University of Louisville Law Faculty Blog

Partisan Defined


When I said "partisan" judges in a prior post ("Samuel Steinfeld and the Old Partisan Kentucky Judiciary"), I meant judges formally elected under a political party's label. That is correct as a linguistic convention but it may confuse readers that are more familiar with word being used as a synonym for "ideologue." With the exception of election contests (and cases that had become explicitly political--think Fletcher-Stumbo) that party label often did not mean much as regards the fairness of judicial decision making. Because of the non-ideological nature of Kentucky parties in the last part of the 20th century, whether a judge was slated Republican in 1966 usually meant less then than whether a judge is rumored to be a Democrat means in 2008. (Indeed, some may argue that parties are more ideologically pure now than at any time since the Reconstruction era).

In some cases, a Kentucky judge's regional origin mattered more than party. The Jefferson County GOP was more progressive than its Democratic counterpart on a wide range of issues in 1966, especially race. The Eastern Kentucky GOP, on the other hand, was still defined by its opposition to FDR and was far more conservative. In the larger Democratic party, all political philosophies were accommodated so being labeled Democrat meant little ideologically. What mattered far more to voters was the alignment of a candidate within the party's factions. For example, if a voter cared most about civil rights, party label was not conclusive for picking a champion. The question would be: is he a Clements-Combs Democrat (progressive) or Chandler Democrat (conservative)? If the candidate is Republican, was he allied to Louisville moderates who helped elect Republican Charles W. Anderson the first black member of the Kentucky House of Representatives, or to the Roosevelt haters in the "Old Fifth" congressional district in Southeastern Ky.

The worst aspect of slating candidates was not ideological bias; it was competence. Far too often perceived loyalty to the court house gang or political machine that controlled the process was the the primary requirement for judges wishing to run on the party ticket. Many candidates who went on to be excellent judges convinced the boss of their loyalty; unfortunately a sizable number of hacks did also.

Closing the Book on Reading?

An article in the latest issue of the Chronicle of Higher Education (Americans Are Closing the Book on Reading, Study Finds, v. LIV, no. 14, Nov. 30, 2007, p. A12) reports that the National Endowment of the Arts conducted a study that determined that literacy is declining in America. The NEA issued a report that indicates that 15- to 24-year-olds spent just seven minutes per weekday on voluntary reading in 2006. "[P]eople between the ages of 35 and 44 devoted only 12 minutes a day to reading." The article says that it's not just books that people are failing to read, but that as a nation we're reading "less and less of everything, in any medium." The article points to the obvious impact declining literacy has on our workforce. Just as obvious is the fact that this will adversely affect the quality and preparedness of students to succeed in graduate study.

Samuel Steinfeld and the Old Partisan Kentucky Judiciary


This week saw the passing of a very distinguished Kentucky jurist, Samuel Steinfeld. Judge Steinfeld was a member of the Court of Appeals from 1966 to 1975, back when it was Kentucky's highest court. He was a strong supporter of the 1975 constitutional amendment that redrew Kentucky's judicial system, recasting the Court of Appeals as an intermediate appellate court, creating the Supreme Court, and instituting a uniform system of trial courts.

The old system allowed judges to run on the slates of political parties and Judge Steinfeld saw no conflict between being a scrupulously fair judge and an enthusiastic member of the Jefferson County Republican Party. It was a balancing act that others may not have handled as deftly and Kentucky historians can point out examples of cases where the desire to remain slated by a city boss or court house gang may have tilted a case one way or another. Steinfeld avoided these conflicts and was well-regarded by Democrats as well as Republicans.

For fans of political memorabilia, here is a favorite piece from my collection:


Facilitating Species Migration: Adaption to Climate Change & Biodiversity Benefits


The recently completed IPCC Fourth Assessment Report paints a grim picture of climate change impacts (the summary of the synthesis report is available here). 

 IPCC Working Group II’s contribution estimates: “on average 20% to 30% of species assessed are likely to be at increasingly high risk of extinction from climate change impacts possibly within this century as global mean temperatures exceed 2°C to 3°C relative to pre-industrial levels.” With a rise of 4°C or more above pre-industrial levels, models suggest 40-70% extinction rates.  Popular media, such as Scientific American, also highlight the biodiversity impacts of climate change. 


Hopefully, the completion of the IPCC report will spur significant advances in the international legal response to climate change, as previous reports have.  Because existing mechanisms for combating biodiversity loss have proven largely ineffective, the climate change regime presents one of the best hopes for near-term action to stem global biodiversity loss from both climate and non-climate causes. 


Without intervention, climate change will enhance other factors driving biodiversity loss.  For example, climate change in fragmented ecosystems will likely favor those species that move with relative ease – the same weedy species that are already speeding the depletion of biodiversity. 


One element of adaption to climate change must be combating habitat fragmentation to allow species to respond through migration, or range shifts, as has occurred in previous periods of climatic change (discussed here and here).  In general, this requires a reassessment of protected area priorities to combat fragmentation and ensure that as species find current ecosystems uninhabitable, they will have somewhere to run.

Focus on improving protected areas in a climate regime is a sensible response to climatic impacts on biodiversity.  It also provides a route to combat habitat destruction – currently the primary driver of species loss. 


 At the domestic level, preserving habitat for migration might be integrated into Endangered Species Act implementation through critical habitat determinations, as J.B. Ruhl notes in an article on FWS’ options for responding to climate change.  At the international level, providing migration options could be combined with efforts to preserve or reinvigorate forests as a means of storing or sinking carbon dioxide. 


Channeling some of the funds and initiatives aimed at climate change toward activities benefiting biodiversity can create incentives for developing countries that will seek compensation for loss of development opportunities (as Indonesia and Ecuador plan to do, for example).  This might be achieved through more directly valuing biodiversity benefits in CDM projects that facilitate sustainable development.  Likewise, carbon credits with enhanced value for projects providing biodiversity benefits would allow industrialized countries to benefit from investing in projects that foster species adaption while reducing greenhouse gas emissions.   

Even with increased legal and policy support for preserving habitat to facilitate migration, several scientific limitations complicate prediction of migration options for species threatened by climate change.  First, substantial uncertainty remains in identification of areas that can provide future range to species requiring migration to survive climate changes.  Second, some recent scientific literature suggests that current species richness is strongly correlated with historic climactic conditions, particularly for species with limited range. If so, a significant proportion of species may be unable to migrate to more suitable conditions as the climate changes.  Accordingly, assisted migration options should be developed to sustain such species.


Despite these limitations, working fragmentation concerns into the climate change regime offers a way to foster natural species adaption, preserve options for assisted migration and address other root causes of biodiversity loss.  It can be factored into the value of credits for CDM projects or carbon storage in forests, or other compensation provided for forgoing deforestation. In this way, the momentum on climate change can be harnessed to jumpstart international biodiversity preservation.




Editing Tips for the Busy Attorney

You can find my piece Editing Tips for the Busy Attorney, Ky. Bench & B. Nov. 2007, at 31 at the following link,

"Other People's Money" and Healthcare Nonprofits


A recent article in the Nebraska Law Review by University of Kentucky Nicole Huberfeld applies Brandeis' classic treatise against interlocking directories in a look at the management of nonprofit healthcare compaines. "Other People's Money" and other aspects of Brandeis' economic philosophy has been getting a lot of bashing from Chicago School economists and legal theorists so it's nice to see that some people still see it's relevance.


Nicole Huberfeld, Tackling the "Evils" of Interlocking Directrories in Healthcare Nonprofits, 85 Nebraska L.J. 681 (2007).

You can download it here:


Other People's Money is also available on the internet:

More about print vs. electronic information...


In my most recent blog entry, I said that digital information is more attractive and user-friendly than traditional media, especially print. Let me clarify. In Legal Research, we teach students that print and electronic sources are both useful, and that sometimes print sources are actually easier to use than electronic. My comment really meant to reflect the perception of many students. We are now teaching a generation of students who have principally performed research online, and seldom, if ever, using print. We often hear students ask if we really expect for them to perform research assignments using books. (Assignments require use of both print and databases.) Because of this, I was surprised when Prof. Barbara Bintliff, law librarian at the University of Colorado, sent a message through the law library directors' listserv that says that as part of a review of their legal writing program, she heard students request more instruction in using print resources. They indicated that their clerking experiences led them to use books much more than they thought they would. This was followed by several messages from other directors who agreed with Prof. Bintliff and said that their students also wanted more instruction in print. Prof. Richard Leiter at the University of Nebraska suggested that libraries that were over-zealous in replacing print sources with electronic would ultimately regret it.


I agree with many of my colleagues that print is still an incredibly efficient way to package and distribute information. There are many instances where it's easier and faster to find information in print, and also easier to place it in context because the hierarchical nature of information is represented in a more apparent fashion in print. That said, who wants to go back to poring over multiple volumes of Sherpard's citators to verify information, or consulting LSAs and Federal Registers to update federal regulations? The real challenge in Legal Research is to somehow convey to students who have grown up with Google that real research takes more than ten minutes to perform, and that much worthwhile information does not flicker on a screen.

International Music Score Library Project, or The Problem with Wikis


The November/December issue of Online Magazine includes an article on the "Top Ten Sites for Researching Music" (vol. 31, no. 6, pp. 15 - 21.) One of the top ten sites is the International Music Score Library Project (IMSLP), which is, or rather I should say was, "a virtual library of public domain music scores" that anyone could contribute to, "with the understanding that scores under copyright cannot be uploaded." As current as this magazine issue is, Prof. Robin Harris of the library staff noticed that the site is already down. I called it up and found online a long open letter. The letter says that the founder and project manager of IMSLP was experiencing two problems. One, he says that he is a college student and he was experiencing difficulties managing the site adequately. This included problems of server maintenance and implementation of new features. Two, he had received two Cease and Desist letters from Universal Edition. I assume that if he is receiving such letters, contributors must have uploaded scores that allegedly are not in the public domain. One problem with wikis of this sort is that the public does not understand public domain. Many people assume that works are in the public domain when in fact they are not. The Project Leader, "Feldmahler," mentions in his letter receiving pro bono assistance from "two outstanding university law teams" and he also thanks a copyright review team, but there is no indication what purpose or function these teams served. Another problem is that this site appeared to require a lot of time and effort, but was apparently run on a shoestring. Feldmahler mentions great efforts on the part of many people, but he emphasizes that he, "a normal college student, has neither the energy nor the money necessary to deal with this issue..." other than to "take down the entire site." "I very unfortunately simply do not have the energy or money necessary to implement the terms in the cease and desist in any other way." Unfortunately, in copyright, many times you get as much justice as you can afford.


This situation illustrates a problem that libraries face every day. If we pay for information in traditional formats, it is not as attractive and user-friendly as it is in digital format. It also takes up a lot of space, and requires effort and money to process and maintain. If we pay for information in electronic form, we don't own and control the media; we're only licensing it. If a company goes out of business, as did IMSLP, or if the information provider decides to change the scope of coverage, then we're out of luck. We can buy the information both in traditional and electronic forms, but if we do that we're using finite resources to duplicate information, which means we aren't providing our patrons with access to the breadth of information that we could.



Brandeis as Dissenter in Journal of Supreme Court History


Brandeis also gets his share of the spotlight in the Dissenters issue of the Journal of Supreme Court History in Jonathan Lurie's article "Chief Justice Taft and Dissents: Down With the Brandeis Briefs!" The article is a preview of Lurie's upcoming biography of Taft and is basically a panegyric to Taft's days as Chief Justice. The article details Taft's efforts to foster unanimity on opinions and the reactions of the other justices--particularly Brandeis-- to those efforts. My favorite part of the article is the picture of Taft and six other justices looking at a model of the new Supreme Court building. The building was Taft's idea and Brandeis was vehemently opposed to it--in fact he never set foot in the office that was created for him. His disgust for the building is pretty evident from the look on his face in the picture.

Brandeis and Taft had a complicated relationship. Political foes (to put it mildly) while Taft was president, they were able to put aside their differences once they were both on the court and they even reached the point where they enjoyed each others' company. Still they often didn't see eye to eye and would often get frustrated with each other. Lurie cites some quotes by Taft on Brandeis but I wish he had included one of my favorite Brandeis quotes on Taft. In the 20's Felix Frankfurter wrote down some notes from private conversations he had with Brandeis. Those notes were later edited by Melvin Urofsky and published in the 1985 volume of the Supreme Court Review. Here's what Brandeis had to say there about Taft:

"It's astonishing he should have been such a horribly bad President, for he has considerable executive ability. The fact, probably, is that he cared about law all the time and nothing else. He has an excellent memory, makes quick decisions on questions of administration that arise and if a large output were the chief desideratum, he would be very good. He is a first-rate second-rate mind."

Harlan as Dissenter in Journal of Supreme Court History

The latest issue of the Journal of Supreme Court History (vol. 32, issue 2) is devoted to dissents and dissenters so naturally they have an article on John Marshall Harlan. Linda Przybyszewski wrote an article titled "The Dissents of John Marshall Harlan I," although it primarily about his dissents in Plessey v. Ferguson and the Civil Rights Cases. She provides an intersting answer to the often asked question of how a former slave holder came to be such an advocate for civil rights. Then there are other opinions that do not seem so enlightened these days...