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Professor Aynes Cited by Supreme Court

By Wilson Huhn Published: June 29, 2010

     Professor Richard L. Aynes' article, On Misreading John Bingham and the Fourteenth Amendment, 103 Yale Law Journal 57 (1993), was cited yesterday by the Supreme Court in its opinion in the case of McDonald v. Chicago.      Aynes has published and lectured extensively about the adoption and meaning of the Fourteenth Amendment.  His research has focused primarily on the work of John Bingham, an Ohio Congressman who played a leading role in the drafting of that Amendment.  In the Yale Law Journal article and other scholarly writings Aynes has sought to bring to light the beliefs of Representative Bingham and the other framers of the Fourteenth Amendment - particularly the framers' intent that the Fourteenth Amendment should be broadly construed to embrace all of the Bill of Rights.  Another prominent scholar writing in this vein is Professor Michael Kent Curtis of Wake Forest University School of Law, whose work is also cited by the Supreme Court in McDonald.

     Professor Aynes is the John F. Seiberling Chair of Constitutional Law and serves as the Director of the Constitutional Law Center at The University of Akron School of Law.  From 1985 to 2007 he served as Dean of the School of Law.  Earlier this year Professor Aynes was recognized as the faculty's Outstanding Scholar.

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Two Significant Supreme Court Decisions Handed Down Today: McDonald v. Chicago, and Christian Legal Society v. Martinez

By Wilson Huhn Published: June 28, 2010

     The Supreme Court handed down two significant constitutional decisions today: McDonald v. Chicago (striking down a Chicago ordinance banning private possession of handguns), and Christian Legal Society v. Martinez (ruling that a public university may require student student organizations to admit all applicants on a nondiscriminatory basis to qualify for official recognition and support).

1.  In McDonald v. Chicago, the Court, by a 5-4 margin, strikes down a Chicago ordinance that prohibited private individuals from possessing handguns.  The opinion was written by Justice Alito.  The five justices in the majority ruled that individuals have a fundamental right to have a handgun in their home for purposes of self-defense.  One of the principal issues in this case is whether the Court should look to the Due Process Clause or the Privileges and Immunities Clause as the textual source of protection for our fundamental rights.  Four of the justices in the majority - Justice Alito, joined by Chief Justice Roberts, Justice Scalia, and Justice Kennedy - found that this right was guaranteed by the Due Process Clause of the Fourteenth Amendment.  Justice Alito's opinion states:

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Demographic Information about Arizona

By Wilson Huhn Published: June 27, 2010

In a recent post about the Birthright Citizenship Act I noted that Kentucky Senatorial candidate Rand Paul has called for the adoption of a constitutional amendment that would provide that children who are born in this country but whose parents are undocumented immigrants would not be citizens of the United States.   Dr. Paul cited "demographics" as the reason for amending the Constitution in this manner.  What are the relevant demographics?

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Political Gerrymandering: (Part 5) The Ohio Redistricting Competition

By Wilson Huhn Published: June 26, 2010

     In 2009 the Ohio Secretary of State's office under Jennifer Brunner helped to host a public competition to draw fair, nonpartisan congressional legislative districts for the State of Ohio.  The results were remarkable.

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Search Ohio Law - new online guide

By Lynn Published: June 25, 2010

Use this library guide to find free legal information for Ohio.  I pulled links to legal sources from my earlier posts on Akron Law Café and organized them into an easy to use guide.  There are three tabs along the top of the guide for statutes, regulations and court cases.

In addition to links to searchable databases, there are links to guides about each branch of government.  Look for the guides in the 'For more information' box on the left side of each page in the guide.

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Birthright Citizenship Act of 2009

By Wilson Huhn Published: June 25, 2010

     Representative Nathan Deal (R-GA) submitted a bill - the Birthright Citizenship Act of 2009 - that would change the law so that children born in this country whose parents are undocumented immigrants would not be considered citizens of the United States.  In my opinion this law would be unconstitutional under 14th Amendment and the decision of the Supreme Court in U.S. v. Wong Kim Ark (1898).

     Section 1 of the 14th Amendment commences with these words: 

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Obama, McChrystal, Lincoln, and Key

By Wilson Huhn Published: June 24, 2010

     Columnists have compared President's Obama's dismissal of General Stanley McChrystal to Truman's dismissal of Douglas MacArthur.  I have another analogy: Lincoln's dismissal of Major John Key.

     A number of columnists have registered their opinion on the wisdom of the President's dismissal of General Stanley McChrystal and his appointment of David Petraeus as commander of forces in Afghanistan.  Patrick Buchanan says that General McChrystal was guilty of "collossal stupidity" to have criticized civilian leaders in such a cavalier manner, but that the President's decision to fire McChrystal, our best fighting general, may prove "unwise and costly" - just it was unwise, in Buchanan's opinion, as it was for Harry Truman to have fired Douglas MacArthur.  Fareed Zakaria of CNN rejects the analogy between McChrystal and MacArthur.  MacArthur's firing, he argues, was necessary because the general publicly opposed President Truman's decision not to be drawn into a war against Russia, while McChyrstal and his staff simply expressed disdain towards the President, Vice-President, Secretary of Defense, National Security Advisor, and Ambassador to Afghanistan.  Nevertheless, Zacaria concludes that McChrystal had destroyed his effectiveness in working with these civilian leaders in this nationbuilding exercise, and that it was a "masterstroke" for the President to have replaced him with David Petraeus.  Here are additional columns on the subject by Maureen Dowd, Ed Rollins and others.

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Our Great (Old) System

By Stefan Published: June 24, 2010

U.S. healthcare takes another rankings beating, and the problem of regulatory capture seems intractable.

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AOL Story on Visual Estimation of Speeding Tickets

By Diana Published: June 21, 2010

Dean Martin H. Belsky was quoted in an AOL story regarding the Ohio Supreme Court okaying estimates for speeding tickets. Read the story here .

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Institute for Law Teaching and Learning 2010 Conference

By Stefan Published: June 19, 2010

I recently returned from this inspiring conference.  If you care about teaching, you should find plenty of interesting tidbits at the Institute's website, which you can access via this link.

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Negative Home Equity- new findings from the gov

By Lynn Published: June 18, 2010

The decline in home values has left many homeowners owing more on their mortgage then their home is worth.  This is known as negative home equity.

The United States Government Accountability Office (GAO) and the Federal Reserve recently issued reports looking at the effect of negative home equity on homeowners and on the future recovery of our economy.  The reports warn that lower home equity is associated with poorer loan performance which affects banks, difficulty in selling or refinancing the home which affects homeowners, and an increase in foreclosures which affects everyone.

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More on the Revolving Door Between the Public and Private Sector

By Stefan Published: June 17, 2010

I've posted some additional information here.  Also, should I continue to boycott BP?

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President Obama and the Oil Spill

By Stefan Published: June 12, 2010

Tim Dickinson reports in Rolling Stone "how Obama failed to crack down on the corruption of the Bush years -- and let the world's most dangerous oil company get away with murder."  There's probably something for everyone to get fired up about in that subtitle.  For a shorter interview with Dickinson regarding the piece, go here.

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Political Gerrymandering: (Part 4) The Competing Ohio Proposals

By Wilson Huhn Published: June 12, 2010

     The Ohio House and the Ohio Senate have adopted proposed amendments to the Ohio Constitution that would address political gerrymandering: House Joint Resolution 15 and Senate Joint Resoluion 5.  Leaders in the legislature including Armand Budish and Jon Husted are negotiating to see if they can agree upon language combining the proposals that could be submitted to the voters in November.

     Current law allows one political party to control the redistricting process if they hold three of the five seats on the redistricting committee.  This creates a "winner-take-all" system in which one party can essentially double its power in the state legislature and congressional delegation by packing voters of the opposite party into a few districts and thus obtaining an electoral majority in a disproportionate number of the remaining districts.  The current system also permits incumbents of either party to negotiate "safe seats" for themselves - districts in which the opposing party constitutes a tiny minority - thus insulating incumbents from the risk of an effective challenge. 

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'Revolving Door' Reports show gov jobs lead to Wall Street jobs

By Lynn Published: June 11, 2010

What laws apply to federal officers and employees after they leave government employment?

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Should Ohio legalize online poker?

By Stefan Published: June 10, 2010

As states look for new sources of revenue, intrastate online poker rooms look more and more appealing.  Also, is the next big bubble bonds?

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Did Torture of Prisoners Constitute Human Experimentation?

By Wilson Huhn Published: June 8, 2010

     The organization Physicians for Human Rights has released a report contending that the United States government engaged in human experimentation on prisoners detained in the war on terror.  In connection with this assertion I have included information about what was done to prisoners so that you may judge for yourself.

     Physicians for Human Rights has issued a report "Experiments in Torture: Evidence of Human Subject Research and Experimentation in the "Enhanced" Interrogation Program," which may be downloaded here.   Here is a link to a press release from the Center for Constitutional Rights endorsing the report, and here is an article by Bob Drogin of the Los Angeles Times describing the report.  

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Political Gerrymandering: (Part 3) The Iowa Plan

By Wilson Huhn Published: June 7, 2010

     The State of Iowa has adopted a nonpartisan system of redistricting that minimizes the danger of political gerrymandering.

     Previous posts on this subject have described what political gerrymandering is and summarized the decisions of the United States Supreme Court on the subject.  This post describes Iowa's system for preventing political gerrymandering.

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Political Gerrymandering: (Part 2) Supreme Court Decisions

By Wilson Huhn Published: June 6, 2010

     As I described in yesterday's post, with political gerrymandering a political party or any other faction can effectively double its representation in the legislature.  I don't think that anyone believes that political gerrymandering is a good thing.  It is instead an outrageously unfair practice, one that is inconsistent with the basic principle of democracy - majority rule.  However, the Supreme Court has had difficulty in deciding whether political gerrymandering is unconstitutional.

     The first problem in assessing the constitutionality of political gerrymandering is whether it even presents a "legal question."  People who defend the practice - that is, the people who benefit from it in a particular situation - always argue that the courts have no authority to review the matter because it is a "political question" to be decided by public officials and not a "legal question" to be decided by the courts.  Just because a case has political implications does not mean that it presents a "political question."  Most of the controversial constitutional cases that come before the courts are politically sensitive, and the courts routinely decide upon the constitutionality of election laws.  The courts have struck down poll taxes, malapportionment schemes, and laws that dilute the voting power of racial minorities, as well as host of other laws that unduly interfere with people's right to vote and to fair representation. 

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Political Gerrymandering: (Part 1) How It's Done

By Wilson Huhn Published: June 5, 2010

     One of the most contentious and least developed areas of constitutional law involves the problem of "political gerrymandering."

     I was motivated to write on this subject because of an article by Kenneth P. Vogel in Politico entitled ""GOP Lags In Early Redistricting Race."  Vogel states:

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Latest Gov. Resources on the Gulf Oil Spill

By Lynn Published: June 4, 2010

 

1.  White House Deepwater BP Oil Spill  - Response from the President and links to major federal department and agencies web pages on the oil spill.

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A Response to Your Comments on Snyder v. Phelps

By Wilson Huhn Published: June 4, 2010

     I wish to thank my readers for their many thoughtful comments in response to my earlier post on Snyder v. Phelps, the military funeral protestor case currently before the Supreme Court of the United States.  We are all outraged that the Phelps family has chosen to dishonor fallen soldiers and torment their families.  We are also all outraged at the despicable prejudice they exhibit against Catholics and gays.  But it is not an easy case, as several of the comments acknowledged.

     What distinguishes the behavior of the Phelps family from that of most other protestors in American history is their habit of singling out specific private individuals and their families as the objects of their religious and cultural intolerance.  In this they are on thin ice, constitutionally speaking.  It is true that in general, the right of the speaker to say what she thinks outweighs the right of  a listener not to hear a message.  Normally, we have duty to walk away from a protest if we don't want to be exposed to the protestors' message.  However, there are circumstances where we can't walk away, and sometimes the rights of the unwilling listener trump the rights of the speaker.  A chapter of the KKK has the right to burn a cross at a rally in a member's field, but has no right to burn a cross in  front of a black family's home.  This would be quite rationally perceived as a threat - an assault - and the people who burned that cross could be charged and convicted of the crime of intimidation.  (See Virginia v. Black (2001)).  Similarly, abortion protestors have the right to march, to demonstrate, even to picket abortion clinics.  But when they harrass patients or staff they cross a line beyond which the First Amendment will not protect them.  In addition, abortion protestors have no right to picket a doctor's home, even if they are careful to stay on the street or sidewalk.  The Supreme Court has upheld these kinds of restrictions imposed on abortion protestors by state statute (Hill v. Colorado 2000)), local ordinance (Frisby v. Schultz (1988)), and court order (Madsen v. Women's Health Center 1994)).

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President Obama Extends Benefits to Same-Sex Partners of Federal Employees

By Wilson Huhn Published: June 3, 2010

     The Washington Post reports today that the President has extended employment benefits to the same-sex partners of federal employees.

     Earlier today the Washington Post published this article by Ed O'Keefe entitled "Obama Extends Benefits of Gay Federal Workers."  O'Keefe states:

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One way Cleveland wishes it was Detroit.

By Stefan Published: June 3, 2010

One day, the upstanding gamblers of Cleveland won't have to drive to Detroit anymore.  Also, did Warren Buffett believe house prices would go up forever?

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Justice David Souter's Speech on Constitutional Interpretation

By Wilson Huhn Published: June 3, 2010

     Former Supreme Court Justice David Souter delivered the commencement address at Harvard University last week.  In this speech Souter explains the shortcomings of a purely textual approach to constitutional interpretation.

     E.J. Dionne of the Washington Post calls our attention to David Souter's commencement address in his recent column "David Souter v. the Antonin Scalias."  The full text of Souter's speech is published in the Harvard Gazette.

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Continuing Education Opportunity: 2010-11 Tax and Financial Update

By Diana Published: June 2, 2010

Akron Law in conjunction with MFS Investment Management will offer a continuing education program titled 2010-11 Tax & Financial Update on Thursday, June 3 from 7:45 ' 10:30 a.m. at the UA Martin Center. This program will provide an overview of the legislative landscape for the remainder of 2010, including a discussion of tax policy changes being considered by Congress; a look at the November mid-term election and its potential impact on the policy agenda for 2011 and beyond; and an update on the issues of Roth IRA conversions. The cost includes 2.5 hours of CLE and/or CPE credit, as well as continental breakfast. Register online here .

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