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Transcript of Oral Argument in Arizona v. United States

By Wilson Huhn Published: April 26, 2012

The transcript of the oral argument in Arizona v. United States is available here. I will analyze what occurred during oral argument in a later post. My previous posts on the subject are set forth below.

I have written about this case and the underlying demographics in Arizona that are driving the anti-immigration laws. Here are links to those previous posts. Please excuse the distracting symbols that infect some of these posts - they are the result of a technical glitch that is being corrected.

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Professor Huhn to Speak at NEOMED Thursday

By Wilson Huhn Published: April 25, 2012

Professor Huhn will be speaking to an audience at Northeast Ohio Medical University Thursday, April 26 about the constitutionality of the Affordable Care Act. He will review the issues that are before the Supreme Court and summarize the amicus brief that he submitted to the Supreme Court on in support of the constitutionality of the law.

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Robert Bork's Approach to Constitutional Interpretation

By Wilson Huhn Published: April 25, 2012

Mitt Romney has announced that Robert Bork will be advising him about nominations to the Supreme Court. This post describes and critiques Bork's approach to constitutional interpretation.

Robert Bork has staked his career - and made his livelihood - on the particular approach that he takes to constitutional interpretation. Bork is committed to interpreting the Constitution in accordance with what he believes constitutes the "original intent" of the framers of the Constitution. The problem with Bork's approach is that he does not truly follow the intent of the framers. Instead, his approach to constitutional interpretation is more appropriately called "original application" not "original intent."

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Will federal securities regulation move toward merit review?

By Prof. Padfield Published: April 24, 2012

I think it's possible (more here).

Prof. Bainbridge hopes not (more here).

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EEOC Rules That Discrimination Against Transgender Persons Is Unlawful Gender Discrimination

By Wilson Huhn Published: April 24, 2012

The EEOC has rendered a landmark victory for transgender persons. Henceforth discrimination against transgender persons will be considered to be a form of gender discrimination, which is already prohibited by the Equal Employment Opportunity Act.

Chris Geidner of Metro Weekly has posted an interview with the woman, Mia Macy, entitled A Woman's Fight, A Couple's Resilience. Macy told the reporter that she was offered a job with the ATF as a man, but the agency changed its mind when she showed up as a woman.

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Article on Same-Sex Marriage in Context of American Law and Philosophy

By Wilson Huhn Published: April 24, 2012

I have posted a working draft of an article to SSRN discussing the rapid acceptance of same-sex marriage in the United States in light of the theories of "pragmatism" and "legal realism" that have come to dominate American philosophy and jurisprudence. The article is entitled The Growing Acceptance and Legal Recognition of Same-Sex Marriage in America Constitutes a Victory for Reality-Based Thinking and it may be downloaded here.

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Judge Peter Sikora

By Wilson Huhn Published: April 19, 2012

 It is being reported at Cleveland.com, WKYC, and  WTAM that Peter Sikora, the longest-serving member of the Cuyahoga County Juvenile Court, has passed away at age 60. Judge Sikora was not only a highly respected jurist but was an inspiration to all who knew him. His wisdom, kindness, and fairness did honor to the bench. He will be greatly missed.

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Jefferson Davis' Speech of September 23, 1864 at Macon, Georgia: Worst Speech Ever?

By Wilson Huhn Published: April 18, 2012

Jefferson Davis' speech of September 23, 1864, was so bad that Americans North and South speculated that it was a spoof or a satire - but it was real and Davis was sincere. In this speech Davis greatly discouraged his own troops and vastly raised morale in the North; unpersuasively justified his removal of a popular, effective commander for one who had suffered unprecedented losses; viciously attacked one his critics without naming him, leading many of his opponents to believe themselves gravely insulted by the President; and through an unbelievable exercise of "loose lips" caused his army's strategic plans to be published in the newspapers, thereby contributing to the some of the most astonishing Union victories of the Civil War. Most significantly he revealed the principles that he thought the Confederacy stood for.

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Was Jesus for Small Government?

By Brant Published: April 16, 2012

This story on NPR is why I teach Law and Theology (occasionally). Our ideas and beliefs, whether implicit or explicit, about the nature of God's judgement and grace impact our ideas about human behavior and markets, and therefore about law.

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Florida Cases Interpreting Section 776.041: Person Who "Initially Provoked" Incident May Not Claim Self Defense

By Wilson Huhn Published: April 15, 2012

In yesterday's post I discussed the effect of Section 776.041 of Florida law which codifies the common law rule that to claim self-defense a criminal defendant must not have been the aggressor. Under this statute George Zimmerman's guilt or innocence is likely to turn on whether the jury finds that he "initially provoked" the incident in which he shot Trayvon Martin to death. If he did provoke the attack and did not subsequently try to escape or withdraw from the confrontation, the "Stand Your Ground" law does not apply and Zimmerman will not be permitted to claim that he acted in self-defense. In this post I examine two recent Florida cases interpreting 776.041 and I cite some older Florida cases applying the common law rule that a wrongdoer may not claim that he acted in self-defense.

In Vila v. State 74 So.3d 1110 (5th Dist. 2011), the District Court of Appeal affirmed the defendant's conviction for battery. The Court stated that "The victim testified that Vila opened the door to his truck, reached inside, pulled him out, threw him to the ground, and began hitting him with a bicycle tire." The jury convicted the defendant of "burglary of a conveyance," and so the Court of Appeal concluded that the jury believed the victim's testimony on this point. The Court of Appeal found that the defendant's conduct of pulling the victim out of the car "initially provoked" the incident, and that this meant that the defendant was not entitled to claim "self-defense" to the charge of battery. The court concluded:

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The Interplay of Sections 776.041 (Use of Force by Aggressor) and 776.013(3) (Stand Your Ground) in Zimmerman Case

By Wilson Huhn Published: April 14, 2012

The "Stand Your Ground" law explicitly provides that a person "has no duty to retreat" if he or she is "not engaged in an unlawful activity." However, another statute entitled "Use of Force by Aggressor" provides that if a person initially provokes the use of force then that person may not claim self-defense unless he or she has "exhausted every reasonable means to escape." I suspect that prosecutors will rely upon this second law in their prosecution of George Zimmerman for the shooting death of Trayvon Martin.

Section 776.013(3), the "Stand Your Ground" law (which was discussed in this previous post) will constitute Zimmerman's principal defense. This statute says that a person "has no duty to retreat" in the face of an attack. This law states:

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Investigators' Affidavit Emphasizes Zimmerman's Suspicion of Martin

By Wilson Huhn Published: April 13, 2012

Talking Points Memo has posted the affidavit filed by the special prosecutor's office explaining why there was probable cause to charge Zimmerman with second degree murder in the shooting death of Trayvon Martin.

The investigators - T.C. O'Steen and Dale Gilbreath - state that they "have taken sworn statements from witnesses, spoken with law enforcement officers who have provided sworn testimony in reports, reviewed other reports, recorded statements, phone records, recorded calls to police, photographs, videos, and other documents."

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Zimmerman's Low Burden of Proof on the Issue of Self Defense

By Wilson Huhn Published: April 13, 2012

In her news conference announcing that George Zimmerman was being charged with second degree murder in the death of Trayvon Martin, Florida Special Prosecutor Angela Corey mentioned several times that self-defense is an "affirmative defense" under Florida law. She also said that "Stand Your Ground" is "a tough affirmative defense to overcome." It will be "tough" for the prosecution because although Zimmerman has to introduce some evidence that he acted in self-defense, that doesn't mean that he has to convince the jury that he acted in self-defense. All he has to do is to create a "reasonable doubt" as to whether he acted in self-defense. A proposed amendment to the Florida Jury Instructions makes that perfectly clear.

Six years ago in Murray v. State, 937 So.2d 277, 279 (Fla. 4th Dist. 2006), the Fourth District Court of Appeal in Florida ruled that once a defendant in a criminal case has introduced proof that he acted in self-defense the jury is entitled to consider the defense, and the jury may not convict the defendant unless it finds beyond a reasonable that he did not act in self-defense. The Fourth District Court of Appeal stated:

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Florida Statutes on Second Degree Murder and Manslaughter

By Wilson Huhn Published: April 12, 2012

George Zimmerman has been charged with second degree murder, which carries a possible penalty of life in prison. A possible lesser charge is manslaughter, for which he could be sentenced to 15 years imprisonment. This post sets forth the relevant Florida statutes on homocide.

Jeff Weiner and Rene Stutzman of the Orlando Sentinel report in George Zimmerman jailed on second-degree murder in Trayvon Martin shooting on the charges that special prosecutor Angela Corey has brought against Zimmerman.

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Presentation by Professor Huhn Today At Ohio Northern University Pettit School of Law

By Wilson Huhn Published: April 11, 2012

Professor Huhn will present a program today at 4:00 at Ohio Northern University Pettit School of Law on Same Sex-Marriage and Reality-Based Legal Analysis. The program will summarize the present status of same-sex marriage laws and litigation in the United States, and describe this movement within the larger intellectual and jurisprudential context of Legal Realism and Pragmatism.

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"Immorality" and Social Change

By Wilson Huhn Published: April 7, 2012

Social conservatives sincerely believe that they are defending "morality" when they condemn practices such as  birth control, women working outside the home, and same-sex marriage. Their view is that these practices are "immoral" because they threaten the fabric of society. They consider people who condone these social transformations to be fostering "immorality."

They are mistaken. They view change itself as threatening. They forget that society often changes for the better - that human progress is possible - and that if given the opportunity to pursue their hopes and dreams people can often make this a better world.

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2011-2012 Supreme Court Term: Oral Argument in Reichle v. Howards, No. 11-262: Should the Secret Service Have Immunity From Liability for an Alleged Retaliatory Arrest?

By Wilson Huhn Published: April 7, 2012

During oral argument in Reichle v. Howards the justices of the Supreme Court were understandably skeptical about allowing a man to sue a group of Secret Service agents for "retaliation" where there was probable cause for the agents to arrest the man. On the other hand, the Court struggled to find a way not to give the Secret Service - or the police generally - carte blanche to arrest protesters for pretextual reasons.

The Supreme Court heard oral argument in Reichle v. Howards on March 21. The facts of the case are set forth in this earlier post. Essentially, Mr. Howards made some rude remarks about the Iraq War to Vice-President Dick Cheney in a public mall and touched him or pushed him on the shoulder. Later when confronted by the Secret Service Howards lied and denied that he had touched Mr. Cheney. Howards was promptly arrested. Howards sued the agents on the theory that they had arrested him not because they had probable cause (which they clearly did) but rather because they disagreed with what he had said to the Vice-President. The Tenth Circuit Court of Appeals ruled that Howards had the right to bring this lawsuit.

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Why the Courts Must Presume that Economic Legislation is Constitutional

By Wilson Huhn Published: April 6, 2012

In yesterday's post I cited abundant authority in support of the principle that the courts must defer to the judgment of Congress in reviewing the constitutionality of economic legislation. Decisions under the Due Process, Equal Protection Clause, Spending Clause, and Commerce Clause all reveal the same idea, that the courts lack the power to second-guess the political branches in the determination of national economic policy.

I promised that today I would explain why the courts lack that power. There are two reasons. First, the courts are not institutionally equipped to undertake the complex analysis necessary to the establishment of economic policy. Second, the courts are not democratically authorized to balance and compromise the economic interests of different segments of our society.

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Attorney General Holder's Response to Judge Jerry Smith on the Separation of Powers

By Wilson Huhn Published: April 6, 2012

The Attorney General's letter is here. More below.

The President of the United States made a public statement in support of the constitutionality of the Patient Protection and Affordable Care Act. He said that it would be "unprecedented" for the Supreme Court to strike down economic legislation of this magnitude. Judge Jerry Smith of the Fifth Circuit Court of Appeals responded by ordering the Department of Justice to write him a three-page, single-spaced letter discussing the power of the courts to review the constitutionality of legislation. The Attorney General has responded with a letter in support of the President's remarks, concluding that "The President's remarks were fully consistent with the principles described herein."

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Suppressed 2006 Zelikow Memo Against Torture Released

By Wilson Huhn Published: April 5, 2012

The State Department has released a copy of the February 15, 2006 memo by Philip Zelikow arguing that the "enhanced interrogation techniques" used to question detainees were illegal. The Bush administration had sought to destroy all copies of the memo.

Two days ago Tom Blanton at The National Security Archive posted The Zelikow Memo: Internal Critique of Bush Torture Memos Declassified: Document Sheds Light on Disputes over Treatment of Detainees.

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Separation of Powers and the Presumption of Constitutionality: A Response to Justice Kennedy

By Wilson Huhn Published: April 5, 2012

At oral argument in the health care case Justice Anthony Kennedy suggested that the government bears the burden of persuading the Supreme Court that the Affordable Care Act is constitutional. He is precisely wrong. Like all purely economic legislation, the Affordable Care Act is presumed constitutional. This is a fundamental principle of the doctrine of Separation of Powers.

At oral argument last week in the health care case Justice Kennedy made the following remarkable proposals about the presumption of constitutionality:

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