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Replacing "We the People" With "We Shareholders"

By Stefan Published: February 27, 2010

And engaging in some name-calling along the way.

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The Right to Bear Arms and the Right of Self-Defense

By Lynn Published: February 26, 2010

The online edition of Cardozo Law Review de novo has an entire issue devoted to the latest Second Amendment Supreme Court cases.  The title of this special issue is called Firearms, Inc. and it includes essays and articles on: 

Here is an earlier posting I did on the Ohio Castle Doctrine: self-defense in the home.

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Saving the Economy One Banker and One Poker Hand at a Time

By Stefan Published: February 25, 2010

All is explained in the top 2 posts here.

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Health Care Financing Reform: (109) Counting Votes in the House on the Abortion Funding Issue

By Wilson Huhn Published: February 25, 2010

     Amy Sullivan of Time Magazine published an article yesterday counting votes in the House of Representatives on the abortion funding issue.  Her conclusions are summarized below.

     Health care reform passed the House by a vote of 220 to 215.  One Republican voted for the bill and 39 Democrats voted against it.  Furthermore, 64 House Democrats voted in favor of the Stupak Amendment which would require women to purchase separate policies for abortion coverage.  The Senate bill contains language proposed by Senator Nelson which requires the segregation of public and private funding in the purchase of health insurance, with abortion coverage paid for with private funds.  The President's proposal does not mention abotion funding, but it is expected that he would favor the language of the Nelson Amendment.  How many of the 64 representatives who voted for the Stupak Amendment will be willing to vote for the Senate bill or the President's proposal?

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Margolis' Reasoning in the Torture Memos Case - Part 2

By Wilson Huhn Published: February 24, 2010

     In yesterday's post I described the legal reasoning that Jay Bybee and John Yoo used to justify subjecting prisoners under American control to slow drowning, the cold cell, shackling in a standing position for days at time, and confinement in a small box.  Today I describe why David Margolis, Deputy Assistant Attorney General, does not consider their memos authorizing these actions to constitute "professional misconduct."

     The Justice Department's Office of Professional Responsibility found that Yoo and Bybee were guilty of "professional misconduct" because of the secret memos they issued authorizing the administration to engage in actions that many legal authorities regard as torture.  In his memorandum of January 10, 2010, David Margolis overruled OPR, and finds instead that Yoo and Bybee are guilty of "poor judgment" - not "professional misconduct."  How did he reach this decision?

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Justice Department Concludes that John Yoo and Jay Bybee Exercised "Poor Judgment" But Not "Professional Misconduct" in Issuance of the "Torture Memos" (Part 1)

By Wilson Huhn Published: February 23, 2010

    The Justice Department's investigation into the role of Justice Department lawyers John Yoo and Jay Bybee in the approval of conduct that many people regard as torture has come to a close.  The Office of Professional Responsibility recommended that Yoo and Bybee be referred to disciplinary committees for their role in this matter, on the theory that the lawyers' conduct was "unethical."  However, Associate Deputy Attorney General David Margolis has overruled that recommendation, and instead concludes that Yoo and Bybee were guilty of "poor judgment," not "professional misconduct."  In this post I discuss what Yoo and Bybee said in their memos.  In the following post I will discuss Margolis' findings and conclusions.

     In their memos of August 1, 2002, (here and here) and March 14, 2003, (here and here), Jay Bybee and John Yoo go to great lengths in arguing that the "enhanced interrogation techniques" that the government was considering using on prisoners were lawful.  According to Jay Bybee's memo of August 1, 2002, these techniques included the following:

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Health Care Financing Reform: (108) The President's Plan

By Wilson Huhn Published: February 22, 2010

     President Barack Obama has released his proposal merging the House and Senate health care reform bills and adding some Republican ideas.  Links and analysis below:

     Here is the President's new website called "Putting Americans in Control of Their Health Care."  The President's proposal itself - consisting of a lengthy summary, not legisative language - may be accessed either here at or here from Talking Points Memo.  The President's site also contains a description of several Republican-supported ideas that are contained in the final package. 

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Have we vanquished envy?

By Stefan Published: February 20, 2010

Congress responds to the Supreme Court's Campaign Finance decision

By Lynn Published: February 19, 2010

There has been a swift response by Congress to the Citizens United v. Federal Election Commission Supreme Court ruling on January 21.   Concerns focus on unregulated 'big money' in politics leading to conflicts of interest and corruption.  Corporations, Unions and contractors can now directly fund advertising calling for the election or defeat of federal and state candidates.   Additionally there is much discussion of foreign owned corporations, and those with U.S. subsidiaries, influencing American elections.  To understand the effects of the United Citizens decision, see Wilson Huhn's post here.

A recent report by the Congressional Research Service advises Congress on ways it can respond to the decision.  Here are the options for Congress.

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Do Twombly and Iqbal Matter?

By Bernadette Published: February 19, 2010

     The  United States Supreme Court decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, decided in 2007 and 2009, respectively, seem to create a sea change in what is minimally acceptable pleading to survive a motion to dismiss.       Though seemingly a technical issue, if a plaintiff can't plead enough in the complaint to stay in court, the plaintiff loses before even having an opportunity to explore or make her case. 

     Twombly is generally recognized for having changed the sufficiency of pleading requirement from "notice" to "plausibility."  That is, a plaintiff need not simply give the defendant notice of the claim, but must now plead enough facts for the claim to be "plausible."  Iqbal clarified the "plausibility" requirement and also clarified that it extends to all pleadings, not just complex cases.

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Health Care Financing Reform: (107) Huge Increases in the Cost of Health Insurance - How Will They Affect the Outcome of Health Care Reform

By Wilson Huhn Published: February 19, 2010

     Following reports of Wellpoint's 39% increase for individual health insurance coverae in California comes news of even larger increases in other states - up to 56%, according to this article by Ricardo Alonso-Zalvidar of the Associated Press.  Which way will this cut in the current debate over health care reform?

     According to Alonso-Zalvidar:

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Does Everyone Hate the Citizens United Opinion?

By Stefan Published: February 18, 2010

Link to a link that explains why some people think so here (personally, I think my witty title alone is worth the click).  Also, why regulatory capture still matters.

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The 12th Annual Richard C. Sughrue Symposium on Intellectual Property Law and Policy

By Diana Published: February 17, 2010

The 12th Annual Richard C. Sughrue Symposium on Intellectual Property Law and Policy will be held in Akron on March 8, 2010.  The featured luncheon speaker will be the newly-appointed Commissioner for Patents Robert L. Stoll.  The program will include presentations by leading practitioners and academics on the major issues of the day affecting intellectual property law.  Presenters will discuss, among other topics, the Bilski case, the proposed Google Books Library Project settlement, the doctrines of inequitable conduct and fraud, and the host of ethical and other issues associated with the practice of outsourcing work.

This event is FREE to students.  Online registration is now available.  Register on or before Feb. 22 to save and receive the early bird registration fee.  Visit for further information. 

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Health Care Financing Reform: (106) The House Republican Plan

By Wilson Huhn Published: February 17, 2010

     Below is a description of and links to the House Republican health care plan.

     Minority Leader John Boehner (R-OH) has sponsored the Common Sense Health Care Reform and Affordability Act, which appears to have the support of the House Republican caucus.  Boehner describes his position on health care at this page of his website.  On November 4, 2009, the Congressional Budget Office released its estimate of the likely effect and cost of Boehner's bill.

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Business and personal ethics in an economic downturn

By Brant Published: February 16, 2010

I was struck recently by the contrast between individuals discussing the personal moral obligation to keep paying the mortgage on a home that is "under water" (they owe much more to the bank than the home is currently worth) and business advice encapsulated in this New York Times Headline:

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Health Care Financing Reform: (105) Senator Gregg's Plan

By Wilson Huhn Published: February 16, 2010

     In yesterday's post I described the President's invitation of Congressional leaders of both parties to a bipartisan health care summit on February 25, and how Judd Gregg (R-NH) has responded by stating that he is looking forward to the summit where he will put forth his plan for health care reform.  What is his plan?

     Senator Gregg calls his proposal "CPR" - for "Coverage, Prevention, and Reform."  He states that "the health care system is flat lining and is in grave need of CPR."  His website contains a short press release describing his plan as well as a detailed four-page summary.   In the press release, Gregg says:

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Health Care Financing Reform: (104) Republican Views on the Upcoming Health Care Summit

By Wilson Huhn Published: February 15, 2010

     Hopes are high but expectations are low for the upcoming bipartisan health care summit called by President Obama.  How are Republicans approaching this meeting?

          President Obama has scheduled a bipartisan meeting on health care for February 25 that will be broadcast live on C-SPAN.  Here is the President's invitation, as well as the invitation list.  Here is an article by Jeff Zeleny of the New York Times concerning the announcement of the summit.

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8 Ohioans Exonerated due to the Innocence Project

By Lynn Published: February 12, 2010

The Innocence Project recently released a report, 250 Exonerated: Too Many Wrongfully Convicted, which details 250 exoneration cases and includes statistics on common causes of the wrongful convictions.   The organization has only been around since 1992 but has help free 250 individuals who have all been wrongfully convicted but later declared innocent by the courts.  There are 8 people from Ohio that were wrongly convicted but later exonerated with the help of this organization. 

The report's key findings:

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Are socialists idiots?

By Stefan Published: February 11, 2010

I know someone that thinks so.  Also, this just in--Goldman insiders allegedly make money!

WARNING--Links linking to links.

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Judge in Gay Marriage Case Outed

By Brant Published: February 10, 2010

in the San Francisco Chronicle. Well, not exactly outed, since according to the article the judge, Vaughn Walker, has made no secret of his sexual orientation. In the very high-profile case in federal court in California challenging the constitutionality of Proposition 8, the gay marriage prohibition passed by California voters in 2008, Judge Walker has issued several rulings adverse to the defendants. Do you think this new information makes him inappropriately biased? Would the judge be less biased if he were a Roman Catholic heterosexual male with nine children? This issue reminds me of race discrimination cases in which White defendants sought to disqualify the judge because he was Black and identified with the civil rights movement, and was therefore allegedly incapable of being impartial. What do you think?

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Citizens United v. F.E.C. (Part 4): Kennedy's and O'Connor's Basic Approaches to Constitutional Decisionmaking - Top Down and Bottom Up

By Wilson Huhn Published: February 10, 2010

     Justice Anthony Kennedy followed Justice Sandra Day O'Connor as the "swing justice" on the Supreme Court.  Both justices are brilliant and devoted to the Constitution - but their approaches to constitutional decisionmaking could not be more different.

     The swing justice on the Supreme Court not only casts the deciding vote, but also has the bargaining power to demand the opportunity to author the majority opinion - to cast the Constitution in the mold that he or she chooses.  As a result, going forward more and more of the most significant decisions of the Court, like Citizens United, will be written by Anthony Kennedy.  What distinguishes Kennedy's jurisprudence from that of Sandra Day O'Connor, whom he replaced as swing justice?

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Law, Love and Chocolate

By Diana Published: February 9, 2010

The Akron Law Alumni Association and Akron Bar Association present:

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Citizens United v. F.E.C. (Part 3): Justice Kennedy's Dissents in Previous Cases

By Wilson Huhn Published: February 9, 2010

     Justice Anthony Kennedy's views have not changed on the constitutionality of campaign finance laws.  Over the years he consistently dissented from decisions upholding these laws. 

     As set forth in yesterday's post, before Citizens United the Supreme Court had held in a number of cases such as Buckley v. Valeo  (1976), Austin v. Michigan Chamber of Commerce (1990), Nixon v. Shrink Missouri Government PAC (2000), and McConnell v. Federal Election Commission (2003) that it was constitutional for law to limit the flow of money into political campaigns in the following ways:

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Citizens United v. F.E.C. (Part 2): The History of the Constitutionality of Campaign Finance Laws

By Wilson Huhn Published: February 8, 2010

     Until its recent decision in Citizens United v. F.E.C. (2010), the Supreme Court has consistently upheld laws restricting the flow of money to candidates in political campaigns. 

     Campaign finance legislation traces back to 1907 when the federal government enacted the Tillman Act prohibiting corporations from contributing to political campaigns.  In 1947 Congress enacted the Taft-Hartley Act which prohibited unions, as well, from making political contributions.  In 1972 the Federal Election Campaign Act was enacted requiring candidates to disclose the identity of contributors and the amounts that they contributed, and in 1974 Congress amended FECA to limit the amount of money that any single individual could contribute to a candidate or to all candidates in an election cycle. 

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Are You Sure You Want Tort Reform?

By Stefan Published: February 6, 2010

Food for thought here.

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CIA, Homeland Security, DoD, the law of war, and cyber war!

By Lynn Published: February 5, 2010

The CIA, Homeland Security and the Defense Dept. were busy this week responding to investigations of 2009's terrorist incidents, answering Congressional questions, and voicing concerns about the adequacy of the defense budget.  Find out when we can expect terrorist attacks and what is cyber war?  Also read the reports below on related topics that were issued from three of my favorite government agencies, Government Accountability Office, Congressional Research Service and the Congressional Budget Office.

CIA Before the Senate Intelligence Committee  - Terrorist Attacks within Six Months!

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Akron Law is offering Study Abroad programs

By Diana Published: February 3, 2010

Akron Law is offering Study Abroad programs for students and attorneys.  Visit for more information.

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Hospice, Death & Dying and Advanced Directives

By Diana Published: February 2, 2010

Last year, 1.5 MILLION Americans received hospice services from over 4,000 hospice providers. Since 2001, the number of hospice patients has increased by 22 percent and the median length of stay of a hospice patient went from 20.5 days to 22 days. Hospice Care and the related Ethical and Legal Concerns of End-of-Life Care are increasingly becoming an important topic for discussion as more than 78 million Americans begin to turn 60 this decade.  This continuing education program is offered in two sessions on Friday, Feb. 19 at 8 - 11:45 a.m. OR 12:30 - 4:15 p.m.

For more information click here.

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Should the poor own or rent?

By Brant Published: February 1, 2010

"I think people need to get past the view that you can't have a successful life without one day owning a home." This from the Atlantic's Business blog, agreeing with Barney Frank's apparent suggestion that the poor should be encouraged to rent, rather than to buy homes. What do you think? Is owning a home part of the American dream that poor people should participate in? I was struck by the point (which I've seen before) that home ownership reduces labor mobility. A lot of people right now can't move to where the jobs are because they are stuck with a house they can't sell.

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