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Playing Poker While the Oil Spews

By Stefan Published: May 29, 2010

It may be somewhat callous, but the World Series of Poker goes on . . . as does my obsession with the interplay of poker, business, and the law.

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Conditional Repeal of Don't Ask, Don't Tell Passes House and Senate Armed Services Committee

By Wilson Huhn Published: May 28, 2010

     The House voted 234-194 and the Senate Armed Service Committee voted 16-12 to repeal Don't Ask, Don't Tell if a military study concludes that allowing gays and lesbians to serve openly in the military will not harm the effectiveness of the armed services.

     Donny Shaw of Open Congress has an informative post "Don't Ask, Don't Tell Repeal Moving Quickly in Congress" describing this week's votes on the conditional repeal, and Rachel Slajda of Talking Points Memo has provides background information in her article "Rep. Murphy On DADT: 'We Need To Act With A Sense Of Urgency Here'."  Twenty-six Democrats voted against the measure in the House and five Republicans voted for it.  The only members of the Senate Armed Services Committee to cross party lines on the issue were Jim Webb (D-VA), who voted against the proposal, and Susan Collins (R-ME) who voted for it.

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Should BP and/or Massey Executives Go to Jail?

By Stefan Published: May 27, 2010

If you kill someone while recklessly exceeding the speed limit, you'll likely go to jail.  An analogy can be drawn to a reckless pursuit of profits that leads to the loss of human life.  More here.

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Will Repeal of Don't Ask, Don't Tell Be Enacted?

By Wilson Huhn Published: May 26, 2010

     Here are links to three stories reporting on the likelihood that Congress will vote to repeal Don't Ask, Don't Tell.

     Jonathan Allen and Josh Gerstein of Politico post the article "Activists: Pelosi Key to Don't Ask, Don't Tell Deal."  This article credits Senator Carl Levin and House Speaker Nancy Pelosi with moving the repeal legislation forward this year.

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New Line-Item Veto Bill Appears Constitutional

By Wilson Huhn Published: May 25, 2010

     President Obama has submitted a newer version of the line-item veto act to Congress.  This one may be constitutional.

     Yesterday the President sent to Congress a bill - the Reduce Unnecessary Spending Act of 2010 - that would revive the President's power to exercise a form of the line-item veto.  Here are links to sources describing the proposal:

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Libertarianism: (Part 3) Negative Liberty and Positive Liberty in the Constitution

By Wilson Huhn Published: May 25, 2010

     In his masterful book Abraham Lincoln and the Second American Revolution James M. McPherson draws the distinction between "negative liberty" and "positive liberty."  Negative liberty is the right to be free from laws regulating our conduct.  Positive liberty is the enactment of laws protecting our rights.  Libertarians in general and Republican senatorial nominee Rand Paul in particular are quite properly devoted to the concept of individual liberty.  However, in opposing laws such as the Civil Rights Act of 1964, the Fair Housing Act, and the Americans with Disabilities Act their understanding of what liberty truly entails is cramped.  They value negative liberty but overlook positive liberty.

     In the most recent posting on this subject I repeated Abraham Lincoln's story of the sheep and the wolf: the wolf's definition of liberty is freedom to attack the sheep, while the sheep's definition of liberty is the shepherd's protection from the wolf.  This fable reflects the point that Locke, Rousseau, and Hobbes all agree on in their understanding of the social contract; that in a state of nature the strong prey upon the weak, and that people enter into society and submit to the rule of law to obtain protection from predators.  Through cooperation we seek not only protection but knowledge and prosperity, the full flowering of human potential.  Liberty is not the freedom to exploit others.  It is the opportunity to enjoy life to the fullest, to become whatever we choose to become; to gain knowledge and wisdom, to love whom we choose, to enjoy nature, to build, and to acquire.  To the extent that other people have the legal right to prevent us from achieving those goals we are not free.

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The Financial Reform Bill: Will Customized OTC Trades Clear?

By Willa Published: May 24, 2010

The United States Senate passed its version of the financial reform bill this past Thursday.  The bill provides comprehensive regulation of the over-the-counter (OTC) derivatives market, which Congress had exempted from regulation in 2000 to prevent OTC derivatives business from migrating to foreign markets with less regulation and to maintain our competitive position.   Many pointed to Congress' decision in 2000 to exempt such transactions from regulation as a significant factor contributing to the Great Recession of 2008, the country's worst financial crisis since the Depression era.   The Senate passage of the financial reform places the country one step closer to more stringent regulation of OTC derivatives transactions to rein in financially irresponsible trading in financial products, which as evidenced by the 2008 financial crisis, threaten systemic market failure.

The House passed its version of the financial reform bill in December 2009.  The next major hurdle is to reconcile the Senate and House bills.  For the most part, the bills contain parallel language, but in the contentious area of clearing requirements for OTC trades, the two bills differ in a manner that may affect exactly which OTC derivatives will be subject to clearing.  Both bills require that OTC derivatives clear through a clearinghouses, but only provided that a clearinghouse will accept a trade for clearing.  For the most part, clearinghouse can offset standardized trades; however, the more individualized the trade the less likely an offsetting transaction to the customized trade will exist.  Many OTC derivatives are customized to meet specific needs of counterparties.   Effectively, the legislation creates the possibility that market participants can continue trading customized OTC derivatives in opaque markets without the benefits of price transparency to which standardized OTC contracts are subject.  By exempting such contracts from clearing, the legislation creates an exception which dealers may exploit to avoid price transparency and greater disclosure of their OTC derivatives trades.  Gary Gensler, Chairman of the Commodities Future Trading Commission, testifying before the Senate last year expressed concern that dealers and traders might 'change a few minor terms of a standardized swap to avoid clearing and the added transparency of exchanges and electronic trading systems.'  

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Libertarianism: (Part 2) Lincoln on Liberty

By Wilson Huhn Published: May 24, 2010

     Republican senate nominee Rand Paul has consistently opposed civil rights laws that prohibit individuals and private businesses from discriminating on the basis of race.  Paul takes the position that these laws interfere with the "liberty" and "property" rights of persons and institutions that choose to discriminate.  This is not a new argument.

    The Fair Housing Act which was adopted in 1968 is a federal law that prohibits people from discriminating on the basis of race, gender, religion, and other factors when they sell a home or rent an apartment to another person.   In 2002 Rand Paul wrote a letter to the editor of his local newspaper, the Bowling Green Daily News, contending that the Fair Housing Act is inconsistent with a "free society."  His letter states in part:

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Libertarianism: (Part 1) Four Strands of Liberty under the Constitution

By Wilson Huhn Published: May 23, 2010

     Liberty appears in four guises under the Constitution: freedom of belief, freedom of speech, the right to privacy, and liberty of contract.

     The American people's devotion to liberty predates John Stuart Mill's great thesis On Liberty (1859).  In the Declaration of Independence our ancestors proclaimed that liberty is an "inalienable" right; that is, it is an inherent right, a right that we are powerless to waive, a right that no power can force us to surrender.  They adopted the Constitution "to secure the blessings of liberty for ourselves and our posterity," and it has proven to be a bulwark in the protection of our freedoms.  But "liberty" is not a single, unified concept, nor is it absolute.  It is instead a complex constellation of values, an idea that invites nuance and demands compromise.

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Senate Passes Financial Reform Bill

By Stefan Published: May 22, 2010

Brief overview and some useful links here.

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Study Abroad in Geneva, Switzerland

By Diana Published: May 20, 2010

Akron Law will be hosting a Study Abroad program in Geneva, Switzerland this summer for both law students and attorneys. Attorneys can earn 24 hours of CLE credit. Learn more here.

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Goldman and the Use of Non-Public Information

By Stefan Published: May 20, 2010

Some thoughts on that here.  Also, questioning broker-dealer fiduciary duties.

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Rand Paul Opposes Civil Rights Laws Prohibiting Acts of Racial Discrimination by Private Businesses

By Wilson Huhn Published: May 20, 2010

     In a number of recent interviews Kentucky Republican senatorial candidate Rand Paul has made it clear that he is opposed to laws that prohibit private businesses from discriminating on the basis of race.  He believes that individuals and privately-owned businesses should have a legal right to discriminate.

     From his interview on the Rachel Maddow Show last night it appears that Doctor Rand Paul, who won the Republican nomination for U.S. Senate from Kentucky, would not have voted in favor of Title II and Title VII of the Civil Rights Act of 1964.  Maddow initially played clips from Paul's interviews on "All Things Considered" and the editorial board of the Louisville Courier-Journal in which Paul indicated that he supports only those portions of the Civil Rights law that regulate the government and private entities that receive public funding.  Maddow gave Paul many opportunities to say that he would support the provisions of the law regulating private businesses, but Paul insisted that he would support only those portions of the law that abolish "institutional racism," by which he means actions by the government.

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Richard L. Aynes Receives the 2010 Scholar of the Year Award

By Diana Published: May 18, 2010

Professor Richard L. Aynes received the inaugural 2010 Scholar of the Year Award at The University of Akron School of Law 2010 commencement ceremony. Members of the Akron Law Review select the recipient of this award. This year, the students selected Professor Aynes on the basis of his nationally known scholarship in Constitutional Law and longstanding encouragement of scholarly endeavors among the Akron Law faculty.  

 'Scholarly legal writing has played a large role in the development of our legal system ' and indeed in the manner our nation has developed. Today, I am here to present the Faculty Scholar award to a professor at Akron who is among the strongest legal minds in the nation, and who shares so much of his insight with the legal community,' said 2009-10 Akron Law Review Editor-in-Chief Michael Rasor. 'His contributions to academia are unmatched. In the past year alone, he has published four articles. During his career, he has been published in journals at Yale and Harvard, as well as five articles in our own Akron Law Review. He has published a total of 21 articles, 3 books, 14 contributions to books, and 11 other miscellaneous writings.'

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Stephen R. Cook Receives 2010 Outstanding Professor of the Year Award

By Diana Published: May 17, 2010

Professor Stephen R. Cook received the 2010 Outstanding Professor of the Year Award at The University of Akron School of Law 2010 commencement ceremony.

Each year, members of the law school's graduating class nominate professors for the Outstanding Professor of the Year Award. The class then selects from among the top nominees and presents the award at the law school's commencement ceremony.

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Some States Prohibiting Private Health Insurance from Covering Abortions

By Wilson Huhn Published: May 17, 2010

     Ricardo Alonso-Zalvidar of the AP is reporting that a growing number of states are enacting legislation prohibiting private health insurers from offering abortion coverage through the Exchange.  These laws may be unconstitutional.

     Alonso-Zalvidar's article may be accessed from Google News here.  The reporter states that an "obscure" part of the federal health care reform law permits the states to restrict abortion coverage, and that since the federal statute was adopted,

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Elena Kagan on The Office of White House Counsel: Restoring the Rule of Law

By Wilson Huhn Published: May 16, 2010

     All of the materials relating to Elena Kagan's previous nomination for the office of Solociter General are available on this page of the website of the Senate Judiciary Committee, from which Kagan's publications may be directly accessed.  The most recent Kagan publication listed on that site is a three-page essay on the duties of the White House Counsel contained in a book intended to advise the incoming 44th President.

     Mark Green and Michele Jolin are the editors of the book Change for America:  A Progressive Blueprint for the 44th President (2009).  Elena Kagan contributed a brief essay to the book entitled "White House Counsel."    Without naming individuals, Kagan describes the problems that beset this office during the Bush administration and proposes solutions to the incoming President.  In this piece Kagan is revealed as a straightforward thinker, a clear writer, an effective administrator, and above all as someone who is dedicated to the Rule of Law.

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Resources on Supreme Court Nominee Elena Kagan

By Lynn Published: May 14, 2010

From the Law Library of Congress:

'To serve congressional and public requests for resources pertaining to this historic nomination, the Law Library of Congress has developed a web site on Kagan here.' Visit their site to read articles written by Elena Kagan, transcripts of her oral arguments before the U.S. Supreme Court and various web and video resources.

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Giving Social Entrepreneurs Enough Room to Grow

By Stefan Published: May 13, 2010

I'm currently at the University of Kentucky School of Law Developing Ideas Conference.  Antony Page, one of the presenters, gave me permission to post  his idea abstract on "Legal Forms for Social Entrepreneurs" here.  Also, some thoughts on the materiality of a Wells notice.

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Elena Kagan, the Solomon Amendment, and "Don't Ask, Don't Tell"

By Wilson Huhn Published: May 13, 2010

     This posting discusses Supreme Court nominee Elena Kagan's statements and actions with respect to employment interviews for the military at Harvard Law School.

     As a condition of accreditation the ABA requires law schools to adopt and conform to a policy nondiscrimination; as a consequence, law schools are supposed to arrange student interviews only with employers who do not discriminate.  In accordance with this policy for many years a number of law schools denied military recruiters access to their students on the ground that the military discriminates on the basis of sexual orientation.  In the 1990s Congress adopted the Solomon Amendment (10 U.S.C. 983) which prohibits the award of federal funds to educational institutions that deny access to military recruiters.  In 2005 the Third Circuit Court of Appeals ruled that the Solomon Amendment was unconstitutional because it violates the First Amendment rights of law schools and universities to freedom of speech.  The following year the Supreme Court reversed that decision in Rumsfeld v. Forum for Academic and Institutional Rights (2006).   The Supreme Court unanimously ruled that the Solomon Amendment is constutional because it regulates conduct, not speech.  The Court found that law schools have a constitutional right to oppose the military's discriminatory policies, but they are required to permit military recruiting to proceed.

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Elena Kagan on Pornography and Hate Speech

By Wilson Huhn Published: May 12, 2010

     In 1993 Kagan authored an article Regulation of Hate Speech and Pornography After R.A.V., 60 University of Chicago Law Review 873 (1993), in which she cautioned Americans not to disparage the principle of viewpoint neutrality.  It is a moderate, well-reasoned piece that anticipates later developments in First Amendment law.

     Kagan wrote this article at a time when many governmental entities were seeking to outlaw hate speech and pornography.  The City of St. Paul, Minnesota, enacted a law that made it a crime to display certain symbols that were "likely to arouse anger, alarm, or resentment on the basis of race, religion, or gender."  The City of Indianapolis adopted an ordinance making it a crime  to depict women as "the graphic sexually explicit subordination of women, whether in pictures or in words."  The Supreme Court struck down both of these laws.  In R.A.V. v. St. Paul  (1992) the Court struck down the St. Paul ordinance on the ground that it was a "viewpoint-based" law - that is, it is a law that punishes people for expressing a particular point of view.  In 1985, in the case of American Booksellers v. Hudnut, the Seventh Circuit Court of Appeals struck down the Indianapolis ordinance on the same ground.  Writing for the court, Judge Easterbrook said, "the Indianapolis ordinance ... is not neutral with respect to viewpoint."  The Supreme Court summarily affirmed the Circuit Court's decision in Hudnut in 1986.

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Elena Kagan on "Presidential Administration"

By Wilson Huhn Published: May 11, 2010

     In a previous posting I described Elena Kagan's belief that Supreme Court nominees should be willing to discuss the positions they would take as justices on constitutional issues.  This post describes her position on the power of the President to direct the action of administrative agencies.

     Kagan's single greatest work of legal scholarship is her article entitled Presidential Administration, published in 2001 in the Harvard Law Review.  The article is 122 pages long and contains 527 footnotes.  Her language is clear and confident, and she demonstrates a complete mastery of the subject area.  Harvard Law Review has made this article accessible for download here.

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Lecture to be Held in Honor of the Late Justice T. Modibo Ocran

By Diana Published: May 10, 2010

Akron Law will hold a free lecture in honor of the late Justice T. Modibo Ocran on Friday, May 14 at 4 p.m. at Akron Law in Room 151. The lecture, 'The United Nations, Peacekeeping, and Post-Conflict Reconstruction of States' will be given by Dr. Muna B. Ndulo, professor of law and director of the Institute for African Development at Cornell University Law School.

T. Modibo Ocran was Dean's Club Research Professor and Professor of Law Emeritus at Akron Law. During his 23 years at Akron Law, Ocran taught public and private international law, comparative law, corporation law and jurisprudence. He developed a rich curriculum in international business law that included three advanced seminars addressing commercial law, investments, and trade regulation. In 2004, Ocran retired from Akron Law to accept the appointment as a Justice on the Supreme Court of Ghana ' his native country. He pushed for the expansion of human rights in Ghana, and used the constitution to further the cause of political stability and national integration in his native land.

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New EPA Web Tool to Inform Public about Clean Water Enforcement

By Lynn Published: May 7, 2010

From the EPA site:

'The U.S. Environmental Protection Agency (EPA) is launching a new set of web tools, data, and interactive maps to inform the public about serious Clean Water Act violations in their communities. Improving water quality is one of EPA Administrator Lisa P. Jackson's priorities and in 2009, Administrator Jackson directed the agency to develop concrete steps to improve water quality, to better enforce the Clean Water Act and to use 21st Century technology to transform the collection, use and availability of EPA data. The web tools announced today is part of EPA's Clean Water Act Action Plan to work with states in ensuring that facilities comply with standards that keep our water clean.'  Source 

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Are you over-taxed or over-extended?

By Stefan Published: May 6, 2010

A rant about people who complain about taxes can be found here.  Also, some questions about Buffett's defense of Goldman.

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Akron Law to Honor Outstanding Alumni and Faculty on May 14

By Diana Published: May 5, 2010

Akron Law Alumni Association will hold its annual Alumni Awards Dinner at 5:30 p.m. on Friday, May 14 in the UA Student Union Ballroom. The honorees were chosen for their achievements in the legal profession and their communities.

The 2010 Outstanding Alumni Award honorees are Karen Doty ('81), general counsel for the Ohio Board of Regents; James Payne ('77), retired deputy law director of the City of Akron; Thomas Pitts ('79), partner with Stocker Pitts Co., LPA; and John Vasuta ('93), chief operating officer of international operation for Bridgestone Firestone Americas Holdings, Inc. Frank E. Quirk, director of the Joseph G. Miller and William C. Becker Center for Professional Responsibility at Akron Law and of counsel at Brouse McDowell will receive an Honorary Alumni Award.

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Akron Law to Offer Electronic Evidence CLE Program

By Diana Published: May 4, 2010

Akron Law will offer a CLE Program on Electronic Evidence on Friday, May 14 from 8 a.m. ' 5 p.m. at the University of Akron Martin Center. This program will provide participants with the legal and technical understanding of Electronic Evidence necessary to advise clients regarding: accurately documenting and proving maximum damages in civil cases; investigating events without interviewing personnel; finding facts without relying upon human recall; documenting events without incurring significant outside counsel fees; and establishing claims and defenses faster and more economically than traditional case-building research. The cost to attend this program is $300 per person, $200 for Akron Law Alumni and $50 for UA students and faculty. The cost includes 8 CLE hours, including one hour ethics, one hour professionalism, breakfast and lunch, as well as a copy of Electronic Evidence:  Treating the Computer as a Witness. Don Wochna, a pioneer in the development and application of Computer Forensics to the practice of law and founding partner of Vestige Ltd., will present the program. Register online here .

For a complete list of Akron Law Continuing Education opportunities, click here .

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More Thoughts on Goldman and BP

By Stefan Published: May 2, 2010

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