FACULTY NEWS
RESEARCH: ARTICLE ADDRESSES CONSTITUTIONAL ISSUES WITH PRIVATE GOVERNMENT CONTRACTORS KU Law Professor Lou Mulligan 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. 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 appeared 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 governmentrun and privately run prisons. The decision as it stands allows federal agencies to avoid their constitutionally imposed liability simply by hiring private contractors.” 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.
RESEARCH: HEALTH CARE FIGHT REFLECTS ROLE OF FEDERALISM IN DISPUTES, PROFESSOR ARGUES When the United States was in its infancy and the founding fathers drafted the Articles of Confederation, they likely had no idea how that might contribute to the polarized nation we live in today. Richard E. Levy, the J.B. Smith Distinguished Professor of Constitutional Law, has authored an article exploring four of America’s most divisive issues and how they all become arguments of federalism, or federal government authority versus states’ rights. In the paper Levy explores the Affordable Care Act, immigration, same-sex marriage and gun rights. He probes the political ins and outs of each issue and how they essentially boil down to questions of who decides the issue: the federal or state government. His research was presented at a conference at
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Kanagawa University in Yokohama, Japan, in November. “I began thinking about what the effect of federalism is in the United States and how it related to the financial crisis,” Levy said. “As I studied that and many other divisive topics, I realized they were all not only hot
button issues, but federalism issues.” Levy notes that federalism has largely magnified the current redstate, blue-state divide by encouraging states to enact more radical policies on each side. The tendency to use federalism as an argument to support a cause is both inherent in the system and to a lesser extent human nature. History shows that polarization is not constant and that moderates have had success at the federal level. Conversely, sometimes one side is so powerful they essentially have no opposition and thus practically no polarization. “I tend to think a better understanding of problems promotes better solutions,” Levy said. “I would hope this research would help people understand how the issues become jumbled and how they might be addressed.”