University of Louisville Law Faculty Blog

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.

Does America need an official language?

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For several years now there has been a push by some to make English the official language of the United States.  As in the previous two sessions, Congress has a bill before it to make English the national language and to make it the common unifying language of the country.  Although public polls show support for this movement, others strongly criticize this effort.  As a multilingual and multiracial nation, they would prefer the United States either not adopt a national language or adopt several languages to reflect the diverse makeup of our country.

 

Visiting South Africa has provided me with a new lens to view this debate.  The South African Constitution recognizes eleven languages as official languages.  In addition, the government is required to “take practical and positive measures to elevate the status and advance the use of these languages.”  The Constitution imposes this duty in recognition of the “historically and diminished use and status of the indigenous languages” of their people.  Language plays a pivotal role in forming a person’s personal and cultural identity.  Forcing a person to use a non-native language arguably takes away from who they are as a person.

 

Yet the goal of multilingualism, even if laudatory, has profound practical challenges.  In his excellent article (Vol 124 Part 1 The South African Law Journal page 84) )discussing the impact this language policy has on the court system, Dean Michael Cowling of the University of Natal at Pietermaritzburg addresses many of the competing policies at play.  United States’ policymakers would be well served to read his article and thoughtfully analyze these issues and concerns before making any decision on whether to adopt one or more national languages.

 

Some of the issues that need answers include: 

  • Would the courts translate the opinions in all official languages?
  •  How much would that cost?
  •  If a trial was conducted in one language, would the court record also be in that language? 
  • What happens if legal terms are not translatable in another language (many of the African indigenous languages are not as fully developed yet with respect to legal terms so there are no direct equivalents)? 
  • What about the problem of mistakes made in translations- which version of a law would a court use if there are differences between them?
  •  Should we have a bilingual language policy or a multilingual policy? 
  • Some black judges in South Africa argue court proceedings conducted in multiple languages would be “divisive, illusory, expensive, cumbersome and impractical” – would it be less in the United States if we had less than 11 official languages?
  • Can you really have freedom of expression and protect your individual liberty if you cannot speak in the language of your choice?
  • How do you practically promote multiple languages?
  • Should there be parity of all languages in legislation? Regulations? Printed material? Education? Road signs?
  • Should we alternate which language is used when reporting decisions or publishing laws as South African has done in the past with English and Afrikaans?
  • Fundamentally, is adopting English as a national language discriminatory or racist?
  • In the United States would English be the language of the oppressor as some see English and Afrikaans or is it different for us?
  • What reasons exist for giving enhanced status to English?
  • Who would regulate and monitor the official language?
  • Would multiple lawsuits result if we select one or more national languages?
  • Is it fair to have a civil law proceeding in a language that is not the mother tongue of either of the parties?
  • Will judges, practitioners (and thus law professors) need to be proficient in multiple languages?
  • What effective will decisions have on the world’s jurisprudence if they are not translated into English (would an opinion written only in isiZulu have any impact? Spanish?)
  • Whose mother tongue should be used? The judge’s? The litigants’? the attorney’s?
  • Even if multiple languages exist for other purposes is there any justification to only having one language for legal proceedings?
 

These are just some issues that need further analysis before deciding whether to have an official language(s).

  

Justice Sherman Minton: A Bridge Between Eras

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In recent posts I discussed John McKinley, the only other U.S. Supreme Court justice besides Louis D. Brandeis to be buried in Louisville, grouping the two disparate men under the random accident of the geographic proximity of their last resting places.  If state lines are ignored, a third justice is also buried nearby, the gregarious New Albanian Sherman Minton, whose grave at Holy Trinity Catholic Cemetery lies just across the the Ohio River bridge that bears his name. (Credit to Jim Chen, who pointed out the Oyez created Google Maps page of SCOTUS death-places).  Minton is a balancing addition to the Kentuckiana trilogy, a solid hardworking and sensible jurist whose career avoided the dizzying heights of Brandeisian greatness and the spectacular lows of McKinleyesque inconsequentiality, landing squarely in the middle of most rankings.

Minton, a senatorial pal of Harry S. Truman who appointed him to the court in 1949, was the last member of the U.S. Congress to sit on the court. This is no obscure fact; since he left in 1956, only Sandra Day O’Connor, an Arizona state legislator, joined the Court with any experience in drafting laws, counting votes and trading favors to pass a law.  The woeful lack of practical experience has led many of the current court to expect laws to be drafted without error or ambiguity, and, when they don’t find this perfection, they are content to ignore obvious legislative intent.  Minton, a man with a high regard for the product of the popular branches, sought to find and vindicate the purpose of the legislature embodied in its laws.

Sherman Minton was the last of another breed of justice, at least according to a new paper on SSRN by Justin Crowe and Christopher Karpowitz, “Where Have You Gone, Sherman Minton? The Decline of the Short-Term Supreme Court Justice” (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=948813).  Crowe and Karpowitz discuss the historical role of “short-term” justices, men who served productively on the court but did not stay for decades.  They show that this was a common phenomenon in the 19th and early 20th centuries, but has been rare in the last half-century. 

When Sherm Minton left the court in 1956, he likely had little idea that an era was ending.  The age of poker-playing lawyer-legislators was over; the court would increasing become the province of law professors, Justice Department staff attorneys and corporate lawyers; all typically rotated through a federal lower court position before being seated on the high court.  Where they would sit … and sit … and sit …

UPDATE:

Federal judge and former congressman Abner J. Mikva was decrying this tendency in the lower federal bench back in the early 1980s: "Judicial Selection: Casting a Wider Net,"  62 Annals Am. Acad. Pol. & Soc. Sci. 125 (1982). 

Mitch McConnell, Second Senate Leader from Kentucky: A Dissent

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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):