The Rise Of Anti-Sharia Legislation

Most religions have rules, guidance, law of some kind. Christians look to the teachings of Jesus, or the commandments. Jewish people turn to Torah. And Muslims look to Shariah—the code of Islamic law that guides everything from what to eat and how to dress to bigger questions—like resolving marital disputes, or punishing violent crimes.

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.

Who Owns Your Genes?

The U.S. Supreme Court will hear a case today that could decide whether human genes can be patented.  But the case is about more than just genetics.  It’s about how medical research gets funded, who profits from it, and who has access to its benefits.  Health Reporter Bryan Thompson sat down with University of Kansas Law Professor Andrew Torrance, who specializes in biotechnology patent law, for some clarification.

Biotech Industry at Stake in Human Gene Patent Decision

An article discussing the Supreme Court's plan to rule on whether human genes can be patented featured commentary from Andrew Torrance, professor of law.

“There is a strong aversion to patents that cover any aspect of the human body,” said Andrew Torrance, who teaches patent and biodiversity law at the University of Kansas and is a visiting scholar at the Massachusetts Institute of Technology. “It’s a gut-level principle. We don’t like the thought of humans as property, and we think of patents as property.”

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