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Akron Law Café

Government as Controlling Shareholder: No Such Thing as "Passive" Ownership

By Stefan Published: April 30, 2009

Ever since the U.S. government starting taking ownership stakes in businesses as part of its response to the current financial crisis, people have been expressing concern about the possible negative consequences of "active" government ownership.  This concern was expressed again this week, with the prospect of the government becoming an 80% owner of GM.  Questions about "conflicts of interest" were prevalent:

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Akron Law Alumni to be Honored May 15

By Diana Published: April 29, 2009

The Akron Law Alumni Association will hold its annual Alumni Awards Dinner at 5:30 p.m. on Friday, May 15 in the Student Union Ballroom. The honorees were chosen for their achievements in the legal profession and their communities.

The 2009 Outstanding Alumni Award honorees are Bedford Biles ('58) of Marco Island, Fla., sole practitioner (retired) and decorated WWII veteran; Nicholas T. George ('70) of Akron, partner with Buckingham, Doolittle & Burroughs LLP; Virginia Robinson ('86) of Akron, personnel director for the City of Akron; and Jeffrey Savarise ('85) of Louisville, Ky., partner with Fisher & Phillips LLP. Dr. Elizabeth J. Stroble, senior vice president, provost and chief operating officer of The University of Akron, will receive an Honorary Alumni Award.

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Gay Rights and Free Exercise: (6) Immunity from Civil Rights Laws

By Wilson Huhn Published: April 29, 2009

     It has been awhile since my last posting on this subject in which I promised "tomorrow" to explain how the Free Exercise Clause and the right of expressive association protect religious organizations that are opposed to homosexuality.  We got sidetracked when the torture memos were released - for those of you who wish to continue that discussion I added another comment this morning.  But "tomorrow" is finally here, and this essay presents a summary of the law as it applies to religious organizations that are opposed to homosexuality.

     Religious organizations that are opposed to homosexuality quite naturally do not wish to hire gay or lesbian clergy or perform gay marriages, and under the Constitution the government is prohibited from forcing them to.  Such organizations could assert two separate but related rights under the First Amendment - the right of expressive association and the right to Free Exercise of Religion. 

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Why Torture Violates Fundamental Constitutional Values

By Wilson Huhn Published: April 28, 2009

     The Justice Department memos (1, 2, 3, 4)  authored by Jay Bybee and Stephen Bradbury leave no doubt that beginning in 2002 our government tortured prisoners who were in our custody.  If you believe that chaining naked persons in an upright position to keep them awake for more than seven days in a row, spraying them with forty degree water for twenty minutes at a time, placing them in dark boxes for eighteen hours a day, and suffocating them with water for forty seconds at a time sixty times per month is not "torture" then read no further.  Our disagreement is so fundamental that no amount of dialogue will bridge the gap.

     I agree with the Ross Duthat's op-ed in yesterday's New York Times echoing the call for a Truth Commission and a national debate on torture.  Torture violates fundamental American values, and a large majority of the American public will not rest until we can be assured that our government will never again engage in this conduct.

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Finding a Lawyer

By Lynn Published: April 24, 2009

Today we will look at using online directories to find an attorney.  You may want to live your entire life without needing an attorney and I wish you luck if that is the case.  The average person, however, needs a lawyer from time-to-time and searching for one in a hurry can create stress.  You want to pick someone you feel comfortable with and you want the best attorney for you and your family.

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The Sun, the Stars and Stays

By Tracy Published: April 24, 2009

Is a stay the same as an injunction?  Do we really care?  The U.S. Supreme Court answered these burning questions Wednesday when it decided Nken v. Holder and poetically explained:  'The sun may be a star, but 'starry sky' does not refer to a bright summer day.'

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Externalities and a Boss That Says, "I Was Just Following Orders"

By Stefan Published: April 23, 2009

Two quick takes:

1. Here's a great deal for me:  I'll make a high-demand product that pollutes the environment.  I'll pocket the profit; you pay for the cleanup.  That's a short course on externalities.  They're problematic in a capitalist system because the flow of capital won't be directed to its most productive use if return on equity is inflated by shifting some of the real costs of doing business to others.  A possible current-event example:

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Strip-searching children is necessary to protect our children!

By Brant Published: April 21, 2009

That's seems to be the basic argument before the Supreme Court today. The case is Safford United School District v. Redding, which involves school officials strip-searching an honor student in search of prescription ibuprofen. I was listening to a story about it on NPR today, when i heard the school's lawyer making this argument:

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A Warning for Future Lawyers

By Brant Published: April 21, 2009

If you've been following the matter of the "torture memos" recently released by the Obama administration you know that the President has determined that CIA operatives following legal guidance provided by the (previous) Administration should not be subject to prosecution. But apparently that leaves open the possibility that officials who approved the "enhanced interrogation" policies might be prosecuted. That means the lawyers.

There are a number of ideas involved. the Justice Department's Office of Professional Responsibility has already prepared a report regarding whether the White House attorneys who wrote the memos violated professional standards. Bush administration officials objected to the draft report being released a few months ago, but Indications are that the report will be issued soon, and will be quite harsh.

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Stephen Bradbury's Torture Memos of May 10, 2005

By Wilson Huhn Published: April 21, 2009

     In two memos both dated May 10, 2005 (Memo 3 and Memo 4), Assistant Attorney General Stephen Bradbury explains in precise detail exactly how the CIA treated its prisoners during the administration of George W. Bush. 

     Bradbury first describes how the CIA prepares prisoners for interrogation.  Even before they are transported to the prison where they will be held, prisoners are shackled and forced to wear blindfolds, earmuffs, and hoods.  The purpose, says Bradbury, is to induce a feeling of helplessness - to convince the prisoners that their well-being and their very lives are in the hands of their captors and that they are powerless to effect their condition.

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Abdiwali Abdiqadir Muse / Blackhawk

By Wilson Huhn Published: April 21, 2009

     I will be filing two posts today, one light, one heavy.  For lightness, consider the case of Abdiwali Abdiqadir Muse, the fearsome teenage Somali pirate brought ashore in New York yesterday, chained yet broadly smiling throughout his perp walk into federal court.  News sources have already have begun to plead his case - penniless, uneducated, he himself taken from his home by the real pirates, his mother begging President Obama to send him back home.  I don't pretend to know the truth about his intentions or his involvement, but it reminds me of an earlier attempt by the federal government to parade a captured terrorist before a grateful nation - Chief Blackhawk, a Sauk warrior who in 1832 fought American settlers for their traditional land in Illinois, was defeated, captured, and paraded before the public throughout a number of American cities, and who, by the end of his grand tour of the United States, had become a popular celebrity and admired leader.  Look for Muse (moo-SAY) on Oprah!

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Bradbury Memo of May 30, 2005

By Wilson Huhn Published: April 19, 2009

     Jay Bybee's memo of August 1, 2002, anaylyzed in a previous post, took the position that waterboarding and other techniques did not constitute torture, a conclusion I believe to be untenable, but Stephen Bradbury's memorandum to the CIA dated May 30, 2005, can only be described as ridiculous.  Bradbury concludes that waterboarding and other harsh interrogation techniques are not "cruel, inhuman, or degrading."

     In 1984 the United States Senate ratified a treaty called the Convention Against Torture and Other Cruel, Inhuman, or Degrading Punishment (CAT).  Bradbury first argues that the prohibition on "cruel, inhuman, and degrading punishment" does not apply to foreign prisoners held abroad.  This reasoning overlooks the obvious fact that the express and obvious intent of the United States Senate in ratifying the treaty was to protect the rights of persons who are under the control of the United States anywhere in the world. 

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Revelations in Bybee's Memo of August 1, 2002

By Wilson Huhn Published: April 19, 2009

     The first of the four recently released "torture memos" was written by Assistant Attorny General Jay Bybee, who is now a federal judge.  The most striking revelations contained in this memo relate to the specific interrogation techniques that United States officials designed, approved, and carried out and the important role played by medical professionals in the design and implementation of this conduct. 

         The  Bybee memo describes "certain proposed conduct" that CIA officials wished to engage in during the interrogation of Abu Zubaydah, a prisoner who, it was thought, had valuable information about al Qaeda.  The "proposed conduct" included the following:

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Finding Ohio Regulations

By Lynn Published: April 17, 2009


2. My child wants to work as a lifeguard this summer. I heard that there are state requirements. What are they?

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Torture and Secession

By Wilson Huhn Published: April 17, 2009

     If there are two points upon which there should be unanimity in American life and constitutional law it is that the government does not have the constitutional right to torture people and that the states do not have the constitutional right to secede - but I guess people can disagree about anything.

     The Obama administration has released four more Justice Department memos authorizing the use of waterboarding and other methods of torture against detainees on the war on terror.  The authors of these memos are Jay Bybee and Stephen Bradbury, both of whom served as Assistant Attorney General in the Bush administration.  I will write more about the memos when I have had the opportunity to study them carefully.

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Voter Apathy in Corporate Law

By Stefan Published: April 16, 2009

One of the consequences of the current financial crisis is a growing momentum for an increased shareholder role in corporate governance.  This is at least in part a response to a sense among many that corporate boards were asleep at the wheel just prior to this crash.  Since the responsibilities of corporate directors are largely a function of state corporate law, and Delaware is the preeminent state of incorporation, the "Delaware model" has taken its share of criticism.  As Prof. J. Robert Brown puts it:

This is not the first time Delaware has felt the heat for what many perceive as its manager-friendly corporate law.  And many suspect that in times like these the Delaware legislature and courts conveniently take some hard lines with management in order to fend of any further creeping federalization of corporate law.  Thus, it may come as no surprise that the Delaware legislature recently amended its corporate code to allow greater shareholder access to the corporate ballot box.  As Prof. Lisa Fairfax notes:

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Former Interim Ohio Attorney General to Speak at Akron Law

By Diana Published: April 14, 2009

Professor Nancy Rogers from the Moritz College of Law at Ohio State University will visit Akron Law on Thursday, April 23 at 4 p.m. as part of the Joseph G. Miller and William C. Becker Institute for Professional Responsibility Speaker Series. The lecture, which is free and open to the public, will take place at Akron Law, 150 University Ave., Room 152. A reception will immediately follow.

Her presentation, "We're Not Yesterday's Coffee: The Most Rewarding Aspects of Being a Lawyer," will address lawyers weighing in on the ways Americans could more constructively engage with each other about matters of difference. Recent examples include Attorney General Eric Holder's speech on conversations about race and Ohio State Bar Association President Gary Leppla's statements concerning campaign rhetoric about legal practice. Rogers will ask, "If we, as lawyers, are ready to offer our expertise, voice and leadership on these issues, what are some opportunities that we could seize?"

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Gay Rights and Free Exercise: (5) Hate Speech and the First Amendment

By Wilson Huhn Published: April 13, 2009

     To what extent are Americans free to engage in hate speech?  Specifically, how free are we to speak or write language that is critical of homosexuality or of religion?  In an op-ed published in yesterday's Washington Post Jonathon Turley reports that many western european countries have adopted laws making it a crime to "incite religious hatred" (France) or "abuse religion" (Britain) or "degrade religious doctrine" (Austria).  Turley cites a number of instances where people were arrested and convicted under these laws not because they were in fact inciting a riot or provoking a fight but merely for criticizing religion.  Turley states that an effort is underway to make this an international norm; a United Nations Resolution has been introduced that would ban the "defamation of religion."  In a similar vein, Turley reports that "Countries such as Canada, England and France have prosecuted speakers and journalists for criticizing homosexuals and other groups."  How does this compare with our rights under the First Amendment?

     As Americans not only are we free to criticize other people on the basis of sexual orientation or religion (or race or gender or disability or on any other ground), but under the First Amendment we are free to engage in hate speech.  We may not only point out the flaws in each other's beliefs and lifestyles and characteristics and express our disapproval, we are free to denigrate and lie about entire populations.   In general we may not be punished for expressing our thoughts, even false and hateful ones. 

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Finding Federal Regulations

By Lynn Published: April 10, 2009

Federal Regulations

What exactly are regulations?

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Gay Rights and Free Exercise: (4) National Organization for Marriage Arguments that Same Sex Marriage Violates Their Rights

By Wilson Huhn Published: April 10, 2009

     The National Organization for Marriage has begun running a television advertisement opposing same sex marriage.  The advertisement asserts that "our freedom is being taken away," and features a number of persons briefly stating how the legal recognition of same sex marriage infringes upon their rights.  A "California physician" states that she must choose between her faith and her job; a member of a New Jersey church group states that the group is being "punished by the government" because it does not support same sex marriage; a Massachusetts parent complains that her son is being taught in the public schools that gay marriage is OK; one woman asserts, "Some who advocate for same sex marriage are not content with same sex couples living as they wish," and another finishes the thought saying, "Those advocates want to change the way I live;" and a teenage girl concludes, "I will have no choice."  Do any of the people depicted in this advertisement raise valid issues under the Constitution?

     Some of the claims may be dismissed out of hand.  In reverse order, the recognition of same sex marriage does not deprive anyone of any choice; to the contrary, it offers people more choices.  All that advocates of same sex marriage want is the same legal recognition for their relationships; they do not wish to change how anyone else chooses to live.  What is taught in the public schools is determined by school boards and state boards of education; the only limitation on the discretion of these public officials is that they may not teach religion in the public schools.  People are naturally unhappy when their children are taught things that they believe to be untrue such as evolution or global warming, but parents have no constitutional right to prevent their children from hearing views which are contrary to their religious beliefs.  The reason that the New Jersey church group is being punished and the manner of its punishment are not stated in the ad.  It would, of course, be unconstitutional under the First Amendment for the government to punish people solely on account of their religious beliefs or to force a religious organization to include people whom they wish to exclude.  I will discuss this concept in the next posting on the rights of expressive organizations.  On the other hand, the government has no obligation to support religious or nonprofit organizations, particularly not those that discriminate, and if withdrawal of government support is the "punishment" referred to in the advertisment it is not likely that this would violate the Constitution.  Finally, the ad does not state why the California physician must choose between her job and her faith.  The law protects employees against discrimination on the basis of religion, but this law cuts both ways - in most settings employees are not allowed to discriminate against co-workers or customers (patients) on the basis of religion either.  I will discuss the effect of the employment nondiscrimination laws on the rights of employers and co-workers in a future posting as well.

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Denial and the Erosion of Fiduciary Duty

By Stefan Published: April 9, 2009

Over at Concurring Opinions, Prof. Cunningham has an interesting blog post entitled "The Great Repression."  Here's an excerpt that should give you the gist of his post:

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The "Conscience Rule" Regulation Dispute

By Wilson Huhn Published: April 9, 2009

     Under a series of federal laws (the Church Amendments, the Danforth Amendment, and the Weldon Amendment) doctors and other health care workers who refuse to perform sterilizations or abortions may not be fired or otherwise discriminated against by their employers, and heath care institutions that refuse to perform sterilizations or abortions may not be denied funding by any government agency.  Collectively, these laws are known as the "conscience rule."  On January 20, 2009, President Bush's last day in office, the Department of Health and Human Services issued a regulation implementing the "conscience rule."  The Obama administration recently announced its intention to rescind the regulation, and yesterday Dr. David Stevens, head of the Christian Medical Association, expressed his opposition to repeal of the regulation.

     What is this dispute about?

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Gay Rights and the Free Exercise Clause: (3) Civil Rights Laws Generally

By Wilson Huhn Published: April 8, 2009

     When the United States Supreme Court or the supreme court of any state rules that gays and lesbians are entitled to certain rights this cannot possibly infringe upon the Free Exercise rights of any individual.  However, when the government adopts civil rights legislation protecting gays and lesbians from discrimination this may, under some circumstances, violate the rights of religious conservatives.

     When the Supreme Court of the United States handed down Lawrence v. Texas in 2003 stating that sexual intercourse among consenting adults of the same gender may not be made a criminal offense it obviously had no effect on the religious beliefs or religious exercise of other people and therefore could not be considered to violate the constitutional rights of religious conservatives.  Even when state courts rule that gays and lesbians have the right to marry (as the Iowa Supreme Court did last week) or if a court rules that gays and lesbians are protected from employment discrimination under the Equal Protection Clause of the federal or state constitution it would have no effect on the rights of individuals or private organizations, for one very simple reason.  As noted in the last post, only the government is subject to the Constitution.  Individuals and private organizations are not subject to the First Amendment or the Fourteenth Amendment or any provision of the state constitutions.  For example, even if the Supreme Court were to rule that employment discrimination against gays and lesbians is unconstitutional under the Equal Protection Clause, such a ruling would apply only to government employment, not to private employment.  The only way to outlaw discrimination by private individuals or private companies or private organizations is for the legislature to enact civil rights legislation.  The Constitution by itself does not regulate private conduct.

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Gay Rights and the Free Exercise Clause: (2) State Action Doctrine

By Wilson Huhn Published: April 4, 2009

     Some religious conservatives contend that the recognition of equal rights for gays and lesbians violates their right to the free exercise of religion.  They claim that because they believe that homosexuality is a sin, that they therefore have the right to enact laws that make it a crime, or at least that they have the right to enact laws that deny equal rights to marry or to adopt children.  The problem with this argument arises out of the state action doctrine.

     Under the Constitution individuals have the right to freedom of religion.  Every person has the right to believe whatever he or she wants with respect to religion.  In addition, we have the right, as individuals, to act upon our religious beliefs, up to the point that we intrude upon the legal rights of other persons.  Furthermore, as citizens we may vote for whomever we choose and we are free to cast that vote upon religious principles.  Candidates for office have the right, if they choose, to declare their religion and to promise to enact laws that are in accord with their religious beliefs.

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Castle Doctrine: self-defense in the home

By Lynn Published: April 3, 2009

The Castle Doctrine is a hot topic this week due to a recent story in the Beacon Journal and library patrons are calling our Reference Desk asking about Ohio's version of this law. 

The new version of the Castle Doctrine was signed into law last June as Senate Bill 184 and went into effect on September 9, 2008.  As Governor Strickland signed the bill, he stated: "This legislation offers needed clarifications to Ohio's concealed carry law and strengthens legal protections for citizens who defend themselves and their families against intruders in their homes." 

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Is "Regulation" Just an Empty Word in the U.S.?

By Stefan Published: April 2, 2009

The Group of 20 summit of world leaders is underway, and our new president is facing some challenges from his European allies on how best to deal with the economic crisis.  German Chancellor Angela Merkel and French President Nicolas Sarkozy presented a unified front that wants more than just stimulus funding.  In presenting this challenge, President Sarkozy raised a concern that regulation is just an "empty word" in the United States:

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Gay Rights and the Free Exercise Clause: (1) General Overview

By Wilson Huhn Published: April 1, 2009

     On Monday the law school hosted a debate between Professor George W. Dent of Case Western Reserve University and me on the question of whether the recognition of gay rights violates the rights of religious conservatives to freedom of religion.  Professor Dent and I intend to submit our remarks to the new online journal of constitutional law that the Akron Law Review will be publishing beginning this summer, but I thought that I could preview some of the issues that we discussed in this posting, and then follow up with a more specific treatment of each topic in subsequent postings.

     In general, religious conservatives oppose the recognition of gay rights, but as Professor Dent rightly points out that neither religious conservatives nor gay rights advocates constitute monolithic blocs who automatically agree with everyone on their side on every question that may arise.  Instead there are a number of subjects where people may agree or disagree that gays and lesbians should be treated the same or differently.  For example, before Lawrence v. Texas was decided in 2003 some states made gay sex a criminal offense and branded homosexuals as "sexual offenders."  Other issues include whether gay and lesbian couples should be entitled to marry, whether they and their partners should receive the legal benefits of marriage such as the right to file joint tax returns or social security survivorship benefits, and whether gays and lesbians should be protected from acts of discrimination in employment, education, housing, insurance, or medical care by public or private entities.  In all of these situations religious conservatives might object on the ground that the recognition of gay rights in some way impinges upon their right to freedom of religion.

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