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Loss of Privacy Goes Both Ways

By Wilson Huhn Published: November 29, 2010

     Intrusive TSA body scans, GPS tracking devices,  secret wiretap courts, National Security Letters addressed to banks, stores, credit card companies, and libraries - the occasion of the War on Terror and the burgeoning information technology have enabled the government to vastly expand its ability to gain information about all of us.  But as the Wikileaks events demonstrate, this loss of privacy goes both ways.

     Our private lives are no longer private.  School records, credit card reports, telephone logs, bank statements, employment records, and even medical records are digitized and accessible to any curious public official or determined private agency.

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Busy IP Day at the Supreme Court

By Ryan Published: November 29, 2010

Today was a busy day at the Supreme Court for IP cases.

First, the Court granted cert in Microsoft v. i4i, a patent case raising the question of whether an issued patent can be found invalid only upon a showing of invalidity by clear and convincing evidence.  The Patent Act provides that "[a] patent shall be presumed valid," but fails to indicate what level of proof is necessary.  The Court of Appeals for the Federal Circuit has regularly held that the threshold is the clear and convincing standard, rather than the more common preponderance of the evidence standard.  The rationale for such a high level of proof for proving invalidity is based on the U.S. Patent & Trademark Office's expertise in technical matters and the courts' willingness to defer to the PTO's expertise.  However, the courts have continued to grant such deference to the PTO even in situations where the PTO has failed to review the prior art that may render the invention unpatentable.  In such a situation, the high level of deference is uncalled for.  The Supreme Court raised, but did not address, this question in its 2007 decision, KSR v. Teleflex ("We need not reach the question whether the failure to disclose [prior art during prosecution] voids the presumption of validity given to issued patents, for claim 4 is obvious despite the presumption.  We nevertheless think it appropriate to note that the rationale underlying the presumption that the PTO, in its expertise, has approved the claim seems much diminished here.").

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Donation Made to Local Community Legal Aid Office

By Diana Published: November 29, 2010

Akron Law, as part of National Pro Bono week, made a donation to the Akron Community Legal Aid office. The $430 donation was given to Sarah Stratton, director of Community Legal Aid on Thursday, Nov. 18.

As part of Akron Law's continued efforts to educate students on the importance of pro bono work, the school organized a fundraising event held Oct. 22 as part of pro bono week. The event consisted of games such as jousting and cornhole, and faculty and students paid a fee to participate, which went towards the donation to the Akron Community Legal Aid office.

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The Mortgage Securitization Fiasco: A "Gift" That Just Keeps on Giving

By Stefan Published: November 28, 2010

Some related links and quotes here.

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Information About U.S.-South Korea Mutual Self Defense Treaty

By Wilson Huhn Published: November 27, 2010

     David Wood of Politics Daily has posted an informative article, Deliberate or Accidental, a New Korean War Would be Devastating, discussing the recent provocations by North Korea and describing possible plans for the defense of South KoreaBelow are links to information about our obligations to South Korea (the Republic of Korea or ROK) under the 1953 Mutual Self Defense Treaty.

The Avalon Project at Yale Law School, Mutual Defense Treaty Between the United States and the Republic of Korea; October 1, 1953Article III of the Treaty provides:

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Cut taxes to spur economic growth or foment revolution?

By Stefan Published: November 27, 2010

I've posted some possibly related links here.

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Thanksgiving Thoughts

By Wilson Huhn Published: November 26, 2010

     An early American sermon, Presidential proclamations, Thankgiving quotes, and my grateful thoughts.

"A Model of Christian Charity"

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The Business of Health Care

By Stefan Published: November 21, 2010

I've posted a couple of links to related stories here.

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Does a Parochial School Have a Constitutional Right to Fire a Teacher in Violation of the Americans with Disabilities Act?

By Wilson Huhn Published: November 21, 2010

     In 2005 the Hosannah-Tabor Evangelical Lutheran Church and School fired Cheryl Perich, a teacher, because she had narcolepsy.  Does the school have a constitutional right to do this even if the school's action violates the Americans with Disabilities Act?

     The First Amendment to the Constitution provides that

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Are the New Airport Screening Procedures Constitutional?

By Wilson Huhn Published: November 20, 2010

     Elizabeth Fuller of Yahoo News has posted an article asking Are TSA pat-downs and full-body scans unconstitutional?  Here are links to different opinions.  

     Fuller reports that Professor William Schroeder of Southern Illinois University says that the screening techniques are constitutional because  air travelers give their consent for the search and because these searches are not being conducted for the purpose of discovering evidence of a crime, but rather to ensure the safety of air passengers.  These points are accurate, but one question still remains: is it constitutional for the government to make consent to a search a necessary requirement before boarding a commercial aircraft?  

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Economic Impact on the Older Worker EEOC investigates

By Lynn Published: November 19, 2010

'Unemployment for workers 55 and older rose from a pre-recession low of 3.0 percent (November 2007) to reach 7.3 percent in August 2010, making the past 22 months one of the longest spells of high unemployment workers in this age group have experienced in 60 years.'  Source

'At a meeting held Wednesday, the U.S. Equal Employment Opportunity Commission heard testimony that age discrimination is causing the nation's older workers to have a difficult time maintaining and finding new employment, a problem exacerbated by the downturn in the economy. The number and percentage of age discrimination charges filed with the EEOC have grown, rising from 16,548 charges 21.8 percent of all charges filed in fiscal year 2006, to 22,778 24.4 percent in fiscal year 2009.'

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DADT Faces Repeal; Analogy to Slave Marriages; Focus Will Turn to DOMA

By Wilson Huhn Published: November 19, 2010

     At a press conference yesterday, Senatory Joe Lieberman (I-CT) indicated that there are 60 votes in the Senate to repeal Don't Ask, Don't Tell, the federal law that bars gays and lesbians from serving openly in the military.  There are also preliminary reports indicating that the military study due December 1 will recommend repeal.

     Just as the federal courts are finding DADT to be unconstitutional (Federal Judge Strikes Down DADT Worldwide), it appears that Congress will soon repeal it.  Here are a collection of news stories about Lieberman's press conference and the prospects for repeal of DADT:

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The Creative Destruction of Banks

By Stefan Published: November 18, 2010

Constitutional Law Advocacy Organizations

By Wilson Huhn Published: November 18, 2010

     The following organizations provide legal information about and advocacy on behalf of constitutional issues. Self-descriptions for each organization are provided in quotes.

Alliance for Justice - "Alliance for Justice is a national association of environmental, civil rights, mental health, women's, children's, and consumer advocacy organizations. Since its inception in 1979, AFJ has worked to advance the cause of justice for all Americans, strengthen the public interest community's ability to influence public policy, and foster the next generation of advocates." 

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Copyright and Patent Exhaustion

By Ryan Published: November 16, 2010

See my guest blog entry at Patently-O on the differences between copyright and patent exhaustion and the potential implications that the Supreme Court's Costco v. Omega decision may have.

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Harvey Nelson, CEO of Main Street Gourmet, is Inaugural Entrepreneur-in-Residence

By Diana Published: November 16, 2010

Akron Law and UA College of Business Administration are hosting Harvey Nelson, CEO and co-founder of Main Street Gourmet as the inaugural Entrepreneur-in-Residence. During his residency at UA, Nelson will be speaking at classes and meeting with students, as well as working with the Akron Law Small Entrepreneur and Economic Development (SEED) Clinic and some of their clients.

 'Harvey, in meeting with some of the SEED Clinic's clients, has offered great insight and guidance to them. Further, his interaction with our students has been extremely valuable,' says Director of the SEED Clinic, Gary Spring.

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Freedom From Religion v. Hanover School District: Pledge of Allegiance Upheld

By Wilson Huhn Published: November 14, 2010

     A federal appeals court has ruled that the Pledge of Allegiance is constitutional.      Eugene Volokh noted that the United States Court of Appeals for the First Circuit issued a ruling Friday upholding the Pledge of Allegiance against a claim that requiring the Pledge violates the Establishment Clause. 

    New Hampshire requires its public schools to lead children in reciting the Pledge of Allegiance.  However, the schools must ensure that student participation is voluntary; students do not have to participate in reciting the Pledge.

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2010-2011 Supreme Court Term: Oral Argument in Arizona Christian School Organization v. Winn

By Wilson Huhn Published: November 13, 2010

     Arizona law grants taxpayers a dollar-for-dollar tax credit for contributions to School Tuition Organizations (STOs) that fund tuition scholarships for children to attend school.  The three largest such organizations are affiliated with religious schools.  The Arizona taxpayers challenging this law contend that the program violates the Establishment Clause of the Constitution because it is, in effect, a government subsidy of religion.  The government takes the position that the plaintiffs have no standing to challenge the program because their tax money is not going to the religious schools, and that the program is "neutral" towards religion in the sense that individuals, not the government, decide whether the money will be spent for religious purposes.  On November 3 the Supreme Court heard oral argument in this case.

     Neil Katyal, Soliciter General of the United States, commenced by arguing that because no government funds were directed to religious institutions, the taxpayers lacked standing in this case to challenge the program.  He said:

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What's the Problem? Corporations? Government? Both? Neither?

By Stefan Published: November 13, 2010

Or is the best answer: "It depends."?  More here.

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'Robo-Signing' Ohio's foreclosure lawsuit

By Lynn Published: November 12, 2010

The Ohio Attorney General's Office has joined other states in filing a lawsuit against fraudulent foreclosure proceedings.   For an easy to understand explanation of robo-signing fraud see this PBS .org article.    Comments posted after the article describe horrible tactics used by the banks and mortgage companies.  Other good general articles are here and here.  

The Ohio Attorney General's web page about the lawsuit is here.

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Akron Law Welcomes Judge Dixie Park as Jurist-in-Residence on Nov. 18

By Diana Published: November 9, 2010

The Honorable Dixie Park will visit Akron Law on Thursday, Nov. 18 as part of the Jurist-in-Residence program. Park will present a public lecture titled 'Guardianship Law: Trends, Practices and Aspirations.'

 The lecture, which is free and open to the public, will be held Thursday, Nov. 18 at 4 p.m. in Room 152 at  Akron Law, 150 University Ave., Akron, Ohio. One hour of free continuing legal education credit will be offered. To register to attend, visit here; e-mail or call ext. 6363.

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Update: Costco v. Omega Oral Arguments

By Ryan Published: November 8, 2010

Earlier today I posted a summary of Costco v. Omega, a Supreme Court case involving the application of copyright law's first sale doctrine in the context of copyrighted goods produced abroad and then subsequently distributed in the United States.

A transcript of the oral arguments has been published.  Click here to view my commentary on some of the interesting exchanges between the Justices and attorneys.

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U.S. Supreme Court Hears Copyright "First Sale" Case Today

By Ryan Published: November 8, 2010

Today, the U.S. Supreme Court is hearing oral arguments in Costco Wholesale Corporation v. Omega, S.A., an important copyright case involving the first sale doctrine and whether this doctrine applies to copyrighted works that are produced abroad.

The facts are fairly straightforward.  Omega is a watch company that manufactures watches in Switzerland.  Omega owns a copyright in a small visual image that is laser-engraved onto each Swiss-manufactured watch.  Costco, a U.S. warehouse retailer, acquired genuine Omega watches from a third party, who had purchased them from an authorized Omega distributor abroad.  Costco subsequently sold these watches in the United States.  Omega alleges that Costco's sale of these watches infringes its exclusive right to distribute copies of its copyrighted work under § 106(3) of the Copyright Act.

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Bill Introduced to Crack Down on Online Piracy

By Jeff Published: November 8, 2010

As stated by Senator Leahy in his introductory remarks, the bill (Combating Online Infringement and Counterfeits Act) would give the Department of Justice an expedited process for cracking down on websites dedicated to offering infringing content by authorizing the department to file an in rem civil action against the domain name in an effort to obtain a court order suspending the further use of the name.

As introduced, the bill would have added a new section 2324 to the U.S. criminal code. The bill targets those websites that are "primarily designed, ha[ve] no demonstrable, commercially significant purpose or use other than, or is marketed by its operator, or by a person acting in concert with the operator, to offer" goods or services in violation of U.S. copyright law or to sell or distribute goods bearing a counterfeit mark.  Such activities would have to be "central to the activity of the Internet site or sites accessed through a specific domain name."  As introduced, the bill also would have authorized the Justice Department to maintain a public blacklist of websites that the Department determines, "upon information and reasonable belief," to be dedicated to infringing activities. 

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That Time of Year

By Wilson Huhn Published: November 8, 2010

     Loved ones down south say, "Why don't you join us?  Why stay in northeast Ohio?"

     Brought the winter coats out of the storage closet. Cleaned and stacked the hats, scarves, and gloves.

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An Overview of Business Entities in the U.S.

By Stefan Published: November 7, 2010

You can find the link here.

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"Skyping" Citizens United

By Stefan Published: November 4, 2010

Prof. Huhn and I participated in a "distance learning" panel discussion of Citizens United with Prof. Ellis of the West Virginia University School of Law today.  You can find the link here.

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2010-2011 Supreme Court Term: Oral Argument in Schwarzenegger v. Entertainment Merchants Association - Violent Video Games

By Wilson Huhn Published: November 3, 2010

     Yesterday the Supreme Court heard oral argument in Schwarzenegger v. Entertainment Merchants Association, in which the State of California is defending a law prohibiting the sale or rental of certain violent video games to persons under 18.  Here is a link to the transcript of the oral argument; the discussion among the justices and the attorneys is summarized below.

     Specifically, the California law prohibits merchants from selling or renting to minors video games in which the player engages in  

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