Article addresses constitutional issues with private government contractors

Wednesday, May 01, 2013

LAWRENCE — A University of Kansas law professor has co-authored an article about remedying constitutional violations perpetrated by privately employed government contractors on the heels of briefing the same issue in the U.S. Supreme Court.

In addition to this real-world engagement as a lawyer and as a scholar, Lumen N. Mulligan, professor of law and director of the Shook, Hardy and Bacon Center for Excellence in Advocacy, brings this high-level, hands-on experience to the KU Law School classroom.

Mulligan co-authored both an amicus curiae brief in the high court case of Minneci v. Pollard and an article, discussing the case, with Alexander A. Reinert, associate professor of law at the Benjamin N. Cardozo School of Law. The article will appear in the Washington University Law Review in May 2013.

In the case, an inmate at a privately run federal prison claimed that during work detail he fractured both of his elbows. He wasn’t given immediate medical care, was later shackled, exacerbating the injury before treatment, and was ultimately left unable to work upon his release. He sued for violations of his Eighth Amendment constitutional rights. The Supreme Court ruled that, even though publicly employed prison guards would be susceptible to suit, the privately employed guards could not be found liable for constitutional violations because of their employment status.

Taking a stance contrary to the Court’s ultimate holding during the high court briefing, Mulligan explained that “our position was that there should be no distinction, in terms of liability for constitutional violations, between government-run and privately run prisons. The decision as it stands allows federal agencies to avoid their constitutionally imposed liability simply by hiring private contractors.”

In the article, the professors argue that the decision was in error and discuss how its impact can be limited.

“The opinion, in our view, fatally ignores — indeed fails to even consider — the text of the Westfall Act of 1988, which specifically endorsed constitutional actions such as what was at issue in Minneci,” Mulligan said. “Also, it destroys the parallel set of doctrine for remedying violations of constitutional rights by state and federal officers and creates asymmetrical liability for private versus public employs, which in turn creates non-market-based incentives to privatize government functions.”

The decision was also troublesome because the use of state tort law, which the Supreme Court relied upon as an alternative to a constitutional action, cannot always be applied in the same manner as federal constitutional law, Mulligan and Reinert argue.

“Indeed, many of these assumed state law remedies are not available for plaintiffs,” Mulligan said. “The very same defendants from Minneci often argue that state law does not apply to them because they are immune under the so-called government contractor doctrine. These defendants should not be allowed to have their cake and eat it, too.”

In addition to this pro bono service to the bar, Mulligan said taking part in ongoing, high-level court action benefits KU Law students. By supplying arguments in the Supreme Court, working with practicing attorneys, judges and clients, Mulligan is better able to engage students with skills-based learning — not simply dated textbook material.

“I believe that keeping up with practice helps me connect with my students and deliver up-to-date approaches to the art of advocacy. Students want to know that their coursework will translate to practice directly,” Mulligan said. “As such, my continued work in that regard adds some authenticity to the classroom.”

Schwartz Lecturer Chris Drahozal Questions Supreme Court Arbitration Decisions

Prof. Chris Drahozal delivers the 2013 Schwartz Lecture on “Error Correction and the Supreme Court’s Arbitration Docket."

What is it about arbitration law and the Federal Arbitration Act (FAA) that results in error correction and factbound decision-making playing such a significant role in the Court's decisions? That question formed the focus of University of Kansas Law Professor Chris Drahozal’s 2013 Schwartz Lecture in Dispute Resolution, held on March 28, 2013 in Saxbe Auditorium.

Book examines how climate change affects indigenous people

Tuesday, April 09, 2013

LAWRENCE — Climate change’s effects are starting to be felt around the world, and indigenous populations are in many cases among the first to have their ways of life disrupted. Yet these populations are often powerless, both politically and economically, to convince those with the ability to do something about it to do so. A University of Kansas law professor has co-edited a book examining how climate change has affected indigenous people worldwide and how they can legally address the issues in the future.

Elizabeth Kronk, associate professor of law and director of the Tribal Law & Government Center at KU, has co-edited “Climate Change and Indigenous Peoples: The Search for Legal Remedies” with Randall S. Abate, associate professor of law at Florida A&M University. The editors gathered work from a collection of legal and environmental experts from around the world, many of whom hail from indigenous populations. Their entries examine how climate change has affected indigenous peoples on numerous continents and how future legal action may help their cause.

“As far as I know it’s the only book of its kind,” Kronk said. “There are lots on climate change, but none that I know of that examine the effects of it on indigenous people. A lot of times when you hear about climate change people say ‘when or if this happens.’ Well, it’s already happening, and indigenous people especially are being forced to deal with it.”

The book examines climate change through an indigenous perspective in North and South America, the Pacific Islands, Australia and New Zealand, Asia and Africa. The contributors, all either practicing lawyers or law professors, both explain the problems faced by indigenous populations and break down attempts to devise legal, workable solutions.

For example, Inuit citizens living near the Arctic in the United States, Canada, Russia and Greenland are in a region of the world that is warming four times faster than other regions. Yet, litigation brought by residents of the Native Village of Kivalina against companies that contribute large amounts of greenhouse gasses to the environment has been unsuccessful.

As a problem of global scale, climate change is incredibly complex and difficult to deal with via law and policy. There are local, municipal, national and international laws that often conflict.

“The indigenous people of the Arctic are literally losing their homeland,” Kronk said. “But climate change law is complicated, when you add all those levels of law, it’s even more so.”

The book’s 20-plus contributors outline ways indigenous populations can navigate the complex web of climate change law, and review both national-level successes and international-level shortcomings. They examine both options of mitigation law — which intends to halt and reverse climate change affects — and adaptation law, which acknowledges climate change and ways to legally adapt to it.

“Climate Change and Indigenous Peoples” could prove beneficial to legal scholars, environmental lawyers and anyone with an interest in indigenous populations among others.

“Whether as a novice's starting point or expert's desktop reference, I cannot think of a more useful resource for anyone interested in climate policy for indigenous peoples,” said J.B. Ruhl of Vanderbilt University Law School.

Knowing that one legal strategy will not fit all, the books authors spend a good deal of time exploring how specific indigenous populations can deal with climate change realities unique to their part of the world, within the frame of the law. The text also examines how indigenous peoples, often on the front lines of the climate change battle, can inform the rest of the world in dealing with the many associated social and legal issues.

Legislators open hearing on Kan. judicial changes

TOPEKA, Kan. (AP) — Several law professors said Wednesday they would favor a different system for appointing judges to the Kansas Court of Appeals and the state Supreme Court.

The Senate Judiciary Committee heard testimony on a proposed change in the Kansas Constitution that would allow the governor to appoint appellate judges, with confirmation by the Senate. Voters would have to approve the constitutional change.

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