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Akron Law Café

Do Hedge Funds Create Criminals?

By Stefan Published: December 26, 2010

Degrees of Hate Speech: A Response to Dr. Matthew J. Franck

By Wilson Huhn Published: December 25, 2010

     On December 17, the Washington Post published an editorial by Matthew J. Franck, Director of the Simon Center on Religion and the Constitution, entitled In the gay marriage debate, stop playing the hate card.  Dr. Franck's essay makes a good point.  However, his essay is slanted because it contains a number of material omissions.  Dr. Franck also fails to acknowledge that the concept of "hate speech" is heavily contextual, and that there are degrees of hate speech.

     The central point of Dr. Franck's editorial is that it is inaccurate and unfair to label all opposition to same-sex marriage as "hate speech" - that to belittle people in this way is a "conversation-stopper" that has both the intent and effect of cutting off debate.   On this point I agree with Dr. Franck.  Rational discussions about important matters of social policy and constitutional law should turn on objective facts and sound social science, not name-calling.  Persons on both sides of this conflict have a duty to avoid characterizing persons on the other side; this rule is particularly important when society is in a time of transition as it is now. 

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Business Law Prof Blog Named One of 50 Best Business Professor Blogs

By Stefan Published: December 25, 2010

You can find the link here.

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'Tis the Season for Stress Relief

By Stefan Published: December 23, 2010

I know that some of you are wound so tight that even a simple hyperlink click failing to meet your expectations can send you into a comment-posting frenzy.  Maybe, just maybe, I have something that can help here.

Happy Holidays.

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Health Care Financing Reform (121): DOMA, PPACA, and the Tax and Spending Clause

By Wilson Huhn Published: December 20, 2010

     The Patient Protection and Affordable Care Act is being challenged as unconstitutional on the ground that Congress lacks the authority to adopt the law under the Commerce Clause and the Tax and Spending Clause.  Conservatives should be careful what they wish for - the same argument could be raised against the Defense of Marriage Act.

     One of the key provisions of the federal Defense of Marriage Act is that the federal government refuses to recognize same-sex marriages.  A couple who is lawfully married under the law of California or Massachusetts does not have the right to file a joint federal income tax return nor would the surviving spouse of a same-sex marriage qualify for benefits under Social Security.  

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More on Corporate "Personal Privacy"

By Stefan Published: December 19, 2010

Balancing the Budget under the Constitution

By Wilson Huhn Published: December 19, 2010

     Deficit reduction is critical for this country's future.  There are right ways and wrong ways to do this under the Constitution.

     The deficit is out of control.  Neither Republicans nor Democrats in Congress are acting responsibly to match revenues with expenses.  Is there a "magic bullet" that can be used to balance the budget?

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The Larger Meaning of the Gay Rights Movement

By Wilson Huhn Published: December 18, 2010

     Today may be the day that Don't Ask, Don't Tell is repealed - a substantial victory for the gay rights movement.  Why is this important?

     From a legal perspective, it is a victory for those who regard the Constitution as a set of fundamental moral principles - principles that the government must abide by - in that sense it is a victory for the philosophy of realism over traditionalism.  In particular, it is a victory for the core principle of equality, the idea that people who are the same must be treated the same - that people may be treated differently only if they are different in the relevant context.   DADT is being repealed because most Americans no longer believe that gays and lesbians are different when it comes to serving in the military - that they make just as good soldiers, sailors, airmen, coasties, and marines as heterosexuals do.

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DADT Repeal Passes House, Goes to Senate

By Wilson Huhn Published: December 15, 2010

     The House of Representatives today voted to repeal Don't Ask, Don't Tell.  The matter now goes to the Senate.

     For more information on these recent developments in Congress see Stephanie Condon, CBS News, Don't Ask, Don't Tell Repeal Passes in the House; and Scott Wong, Politico, 'Don't ask, don't tell' passes handily in House of Representatives.

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Health Care Financing Reform (120): Judge Hudson's Order in the Virginia Case

By Wilson Huhn Published: December 14, 2010

     In yesterday's post I described the decision of Judge Henry Hudson in Virginia v. Sibelius, in which the judge ruled that the individual mandate contained in the PPACA is unconstitutional.  There remains one other portion of his opinion to discuss - the unusual order that he entered as a result of his decision.

     Once he struck down the individual mandate, it was incumbent upon Judge Hudson to decide whether the entire law was unconstitutional or just some portion of it.  No-one likes the individual mandate and it never would have been adopted as a stand-alone measure.  It was incorporated into the law because it was necessary to make the other provisions of the law work.  The PPACA, for example, imposes regulations on insurance policies - health insurance policies must cover pre-existing conditions, and may not have annual or lifetime limits on coverage.  It simply isn't feasible to have laws like these unless everybody is required to purchase health insurance; otherwise, people would buy insurance only when they become sick, and the cost of health insurance would necessarily skyrocket.  The function of the statute is to bring everybody into the system - universal coverage requires universal participation and universal support.

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Health Care Financing Reform (119): Virginia Federal Court Strikes Down Individual Mandate in Health Care Reform Act

By Wilson Huhn Published: December 13, 2010

     Judge Henry Hudson of the Federal District Court for the Eastern District of Virginia has declared an important provision of the Patient Protection and Affordable Care Act unconstitutional.

     The Patient Protection and Affordable Care Act that President Obama signed into law earlier this year requires every individual to purchase health insurance.  This law is scheduled to go into effect in the year 2014.  Under the law individuals and families earning less than $88,000 per year (400% of the Federal Poverty Level) will receive government subsidies to help purchase insurance and pay for out-of-pocket expenses.  The requirement to purchase health insurance is called the "individual mandate."  Earlier today Judge Henry Hudson ruled that the individual mandate is unconstitutional.

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Supreme Court issues opinion in Costco v. Omega

By Ryan Published: December 13, 2010

About one month after hearing oral arguments in Costco v. Omega, the international exhaustion copyright case I blogged about here, here, and here, the Supreme Court has issued a per curiam opinion.

Instead of providing any additional insight into or guidance on answering this difficult question of statutory interpretation, the Supreme Court affirming the 9th Circuit's judgment by an equally divided Court.

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Akron: National Champion!

By Stefan Published: December 13, 2010

Financial Crisis 2008: Should Someone Go to Jail?

By Stefan Published: December 13, 2010

Not surprisingly, one can find a difference of opinion as to the proper answer to that question.  You can read some more about that debate here.

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A Comparison of the Manhattan Declaration and the Barmen Declaration

By Wilson Huhn Published: December 13, 2010

     In yesterday's post I described the Manhattan Declaration, a position paper on abortion and same-sex marriage issued by conservative Christians .  In today's post I compare the Manhattan Declaration to the Barmen Declaration.

     The Barmen Declaration was authored in 1934 in Germany by Swiss theologian Karl Barth and other leaders of the Confessing Church such as the religious and ethical philosopher Dietrich Bonhoeffer.   The Confessing Church opposed the efforts of the Nazi regime to take over the German churches; the authors of the Barmen Declaration announced the independence of the church from the state.  Following persecution in Germany Barth returned to his native Switzerland, and after World War II he led efforts to admit German guilt for the war.  Later, Barth opposed both Communism and anti-Communism.  Bonhoeffer, an ethical philospher, theologian, and pastor, joined the conspiracy to assassinate Hitler, was discovered, and executed.  

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Analysis of the Manhattan Declaration

By Wilson Huhn Published: December 12, 2010

     The Manhattan Declaration is a 2009 position paper in support of conservative social issues.  It seeks to unite Catholic, Orthodox, and Evangelical Christians in their oppostion to abortion and same-sex marriage.  It is a remarkable document in that it seeks to overcome longstanding religious barriers among social conservatives.  The document admirably accomplishes its purpose of articulating common ground among political conservatives on these two issues.  It is disappointing in that it utterly fails to address religiously-grounded issues important to political liberals, and in its mis-characterization of opposing positions.

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By Wilson Huhn Published: December 11, 2010

OK, another break from Constitutional Law.  (These are for Sarah.)

When the sky is overcast, the wind is biting, and the snow is piling up, what does one Clevelander say to the other Clevelander?

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For Second Year in a Row Akron Soccer Plays for National Championship

By Stefan Published: December 11, 2010

Couple of relevant links here.

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Professors Huhn and Padfield Discuss Citizens United on YouTube

By Stefan Published: December 9, 2010

The relevant links can be found here.

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Arrest and Blackmail

By Wilson Huhn Published: December 7, 2010

     Julian Assange, the Australian reporter and founder of Wikileaks, has been arrested in London.  According to a report today from the Voice of America Assange faces charges in Sweden for rape, sexual molestation, and unlawful coercion.   From Sweden, Assange may be extradited to the United States to face charges relating to the disclosure of classified information.  To prevent this, Assange has reportedly threatened to release documents that will put American lives at risk.

     According to an article by Doug Sanders of the the Globe and Mail, Assange has disseminated a 1.3 gigabyte file protected by a 256-bit encryption key that contains full copies of all of the stolen documents, and has stated that he will expose the key if the United States attempts to arrest or extradite him.  According to Sanders, the file contains

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Prop 8 Proponents' Standing to Appeal

By Wilson Huhn Published: December 6, 2010

     The Ninth Circuit heard oral argument today in the Prop 8 case.  The first hour of oral argument was devoted to the question of whether the Constitution permits the proponents of Prop 8 to appeal the decision of the trial court to the court of appeals.

     On August 4, 2010, Federal District Court Judge Vaughn Walker issued his decision finding that California Proposition 8 to be unconstitutional under the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment.  However, Governor Arnold Schwartzenegger and Attorney General Jerry Brown agreed with Judge Walker's decision and refused to appeal it.  The groups who supported the adoption of the ballot initiative intervened in the case in order to appeal Judge Walker's decision to the federal court of appeals.  On September 6 I posted this entry, The Prop 8 Case: Standing to Appeal, setting forth the general rules of standing and suggesting that the proponents do not meet the requirements that the Supreme Court has found necessary to confer jurisdiction on the federal courts to hear an appeal.

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Hell Hath No Fury Like a Kindle User Over-Charged

By Stefan Published: December 5, 2010

For an example, go here.

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Two Reports from Germany: Wikileaks Documents Revealed and Destruction of Church Documents on Child Abuse

By Wilson Huhn Published: December 5, 2010

     Two major revelations out of Germany.

     Here is a link to Der Spiegel's English language publication Spiegel Online International, and to the archive of U.S. diplomatic cables that are being released by five news organizations.   The Obama administration is threatening prosecution of those resposible for leaking these classified documents.  The government cannot prevent the publication of these documents.  In Near v. Minnesota (1931) the Court said that 

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Merkley Proposal to Limit Filbusters

By Wilson Huhn Published: December 4, 2010

     Jeff Merkley (D-OR) has released a proposal to limit filibusters.

     In his proposal, Thoughts on the Reform of Senate Procedures, dated November 16, 2010, Merkley identifies six problems resulting from filibusters:

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New Jersey and California Move Toward Legalizing Online Poker

By Stefan Published: December 4, 2010

As does the federal government--links here.

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Lebron's Return

By Wilson Huhn Published: December 2, 2010

My thoughts about tonight's game.

Taking a break from constitutional law, I wanted to share my reaction to Lebron James' return to Cleveland tonight as a member of the Miami Heat.  Regular readers of this column know that I confuse Lebron with my own children - he is the same age, and like him they have all flown the nest.  He also reminds me of my students - graduate students, working like crazy trying to better themselves and succeed in life.

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Is the Foreign Corrupt Practices Act Too Costly?

By Stefan Published: December 2, 2010

Some related links here.

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Reaction to Pentagon Report on Repealing "Don't Ask, Don't Tell"

By Wilson Huhn Published: December 2, 2010

     Here are links to the Pentagon reports concerning repeal of the policy prohibiting gays and lesbians from serving openly in the military, news stories about the reports, and other reaction to the reports.

The Pentagon Report itself, Report of the Comprehensive Review of the Issues associated with a Repeal of 'Don't Ask, Don't Tell', November 30, 2010:

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IP Council Member Dr. Helen Free Honored by President Obama

By Diana Published: December 1, 2010

Dr. Helen Free, a member of Akron Law's Intellectual Property Advisory Council, was awarded a 2009 National Medal of Technology and Innovation on Nov. 18, 2010  by President Obama.  Dr. Free received the prestigious award for work in the field of medical and clinical urinalysis testing.  She and her husband, the late Dr. Alfred Free, were both chemists with Miles Laboratories (now Bayer Corporation) and were instrumental in the development of the 'dip and read' test that allowed diabetics to instantly monitor their blood glucose levels from the privacy of their homes.  She is a consultant for Bayer AG.

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