2009 News Index
Washburn University School of Law placed 223 alumni in Law & Politics' 2010 Super Lawyers U.S. Law School Rankings. This new ranking system focuses on the end product — the quality of lawyers produced. It is unique in that Law & Politics ranks law schools based on the number of graduates who are selected for inclusion in the state and regional editions of Super Lawyers. No more than 5 percent of the lawyers in each state are selected to Super Lawyers lists. See the full story. (Posted December 9, 2009)
Professor David Westbrook's latest book, Out of Crisis: Rethinking Our Financial Markets (Paradigm Publishers, 2009), discusses the intellectual, business, and policy errors that have led to the present financial morass. Professor Westbrook shows how markets are a form of social and political organization, asserting that the divide between markets and governments that continues to structure thought across the political spectrum is too simplistic. The prejudices of the left (government should act when markets fail, because something must be done), and of the right (governments should defer to markets, which are more efficient) do not really come to grips with the question raised by the current crisis: How should society reconstruct the various financial markets? Professor Westbrook's legal and political analysis shows how the ideologies of the right and left have distorted financial thinking and policy. Learning from these errors, Out of Crisis sketches the emergence of a new understanding of risk management and bureaucratic regulation and begins the tasks of rethinking the structures that constitute financial markets and exploring how such structures may be strengthened. Visit the publisher's website. (Posted December 3, 2009)
Professor Bradley Borden's article "Profits-Only Partnership Interests," has been published at 74 Brooklyn Law Review 1283 (2009). Profits-only partnership interests grant service-providing partners an interest in the profits of a partnership but not its capital. Such interests are a proverbial double-edged sword: they create economic arrangements needed in business, but provide opportunities for inequitable tax reductions. Business participants make economic decisions to use profits-only partnership interests to reduce agency costs and appropriable rents. The current law, however, empowers business participants to form partnerships that are equivalent to employment arrangements and use profits-only partnership interests to obtain long-term capital gains. Thus, with no economic consequences, they convert ordinary income (taxed at up to thirty-five percent) to long-term capital gain (taxed at fifteen percent). Commentators and lawmakers generally propose partnership disaggregation to eliminate the inequity. Partnership disaggregation changes the character of income (from capital gain to ordinary income) as it flows from the partnership to service-providing partners. It may enhance equity, but it ignores the nature of tax partnerships, threatens the partnership tax regime, and has other negative side effects. Professor Borden suggests that partnership disregard is a better way to address the inequity profits-only partnership interests cause. Partnership disregard uses economic concepts to identify the policy-relevant differences between tax partnerships and disregarded arrangements, such as employment arrangements, leases, and loans. Partnership disregard distinguishes arrangements that should qualify for partnership tax treatment and those that should not. It eliminates inequity while preserving the integrity of partnership tax regime and other areas of the law. (Posted October 29, 2009)
On October 22, 2009, the Center for Excellence in Advocacy and Phi Alpha Delta Legal Fraternity co-sponsored a lunch time panel discussion on street crime. Panelists included Jason Belveal, '07, criminal defense lawyer; Captain Peggy Fox, Topeka Police Department; Professor Mary Kreiner Ramirez, criminal law and criminal procedure instructor and former assistant U.S. Attorney; and Kyle Smith, former prosecutor, assistant attorney general and currently police legal advisor to the Topeka Police Department. The moderator was Professor Michael Kaye, Director, Center for Excellence in Advocacy. The panel was given two scenarios based on actual police investigations and asked for their views on whether evidence obtained through search and seizure in these cases would be admissible in a criminal prosecution. See the full story. (Posted October 28, 2009)
Washburn University School of Law alumni Paul Hoferer and John B. Wood were honored as Washburn University Alumni Fellows on October 16, 2009. Hoferer is the School of Law Alumni Fellow and Wood is the School of Business Alumni Fellow. Sponsored by the Washburn University deans and the Alumni Association, the Alumni Fellows program recognizes alumni who have distinguished themselves in their career fields. The Alumni Fellows program brings successful alumni to campus to meet with students, faculty, and other alumni and share their expertise formally and informally in the classroom and other campus settings. See the full story. (Posted October 22, 2009)
Washburn University School of Law is ranked 31st of all 200 law schools in the United States in "The National Jurist's Best Value Law Schools," September 2009. The schools on the list "carry a low price tag and are able to prepare their students incredibly well for today's competitive job market," according to The National Jurist. Schools ranked had low tuition, high employment after graduation, and bar passage rates above the state average. See the full story. (Posted August 25, 2009)
The Benson Chapter of Phi Alpha Delta Law Fraternity (PAD) at Washburn University School of Law has been recognized by the PAD International Executive Board as the Stanley H. Kohn Outstanding Law School Chapter for 2008-2009. In addition, Kevin Mechtley, 2008-2009 Benson Chapter Justice, was selected as the Alex Hotchkiss Outstanding Law School Chapter Justice. See the full story. (Posted August 6, 2009)
Proceeds from the Washburn Student Bar Association (WSBA) Barrister's Ball and Charity Auction were presented to Let's Help, Inc. on July 8, 2009. In a ceremony at Let's Help, Jodi Litfin, Barrister's Ball co-chair, gave Melissa Gray, Executive Director of Let's Help, a check for $6,252.73. See the full story. (Posted July 9, 2009)
Professor Merkel's article "The District of Columbia v. Heller and Antonin Scalia's Perverse Sense of Originalism" has been published at 13 Lewis and Clark Law Review 349 (2009). This essay weighs Justice Scalia's Heller opinion in the balance, and finds it wanting. Rather than being a garden variety case of originalism manqué, i.e. an effort to pin point a single original understanding when in fact meaning was hotly contested at the time constitutional text was created, Heller emerges as an act of (self?)-deception or conscious fraud. Few of the historical assumptions that underlie Justice Scalia's analysis withstand scrutiny. The majority holding – that the Second Amendment was originally understood to protect the right to possess any commonly held weapon for purposes unrelated to militia service such as self-defense and hunting – requires misreading, misunderstanding, or ignoring the bulk of relevant evidence such as the debates on the pending Amendment in the House of Representatives and the common meaning accorded bearing arms in newspapers and pamphlets of the day. Rather than using historical source material to inform his analysis, Justice Scalia operates with the faith-based assumption that the framers must have intended to protect a private right to gun possession, and then manipulates outlying evidence to dress up his claim in ill-fitting pseudo academic garb. In the process he demonstrates conclusively that the originalist methodology he trumpeted in A Matter of Interpretation as the surest remedy against judicial injection of subjective values into constitutional adjudication is in fact nothing more than a hollow sham. (Posted June 24, 2009)
Professor Bradley Borden's article "The Aggregate-Plus Theory of Partnership Taxation," has been published at 43 Georgia Law Review 717 (2009). This article presents a theory of partnership taxation. To provide context, the article examines the history and status of partnerships. That examination reveals humans have a natural tendency to form partnerships and partnerships create a significant challenge for lawmakers. The challenge is determining whether partnerships are entities separate from their members or aggregates of the members. After decades of debate and consideration, many lawmakers and commentators now view partnerships as entities. Tax law has not, however, adopted that view. Partnerships are subject to an aggregate tax regime that contains entity components. Economic theory justifies tax law deviating from the legal view of partnerships. People join together as partners to increase their collective welfare and use partnership law to apportion economic income to reduce agency costs. Aggregate taxation is uniquely suited to recognize the apportionment of economic items and accurately tax it. That accuracy helps foster economic efficiency. To ensure efficient and accurate tax laws, lawmakers should include entity components in partnership tax law only as needed to guarantee effective tax administration. Professor Borden thus proposes the aggregate-plus theory of partnership taxation, recommending that lawmakers adopt the aggregate concept for all partnership tax laws and add entity components only as needed to facilitate tax administrative. He also demonstrates the theory's utility by applying it to existing and proposed rules. (Posted June 15, 2009)
Professor Ali Khan's article "Jurodynamics of Islamic Law," has been published at 61 Rutgers Law Review 231 (2009). Abrogation is a classical concept of Islamic law, which allows jurists to organize the normative complexity of divine texts. As a rule of temporality, abrogation invalidates prior rules found incompatible with subsequent rules. By stretching the rule, critics and reformers of Islamic law wish to abrogate substantial portions of the Quran and the Prophet's Sunnah. This methodology of modernizing Islamic law secures no following in the Muslim world, which jealously defends the integrity of divine texts. Professor Khan offers a sophisticated methodology, which respects the integrity of divine texts, retains the jurisprudential heritage of past centuries, but at the same time modernizes legal systems to absorb modernity and constantly evolving spatiotemporal realities. No dynamic legal tradition cuts loose from the past or dwells exclusively in the past. Jurodynamics is the study of Shariah norms in motion, signifying both stability and change. Jurodynamics recognizes the Shariah as the Basic Code, which empowers Islamic states to construct dynamic bonds with classical jurisprudence (fiqh), positive law (qanun), and international law (siyar). Accusations that the Shariah is a barrier to modernity dissipate under the scrutiny of jurodynamics. (Posted June 15, 2009)
Professor Bradley Borden's article "Open Tenancies-in-Common," has been published at 39 Seton Hall Law Review 387 (2009). Tax law (section 1031 in particular) has spawned a new investment vehicle – open tenancies in common. Tax law allows property owners to exchange into like-kind real property tax free, but finding suitable replacement property can be difficult. Real estate syndicators, recognizing a demand for ready-access replacement property, began offering undivided interests in large multi-million-dollar properties to individual investors exchanging out of smaller properties. Those offerings were the first open tenancies in common. Open tenancies in common are distinguished from traditional or close tenancies in common by the size of co-owned property, the co-owners' mutual lack of acquaintance, and the separation of ownership and management of the property. Open tenancies in common raise issues from several disciplines, including tax; property, business, contract, and, securities law; and economics. To provide the tax benefits investors seek, interests in open tenancies in common must be real property for federal tax purposes. That implicates the tax entity classification rules, which the IRS has addressed with published guidance. Numerous investors co-owning a single property raises property law issues, such as rights of possession, rights to revenue, obligations for expenses, and rights to partition. The co-owners' lack of acquaintance and disparate background raise business law issues. For example, the co-owners may wish to restrict transferability of interests, have governance agreements, and create standards for third-parties who manage the property. Finally, open tenancies in common raise economic concerns and appear to come within the jurisdiction of the securities laws. Professor Borden introduces open tenancies in common to the academic literature, analyzes them, and recommends modifications to the IRS guidance based on property law, business law, and economic and tax theory. (Posted June 15, 2009)
Professor Linda Elrod's article "A Review of the Year in Family Law 2007-2008: Federalization and Naturalization Continue," has been published at 42 Family Law Quarterly 713 (2009) (co-author with Robert G. Spector). One of the most significant changes over the past fifty years of family law has been the explosion of federal laws, uniform laws, and cases interpreting them. As families have become more mobile, the federal government has been asked to enact laws in numerous areas that traditionally were left to the states. In addition to traditional federal laws on bankruptcy and taxation, there are now laws dealing with international adoption, international child abduction, and the adoption and custody of Indian children. While the volume of state cases has mushroomed, the volume of federal cases also has grown, many in response to federal questions that arise under these new federal laws. Another nationalizing influence has been the state enactment of more uniform laws, especially in the family-law arena. Uniform acts have led not only to more cases, but also to more uniformity and predictability for families crossing state borders. The 2007-2008 review of cases at 42 Family Law Quarterly 767 illustrate the wide variety of complex issues facing courts across the United States and tries to capture some of the more interesting decisions. (Posted May 5, 2009)
The Environmental Law Society donated a white pine to Washburn Law in commemoration of Earth Day 2009. The tree was planted on the west side of the law school by Professor Myrl Duncan, third year law student Ellen Montgomery, and Dean Thomas Romig on April 23, 2009. The tree has been registered with the United Nation's Billion Tree Campaign. (Posted May 4, 2009)
Professor Bruce Carolan's article "The Birth of the European Union: US and UK Roles in the Creation of a Unified European Community," has been published at 16 Tulsa Journal of Comparative and International Law 51 (2008). The United States jealously guards its national sovereignty. This has been reflected in reluctance to participate fully in international agreements or organizations with a 'supranational' flavor, such as the International Criminal Court or the Kyoto Protocols. It is therefore surprising to find that the United States was one of the principal architects of the supranational characteristics of what has developed into the European Union. Specifically, the earliest stages of European integration, which is embodied in the European Coal and Steel Community Treaty, were heavily influenced by US insistence on creation of supranational institutions that could exert dominance over sovereign European governments. The United Kingdom, one of the leading European powers after the end of the Second World War, sought to undermine efforts to create a 'supranational' Europe. The UK feared that being part of a more deeply integrated Europe might undermine its 'special relationship' with the United States. Ironically, its stance in opposition to deeper European integration annoyed US authorities and damaged its relationship with the US. Professor Carolan traces the respective roles of the US and the UK in the creation of the European Coal and Steel Community, and reveals a US role often overlooked in legal treatments of the early steps towards the modern European Union. (Posted April 24, 2009)
Professor Ronald Griffin's article "A Prairie Perspective on Global Warming and Climate Change," has been published at 2 International Journal of Private Law 426 (2009). The Great Plains blankets eight states and is dotted with oil patches, public utilities, farms, ranches, feed lots, meat-packing plants, medium size cities, military bases, and tiny towns feeding on agricultural activity. Professor Griffin raises the question: what can leaders do for a desperate and aging population in a global warming environment to bring full employment to the region? In this article he explores opportunities to capitalize upon environmentally friendly farming practices and agricultural waste to produce jobs, money, commercial opportunities, marketable sod, fertilisers, methane, electricity, and securities (from the Chicago Climate Exchange). Professor Griffin recounts the use of man made wetlands to sequester CO2; by-products from coal fired power plants; landfill methane; methane digesters and soil carbon projects to arrest heat and contribute to the campaign against global warming. Read article abstract at publisher's website. (Posted April 9, 2009)
Washburn University held its annual Employee Recognition Ceremony Tuesday, April 7, 2009. A number of Washburn Law staff and faculty were recognized for their years of service: Margann Bennett (Professional Development Office, 5 years); Jewel Brueggeman-Makda (Computer Staff, 5 years); Karla Whitaker (Admissions Office, 5 years); Vicki Doze (Library, 10 years); Debi Schrock, (Law Clinic, 10 years); John Francis (Professor, 10 years); Alex Glashausser (Professor, 10 years); Lynette Petty (Professor, 15 years); Doug Smith (Facilities, 15 years); John Christensen (Library/Professor, 30 years); Michael Kaye (Professor, 30 years); Nancy Maxwell (Professor, 30 years); Sheila Reynolds (Professor, 30 years); Jim Wadley (Professor, 30 years). Being awarded Eminentes Universitatis status were Mary Beth Bero (Law School), Vicki Doze (Library), and Rachel Olson (Law Clinic). Betty Fisher was a nominee in the administrative category for the Outstanding Service Award. Shirley Jacobson and Donna Vilander were nominees in the secretarial/clerical category for the Outstanding Service Award Outstanding Service Award Nominees. (Posted April 8, 2009)
Washburn University School of Law held its Center for Excellence in Advocacy Annual Awards Banquet on Tuesday, April 6, 2009 at the Bradbury Thompson Center on the Washburn University campus. Paul R. Hoferer, a 1975 graduate of Washburn University School of Law and a Retired Vice President and General Counsel for BNSF Railway Company, gave the keynote address. Students who participated in Negotiation, Client Counseling, Trial Advocacy, and Moot Court competitions were recognized and new members of the Order of Barristers were inducted. See the full story. (Posted April 7, 2009)
Dr. Milfred "Bud" Dale, Ph.D., and Lauren S. Douglass, third-year students who are part of the Children and Family Law Center, have been actively involved in the Horizons, Solutions for Change program in the Shawnee County District Court. This court sponsored 12-week educational program designed for high conflict divorced/never married parents provides parents with the tools to reduce their conflict. See the full story. (Posted April 1, 2009).
Representatives from the Kansas and Topeka Bar Associations visited with Washburn University School of Law students on March 25, 2009 to discuss the benefits of bar membership. After the discussion at the law school, students joined the four panelists and other members of the TBA Young Lawyers Section for a social hour. The event was co-sponsored by the Professional Development Office, the KBA and the TBA. See the full story. (Posted March 27, 2009).
Associate Dean for Student Affairs Kelly Lynn Anders' article "'I' Before 'E,' Except in Mediation: Training Introverts to Use Extroverted Techniques to Become Stronger Mediators," has been published at 33 Oklahoma City University Law Review 573 (2008). Little research has been conducted on the personality types of law professors and others who train law students and lawyers to work as mediators, but if the assessments of attorneys and students are any indication, it is likely that professors and other instructors probably tend to fall into the "introvert" category. As a result, several questions arise. How important is a feelings-centered approach in order to be an effective mediator? Can introverts teach other introverts to behave as extroverts? Which traits of introverts and extroverts are most valuable for mediators to possess? And, can a mediator be sensitive to the parties' feelings on either side and remain neutral? Dean Anders discusses traits of introverts and extroverts, provides examples of mediation training techniques that strengthen the extroverted traits most beneficial for effective mediators, and concludes by suggesting methods for law schools and other mediation training programs to consider in developing students into mediators with balanced introverted and extroverted skills.
Senator Robert J. "Bob" Dole, ba '52, jd '52 and, honorary doctorates '69 and'85, Washington, D.C., has dedicated his life and career to the service of the both law and government. This enduring passion inspired Dole to recently establish the Senator Robert J. Dole Law Professorship in the Washburn School of Law's Center for Law and Government. Dole's gift will provide funds to help recruit and retain an outstanding faculty member to serve as director of the recently established Center for Law and Government. See the full story. (Posted March 17, 2009).
Professor Linda Elrod's article " Paradigm Shifts and Pendulum Swings in Child Custody: The Interests of Children in the Balance," has been published at 42 Family Law Quarterly 381 (2008) (co-authored with Milfred D. Dale, Class of 2009). The last fifty years of child custody law reflect paradigm shifts and pendulum swings in the prevailing scientific and societal views of what is in the "best interests" of a child. The evolution of the law tracks changes, shifts, and sometimes divergent perceptions of the needs of children and families, particularly those involved in conflict. The trend has been away from broad judicial discretion to a more rules-based approach. For each change that has inspired hope for better, easier, or more efficient ways of resolving painful family conflicts and dilemmas, there have been frustrations and uneven results. Not every change has been progress. This article explores five decades of child custody law, starting with the changes in families and the problems caused by high conflict families. The authors also discuss the legal changes from presumptions to factor-based best-interests-of-the-child analysis, and outline how the court systems have adapted to different mandates and tasks, as well as to the growing numbers of high-conflict cases. Lastly it sets out the increasingly complex role of mental health professionals in custody disputes. (Posted March 4, 2009).
Professor Ali Khan's article "A Theoretical Analysis of Payment Systems," has been published at 60 South Carolina Law Review 425 (2008). For over two hundred years, financial institutions have been providing payment services to transfer monies from accountholders to merchants and other payees. The market, however, is constantly searching for more efficient and reliable devices for institutional money transfers. Credit card and other electronic payments are, accordingly, capturing a big share of payment services over which negotiable instruments have long exercised a comfortable monopoly. Professor Khan'sarticle offers a coherent theoretical model to conceptually unify payment services delivered through old and new payment devices. The model, derived from the assorted payment systems currently in use, argues that the payment law must adhere to a set of fundamental principles. In analyzing these principles, the Professor Khan first establishes that payment services actually follow, though not consistently, the proposed theoretical model. He then proposes a number of legislative reforms to eliminate discordance among diverse payment systems, to allocate liability for violations of principles, and to assure a more efficient delivery of payment services. The proposed model also guides lawyers and judges in resolving payment disputes in accordance with the principles. (Posted March 3, 2009)
Washburn University, with the support of Washburn Law's Center for Excellence in Advocacy and Office of Admissions, is hosting the Great Plains Regional Undergraduate Mock Trial Competition on February 20-22, 2009 at the law school. Nearly 100 college mock trial students will be competing in this event. The undergraduate mock trial program consists of member schools all over the country being assigned a case in September. Teams of six to eight students work on the case, developing theories for both plaintiff and defense and prepare to try the case at the various competitions throughout the fall and spring semesters. (Posted February 20, 2009)
Professor David E. Pierce has been serving as the 54th president of the Rocky Mountain Mineral Law Foundation since July 2008. He is only the third law professor to serve as the Foundation's president in its 54 year history. Pierce will conclude his year as president by presiding at the Foundation's 55th Annual Institute in San Francisco, California in July 2009. See the full story. (Posted February 9, 2009)
Attorneys from Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., presented an informative panel presentation to students on Thursday, January 15, 2009. They provided an overview of the interview process for summer internships and discussed common pitfalls made by law students. Panelists were hosted by the Professional Development Office. Brent Mitchell, '92, reminded students of the importance of being prepared, researching employers, and asking questions of the interviewers. A good interview is one that takes the tone of a conversation rather than a question and answer session. The panel members also discussed some ideas to help students be successful once they begin their internships. Lora Jennings, '05, discussed the importance of being organized, understanding your projects, and keeping on top of project deadlines. She emphasized that an intern should "give yourself enough time to succeed" by not leaving projects until the last minute. Martin, Pringle has law offices in both Wichita and Overland Park, Kansas. (Posted January 26, 2009)
