. Hartman, Rating the Justices, 84 Law Libr. J. 113 (1992). Among the best known efforts are George R. Currie, A Judicial All-Star Nine, 1964 Wis. L. Rev. 3, Bernard Schwartz, The Judicial Ten: America's Greatest Judges, 1979 So. Ill. U. Law J. 405. and James E. Hambleton’s meta-analysis, The All-Time, All-Star, All-Era Supreme Court, A.B.A. J. Apr. 1983, at 462. Almost the studies put Brandeis in the top nine (in center-field, if I read the ABA Journal illustration right). Brandeis missed Roscoe Pound’s 1938 list of all-time judges of U.S. history (The Formative Era of American Law 4, 30 n.2), hobbled by the evident fact that he failed meet an implied condition of the ranking: he was still alive.
Most Insignificant Justices
The two seminal works on this topic (see fn 1 of Easterbook, infra) are David Currie, The Most Insignificant Justice: A Preliminary Inquiry, 50 U. Chi. L. Rev. 466 (1983) and Frank H. Easterbrook, The Most Insignificant Justice Further Evidence, 50 U. Chi. L. Rev. 481 (1983). Students of judicial irrelevance may be interested in Professor Currie’s Objective Indicator of Insignificance (OII) factors that led him to fix the MIJ tag on Virginian Gabriel Duvall and Kentuckians may be distressed that Judge Easterbrook pointed the finger at homeboy Thomas Todd, but the fact is that both seriously considered John McKinley for the esteemed title of Sultan of Sloth.
In his article Kentucky Justices on the U.S. Supreme Court (70 Register Ky. Hist. Soc. 121), Woodford L. Gardner, Jr., confined his list of “Kentucky Justices” to the eight men who were born in the state and the two men appointed to the court while residing in the state. In order of appointment they are:
Thomas Todd (no snickering), born in Virginia, appointed from Kentucky, 1807.
Robert Trimble, born in Virginia, appointed from Kentucky, 1826.
Samuel Freeman Miller, born in Richmond, Ky., appointed from Iowa, 1862.
John Marshall Harlan, born in Boyle Co., Ky., appointed from Kentucky, 1877.
Horace H. Lurton, born in Newport, Ky., appointed from Tennessee, 1910.
James C. McReynolds, born in Elkton, Ky., appointed from Tennessee, 1914.
Louis D. Brandeis, born in Louisville, Ky., appointed from Massachusetts, 1916.
Stanley F. Reed, born in Boyle Co., Ky., appointed from Kentucky, 1938.
Wiley B. Rutledge, born in Cloverport, Ky., appointed from Iowa, 1943.
Fred M. Vinson, born in Louisa, Ky., appointed from Kentucky, 1946.
In fairness to Gardner, he was not unaware of McKinley’s Kentucky ties, grouping him with John McLean, Philip Pendleton Barbour and John Catron as justices “closely associated with Kentucky.” McLean lived in the state a few years as a child and the Virginian Barbour practiced in Kentucky for a couple years before returning home. Catron had greater ties to the state, having read law, practiced and held office in Kentucky before migrating to Tennessee. None but McKinley is buried here, however, and he now can claim 166 years of residence.
Justice in Repose:
Finally, this whole exercise occurred when I noticed that nearby Cave Hill Cemetery had a justice planted among the oaks and roses, in George A. Christensen, Here Lies the Supreme Court: Revisited, 33 J. Sup. Ct. Hist. 17 (2008), an updated survey of the final resting places of Supreme Court justices. Plan your vacation accordingly!
Last week, without much fanfare, the Supreme Court decided Hall Street Associates, L.L.C. v. Mattel, Inc., U.S.. There has been some discussion of the decision's impact on employment arbitration and potentially on labor arbitration.
I confess to being "on the fence" about the result, but the opinion does raise some interesting points.
First, practitioners who are drafting arbitration agreements should be aware that they will not be able to rely on the Federal Arbitration Act ("FAA") as a basis for expanding the review of the District Court. The Court holds that the statutory grounds for "vacatur and modification" are exclusive and may not be "supplemented by contract." (The Court notes, however, that there may be other means of enforcing a contracted for standard of review.)
Second, Justice Souter, writing for the majority, makes several statements that raise interesting questions about why parties choose to arbitrate disputes and that implicitly address the ongoing debate about what the goals of the arbitration process are.
He notes that "any other reading [of the FAA] opens the door to the full-bore legal and evidentiary appeals that can ‘rende[r] informal arbitration merely a prelude to a more cumbersome and time-consuming judicial review process . . .'" His understanding is that arbitration should be an expedited alternative dispute resolution process.
Relatedly, Justice Souter points out that there is a dispute as to whether limited review will encourage parties to abandon arbitration for the courts or whether the ability to expand review will encourage parties to abandon the courts for arbitration. Either way, the premise is that expanded review encourages arbitration.
I believe that for some parties limited review encourages arbitration precisely because it does guarantee an expedited, less-time-consuming, less expensive procedure. These parties want assurances that they will not unwittingly contract into a situation where arbitration is the first step in a long drawn out litigation process.
For other parties, the ability to expand review may increase the likelihood that they will arbitrate because they are more interested in confidentiality and the ability to select the decision-maker.
This raises interesting questions about the goals of arbitration. Should the ultimate goal in every arbitration be an expedited procedure or should other goals such as confidentiality and selection of the decision-maker matter equally? Should parties be able to simply privatize the trial court procedure? If de novo review is available, arbitration looks, in some aspects, less like an alternative dispute resolution procedure and more like a substitute trial court. On the other hand, without procedural safe-guards, the dispute resolution mechanism may not ultimately serve as a satisfactory means of solving the parties' dispute.
Moreover, there are a host of other reasons that parties select arbitration beyond the level of review, its expeditious nature, confidentiality, or the ability to choose a decision-maker. These include the ability to tailor rules and procedures to the parties' needs, the equitable nature of the process, the ongoing relationship of the parties, admissibility of evidence not typically admitted at court, and potentially creative remedies. Of course, only empirical research could ascertain what impact, if any, the ability to contract for an expanded standard of review would have on the level of use of arbitration.
In olden times, a child tragically affected with a disfiguring condition would be hidden from public view, out of shame, and from a desire to shield society from a horror they were ill-equipped to handle. In our more enlightened era, compassion and openness has largely swept away such attitudes. Some offspring, however, are still considered so hideous that the public must be protected from unwitteningly stumbling upon them. It is out of such caution that the Kentucky legislature has secreted away its ill-conceived prodigy, the 2008-2010 Kentucky state budget document.
However, as a librarian and a lawyer, I am a heir to two traditions of unflinching rationalism, and am bound to to throw off the cloak of superstition and point the brave to go to http://www.lrc.ky.gov/record/08RS/HB406.htm and to click directly on the first link "HR406." Read with caution; a stiff drink might be advised.
Perhaps suprisingly, the question of forest (and other resource) governance recently received popular attention, thanks to reporter Andrew C. Revkin’s New York Times blog, Dot Earth. The post focused on a recent murder in Peru, retribution for reporting illegal timber activities. The story behind the post received attention in the U.S. weeks after the killing, thanks to mongabay.com.
This attention is critical. The potential carbon, biodiversity and human health benefits of REDD credits (and the likelihood of their creation) will be seriously undermined by poor forest governance. Liberia and the Democratic Republic of Congo are prime examples of countries that could reap significant human health and biodiversity benefits from REDD, but face extreme governance problems very likely to undermine efforts to secure them. Countries with somewhat better governance frameworks, therefore, will be in better positions to benefit from REDD.
Governance problems have repeatedly plagued efforts toward sustainable forestry, yet international attention to the issue in specific contexts can affect the resources devoted by national authorities to improving governance and the extent of international support for such efforts.
Two associate justices of the U.S. Supreme Court are buried in the city of Louisville. One, Louis D. Brandeis, is considered to be one of the finest jurists to ever serve on the Court, writing opinions that are widely considered landmarks in the development of the right to privacy and the freedom of speech. He is the namesake of both Brandeis University and, more importantly, the Brandeis School of Law at the University of Louisville, where he is buried in the school's portico.
And then there is John McKinley. In fifteen years on the Court, he wrote 21 opinions. True, he was assigned to ride the Southern Circuit, a brutal task in the years from 1837 to his death in 1852, but in his later years he neglected this task, avoiding his responsibility to visit Arkansas his whole time on the court. (Some might argue that this was an understandable omission). He was so obscure that when he died in Louisville on July 19, 1852, the New York Times gave him a one-line obituary. He may have been the victim of unfortunate timing; another man with Kentucky connections died that day, Henry Clay. McKinley’s obscurity has only grown; many biographies have his death place listed wrongly as Lexington.
McKinley is not usually counted among Kentucky’s Supreme Court justices, but the state has a rather strong claim to him (assuming it wished to claim him). He was born (like Clay) in Virginia, but was brought to Lexington, Kentucky, in his youth. He was called to the bar in Frankfort and practiced there and in Louisville, before trying his fortunes in Alabama in 1821. He served that state in Congress and was considered an Alabaman when President Martin Van Buren appointed him to the Supreme Court. However, he soon decided that Louisville was an excellent home base for his circuit court duties, and relocated here in 1842. The 1850 census lists him and his family well ensconced in the city.
Related by birth to one leading Kentucky family, the Logans, he became connected to others by the marriage of his daughters. (One set of in-laws, the Churchills, dabbled in horse racing and built a race track of moderate fame).
He was buried in a prominent place in Cave Hill Cemetery, Louisville’s oldest and most beautiful burial place; his memorial is dignified but relatively modest. The cemetery does not mention McKinley among its list of famous residents, which includes John Keats’ brother George and Col. Harlan Sanders.
I recently wrote a law review article on social networking sites (it can be viewed at my SSRN Author page: http://ssrn.com/author=624360 ). I included proposed solutions that were both legal and educational in nature. I am pleased to see MySpace and the nation's attorneys general announced a plan in January 2008 that would greatly improve the safety of children using social networking sites. Only time will tell whether MySpace honors this agreement but it is definitely a step in the right direction. To learn about the details of the agreement go to :
We have a very exciting, and even historic, event happening in Louisville tonight ! Thirteen leading officials & allies in the local healthcare community are coming Monday night to commit to work together to make some real change for the health of children in our community, and especially for those in low-income communities. Please see the attachment to learn more about the Catch A Falling Child Campaign.
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 second in a series of posts highlighting articles that address the legal and policy intersections of land and water. In this posting, I provide links and abstracts to 2 similar articles manifesting the research and ideas of Professor William Andreen, University of Alabama Law School, on the subject:
1) William L. Andreen, "The Evolving Contours of Water Law in the United States: Bridging the Gap between Water Rights, Land Use and the Protection of the Aquatic Environment," Environmental Planning and Law Journal, Vol. 23, 2006. Available at SSRN: http://ssrn.com/abstract=889744
Although Australia and the United States share a common law heritage, water law has developed in significantly different patterns in the two nations. Much of the credit for Australia's different course can be ascribed to Alfred Deakin, who after taking a study tour of the American West in 1885, wrote a report that rejected the doctrine of prior appropriation as used in the arid states of the American West and advocated a system in which the rights of the state were elevated over those of the individual.
Unfortunately, both countries have generally treated water, just like land and other natural resources, as a commodity for human use, manipulation, and degradation. Little thought or significance, at least until relatively recently, was attached to the adverse environmental impact of reduced stream flows and the severe damage caused by hydrologic modifications such as dams and by various development activities that disrupt and pollute aquatic habitats. Both countries, therefore, face the difficult challenge of trying at a late date to bring together two separate, but inextricably connected, disciplines, one focusing on water use and the other on water quality. The challenge is daunting, especially in light of both existing uses of water "giving rise to settled expectations in Australia and often confirmed as a matter of right in the United States" and anticipated growth in demand.
Complicating the situation in the United States is its fragmented approach to law and regulation dealing with watershed issues. Water quantity law is state-driven, while water pollution law is primarily federal in origin, with the notable exception of non-point source pollution, which is primarily the responsibility of state government. Land use management, on the other hand, is generally a question for local government.
After exploring the three separate regimes governing water use, water quality and land use, the article discusses and evaluates a number of approaches for trying to integrate these regulatory schemes into a mechanism that can enhance and protect the integrity of our aquatic systems while also meeting many human needs in a sustainable and adaptive way. Perhaps the most important aspect of this analysis lies in its attempt to connect, in terms of law and institutions, the natural and symbiotic relationship between land use and water. Although that relationship has long been ignored, it is essential to conceive of a river or other freshwater system as part of a larger interdependent ecosystem, one linking all land and aquatic features in a particular watershed.
2) William L. Andreen, "Developing a More Holistic Approach to Water Management in the United States," Environmental Law Reporter, Vol. 36, No. 10277, 2006. Available at SSRN: http://ssrn.com/abstract=894959
Americans have generally treated water, just like land and other natural resources, as a commodity for human use, manipulation, and degradation. Little thought or significance, at least until relatively recently, was attached to the adverse environmental impact of reduced stream flows and the damage caused by hydrologic modifications such as dams and by various development activities that disrupt and pollute aquatic habitats. The United States, therefore, faces the difficult challenge of trying at a late date to bring together three separate, but inextricably connected, disciplines, one focusing on water use, one on water quality, and yet another focusing on development and land use. The challenge is daunting, especially in light of both existing water uses and anticipated growth in the demand for water.
Complicating the situation is a fragmented approach to law and regulation. Water quantity law is state-driven, while water pollution law is primarily federal in origin, with the exception of non-point source pollution, which is primarily the responsibility of state government. Land use management, on the other hand, is generally a question for local government.After exploring the regimes that govern water use, water quality and land use, the article discusses a number of approaches for trying to integrate these regulatory schemes into a mechanism that can better protect the integrity of our aquatic systems, while also meeting most human needs. Perhaps the most important aspect of the analysis lies in its attempt to connect, in terms of law and institutions, the symbiotic relationship between land use and water. Although that relationship has long been ignored, it is essential to conceive of a river and other freshwater systems as part of a larger interdependent ecosystem linking all land and aquatic features in a particular watershed.