{"title":",,,Getting SLAPP Happy: Why the U.S. District Court for the District of Kansas Should Adopt the Ninth Circuit’s Approach When Applying the Kansas Anti-SLAPP Law","authors":"","doi":"10.17161/1808.30412","DOIUrl":"https://doi.org/10.17161/1808.30412","url":null,"abstract":"","PeriodicalId":83417,"journal":{"name":"University of Kansas law review. University of Kansas. School of Law","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67514400","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":",,,Anticompetitive Entrenchment","authors":"","doi":"10.17161/1808.30531","DOIUrl":"https://doi.org/10.17161/1808.30531","url":null,"abstract":"","PeriodicalId":83417,"journal":{"name":"University of Kansas law review. University of Kansas. School of Law","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67514018","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
It is a pleasure to participate in the 2019 Kansas Law Review Symposium, “Antitrust Law and Policy in the 21st Century.” Antitrust is once again a hot topic and discussion about how to effectively enforce the laws in a digital age is generating widespread attention. My focus will be on the topic of promoting fundamental due process in competition law investigation and enforcement. With competition authorities around the globe becoming increasingly more active, it is one of the most important topics on the antitrust agenda. And this year, we witnessed a watershed moment with the adoption of a new framework protecting due process. The International Competition Network (ICN) unveiled the Framework on Competition Agency Procedures (CAP) in May 2019 to promote fundamental due process in competition investigation.1 As of August 2019, there were seventy-two signatories to the CAP, reflecting almost every leading competition authority.2 It was the first time in history that competition authorities from around the world entered into a multilateral framework on due process that included core due process protections and meaningful review mechanisms. It was, as United States Assistant Attorney General Makan Delrahim noted, “a remarkable and historic achievement for antitrust enforcement” that combines “strong substantive principles with meaningful review mechanisms” that “goes well beyond anything competition agencies have ever done before.”3
{"title":",,,Promoting International Procedural Norms in Competition Law Enforcement","authors":"R. Alford","doi":"10.17161/1808.30532","DOIUrl":"https://doi.org/10.17161/1808.30532","url":null,"abstract":"It is a pleasure to participate in the 2019 Kansas Law Review Symposium, “Antitrust Law and Policy in the 21st Century.” Antitrust is once again a hot topic and discussion about how to effectively enforce the laws in a digital age is generating widespread attention. My focus will be on the topic of promoting fundamental due process in competition law investigation and enforcement. With competition authorities around the globe becoming increasingly more active, it is one of the most important topics on the antitrust agenda. And this year, we witnessed a watershed moment with the adoption of a new framework protecting due process. The International Competition Network (ICN) unveiled the Framework on Competition Agency Procedures (CAP) in May 2019 to promote fundamental due process in competition investigation.1 As of August 2019, there were seventy-two signatories to the CAP, reflecting almost every leading competition authority.2 It was the first time in history that competition authorities from around the world entered into a multilateral framework on due process that included core due process protections and meaningful review mechanisms. It was, as United States Assistant Attorney General Makan Delrahim noted, “a remarkable and historic achievement for antitrust enforcement” that combines “strong substantive principles with meaningful review mechanisms” that “goes well beyond anything competition agencies have ever done before.”3","PeriodicalId":83417,"journal":{"name":"University of Kansas law review. University of Kansas. School of Law","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67514055","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":",,,Martin Dickinson: 48 Years of Dedicated Service to KU Law","authors":"","doi":"10.17161/1808.31565","DOIUrl":"https://doi.org/10.17161/1808.31565","url":null,"abstract":"","PeriodicalId":83417,"journal":{"name":"University of Kansas law review. University of Kansas. School of Law","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67514170","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":",,,Front Matter, University of Kansas Law Review Vol. 68 Number 4","authors":"","doi":"10.17161/1808.30419","DOIUrl":"https://doi.org/10.17161/1808.30419","url":null,"abstract":"","PeriodicalId":83417,"journal":{"name":"University of Kansas law review. University of Kansas. School of Law","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2020-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67514411","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The War on Drugs officially began in 1971 when President Nixon decried drug abuse as “public enemy number one.” The goal of the war rhetoric was clear — to cast drug abuse and the drug offender as dangerous adversaries of the law-abiding public, requiring military-like tactics to defeat. Criminal sentencing would come to be the main weapon used in this pressing combat. In continuation of the war efforts, the Anti-Drug Abuse Act of 1986 was passed under President Reagan, establishing a weight-based, and highly punitive, mandatory minimum sentencing approach to drug offenses that has persisted in some form for the last thirty years. When the Act passed, crack cocaine was touted as the greatest drug threat, and crack cocaine offenders — the vast majority of whom were Black — were subjected to the harshest mandatory minimum penalties. Like any war, the consequences of the War on Drugs has had widespread casualties, including (but not limited to) the devastation of many communities, families, and individuals; the increase in racial disparities in punishment; and fiscal catastrophe in penal systems across the country. What the War on Drugs has not done is eradicate drug abuse in the United States. And now, nearly fifty years after drugs became our national enemy, we have a new face of drug crime — the opioid addict. The current Administration has recognized that “[d]rug addiction and opioid abuse are ravaging America.” However, rather than ramping up punishment for opioid offenders through lengthier drug sentencing, in October 2017 the opioid crisis officially became a Public Health Emergency under federal law. And while it is largely understood that this was mostly a symbolic statement with little practical effect, the rhetoric is markedly different than it was during the purported crack epidemic of the 1980s. Rather than drug offenders being the enemy, the opioid addict has been cast as the American Everyman, and the opioid addiction problem has become known as the “crisis next door” that “can affect any American, from all-state football captains to stay-at-home mothers.” Now that the drug emergency is portrayed as destroying wholesome American communities — as opposed to poor, crime-ridden communities of color — the tone has changed from punishment toward treatment and rehabilitation. The National Institute on Drug Abuse (NIDA) at the National Institutes of Health (NIH) has described opioid misuse and addiction as “a serious national crisis that affects public health as well as social and economic welfare.” While we are in the midst of this shift in messaging about drug addiction, it is an ideal time for drug sentencing as a whole to be reconceptualized from use as a weapon — designed to destroy — to having a public welfare agenda. To do this it requires recasting potential drug offenders as community members, rather than enemies. This change in perspective and approach also necessitates understanding drug crime as undeterred by incarceration.
{"title":",,,From Warfare to Welfare: Reconceptualizing Drug Sentencing During the Opioid Crisis","authors":"","doi":"10.17161/1808.29338","DOIUrl":"https://doi.org/10.17161/1808.29338","url":null,"abstract":"The War on Drugs officially began in 1971 when President Nixon decried drug abuse as “public enemy number one.” The goal of the war rhetoric was clear — to cast drug abuse and the drug offender as dangerous adversaries of the law-abiding public, requiring military-like tactics to defeat. Criminal sentencing would come to be the main weapon used in this pressing combat. In continuation of the war efforts, the Anti-Drug Abuse Act of 1986 was passed under President Reagan, establishing a weight-based, and highly punitive, mandatory minimum sentencing approach to drug offenses that has persisted in some form for the last thirty years. When the Act passed, crack cocaine was touted as the greatest drug threat, and crack cocaine offenders — the vast majority of whom were Black — were subjected to the harshest mandatory minimum penalties. Like any war, the consequences of the War on Drugs has had widespread casualties, including (but not limited to) the devastation of many communities, families, and individuals; the increase in racial disparities in punishment; and fiscal catastrophe in penal systems across the country. What the War on Drugs has not done is eradicate drug abuse in the United States. And now, nearly fifty years after drugs became our national enemy, we have a new face of drug crime — the opioid addict. The current Administration has recognized that “[d]rug addiction and opioid abuse are ravaging America.” However, rather than ramping up punishment for opioid offenders through lengthier drug sentencing, in October 2017 the opioid crisis officially became a Public Health Emergency under federal law. And while it is largely understood that this was mostly a symbolic statement with little practical effect, the rhetoric is markedly different than it was during the purported crack epidemic of the 1980s. Rather than drug offenders being the enemy, the opioid addict has been cast as the American Everyman, and the opioid addiction problem has become known as the “crisis next door” that “can affect any American, from all-state football captains to stay-at-home mothers.” Now that the drug emergency is portrayed as destroying wholesome American communities — as opposed to poor, crime-ridden communities of color — the tone has changed from punishment toward treatment and rehabilitation. The National Institute on Drug Abuse (NIDA) at the National Institutes of Health (NIH) has described opioid misuse and addiction as “a serious national crisis that affects public health as well as social and economic welfare.” While we are in the midst of this shift in messaging about drug addiction, it is an ideal time for drug sentencing as a whole to be reconceptualized from use as a weapon — designed to destroy — to having a public welfare agenda. To do this it requires recasting potential drug offenders as community members, rather than enemies. This change in perspective and approach also necessitates understanding drug crime as undeterred by incarceration.","PeriodicalId":83417,"journal":{"name":"University of Kansas law review. University of Kansas. School of Law","volume":"31 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67513388","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
To date, no existing law or policy defines inappropriate prescribing, with only one state acknowledging the need for such a definition. At the federal level, a single provision of the SUPPORT Act of 2018 directs the Secretary of HHS to define inappropriate prescribing in a narrow context. Despite the expanding number of opioid prescribing laws, policies, and guidance documents, words like overprescribing, misprescribing, and over-utilization are used in myriad contexts with implicitly different meanings. This paper argues that defining inappropriate prescribing is a necessary antecedent sanctioning it. It may also improve policy by correcting for bias and other decisional errors. Using legal and multidisciplinary research, a taxonomy of misprescribing is offered with the categories of inadvertent overprescribing, corrupt prescribing, qualitative overprescribing, quantitative overprescribing, multi-class misprescribing, and underprescribing. The later three categories are less commonly considered in policy decisions, despite long standing evidence of associated morbidity and mortality. Particular attention is devoted the underprescribing category, which includes the predictable response by some providers to discharge patients without referrals, blanket refusals to consider opioid therapy, and abrupt or too rapid discontinuation of opioid therapy after years of use. These decisions are increasingly associated with significant harms, including patient suicides and poisoning deaths after patients turn to illicit sources of opioids — harms that are usually ignored in policy and law. The modest goal of this paper to offer an initial framework to guide development and evaluation of prescribing policies in alignment with existing evidence of harm.
{"title":",,,Definitions Matter: A Taxonomy of Inappropriate Prescribing to Shape Effective Opioid Policy and Reduce Patient Harm","authors":"K. Dineen","doi":"10.17161/1808.29337","DOIUrl":"https://doi.org/10.17161/1808.29337","url":null,"abstract":"To date, no existing law or policy defines inappropriate prescribing, with only one state acknowledging the need for such a definition. At the federal level, a single provision of the SUPPORT Act of 2018 directs the Secretary of HHS to define inappropriate prescribing in a narrow context. Despite the expanding number of opioid prescribing laws, policies, and guidance documents, words like overprescribing, misprescribing, and over-utilization are used in myriad contexts with implicitly different meanings. This paper argues that defining inappropriate prescribing is a necessary antecedent sanctioning it. It may also improve policy by correcting for bias and other decisional errors. Using legal and multidisciplinary research, a taxonomy of misprescribing is offered with the categories of inadvertent overprescribing, corrupt prescribing, qualitative overprescribing, quantitative overprescribing, multi-class misprescribing, and underprescribing. The later three categories are less commonly considered in policy decisions, despite long standing evidence of associated morbidity and mortality. Particular attention is devoted the underprescribing category, which includes the predictable response by some providers to discharge patients without referrals, blanket refusals to consider opioid therapy, and abrupt or too rapid discontinuation of opioid therapy after years of use. These decisions are increasingly associated with significant harms, including patient suicides and poisoning deaths after patients turn to illicit sources of opioids — harms that are usually ignored in policy and law. The modest goal of this paper to offer an initial framework to guide development and evaluation of prescribing policies in alignment with existing evidence of harm.","PeriodicalId":83417,"journal":{"name":"University of Kansas law review. University of Kansas. School of Law","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47968969","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":",,,A New Type of Circuit Split: The Hidden Circuit Split in Retaliation Cases","authors":"","doi":"10.17161/1808.29979","DOIUrl":"https://doi.org/10.17161/1808.29979","url":null,"abstract":"","PeriodicalId":83417,"journal":{"name":"University of Kansas law review. University of Kansas. School of Law","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67513049","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Conflicts of interest pose recurring professional responsibility and practice management challenges for lawyers and are a persistent source of professional liability exposure. Conflicts of interest may spawn breach of fiduciary duty and professional negligence allegations, require lawyers to decline potentially lucrative representations, disqualify lawyers from representations or force their withdrawal from cases, compel law firms to disgorge fees, bruise lawyers’ relationships with clients, and generate negative publicity that may at least temporarily harm law firms’ reputations. Predictably, then, law firm general counsels rank conflicts of interest among their top risk management concerns. At the same time, law firm general counsels understandably cite conflicts as the one area in which lawyers require the most education. Conflicts of interest are often complicated. There are some bright line rules, such as a lawyer’s inability to represent both the plaintiff and the defendant in the same case, but many answers to conflicts questions are unclear. Who is the client? What is direct adversity? When do lawyers’ relationships with current clients, former clients, or third parties create a substantial risk of material limitations in proposed concurrent representations? When does a client’s consent to a conflict of interest qualify as informed? In the case of former client conflicts, when are successive matters substantially related? The list of questions goes on. Although conflicts of interest arise in all practice areas, they seem to pervade environmental matters. Experienced environmental lawyers
{"title":",,,Understanding Conflicts of Interest in Environmental Law","authors":"D. Richmond","doi":"10.17161/1808.29977","DOIUrl":"https://doi.org/10.17161/1808.29977","url":null,"abstract":"Conflicts of interest pose recurring professional responsibility and practice management challenges for lawyers and are a persistent source of professional liability exposure. Conflicts of interest may spawn breach of fiduciary duty and professional negligence allegations, require lawyers to decline potentially lucrative representations, disqualify lawyers from representations or force their withdrawal from cases, compel law firms to disgorge fees, bruise lawyers’ relationships with clients, and generate negative publicity that may at least temporarily harm law firms’ reputations. Predictably, then, law firm general counsels rank conflicts of interest among their top risk management concerns. At the same time, law firm general counsels understandably cite conflicts as the one area in which lawyers require the most education. Conflicts of interest are often complicated. There are some bright line rules, such as a lawyer’s inability to represent both the plaintiff and the defendant in the same case, but many answers to conflicts questions are unclear. Who is the client? What is direct adversity? When do lawyers’ relationships with current clients, former clients, or third parties create a substantial risk of material limitations in proposed concurrent representations? When does a client’s consent to a conflict of interest qualify as informed? In the case of former client conflicts, when are successive matters substantially related? The list of questions goes on. Although conflicts of interest arise in all practice areas, they seem to pervade environmental matters. Experienced environmental lawyers","PeriodicalId":83417,"journal":{"name":"University of Kansas law review. University of Kansas. School of Law","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67513007","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Editor’s Note: In this Article by KU Law faculty member John Head, we join global issues with Kansas issues. Professor Head explores a central concept of international law—the concept of sovereignty, as exercised by nation-states—with an eye to urging legal reforms that will help address global challenges that have special relevance to our own state. As he notes near the end of the “Introduction” to his Article, the issues he addresses bear importantly on agriculture and climate change, which are crucial to the future of Kansas. Moreover, he suggests that addressing global legal issues offers an opportunity for Kansas to add a new chapter to its “long history of progressive legal reform.”
{"title":",,,Addressing Global Challenges through Pluralistic Sovereignty: A critique of state sovereignty as a centerpiece of international law","authors":"J. Head","doi":"10.17161/1808.28085","DOIUrl":"https://doi.org/10.17161/1808.28085","url":null,"abstract":"Editor’s Note: In this Article by KU Law faculty member John Head, we join global issues with Kansas issues. Professor Head explores a central concept of international law—the concept of sovereignty, as exercised by nation-states—with an eye to urging legal reforms that will help address global challenges that have special relevance to our own state. As he notes near the end of the “Introduction” to his Article, the issues he addresses bear importantly on agriculture and climate change, which are crucial to the future of Kansas. Moreover, he suggests that addressing global legal issues offers an opportunity for Kansas to add a new chapter to its “long history of progressive legal reform.”","PeriodicalId":83417,"journal":{"name":"University of Kansas law review. University of Kansas. School of Law","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"67513209","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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