LEXINGTON, Ky. (February 9, 2010) – The first book in the 98th volume of the Kentucky Law Journal is available for purchase. Since 1913, the Kentucky Law Journal has published scholarly works of general interest to the legal community and is the 10th oldest law school journal in the country. It is produced by students of the University of Kentucky College of Law under the direction of a 15-person editorial board and with the advice of a faculty member. The Kentucky Law Journal is published quarterly by the College of Law.
Articles and notes featured in volume 98, No. 1 are as follows:
Michelle Arnopol Cecil: "A Reappraisal of Attorneys' Fees in Bankruptcy"
The current mortgage foreclosure crisis, coupled with the country's economic downturn and escalating consumer costs, have combined to place a crippling burden on the nation's bankruptcy system. During difficult economic times such as this, it is imperative that the bankruptcy system operate efficiently, as it provides a social safety net for both consumers and businesses. Unfortunately, there are many issues of statutory interpretation left unanswered in the Bankruptcy Code, and these issues have placed an increased burden on the country's bankruptcy courts. In her article, professor Michelle Cecil of the University of Missouri School of Law seeks to resolve one thorny issue of statutory interpretation: the treatment of attorneys' fees in bankruptcy.
The Supreme Court recently handed down a landmark decision, Lamie v. United States Trustee, in which it held that debtors' attorneys' fees are not entitled to priority treatment in bankruptcy. In the aftermath of Lamie, courts have struggled to apply its holding to a host of scenarios left unresolved by the court's decision. Cecil's article attempts to create a new method for approaching the priority of attorneys' fees in bankruptcy. It criticizes Lamie for not going far enough toward resolving the attorneys' fees issue, and proposes a statutory amendment to the Bankruptcy Code that will harmonize the interests of both creditors and debtors who are seeking bankruptcy protection during these difficult economic times.
John L. Hill: "The Constitutional Status of Morals Legislation"
In 2003, the Supreme Court decided Lawrence v. Texas, holding for the first time in U.S. history that consensual homosexual acts are constitutionally protected. The decision capped off 150 years of debate between liberals and conservatives about "morals legislation" – laws prohibiting a variety of arguably private behaviors including fornication, adultery, prostitution, assisted suicide and illegal drug use, because the majority believes them to be immoral. Liberals have welcomed the Lawrence decision as a final decisive victory in the debate, viewing Lawrence as a rebuke not only to sodomy laws but to all forms of morals legislation. Some courts have agreed. The Virginia Supreme Court followed Lawrence's rationale in striking down laws prohibiting fornication, while other courts have considered its relevance to adultery and prostitution laws. Conservatives have decried the decision for much the same reason. Justice Antonin Scalia argued in dissent in Lawrence that the decision is the death knell to all morals legislation.
In "The Constitutional Status of Morals Legislation," professor John Hill from the Indiana University School of Law argues that liberals and conservatives are both wrong about the relevance of Lawrence to the wider debate. He shows that, despite the ringing rhetoric of liberals, the modern privacy right protects little beyond abortion and contraception use. He then argues that the Lawrence decision is meant to be read narrowly. It does not herald the end of morals legislation and does not create a constitutional right to engage in adultery, fornication or prostitution, let alone assisted suicide or illegal drug use. Instead, it stands for the more limited yet sensible principle that states may not single out politically vulnerable groups, including gays, denying them the liberty of engaging in private, nonharmful sexual acts when the basis for this may be nothing other than political animus.
Alina Klimkina: "Are Noncompete Contracts Between Physicians Bad Medicine? Advocating in the Affirmative by Drawing a Public Policy Parallel to the Legal Profession"
Given the vast number of decisions upholding restrictive covenants among doctors, the implication is that noncompete clauses in physicians' employment agreements will generally be enforceable. Since the adoption of its first code of professional conduct, however, the American Bar Association has plainly prohibited such covenants between attorneys. In light of recent decisions, this note discusses the background and policy of traditional noncompete agreements, the current trend of restrictive covenants, and most importantly, provides a public policy comparison between the professional fields of medicine and law in which the enforcement of noncompetes is strikingly different. The author concludes that ultimately, when restrictive covenants are upheld among physicians, the patients take the hardest hit. Thus, Klimkina, a third year law student at the University of Kentucky, proposes that in judging noncompetes in the medical profession, the patients’ interests must prevail over all other considerations and such covenants among physicians should be unenforceable.
David Newton: "Widespread Panic: Why the Mortgage Lending Industry Can Calm Down about Amending Cramdown"
Under current bankruptcy law, bankruptcy judges are forbidden from amending the terms of mortgage loans secured by a homeowner's primary residence. For many individual debtors, their home is their largest asset, and in many cases, their largest debt. For these debtors, prohibiting modification, or "cramdown," of their mortgage loan balance in the bankruptcy courts means that bankruptcy relief is no relief at all. Without aid from the bankruptcy system, many homeowners are unable to stop the seemingly inexorable slide toward default and foreclosure. The foreclosure boom experienced in certain parts of the United States during 2007 and 2008 indicates that foreclosures breed more foreclosures, and the costs of each foreclosure (e.g., reduced property values, increased police presence) must be paid by the surrounding community. In his note, UK College of Law student David Newton argues that it is time to remove the protection for mortgages secured by a primary residence from the Bankruptcy Code.
This protection of mortgages secured by primary residences was added to the Bankruptcy Code in the late 1970s as a way of reducing risk of loss to lenders, thereby freeing up lending capital and keeping interest rates low, making mortgage loans more available to potential homebuyers. Newton's note argues that this favored status in the bankruptcy system is no longer appropriate, given the structure of the current securitized mortgage market. Newton's research shows that this protection in the bankruptcy system is no longer the only force exerting downward pressure on home mortgage interest rates. Over the last several years, innovations in mortgage finance have taken availability of mortgage loans to new heights. Increasing homeownership, however, is not without costs. The system only works to make loans more available because the current system passes the risk of default on to the rest of the country. Default risk is bundled and sold as an investment product, and in the end, everyone is forced to pay the tab for these risky loans when the homeowner defaults. Allowing bankruptcy judges to modify residential mortgage loans might force the mortgage lending industry to more accurately calculate the true cost of default risk when making mortgage loans, since they, not our communities, will be forced to pay the costs of foreclosure.