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Akron Law Café

Legal Research Meets Web 2.0

By Lynn Published: July 31, 2009

Free legal dictionary app for your iPhone

Download Nolo's Plain English Law Dictionary for free from the iTunes Store. 

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Committee Action on Health Care Reform and Abortion Funding

By Wilson Huhn Published: July 31, 2009

     Today the House Energy and Commerce Committee, led by Rep. Henry Waxman, is likely to report the "America's Affordable Health Choices Act of 2009" bill to the floor of the House of Representatives.  Here are links to the bill and a summary of it.  Below the fold is a discussion of how the bill will treat medical insurance for abortion.

     Medical insurance is not a constitutional right, but there are many constitutional issues that arise out of medical issues, including the right to refuse lifesaving medical treatment and the right to terminate a pregnancy.  One of the most divisive questions that must be considered by Congress as it moves forward on reforming the nation's system of health insurance is the extent to which private health insurance will be available to cover abortion. 

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Karl Rove and the U.S. Attorney Firings

By Wilson Huhn Published: July 30, 2009

     Here are news reports in the wake of Karl Rove's testimony today before the House Judiciary Committee regarding his role in the firing of several U.S. attorneys during the Bush administration.

     Here is an article by Carrie Johnson of the Washington Post entitled "Rove Had Heavier Hand in Prosecutor Firings than Previously Known," and here is one by David Johnston of the New York Times entitled "Rove Says His Role in Prosecutor Firings Was Small."  Zachary Roth of Talking Points Memo has a more neutral headline than either of the newspapers: "Emails Show Rove's Role in U.S. Attorney Firings." 

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Memorable Subprime Fraud Quotes

By Stefan Published: July 30, 2009

The Wall Street Journal reports today that:

William Black documents one of the more memorable exchanges here:

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Proposed Amendments to the Military Commissions Act: (3) The Right to Counsel

By Wilson Huhn Published: July 30, 2009

     The National Defense Authorization Act for 2010 amends the Military Commissions Act of 2006 by expressly protecting the defendant's right to choose the attorney who will represent him.

     The Bush administration initially took the position that the prisoners at Guantanamo Bay were not entitled to be represented by counsel, and even after the administration began trying prisoners for war crimes it attempted to control who would be assigned as counsel for the defendants.  The proposed military appropriations law (S. 1390) specifically provides that defendants before military commissions have the right to select the attorney who will represent them.  The bill would enact this provision at 10 U.S.C. Section 949a((b)(2)(C):

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Proposed Amendments to the Military Commissions Act: (2) Relevancy and Hearsay Rules

By Wilson Huhn Published: July 29, 2009

     As noted in yesterday's post, the 2010 Military Appropriations Bill (S. 1390)adopted by the Senate last week makes a number of modifications to the Military Commissions Act in order to bring that law into conformity with our obligations under the Geneva Conventions.  This post describes changes that the proposed law would make to the hearsay and relevancy rules in trials of suspected terrorists before military commissions.

     In Hamdan v. Rumsfeld (2006) the Supreme Court ruled that unless there is some strong justification offered by the government, the military commissions that try suspected terrorists for war crimes had to follow the same procedures that would be used in the court martial of U.S. military personnel in military courts under the Uniform Code of Military Justice.  The Court explained that the military commissions were not created so that it would be easier to convict people of terrorism, but simply because the regular military and civilian courts might not have jurisdiction over these crimes.  The Court said:

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The Posse Comitatus Act, the Insurrection Act, the Insurrection Act Rider, and the Lackawanna Six

By Wilson Huhn Published: July 28, 2009

     Lou Michel of the Buffalo News reports today that in 2002 former Vice-President Richard Cheney and Secretary of Defense Donald Rumsfeld proposed to President George W. Bush that the United States Army should carry out the arrests of six  suspected terrorists in Lackawanna, New York, and that they should be held by the military as "enemy combatants."

     Michel states that in the Lackawanna case the President rejected the advice of the Vice-President and the Secretary of Defense.  Instead the F.B.I carried out the arrests, the men were prosecuted by the Justice Department in federal court where they pled guilty and were sentenced to federal prison.  One is still being held in a highly secure federal prison in Terre Haute, Indiana.  Here is another article about the Lackawanna Six by Dina Temple-Raston of the Washington Post published in September, 2007.

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Proposed Amendments to the Military Commissions Act: (1) Admissibility of Confessions

By Wilson Huhn Published: July 28, 2009

     It was big news last week when the Senate stripped funding for the F-22 from the 2010 Military Appropriations Bill.  Lost in the shuffle is that fact that the same bill makes important modifications to the Military Commissions Act in order to bring the law into conformity with our treaty obligations under the Geneva Conventions.  The first post on this subject deals with the admissibility of confessions.

     In 2006 in the case of Hamdan v. Rumsfeld the United States Supreme Court ruled that the military commissions trying suspected terrorists for war crimes were unlawful under the Geneva Convention.  Common Article 3 of the Geneva Conventions prohibits:

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How to Survive an ERISA Audit

By Diana Published: July 27, 2009

The University of Akron School of Law will sponsor a continuing education program titled "How to Survive an ERISA Audit" on Sept. 10, 2009 at The University of Akron Martin Center. Compliance with Department of Labor Rules and Regulations for Reporting and Disclosure under ERISA is complex. Entities which do not comply with audit requirements risk hefty fines from the DOL and the IRS. This seminar presents from the inside perspective how to prepare for an ERISA audit. Cost is $50 per registrant; Two hours of CLE and CPE pending. Register online here.

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Don't Ask, Don't Tell Under Fire in Congress

By Wilson Huhn Published: July 27, 2009

     Congress is considering measures that would repeal the policy prohibiting gays and lesbians from serving openly in the military.

     According to an article posted today by Jason Bellini of the Daily Beast, Senator Kristen Gillebrand of New York has secured a commitment from the Senate Armed Services Committee to hold hearings on the policy this fall.  Bellini stated that Gillebrand lacks the 60 votes necessary to overcome a filibuster against enacting a temporary ban on dismissals, but that she will at least have the opportunity to challenge the policy in public hearings.  Bellini also reports that support is building in the House of Representatives in favor of the Military Readiness Enhancement Act, a law that would repeal the current policy.

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The Professor, the Sergeant, and the President: The Invitation

By Wilson Huhn Published: July 26, 2009

     President Obama has invited Professor Henry Louis Gates and Police Sergent James Crowley to the White House and to discuss the incident in Cambridge over a beer.

     In previous postings here, here and here I provided links to information about the story of Professor Gates' arrest.  After saying on Wednesday that the police had acted "stupidly," on Friday President Obama expressed regret over his choice of words and stated that both Crowley and Gates had probably "overreacted," and that he himself had not helped the situation.  The President's full statement is presented below.  Huma Kahn, Michele McPhee, and Russell Goldman of ABC News report that the meeting was Sergeant Crowley's idea, and that Crowley was "profoundly grateful" for the President's phone call.  In a statement published in The Root (which Professor Gates serves as editor-in-chief), Gates accepted the President's offer and indicated that he, too, had suggested that he and Crowley meet.  On a lighter note, Arianna Davis and Samuel Goldsmith of the New York Daily News speculate about which beer Obama should serve.  Here is the President's statement at the beginning of Robert Gibbs' daily press briefing on Friday:

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Ethics for the State Legislature

By Lynn Published: July 24, 2009

The last few weeks my posts have covered ethics rules and violations, first for the Executive branch and public officials and then for judges, court personnel and attorneys.

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Two Supreme Court Cases Relevant to the Gates Controversy

By Wilson Huhn Published: July 24, 2009

     I still haven't made up my mind as to who was right and who was wrong in the matter of the arrest of Henry Louis Gates.  I am confident that all the facts will emerge either through good investigative reporting or because some television show will induce both men to speak to each other about the incident and it will become clear what precisely happened.  (Previous posts referencing early news reports and statements of each man are linked here and here.)  My hope is that these are two good men who simply misunderstood each other.  In the meantime, here are two decisions of the Supreme Court that may inform the discussion.

     The Equal Protection Clause only applies to "state action," that is, to the actions of the government.  It does not apply to the actions of individuals or private organizations.  When a government official like a police officer or a judge acts illegally, it that state action?  Are the illegal acts of government officials nevertheless attributable to the government?

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Caveat Emptor: Insiders Trading

By Stefan Published: July 23, 2009

Consider the following alleged facts involving Maverick billionaire Mark Cuban:

As a general rule, corporate insiders are prohibited from personally trading in the stock of their corporation on the basis of nonpublic and undisclosed material information they derived from their position as insiders.  The Supreme Court, in Dirks v. SEC, included "transactional insiders" within the coverage of this rule:

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More Sources on Arrest of Henry Louis Gates

By Wilson Huhn Published: July 23, 2009

     Here are some links to more sources of information regarding the arrest of Professor Henry Louis Gates in Cambridge, Massachusetts.

1.  Fox News posted this copy of the arrest report;

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Rosado v. Bridgeport Diocese: Privacy, Freedom of Religion, and the Public's Right to Know

By Wilson Huhn Published: July 23, 2009

     On June 2, 2009, the Connecticut Supreme Court issued a ruling in the case of Rosado v. Bridgeport Roman Catholic Diocesan Corporation ordering the release of over 12,000 documents, previously under seal, describing how the Roman Catholic Diocese of Bridgeport, Connecticut, had handled allegations of sexual abuse in 23 separate cases.  On July 17 the Chicago Sun-Times reported that the Diocese had appealed the ruling to the United States Supreme Court on the ground that the disclosure of these documents would violate its rights under the Establishment Clause and the Free Exercise Clause of the First Amendment.  The Supreme Court is not likely to decide that issue, at least not right away.  

     Beginning in the mid-1990s twenty-three lawsuits alleging sexual abuse were filed against the Bridgport Diocese.  During the discovery process over 12,000 documents were produced and many witnesses testified under oath during deposition, but it was agreed that all of the information would remain under seal until trial.  The case was settled, and the documents and depositions have remained under seal ever since.

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Lindsey Graham to Support Sotomayor

By Wilson Huhn Published: July 22, 2009

     Rachel Slajda of Talking Points Memo reports that Senator Lindsey Graham will vote to confirm Judge Sonia Sotomayor to the United States Supreme Court. 

     In his opening statement during Sotomayor's confirmation hearings, Graham predicted that she would be confirmed absent a "complete meltdown," and on the final day of questioning, in his closing remarks, he expressed respect for her ability and intellectual integrity.  Slajda reports that today Graham described Sotomayor as "one of the most qualified nominees to be selected for the Supreme Court in decades," and stated that "the speeches ["wise latina"] are troubling, but you know what, I've given some speeches that may have been troubling to those on the other side."  He also said:

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Abortion and Health Care Reform

By Wilson Huhn Published: July 22, 2009

     Ben Smith of Politico authored an article today entitled "Abortion Roils Already Tense Health Debate."  At present, the law prohibits government-sponsored health insurance plans from covering the costs of abortions, but private insurance plans are permitted to and often do offer this coverage.  What will happen - what should happen - if the government undertakes the task of setting requirements for private insurance coverage?  And what does the Constitution have to say about the subject?

     Here are links to a statement from NARAL Pro-Choice America and a letter from Americans United for Life Action on the subject of what the health care reform legislation should provide with respect to abortion coverage.

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Divergent Reports on Professor Gates' Arrest

By Wilson Huhn Published: July 21, 2009

     I intended to write about the constitutional aspects regarding the arrest of Harvard professor Henry Louis Gates for disorderly conduct, but I was distracted by the divergence in the news reports and reactions to the incident. And, of course, the facts make all the difference.

     On the following facts all reports agree. On July 16, Gates, who is a prominent African-American academician, had to force open the door of his house in Cambridge, Massachusetts, with the help of his driver upon returning from a trip. A passer-by called the police, worried that the two men were committing a home invasion. When the police arrived, Gates was already inside; one policeman entered while other police officers waited on the porch Gates followed the policeman outside onto his porch, demanding to know his name and badge number. That was when Gates was arrested and booked for disorderly conduct. He was held for over four hours.

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Debate On Liberalism and Conservatism

By Wilson Huhn Published: July 21, 2009

     I will be a bit late posting this morning - I have a small family emergency to attend to (power out at a relative's home).  I intended to write about Professor Gates' arrest for disorderly conduct in Cambridge, Massachusetts.  Instead of writing this I responded to a lengthy comment from Dave with lengthy comment of my own in relation to yesterday's post about the difference between liberalism and conservatism.  I will post the piece on Gates later this morning.

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Liberals, Conservatives, and Judicial Activism

By Wilson Huhn Published: July 20, 2009

     Is it accurate to say that liberals support "judicial activism" in the interpretation of the Constitution while conservatives simply want Supreme Court justices to "follow the law"?

     During the confirmation hearings for Judge Sonia Sotomayor a number of conservative senators decried "judicial activism" and asked Judge Sotomayor if she would commit to simply "following the law" in the interpretation of the Constitution.  Sotomayor made this promise, as virtually every successful candidate for the Supreme Court does.  In regard to this Tom Schaller of recently posted this analysis of voting patterns of liberal and conservative supreme court justices, relying on data contained in Thomas Keck's book The Most Activist Supreme Court in History.  Schaller defines "judicial activism" as the willingness of judges to declare state and federal laws unconstitutional.  He found that the late Rehnquist Court (1995-2005) was the most likely court to declare federal laws unconstitutional, and that the Burger Court (1969-1986) was the most likely to declare state and local laws unconstitutional.  Schaller quotes Keck as concluding that the Rehnquist  Court "developed a conservative activism of its own."  Schaller calls the congressional posturing over "judicial activism" versus "following the law" during confirmation hearings a "kubuki" and a "farce."

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Sotomayor's Third and Final Day of Questioning

By Wilson Huhn Published: July 17, 2009

     Yesterday the Senate Judiciary Committee concluded its third and final day of questioning of Supreme Court nominee Sonia Sotomayor.  There were a number of "rhetorical flourishes" by both the senators and the nominee.

     Here is a link to the transcript of the first portion of yesterday's hearing; at the end of this post are links to transcripts for of all the confirmation hearings on Sotomayor.  

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Goldman Sachs and the Problem of Structural Bias

By Stefan Published: July 16, 2009

I'm teaching Corporations this summer and we recently discussed how different jurisdictions deal with the problem of structural bias when it comes to allowing special litigation committees to dismiss derivative actions.  To give some brief background, we start with the proposition that the decision of whether or not to pursue a legal claim held by the corporation is a business decision generally left to the discretion of the board of directors.  When the corporation's claim actually runs against the directors, however, we are rightly concerned that the directors may place their own self-interest ahead of the best interests of the corporation and so we allow shareholders to bring such claims on behalf of the corporation.   The board is subsequently "conflicted out" of seeking to intervene in such litigation with a motion to dismiss grounded on the board's determination that the suit is not in the best interests of the corporation.

But what if the board with the conflict of interest appoints a committee of disinterested directors who then proceed to conclude that suit should be dismissed?  Should that determination receive the usual deference accorded such decisions?  Courts are divided on the issue and the differences in treatment tend to reflect to what degree the court is concerned about structural bias--the bias one might expect to flow from the conflicted board to the individuals they appoint, regardless of the appointees' apparent disinterestedness.  I was reminded of this issue of structural bias in reviewing some recent news stories on Goldman Sachs.

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Sotomayor's Second Day of Questioning

By Wilson Huhn Published: July 16, 2009

     Here are links to some news reports about Sotomayor's second round of questioning Wednesday.  I found one particular exchange illuminating.

     ABC News' principal headline is Sotomayor Grilled on Abortion, Gun Rights, and reports that she "declined to respond to senators' questions asking her to explain her personal views."  Another ABC News story describes a humorous exchange between Sotomayor and Senator Tom Coburn in which during a discussion on gun rights Sotomayor, speaking hypothetically, suggested that if she went home and got a gun and shot the Senator ... and the Senator interrupted her lesson on the law of self-defense with the quip, "You'll have lots of  'splainin' to do," the old Ricky Ricardo line.  I guess you had to be there.

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Sotomayor's First Day of Questioning

By Wilson Huhn Published: July 15, 2009

     Here are my thoughts and impressions from the first day of questioning of Judge Sotomayor before the Senate Judiciary Committee.

     While Senators were asking questions Sotomayor concentrated on taking notes, glancing up at them occasionally as a student looks to a teacher.  Several of the Republican Senators pressed her about specific cases from among the over 3000 decisions she participated in over the years, almost in the manner of a law professor leading a discussion of a very long assignment for class.  In answering the questions she would look up, make eye contact with the Senator, and barely glance at her notes.  She spoke slowly with what to me was a peculiar cadence, and batted her eyelids not in a flirtatious manner but rather conveying a look of concentration and determination.  She sounded confident.  I was particularly impressed by her mastery of the law.

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Sotomayor's Decision in the Second Amendment Case

By Wilson Huhn Published: July 14, 2009

     Here is a more complete analysis of the Second Circuit's decision earlier this year in Maloney v. Cuomo , the Second Amendment case in which Judge Sotomayor participated.

     A New York State statute makes it a crime to possess nunchucks, and James Maloney was arrested and charged with this crime.  He pled guilty to a lesser offense (disorderly conduct) but he sued in federal court to challenge the constitutionality of the law under the Second Amendment, which provides:

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Sotomayor's First Day of Hearings: Gun Rights and Foreign Law

By Wilson Huhn Published: July 13, 2009

     Two additional topics were raised today in Judge Sonia Sotomayor's first day of confirmation hearings before the Senate Judiciary Committee: the Second Amendment and the influence of foreign law on the interpretation of the Constitution.  Links below, additional analysis will follow tomorrow.

     In their opening statements today Republicans raised two issues that I have not previously discussed in this blog: gun rights and foreign constitutional law.  In Maloney v. Cuomo a panel of the Second Circuit which included Judge Sotomayor upheld a New York State law which prohibited the possession of a "chuka stick" (commonly called "nunchucks").  The defendant had claimed that it violated the Second Amendment for New York to prohibit the possession of nunchucks in the home.  The judges based their decision on the ground that the Supreme Court has not yet overruled older cases finding that the Second Amendment was not applicable against the states.

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Storman's, Inc. v. Selecky: The "Plan B" Case

By Wilson Huhn Published: July 13, 2009

     Last week the United States Court of Appeals for the Ninth Circuit Court decided Storman's, Inc. v. Selecky, the case challenging a Washington State law requiring pharmacists to dispense "Plan B," is here.  An analysis follows.

     Plan B is an over-the-counter emergency contraceptive that works best if taken 12 to 24 hours after having sex.  It is supposed to be taken within 72 hours after intercourse, and has no effect if taken more than five days afterwards.  Plan B is not the same as RU-486, which is a true abortion drug.  According to the manufacturer's website, the active ingredient in Plan B is levonorgestrel, a hormone which is similar to progesterone and which is contained in regular birth control pills.  The manufacterer asserts that "Plan B is not an abortion pill.  It won't work if you're already pregnant.  If you take Plan B and are already pregnant, it will not affect your existing pregnancy."  Plan B usually works by preventing ovulation, but if the woman ovulates the same day as intercourse, the drug may also prevent implantation, and for that reason some pro-life groups consider Plan B to be a form of abortion. 

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New Wiretapping Revelations from Inspector General

By Wilson Huhn Published: July 11, 2009

     In 2005 Eric Lichblau and James Risen of the New York Times revealed the existence of the "Terrorist Surveillance Program," a program under which the Bush Administration eavesdropped on the international phone calls and emails of Americans without obtaining warrants.  Yesterday, the Inspector Generals' report reveals that under Bush the surveillance program went far beyond even what was previously revealed; that in fact the "President's Surveillance Program" included many other surveillance activities as well.  Here are some links providing more background about this story.

The Federal Report on the President's Surveillance Program, prepared by the Inspector Generals of the Justice Department, Defense Department, Central Intelligence Agency, the National Security Agency, and the Office of the Director of National Intelligence.

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Washington Law Requiring Pharmacists to Dispense "Plan B" Upheld

By Wilson Huhn Published: July 10, 2009

     Carol Williams of the L. A. Times reports that the Ninth Circuit has upheld a state law requiring pharmacists to dispense the "morning after pill."       A pharmacy and two individual pharmacists employed elsewhere had challenged the law on the ground that it violated their rights to the free exercise of religion.  I will review the court's opinion in Monday's post.  Meanwhile, I would like to hear your thoughts on the matter.  My wife's response was, "If they make millions of dollars selling Viagra they ought to be willing to sell Plan B too."

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Looking Ahead: Thoughts on Sotomayor, Rove, Detainee Trials, and the CIA

By Wilson Huhn Published: July 10, 2009

     Summer is usually slow for Constitutional Law news, but not this year.  This post contains some predictions about upcoming developments; an expression of gratitude to the commenters who contribute to the discussions on this site, particularly fellow bloggers Da King and The Reverend; and a request for topics that you want to read about and discuss.

     Sotomayor's confirmation hearings start Monday.  Her judicial opinions are concise to the point of being terse, her writing style is direct, and the tone of her writing is confident.  If she exhibits these same attributes in person - and as an experienced prosecutor she should - I expect that she will sail through the confirmation hearings untouched.  The principal complaint against her has been that she is racist - that she thinks that latinos are better or wiser than other ethnic groups.  I don't see any trace of that in her judicial opinions, and I would be surprised if such an attitude emerged at the hearing.  She is proud of her heritage and has been a civil rights advocate on its behalf, but so was Thurgood Marshall.  In the absence of any evidence that she holds attitudes of racial supremacy her past involvement in latino organizations will not be considered by very many people to be a legitimate reason to vote against her.  The principal case in which she participated for which she will be criticized is the Ricci case, (discussed in previous posts here and here) a decision which was recently overturned by the Supreme Court.  In my opinion she deserves criticism not so much for the result (there was binding precedent within her own circuit supporting the panel's decision, and the Supreme Court narrowly reversed by a vote of 5-4).  She does deserve criticism for the fact that she and the other two judges on the panel issued a summary per curiam opinion on a very important topic.  The constitutionality of the city's decision to yank the results of a civil service exam deserved more than two pages of analysis no matter how much it was governed by precedent.  She'll have to explain that.  We'll have plenty of opportunity to discuss that and other matters that arise during her hearing.

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Breaking Story: CIA Lied to Congress about Secret Program

By Wilson Huhn Published: July 9, 2009

     Here are some links regarding what may be a major story regarding a C.I.A. program which had been kept secret from Congress.

Scott Shane's article in the New York Times stating that CIA Director Leon Panetta testified before Congress that the CIA had been lying to Congress about a secret program since 2001.

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Teaching Transactional Law Skills in Law School: Is More Really Better?

By Stefan Published: July 9, 2009

When I attended the AALS's midyear meeting focusing on business law this past June, I was struck by Michael Woronoff's response to the question of whether law schools were teaching students adequate transactional skills.  The reason his remarks caught my attention was because it was the first time I had heard someone seriously challenge the notion that law schools should spend more of their resources teaching practice skills.  Since that time, he has posted a draft of his remarks and I would like to add some of my own thoughts here.

Woronoff divides the skills necessary to be a good transactional lawyer into three types: (1) substantive knowledge, (2) practical skills such as contract drafting and negotiation, and (3) expertise that comes from "real world" (my words, not his) experience.  He argues that while law schools have a comparative advantage over law firms in teaching substantive knowledge, and while they have the ability to teach practical skills, the comparative advantage when it comes to developing expertise resides with the law firms.  Furthermore, he believes law schools still have significant room for improvement in conveying the substantive knowledge and practical skills necessary to be a good transactional lawyer.  Thus, he concludes that rather than devoting already limited resources to areas where they lack the comparative advantage, law schools should seek to improve themselves in the area where they already have the advantage (or at least a realistic ability to add value): conveying substantive knowledge  and developing practical skills.  Specifically, he suggests that attempts by law schools to increase the amount of exposure they give students to "real world" transactional practice--whether via simulations or legal clinics--is time that would be better spent focusing on the first two types of skills he describes.

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The Mailbag: Responses to Reader Comments on the Electoral College, Religious Freedom, Defamation, and Signing Statements

By Wilson Huhn Published: July 9, 2009

     Here are responses to reader comments over the past week on a variety of topics.

    In response to my post yesterday about Sarah Palin's threat communicated through her attorney to sue bloggers like Shannyn Moore who reported that there were rumors that Palin resigned because of some wrongdoing that is being investigated, Buddy Toledo asked whether Shannyn herself is a public figure who would be limited by the rules of New York Times v. Sullivan if she (Shannyn) were to sue Governor Palin for defamation.  Off the top of my (pointy little) head, Buddy, I would say 'Yes she is!'  She writes a blog read by millions of people.  Buddy also states: 

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Akron Law to Hold Open House on July 25

By Diana Published: July 8, 2009

Prospective law students can learn about opportunities at The University of Akron School of Law at an open house from 1 to 3:15 p.m. on Saturday, July 25.

The program will include an admissions and financial aid session; mock law class; and student and alumni panel discussion. Prior to the open house, guided tours of the law school will be available beginning at noon.

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Big News on Capitol Hill Yesterday: Sotomayor, Rove, and the Detainees

By Wilson Huhn Published: July 8, 2009

     The confirmation hearing for Judge Sonia Sotomayor will kick off next week before the Senate Judiciary Committee, Karl Rove testified before the House Judiciary Committee, and the Senate Armed Services Committee held a hearing on proposed amendments to the Military Commissions Act. 

     On Monday the Senate Judiciary Committee will commence its hearing on "The Nomination of Sonia Sotomayor to be an Associate Justice of the Supreme Court of the United States."  Alex Isenstadt of Politico has a post today describing Republican strategy to portray Sotomayor as "a biased, close-minded judge who's on the wrong side of gun rights and affirmative action cases."

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Sarah Palin's Threatened Defamation Suit Against Shannyn Moore and Wayne Barrett: What the First Amendment Requires

By Wilson Huhn Published: July 8, 2009

     On July 4 Governor Sarah Palin's attorney Thomas Van Flein issued a statement threatening to sue bloggers, reporters, newspapers, and television stations for defamation.  What does the Constitution have to say about this?

     In his statement Attorney Van Flein defended Palin against allegations that she may have resigned under threat of investigation.  The bulk of Van Flein's statement consists of a lengthy rebuttal to an  article by Wayne Barrett that had been published by the Village Voice on October 7, 2008.  Van Flein stated that Barrett's allegations of corruption were "meritless."  Van Flein concluded his statement by threatening to sue bloggers, journalists, and news outlets who repeat rumors that Palin may have resigned as Governor because she is "under investigation."  In the concluding paragraph of his statement Van Flein specifically targeted blogger Shannyn Moore and news outlets Huffington Post, MSNBC, the New York Times, and the Washington Post:

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Let's Reform How We Elect the President

By Wilson Huhn Published: July 7, 2009

     Last week in a comment to my posting on the Minnesota Supreme Court's decision in Coleman v. Franken the Reverend took exception to my description of Bush v. Gore.  Let's discuss that case and consider how the Constitution ought to be amended regarding how we elect Presidents.

     On July 2 the Reverend wrote:

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The Veil and the Burqa - Constitutional to Ban or Restrict?

By Wilson Huhn Published: July 6, 2009

     Five years ago France prohibited students in public schools from wearing head scarves and veils or other conspicuous religious symbols.  Two weeks ago in a dramatic speech to the French Parliament, President Nicolas Sarkozy denounced the wearing of the burqa as a symbol of "enslavement" and requested legislation that would outlaw the practice in France.  Would these laws be constitutional here?

          In his speech at Cairo University on June 4 United States President Barack Obama implicitly drew a sharp contrast between France and the United States on the matter of religious freedom.  He said,

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Abraham Lincoln and the Fourth of July

By Wilson Huhn Published: July 3, 2009

     Lincoln revered the Declaration of Independence, and several of his most significant utterances were made on or about the Fourth of July. 

    Lincoln's speech to Congress on July 4, 1861, described in this previous post, was his most thorough and effective argument against secession. Then there was Lincoln's message to the American people on July 4, 1863, reacting to the Union victory at Gettysburg:

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Star Powered Director Primacy

By Stefan Published: July 2, 2009

Delaware General Corporation Law Section 141 tells us that the "business and affairs of every corporation organized under this chapter shall be managed by or under the direction of a board of directors."  Given the complexity of managing or overseeing the business and affairs of modern corporations, an outsider may be forgiven for being surprised at finding out that (as I've noted before) directorships are often part-time positions filled by individuals who generally have other very pressing full-time demands.  Now we can add another curiosity to this area: the celebrity director.  Bloomberg reports that:

Now there may be some good arguments for the notion that having some star power on the board is good for business, or that certain skills like leadership are important and transferable.  But in an age where financial expertise and specialized business knowledge seem essential to effective oversight, there must be better positions than director for leveraging those skills. Then again, those other positions would probably require one to show up more than once a quarter (if that).

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It's Still Unconstitutional for the President to Sign a Bill into Law and Refuse to Obey It

By Wilson Huhn Published: July 2, 2009

     Michael O'Brien of The Hill reports that when President Obama signed the war funding bill last week the President issued a statement indicating that he would ignore certain provisions of the law that he considered unconstitutional.  Although I agree with the President that the sections of the statute he objects to are an invasion of the powers granted to the President under the Constitution, it would be an even graver violation of the Constitution for him to refuse to enforce a law that Congress has enacted and that he has signed.

     When the President signed the war funding bill he issued a five-paragraph signing statement.  The first four paragraphs set forth a justification for the war in Afghanistan and describe the other foreign policy initiatives funded by the law.  In the last paragraph of the signing statement the President indicates that he does not feel bound by certain provisions of the law that relate to the World Bank.  Here is a link to the White House website setting forth the signing statement, and here is the statement in its entirety:

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Coleman v. Franken and Bush v. Gore

By Wilson Huhn Published: July 1, 2009

     The Minnesota Supreme Court decided in favor of Al Franken yesterday, declaring him the winner of the 2008 election for U.S. Senator in the State of Minnesota.  One of Norm Coleman's arguments was that the counting of the absentee ballots violated his rights under the Equal Protection Clause under the case of Bush v. Gore (2000).   Here is a link to the Minnesota Supreme Court's decision, and a description of this aspect of the decision follows.

     At pages 20-22 of its opinion the Minnesota Supreme Court discusses Senator Coleman's argument that the counting of the absentee ballots violated his rights under Bush v. Gore (2000). The Court distinguished Bush v. Gore for the following reasons:

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The President and Don't Ask / Don't Tell - Is it 1862 all over again?

By Wilson Huhn Published: July 1, 2009

     On September 22, 1862, President Abraham Lincoln issued the Emancipation Proclamation.  Is history about to repeat itself?

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