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Akron Law Café

Invest in America

By Wilson Huhn Published: September 30, 2008

     There are a number of good reasons not to post this message.  But today is an extraordinary day that calls upon all of us to reflect especially carefully about what we can and should do to avert a possible financial crisis.

     I am not an economist.  I know the law of checks and notes because I teach a course in Negotiable Instruments but I have little practical knowledge of how banks conduct their business.  My understanding of investing is no greater than that of the average person - I make regular contributions to my IRA but lately this means buying shares without any corresponding increase in value.  So I hesitate to offer my opinion about what we should now do.

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Why People Disagree About the Meaning of the Constitution: Canons of Construction

By Wilson Huhn Published: September 30, 2008

     At the risk of being called a "clever lawyer" (and I guess that's better than being a dumb one!) in this post I will explain what "canons of construction" are.     

     When the language of legal text (such as a constitution, statute, ordinance, regulation, contract, deed, or will) is ambiguous, lawyers and judges use interpretive tools called "canons of construction" to establish the meaning of the text.  These canons have been used for centuries.  For example, one familiar canon is that "criminal laws are to be strictly construed," that is, criminal laws are interpreted against the state and in favor of the defendant.  This canon is called the "rule of lenity" and there are good reasons to support its use.  First of all, people are presumed innocent until proven guilty in order to protect all of us against unjust punishment.  Second, vague criminal laws violate our right to due process, because people shouldn't have to guess what the law is.  Any vagueness in a criminal law is peeled away and discarded, and only if the law clearly applies to the conduct that the person engaged in may the person be convicted.  For analogous reasons, any ambiguity in an insurance contract is interpreted in favor of the insured and against the insurance company.  Insurance companies write these contracts and had better be ready to pay up if they have written a policy that could be construed either way.

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Interesting "Open Carry" Handgun Case in Cleveland

By Stewart Published: September 29, 2008

While one must have a license to carry a concealed handgun in Ohio, it is currently legal to carry the same handgun openly in most places.  The Plain Dealer has an interesting story this morning about a person arrested last month, apparantly while carrying openly.  The twist is that police charged him with concealed carrying without a license, this despite the fact that they had received three 911 calls reporting the presence of the weapon (suggesting that it was, indeed, being carried openly).  Another interesting aspect of the story is that Cleveland apparantly still has a local prohibition against open carry on the books, and that "police are under orders by Mayor Frank Jackson to continue enforcing the local rules despite the state law, according to Lt. Thomas Stacho, a department spokesman."  Hmm.  Sounds like a recipe for court-ordered legal fees to me.

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Notes on the Financial Crisis for Rip Van Winkle

By Stefan Published: September 25, 2008

Because what the world needs now is one more blogging head, starting today I will be posting here on business law related issues every Thursday.  Apparently, there has been something going on the last few weeks that a corporate and securities law professor might opine on.

As this is my first post, I thought I'd start with an overview of the current financial crisis.  This will be very much of a bird's eye view.  Since there has been non-stop coverage of this the past few weeks, I will mainly flag topics and provide links I think make for good further reading.  In the coming weeks, I plan to expand on several of the issues raised here.  Please, let me know what you want to hear more about.

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The Bailout Legislation - Is It Constitutional?

By Wilson Huhn Published: September 22, 2008

     The proposed bailout legislation is fascinating, in a horrifying way, on so many levels - politically, economically, ideologically.  What about its constitutionality?

     The proposed bailout law, available here, gives the Secretary of the Treasury unreviewable discretion to buy mortgage-related assets from any financial institution in the United States and to exercise rights in those assets, manage them, and sell them.  The law would grant the Secretary seemingly unfettered discretion in the performance of these actions.  For example, Section 2(a) of the law states:

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Incorporation of the 2nd Amendment

By Stewart Published: September 21, 2008

"Incorporation" is the legal term for finding that parts of the Bill of Rights (the first 10 amendments to the U.S. Constitution) apply to limit the power of state governments.  The Bill of Rights as originally adopted only applied to limit federal power, but the Supreme Court has since held that the Due Process Clause of the 14th Amendment (which was ratified in 1868 following the Civil War and expressly limits the states' power) "incorporated" many of the Bill of Rights (for example, the First Amendment, the Fourth Amendment, the Sixth Amendment, and most of the Fifth Amendment).  An open question is whether the Second Amendment limits the power of the states.  In a very interesting and thoughtful post at PrawfsBlawg, Prof. Rick Hills of NYU Law argues that incorporating the Heller decision against the states would undermine the Second Amendment.  Good reading, and a fair argument.  Hills predicts, however, that the federal courts will incorporate the Second Amendment.

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Ohio Supreme Court: Guns OK in Public Parks

By Stewart Published: September 18, 2008

News today of the Ohio Supreme Court's decision in Ohioans For Concealed Carry, Inc. v. Clyde.  In the eagerly awaited decision, the Court rejected the city of Clyde's attempt to ban guns in a local park.  The Court held that the state concealed carry statute preempts local bans of this type, despite the "home rule" provision of the Ohio Constitution.

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The End of Wall Street

By Brant Published: September 18, 2008

My learned colleague Alan Newman tells me that this article is a good general overview of what is going on on Wall Street. Not my field, but I consider the bankers, financiers, executives, and real estate professionals who made a lot of money over the last decade to be corporate welfare queens. And I'm nervous about my retirement funds.

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The Honorable Jed S. Rakoff to Hold Public Lecture at Akron Law on Sept. 24

By Diana Published: September 18, 2008

Akron Law welcomes distinguished judge, Jed S. Rakoff, United States District Judge for the Southern District of New York as part of its annual Jurist-in-Residence program.

Judge Rakoff will deliver a public lecture titled Law and Science on Sept. 24 at 3 p.m. in Room 151 at The University of Akron School of Law. A reception will immediately follow the lecture in the law school atrium. The lecture is FREE and open to the public.

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Why People Disagree About the Meaning of the Constitution: Plain Meaning Arguments

By Wilson Huhn Published: September 15, 2008

     The first type of legal argument is based upon the text of the law.  When we are interpreting the Constitution you might suppose that this is the only kind of legal argument that should matter - that we should be able to read the language of the Constitution and that honest, well-intentioned people should all come to the same conclusion about its meaning.  Some provisions of the Constitution are relatively clear; for example, to be President a person must be 35 years old.  But often it simply isn't possible to discern the meaning of the Constitution from the text alone because many of the most important provisions of the Constitution are ambiguous.

     Consider the First Amendment: "Congress shall make no law ... abridging the freedom of speech."  Does that mean that obscenity laws are unconstitutional?  May one person sue another person for libel?  Is "hate speech" protected under the First Amendment?  What about protestors who burn the American flag or who block the entrance of an abortion clinic?  Are any or all of these forms of expression comprehended within the phrase "freedom of speech"?  The Supreme Court has struggled with these questions.

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More Post-Heller Wrangling in D.C.

By Stewart Published: September 15, 2008

Interesting article in the Washington Post this weekend reporting on two separate efforts to modify the D.C. firearms rules put into place following the D.C. v. Heller ruling earlier this year.  The D.C. Council is proposing to ease certain restrictions, while the U.S. Congress is considering a bill that would "virtually end local handgun control" in D.C.  The local proposal would permit semiautomatic handgun registration and allow guns to be stored in a loaded and fully operable condition.  Current law only allows registration of revolvers, and requires that guns be unloaded and disabled or locked.  The new local law would introduce criminal liability, however, for owners of loaded, unlocked firearms that come into the possession of minors, irrespective of whether any injury results.

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Ohio Election Law Action!

By Brant Published: September 13, 2008

Ohio looks to be an important swing state (again!) in the upcoming Presidential elections. But you might not have realized that legal issues may determine the outcome. Efforts to settle these issues in advance seem to have failed. Here are a few of the battles currently being fought:

Five-Day Window: Republicans have sued to try to prevent voters from registering to vote (must be at least 30 days before the election) and then, on the same day, voting by absentee ballot (may be done up to 35 days before the election) during the 5-day window when they are eligible to do both. They claim to be concerned about vote fraud.

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Why People Disagree About the Meaning of the Constitution: The Five Types of Legal Argument

By Wilson Huhn Published: September 9, 2008

     I have been practicing and teaching law for over thirty years, but even as I studied law so long ago I remember being perplexed by a commonplace phenomenon. Lawyers and judges disagree about what the law is. In practice and in teaching, as I carefully read and reread the conflicting decisions in the various fields of law I had responsibility for, and as I examined the majority and dissenting opinions within each case, I was puzzled.  "How could it be," I wondered. "How is it possible that people can legitimately disagree as to what the law is?"  I can understand how people can argue about what the facts of a case are. People lie or are mistaken. But law is different, I thought. I thought that the law is something absolute and pure, and that people who are well-informed , intellectually honest, and fiercely dedicated to the rule of law should all come to the same conclusion as to what the law is?

     Why, for example, do people of good faith - loyal Americans, who are devoted to the Constitution and to the rule of law - differ so greatly on questions of constitutional interpretation? How is it possible that citizens and lawyers and judges disagree about the constitutionality of abortion laws or gay rights or flag burning or the power of the President to combat terrorism through detention and wiretapping? Why do people even disagree about a basic question such as precisely what our fundamental rights are? After all, you would think that if our Constitution is a law, surely someone is right and someone is wrong about the meaning of the Constitution - one side is being faithful to the Constitution and the other is being unfaithful.

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Changes in Ohio Gun Laws Take Effect Today

By Stewart Published: September 8, 2008

Senate Bill 184, signed by Governor Strickland in June, takes effect today.  Among other things, the new law provides "tweaks" to the concealed carry law, to make it easier for concealed carry holders to comply with its provisions.  For example, under the new law a concealed-carry license holder  in a car may carry a concealed handgun in an unlocked glove compartment or console.  Under the old law, consoles were not mentioned and the glove compartment had to be locked.  Also, a person carrying concealed who stays within her vehicle may drop off or pick up a child from school.  Under a literal reading of prior law, a concealed-carry holder needed to park away from the school and leave her gun in her vehicle when she wished to enter school grounds.  The "Castle Doctrine" has also now been enshrined in Ohio law, giving a rebuttable presumption of self-defense to a person who shoots an intruder in that person's home or occupied car.  A presumption is an important concept in litigation, functioning as a "tie-breaker" if the factfinder cannot find that either side has proven its case.  Over 1/2 the states now have some form of castle doctrine.

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The Supreme Court at the Tipping Point - Be Sure to Vote

By Wilson Huhn Published: September 2, 2008

     Between 1937 and 1943 President Franklin D. Roosevelt appointed eight justices to the Supreme Court. These justices, who included Hugo Black, Felix Frankfurter, William Douglas, and Robert Jackson, changed the meaning of the Constitution. For the first time in American history the Court began to systematically protect the rights of individuals and minority groups against government action. In particular, the Supreme Court established doctrine protecting the separation of powers, freedom of speech, freedom of religion, racial equality, and the right to privacy. In recent years, however, the legacy of the Roosevelt Court has come under attack, and the fundamental constitutional framework established by the Roosevelt justices may be in danger of unraveling.     

     For over eleven years between 1994 and 2005 the make-up of the Supreme Court remained stable, but during his second term in office President George W. Bush had the opportunity to appoint John Roberts and Samuel Alito to the Supreme Court. These two conservative justices have moved the Court closer to a tipping point than it has been in over seventy years. The 2008 Presidential election, in which the candidates offer the American people starkly contrasting social, economic, and political viewpoints, will have a substantial effect on how the Constitution will be interpreted. The following questions may be determined by the outcome of this election:

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Whence Redistricting Reform?

By Stewart Published: September 1, 2008

Remember the "Reform Ohio Now" drive back in the fall of 2005?  Issue 4 would have amended the Ohio Constitution to put into place a new system for drawing legislative and Congressional districts.  Under our current system, Congressional districts are redrawn in the year following a census (e.g. 2011) by the state legislature, with the Governor having veto power.  State legislative districts are drawn in the same year by a 5-person Reapportionment Board, consisting of the Governor, the Auditor, the Secretary of State, a person selected by the majority leadership of the state legislature, and a person selected by the minority leadership of the legislature.  In 2001, the Republicans controlled the process.  Most Democrats think that they will control the process in 2011.  And that's the problem... 

If, that is, you consider partisan and incumbent-protecting gerrymandering a problem.  Some people think it's the way things should work -- to the victor belong the spoils.  Some others worry about being the spoils.

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