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The Seating of Roland Burris in the United States Senate

By Wilson Huhn Published: December 31, 2008

     Disgraced Illinois governor Rod Blagojevich has announced his intention to appoint Roland Burris to the United States Senate, and the democratic leadership in the Senate has expressed its opposition to the seating of Mr. Burris.  What does the Constitution have to say about this?

     Article I, Secton 5 of the Constitution vests each House of Congress with two separate and distinct powers in relation to the membership in each House - the power to exclude members (covered in Clause 1) and the power to expel members (provided for in Clause 2).  These provisions state:

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Lincoln and the Transcendent Constitution: (2) The Apple of Gold and the Picture of Silver

By Wilson Huhn Published: December 31, 2008

     The first evidence of Lincoln's view of the Constitution for us to consider is from an undated fragment found among Lincoln's presidential papers after his death.  Some scholars believe that this was written shortly after Lincoln took office in 1861, and that it may have been intended as a response to his friend Alexander Stephens, the Georgia Congressman who became Vice President of the Confederacy.  Stephens had been a unionist, but In March of 1861, Georgia seceded from the Union and adopted a new State Constitution recognizing slavery.  On March 21 Stephens delivered his famous "Cornerstone" address, in which he rejected the principle that "all men are created equal" expressed in the Declaration of Independence.  In support of the new Georgia Constitution, Stephens employed a biblical allusion. Stephens referred to the principles of the Declaration as a "sandy foundation," and that the new Georgia Constitution was built upon a more solid foundation. He stated:

     In the following passage Lincoln is evidently reflecting on the causes of the success of the American experiment in self-government.  Here is what Lincoln wrote, in its entirety:

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The Toussie Pardon Withdrawal and Marbury v. Madison

By Wilson Huhn Published: December 28, 2008

     There is an ongoing debate at and other websites about whether President Bush has the power to rescind the pardon that was granted to Isaac Toussie, who had been convicted of federal crimes related to real estate manipulation.  The pardon had been signed by the President but not delivered to Mr. Toussie.  The President contends that the pardon was not effective until it had been delivered to Mr. Toussie, while Mr. Toussie is sure to take the position that the pardon was final and irrevocable as soon as the President signed it.  Similar facts gave rise to the 1803 case of Marbury v. Madison.

     In Marbury President John Adams attempted to make some "midnight appointments" of judges just as his term was ending.  He signed the commissions appointing the judges to five-year terms of office and placed the presidential seal upon these documents, but his Secretary of State (John Marshall) failed to deliver some of the commissions before leaving office.  One of the persons who did not receive his commission was William Marbury.  The incoming President, Thomas Jefferson, ordered his Secretary of State, James Madison, not to deliver the remaining commissions to Marbury and the other persons Adams had appointed.  As a result Marbury sued Madison in the Supreme Court on the ground that he had been properly appointed to the judicial office. 

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Santa Claus as Ponzi Scheme

By Stefan Published: December 25, 2008

Prof. Ribstein breaks the story here.

If a Ponzi scheme is properly defined as being based on the  "rob-Peter-to-pay-Paul" principle, then what else might we dub a Ponzi scheme during this season of giving?  Perhaps, our consumerism--which promises us happiness today while selling out our future.

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Lincoln and the Transcendent Constitution: (1) The Constitution and the Declaration

By Wilson Huhn Published: December 23, 2008

     Lincoln changed our perception of what it is to be an American by changing our understanding of the meaning of the Constitution, and he achieved this by incorporating the principles of the Declaration of Independence into the Constitution, particularly the phrase, "all men are created equal."

     As originally written, the Constitution reaffirms many of the principles that are mentioned in the Declaration of Independence and that Americans believe in - liberty, self-government, and limited government.  But the Constitution was deficient in two respects.  First, the document contained only a cursory expression of individual rights.  This deficiency was addressed four years later with the ratification of the Bill of Rights, the 9th Amendment of which assures that the Bill of Rights is not an exclusive listing of all of our fundamental rights.

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Madoff and the Myth of Sophisticated Investors

By Stefan Published: December 18, 2008

Our system of securities regulation reserves a special place for sophisticated investors.  For example, under Rule 506 of Regulation D (which allows companies to raise an unlimited amount of money through an unregistered offering of securities so long as the requirements of the rule are satisfied):

Suffice it to say, the notion that sophisticated investors are, well, sophisticated, has taken a bit of a hit lately.  Here are just a few snippets:

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Rick Warren and Joseph Lowery at the Inauguration

By Wilson Huhn Published: December 18, 2008

     I am cheered at the fact that both Rick Warren and Joseph Lowery will play a role at the Inauguration on January 20.  I think that the inclusion of both of them reflects fundamental constitutional values.

     No-one agrees with both Pastor Rick Warren of the Saddleback Church and Reverend Joseph Lowery, one of the founders of the civil rights movement, on all social issues.  Pastor Warren supported Proposition 8 and opposes gay marriage and abortion, while Reverend Lowery is an outspoken supporter of full equality for gays and lesbians.  

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The 2008-2009 Supreme Court Term: (5) Altria Group, Inc. v. Good - Another Tort Preemption Case

By Wilson Huhn Published: December 15, 2008

     The Supreme Court decided another tort preemption case today.  The Court somewhat clarified the law of preemption, but it was another 5-4 decision.

     Preemption is the rule that when a state law conflicts with the federal law, the federal law controls and the state law is void.  I discussed the law of federal preemption in a previous post.  Under the Supremacy Clause of the Constitution, the United States Constitution trumps federal statutes, and federal statutes trump all forms of state law - state constitutions, state statutes, and state common law are all lower on the legal hierarchy than federal laws.  

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Analysis of Illinois Attorney General Suit to Remove Governor Blagojevich

By Wilson Huhn Published: December 13, 2008

     Illinois Attorney General Lisa Madigan has filed a lawsuit in the Illinois Supreme Court to remove Governor Rod Blagojevich from office.  What is the legal basis for this suit, and would removing the Governor be constitutional?

     Article V, Section 6(b) of the Illinois Constitution provides that if the Governor is "unable to serve" because of "death, conviction on impeachment, failure to qualify, resignation, or other disability," then the Lieutenant Governor should serve "for the remainder of the term or until the disability is removed."  Section 6(d) states:

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Akron Law to Hold Open House on Jan. 3

By Diana Published: December 12, 2008

Prospective law students can learn about the opportunities at The University of Akron School of Law at an open house from 1 - 3 p.m. on Saturday, Jan. 3.

The program will include an admissions and financial aid session; a mock law class; and a 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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Reading Judicial Opinions Critically: A Poll

By Stefan Published: December 11, 2008

The Sixth Circuit recently dismissed the case of J & R Marketing v. General Motors because, among other things, the court deemed challenged statements made by the defendant to be immaterial as a matter of law.  In connection with this opinion, I'd like you to consider the two pieces of text below and then take a quick poll.  (Yes, the text is a bit long.  But, if a blog isn't good for procrastination....)

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Standing to Challenge Barack Obama's Eligibility to Serve as President

By Wilson Huhn Published: December 8, 2008

     On Monday, December 8, the Supreme Court turned down a request to prevent the Presidential Electors from voting for Barack Obama our next President.  A number of persons have brought lawsuits contending that Barack Obama is not a "natural born" United States citizen and that therefore he is ineligible to become President. In order to win such a case it would not be enough to prove that Obama's Hawai'i birth certificate is a fake and that he was really born outside the United States; it would also be necessary to prove that Ann Dunham was not his mother, because the children of American women are "natural born citizens" no matter where they are born. Nevertheless, some people persist in the belief that Obama simply cannot be eligible to be President and some of them persist in filing these lawsuits.  One suspects that this belief and these cases are motivated more by anger and frustration at losing the election than by rationality.

     These lawsuits have so far been dismissed, not on the merits, but because the plaintiffs lack standing. What is standing and why is it required?

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The 2008-2009 Supreme Court Term: (4) Al-Marri v. Pucciarelli - Another Detainee Case

By Wilson Huhn Published: December 6, 2008

     Yesterday the Supreme Court accepted for review yet another case involving a person being held without trial in the war on terror.  This time the Court may decide whether the government must try suspected terrorists in criminal court.

     Ali Saleh Kahlah al-Marri, a Qatari citizen, lawfully entered the United States with his wife and children on September 10, 2001.  On December 12, 2001, he was arrested as a material witness in the September 11 attacks.  He had in his possession stolen credit card numbers.  The government believes that he is an agent of al-Qaeda and that he was sent to the United States to disrupt our financial system.  At first, the government indicted him in criminal court for financial fraud and lying to the F.B.I., but then President George W. Bush issued an order declaring al-Marri to be an "enemy combatant," and he has been held in military prison for the last four years.  Al-Marri was not captured on a battlefield and the government does not allege that he has participated in any violent activity against the United States or any of its citizens. 

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A Couple of Interesting Points on the Bailout[s]

By Stefan Published: December 5, 2008

Prof. Dale Oesterle has written a couple of short posts that I felt compelled to pass on to our readers here (even if that means breaking my one-post-a-week rule):

First, Oesterle notes that the way the U.S. government has gone about structuring the bailout has proven to be at least somewhat self-defeating:

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What's Wrong with Incarcerating People for Profit?

By Stefan Published: December 4, 2008

An interesting criminal case was dismissed this week.  The underlying indictment charged Vice President Dick Cheney and former Attorney General Alberto Gonzales with:

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Is the Constitution a Higher Law?

By Wilson Huhn Published: December 2, 2008

     In today's post I don't offer any answers, only a question, but it is a basic and fundamental question: "Is the Constitution a higher law?"  In the strictly legal sense, the answer is obviously "Yes."  According to the Supremacy Clause the Constitution is the "supreme law of the land," and any statutes, regulations, or official policies that are in conflict with the Constitution are invalid and cannot stand, and any actions taken by public officials which are contrary to the Constitution are void and of no effect.  But I ask this question, "Is the Constitution a higher law?" in the moral sense - does the Constitution instantiate certain universal moral truths, applicable to all persons everywhere?

     History tells us that there are situations where good people are justified in violating the law.  In Letter from a Birmingham Jail Martin Luther King, Jr., states that "one has a moral responsibility to disobey unjust laws," and quotes St. Augustine, "An unjust law is no law at all," in advocating nonviolent resistance to segregation and discrimination.  In describing how a person may, in good conscience, disobey the law, King stated:

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