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Akron Law Café

Doctor George Tiller Murdered Entering Church

By Wilson Huhn Published: May 31, 2009

     Stan Finger of The Witchita Eagle reports that George Tiller, an abortion provider, has been shot and killed as he was entering his church.  Abortion protestors have long targeted Tiller's clinic and his church.  Tiller was shot in both arms in 1993 and his clinic was seriously vandalized earlier this year.  At least one anti-abortion site identifies his church and provides a link to the church's site with a map and directions to it.  In my opinion those who engage in incendiary rhetoric share moral responsibility for Dr. Tiller's murder.

     Abortion is the most difficult and most divisive issue in our society.  Abortion is surrounded with extraordinarily intricate questions on many levels.  There are religious, moral, social, medical, and legal complexities to the problem.

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Using court web sites for quick research

By Lynn Published: May 29, 2009

2. We wish to adopt a child and would like some information about the court procedure.

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Two Measures of Judicial Activism and Where Judge Sotomayor Falls Along the Spectrum

By Wilson Huhn Published: May 29, 2009

     "Judicial activism" may be defined as the tendency of a judge to "make new law" rather than simply to "interpret existing law."  But there are two ways of measuring the degree to which a judge is an "activist" - the term means different things to liberals and conservatives.

     One way of measuring judicial activism is by reference to the judge's attitude towards "tradition."  In this sense people who rely upon tradition and who find it to be decisive in their interpretation of the law are likely to consider judges who give relatively little weight to tradition as being "judicial activists."  Justice Scalia, for example, elevates tradition above every other type of legal argument in his interpretation of the Constitution, and in that sense he is the antithesis of a judicial activist.  In his dissenting opinion in United States v. Virginia Justice Scalia consistently and repeatedly invoked V.M.I.'s tradition of educating only men in coming to the conclusion that the Constitution did not require that particular public institution to admit women.  Similarly, in District of Columbia v. Heller, in which he struck down a D.C. law prohibiting possession of handguns, Justice Scalia purported to find that the text and history of the Second Amendment supported his conclusion that people have the right to keep a handgun in their homes, but in my opinion the strongest pillar for his position was simply the American tradition of gun ownership for purposes of self-protection.

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Killing People for Profit and Other Corporate Shenanigans

By Stefan Published: May 28, 2009

This past Friday, the D.C. Circuit Court of Appeals "ruled that the tobacco industry engaged in a half-century-long campaign to deceive Americans about the health hazards of smoking."  This reminded me of Ford's cost-benefit analysis of safety improvements versus a total of 360 preventable burn deaths and serious burn injuries.  It also made me think of McDonald's insistence that its coffee be served at 180-190 degrees (making it not only hot, but "scalding - capable of almost instantaneous destruction of skin, flesh and muscle") despite the fact that McDonald's had received "more than 700 claims by people burned by its coffee between 1982 and 1992", some involving third-degree burns.  (Some have suggested McDonald's did this to avoid having to give out so many free refills.)  So it should probably not come as any surprise to hear this Deutsche Bank whistleblower's claim:

As these losses have grown, taxpayers are being forced to absorb these losses. As an example, my firm recently received nearly $12 billion from American International Group (which has effectively been nationalized with $180 billion in taxpayer funds).  Essentially, every American household sent my firm a check for $105.  The reason for this payment: my firm bought credit default swaps from A.I.G.  In plain-speak, we bought unregulated "insurance" from A.I.G. to cover losses from bad trades. What did taxpayers get in return? Nothing.  Taxpayers simply paid an I.O.U. triggered by our gambling losses.

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The Prop 8 Case

By Wilson Huhn Published: May 27, 2009

     Yesterday the California Supreme Court issued its decision in the Prop 8 case.  The Court ruled that Proposition 8 was a valid amendment to the California Constitution but that it did not apply retroactively, leaving intact the 18,000 same-sex marriages which had been entered into before Prop 8 was adopted.  What follows is a brief summary of the decision.

     On May 15, 2008 the California Supreme Court ruled that state laws that prohibited same sex marriage violated Article I, Section 7 of the California Constitution, and over the course of the next several months several thousand gay and lesbian couples in the State were married.  On November 4, 2008, the people of the State of California voted in a referendum to adopt Proposition 8, which added the following provision to the State Constitution: "Only marriage between a man and a woman is valid or recognized in California." 

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Sotomayor and the New Haven Firefighter Case

By Wilson Huhn Published: May 27, 2009

     The most significant case in which Judge Sotomayor participated that will have bearing on her confirmation to the Supreme Court is in the case of Ricci v. DeStafano, which is currently on appeal to the United States Supreme Court.  The facts and legal question presented by this case are set forth below.

     In 2003 the New Haven Fire Department administered written and oral examinations for promotion to Lieutenant and Captain.  The Department selected IOS, an Illinois company, to design the examinations.  The results of the tests were that seven whites and two hispanics and not a single black candidate qualified for promotion.  The City's attorney, Thomas Ude, was concerned because of the racially disparate impact of the test.  If the black firefighters were able to prove that the test was not job related they would have a valid civil rights claim against the city.  Mr. Ude brought the matter to the attention of the New Haven Civil Service Board and he advised the Board that it could refuse to certify the results of the examination if it found that there was a less discriminatory way to determine eligibility for promotion.  The Board voted 2 to 2 on whether to certify the results of the test, which had the effect of not certifying the results.  The white and hispanic firefighters sued the Board to have the results of the test certified.

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It's Sotomayor!

By Wilson Huhn Published: May 26, 2009

     Obama just placed Sonia Sotomayor's name in nomination for the Supreme Court of the United States.    Will she be confirmed by the Senate?      Judge Sotomayor has impeccable educational credentials, practice as an assistant prosecutor and associate in a corporate firm, long experience on the federal District Court and Second Circuit Court of Appeals, and a compelling personal story of rise from poverty.  At this moment the only reason to oppose her confirmation would be if you disagree with how she is likely to interpret the broad phrases of the Constitution - which I believe to be a legitimate reason to oppose a judicial candidate, but which is unlikely to succeed unless the candidate's views are so extreme as to place her outside the mainstream of American legal traditions.  In short, whether conservative or liberal, a capable candidate is likely to be confirmed so long as he or she is not considered to be radical. 

     In future posts I will review some of Judge Sotomayor's past decisions and attempt to summarize her judicial philosophy.   Also, in about two hours the California Supreme Court will announce its decision in the Prop 8 case.  So there will be lots to discuss and debate in the coming days!

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Clinton's Policy Recognizing Domestic Partners and DOMA

By Wilson Huhn Published: May 26, 2009

    It was reported yesterday by Glenn Kessler of the Washington Post that Secretary of State Hillary Clinton intends to extend certain privileges, including housing, travel, and supplemental employment benefits, to domestic partners of foreign service personnel.  Teddy Partridge at Firedoglake asks whether this policy runs afoul of the federal Defense of Marriage Act (DOMA).  My opinion is that Clinton's new policy does not violate DOMA, however more research will have to be performed to determine whether there is another federal law limiting such benefits to "spouses."

     Clinton's action is in response to the the high profile resignation of distinguished diplomat Michael Guest.  Guest was the first openly gay person appointed to serve as ambassador.  He had been nominated by President George W. Bush, and assumed office on September 18, 2001.  Six years later he resigned in protest because his partner was denied benefits accorded to the spouses and family members of diplomats - matters as simple as assistance with passports or as critical as emergency evacuation from a foreign country in the event of a serious threat of violence.  At the time of his resignation Guest stated:

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Memorial Day and the Constitution

By Wilson Huhn Published: May 25, 2009

     Today we thank those who served and sacrificed so that we might live in freedom.

 - The patriots who fought to found a country where all men are created equal -

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Michael Ratner's Criticism of Obama's Position on Prisoners of War

By Wilson Huhn Published: May 22, 2009

     Yesterday evening Michael Ratner, President of the Center for Constitutional Rights, strongly criticized President Obama's plans to detain prisoners in the war against al-Qaeda and to try persons accused of war crimes in military courts.  Ratner stated that military commissions are used only during or after a "real war" and that people may not be imprisoned simply for being "dangerous," comparing Obama's plan with the movie "Minority Report" in which persons were arrested and tried because it was thought that they were about to commit a crime.  On her show yesterday evening Rachel Maddow agreed with Ratner and contended that the prisoners at Guantanamo and elsewhere were being held simply as a matter of "preventive detention."  Are their criticisms valid?

     Ratner and Maddow base their arguments upon the assumption that the United States is not engaged in a "real war" in Iraq or Afghanistan or  Pakistan.  If their assumption is correct then their conclusion logically follows.  If the "war on terror" is a metaphor like the "war on drugs" and the government is simply engaged in a law enforcement exercise against terrorism then the use of military tribunals and preventive detention is manifestly illegal - the government could no more try suspected terrorists before military courts or hold them without trying them for the commission of a crime then it could court-martial drug dealers or hold them without trial.

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Natural Rights and Corporate Law

By Stefan Published: May 21, 2009

Over at the Delaware Corporate and Commercial Litigation Blog, Francis Pileggi has this to say about corporate law and natural rights:

For example, in the course of discusing the issue of whether corporations should have First Amendment rights, Prof. Daniel Greenwood had this to say:

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Obama's National Archives Speech

By Wilson Huhn Published: May 21, 2009

     President Obama's speech on national security at the National Archives concluded moments ago.  He addressed three specific issues - the government's treatment of prisoners suspected of terrorism, the trial and continued detention of these prisoners, and the disclosure of information regarding the government's actions.  But there was an overarching theme to his presentation - separation of powers and the rule of law.

     The President reaffirmed and explained his decision prohibiting the use of "enhanced interrogation techniques" in the questioning of suspected terrorists.  He stated that these methods amounted to torture, and, like many other persons both inside and outside the previous administration, including Secretary and former Chairman of the Joint Chiefs of Staff Colin Powell and Senator John McCain, the President concluded that the use of torture makes us less safe because it assists our enemies to recruit followers, it weakens the resolve of our allies to assist us in the fight against terrorism, it makes it less likely that enemy soldiers will surrender to us, and it endangers the lives of our soldiers who may be captured by the enemy.

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The Role of the American Lawyer

By Wilson Huhn Published: May 19, 2009

     For a professor Graduation Day is the most precious day of the year.  Professors strive to master existing knowledge and create new knowlege, to pass this knowledge on to our students, and to teach our students how to teach themselves and to become lifelong learners.  As law professors we also seek to instill the values and principles of our profession.  The role of the American lawyer is uniquely connected to our understanding of what it is to be an American.

     The founders of this Nation were warrior lawyers.  They cast off feudalism and monarchy in favor of a form of government based upon the principle of individual sovereignty - that we are all created equal, that each of us possesses certain inalienable rights, and that collectively we choose to create a government for the purpose of safeguarding individual rights.  They were willing to go to war to achieve independence, but they were not willing to simply trade one master for another.  Instead they were intent on creating a society governed by the rule of law.  They foresaw that the people, through their representatives, would make and enforce the law, and they understood that it is only through law that the voice of the people can be heard and obeyed.

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How are our public schools doing?

By Lynn Published: May 15, 2009

2. Since our school levy didn't pass the school district is going to cut busing. Can they really do that?

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Can Virtuous Capitalists Survive?

By Stefan Published: May 14, 2009

Over at The Huffington Post, Professor Ronald Colombo opines that what is at the root of our current financial crisis is "a national crisis of character."  He argues that the Great Crash of 1929 was seemingly the result of "the moral laxity of the cabaret and the bedroom . . . extend[ing] to a certain moral laxity within the corporation and the boardroom," and that similarly "today's financial meltdown has been preceded by a certain relaxation of traditional values."  His prescription: more "values" education in schools, more ethics training in MBA and JD programs, and more discussion and consideration of moral issues in corporate communications and decision-making.

But I'm not sure that all this soul-searching and soul-cleansing solves the problem of capitalism.  Capitalism is predicated on the free flow of capital.  Capital flows to where it is expected to earn the greatest return.  Businesses that attract capital thrive, those that don't die.  So, when the time comes to choose between profit and virtue (and the time will come), the virtuous capitalist that sacrifices profit will be left to starve.  By its very nature, capitalism sets up a sort of Lemons Market.  Virtuous capitalists will eventually be priced out of the market because they will eventually have to sacrifice profit for virtue and the natural law of capitalism dictates that capital will abandon them the moment they do so.

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Is There a First Amendment Right to Take Pictures at Accident Scenes?

By Wilson Huhn Published: May 13, 2009

     Do citizens have a constitutional right to take pictures at accident scenes, or do the police have the discretion to prevent this?  Phil Trexler's article in yesterday's Beacon Journal concerned a man who took pictures of a five-year-old boy being freed from a revolving door where he had become stuck.  An Akron reserve police officer seized the man's cell phone and erased four minutes of video and one still photo that the amateur photographer had taken of the scene.  Did the police violate the photographer's constitutional rights?

     For the Constitution to apply there must be some action by the government If the person who erased the images worked for a private security company and not the government, the First Amendment would not even apply to the situation. 

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What Does the Supreme Court Need More - Judicial or Practical Experience?

By Wilson Huhn Published: May 13, 2009

     What kind of person would you like to see ascend to the Supreme Court to replace Justice Souter?  Joe Garofoli of the San Francisco Chronicle has assembled a list of potential nominees and described their attributes in this article published earlier today.  One of the questions that President Obama and the Senate must address in nominating and confirming the next member of the Supreme Court is whether the next justice should be someone from the judiciary or someone who has distinguished himself or herself in another field altogether.  For the last 35 years almost all of the persons appointed to the Court have been judges.  Is it time to appoint someone who has distinguished himself or herself in some other aspect of public life?

     Almost all of the persons appointed to the Supreme Court by Presidents Ford, Carter, Reagan, Bush I, Clinton, and Bush II were judges, the principal exception being Chief Justice William Rehnquist, who was a Justice Department lawyer at the time of his appointment.  The current Chief Justice, John Roberts, served only two years as a judge before being nominated to the Supreme Court; before that he had been one of the leading legal practicioners appearing regularly before the Supreme Court.  The justice from the last few decades who had the most distinguished career in public life outside the practice of law was Sandra Day O'Connor, who had been Majority Leader of the Arizona Senate before her appointment to the Arizona Court of Appeals, where she worked for two years before President Reagan nominated her to the Supreme Court.  Prior to that time non-judicial appointees were common.  Chief Justice Earl Warren, appointed by President Eisenhower, had been Governor of California, and seven of Franklin Roosevelt's eight appointees came from government and academia, not the judiciary.  He appointed two Senators, two Attorney Generals, two who had been or would be Governors,  one who was Secretary of State, one who was Chair of the Securities and Exchange Commission, and one who had been Chair of the War Labor Policies Board.  They were, on the whole, influential professionals who had risen to prominence in their respective spheres. 

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U.S. Congresswoman Betty Sutton to Speak at Akron Law Commencement

By Diana Published: May 11, 2009

Akron Law will confer approximately 150 Juris Doctor degrees at its 85th Commencement Ceremony at 2 p.m. on Sunday, May 17, at E.J. Thomas Performing Arts Hall.

U.S. Rep. Betty Sutton (D-OH), an Akron Law alumna, will deliver the commencement address to graduates. Sutton is a 1990 graduate of the law school.

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The Constitutionality of Sex Education Programs

By Wilson Huhn Published: May 9, 2009

     President Obama's recent budget proposes to eliminate funding for abstinence-only sex education in favor of "community-based and faith-based efforts to reduce teen pregnancy using evidence-based and promising models."  (See page 491 of the President's Budget Appendix).  From this language I think that it is safe to assume that the President intends to fund sex education programming that not only promotes abstinence but that will provide teens with information about birth control.  This raises some interesting questions of constitutional law under the Spending Clause and the First Amendment.  

     In reaction to studies from the Center for Disease Control showing a recent increase in the number of teen pregnancies and incidence of sexually transmitted diseases among teenage girls, the American Academy of Pediatrics has come out against abstinence-only sex education that had been favored during the Bush administration.  In a news release dated April 23 the AAP characterizes abstinence-only programs as "ineffective" and concludes that these programs are "harmful" because they discourage teenagers who are having sex from using contraception or practicing safe sex.  The Academy recommends sex education programming which combines promotion of abstinence with education about pregnancy prevention and control of the spread of sexually transmitted disease.  As a result President Obama intends to fund programs that not only encourage students to abstain from having sex but that also give teenagers information about birth control and ways to avoid catching or spreading sexually transmitted diseases.  But is it constitutional for the government to fund programs like this or even to take a position on the question?

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Conduct Property Searches Online

By Lynn Published: May 8, 2009

2. How can I double check the description of my home and property to make sure the county has it recorded correctly?

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Faith and Corporate Law: What Would Buddha Do?

By Stefan Published: May 7, 2009

Over at the Glom they are conducting a very interesting online symposium entitled:  "Exploring the Connection between Religious Faith and Corporate Law".  The discussion, which is still ongoing, raises a number of fascinating issues.  I will summarize a couple of them here, along with a few of my own comments and questions.

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Not Prosecuting the CIA is the Right Decision

By Diana Published: May 6, 2009

Check out this Op-Ed piece in The Cleveland Plain Dealer written by guest blogger Carrie Newton Lyons. Carrie is an Assistant Professor of Law at Akron Law and a former covert operative for the CIA.

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Cruel and unusual?

By Brant Published: May 6, 2009

Criminal law is not my area, but the Supreme Court on Monday agreed to hear two cases. In one, "a minor was given a life prison sentence for a crime in which the victim was not killed.  The Court became aware last October that a case on that issue was on its way the case of Joe Harris Sullivan, who was given life without parole in Florida after a conviction for sexual battery, a crime committed when he was 13 years old.  Before that case was actually filed, however, the case of Terrance Jamar Graham arrived; he was given life without parole in Florida after violating his probation after an earlier guilty plea for armed burglary; he was 17 at the time of the life sentence." The SCOTUS blog has the full rundown.

The Court has already ruled that the death penalty imposed on minors is unconstitutional. Now the question is whether we can constitutionally impose a sentence of life without parole on minors--in two cases that don't involve the loss of life of a victim. What do you think?

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Gay Rights and Free Exercise: (8) Employment Nondiscrimination Laws and Freedom of Religious Expression

By Wilson Huhn Published: May 5, 2009

     Many states and cities have enacted laws prohibiting employment discrimination on the basis of sexual orientation, and Congress is considering enacting similar legislation - the Employment Nondiscrimination Act (ENDA).  The law enjoys wide support in Congress and President Obama has indicated that he would sign the bill into law.  On the other hand, all persons, including employers and employees, have the right to freedom of religion, and their religion may regard homosexuality as a sin.  How far may the government go in preventing employers or co-workers from discriminating against employees on the basis of sexual orientation without trampling on the employer's and co-workers' rights to freedom of religion and freedom of expression?

     In our private lives we have the right to select our friends and associates using any criteria that we choose - that is one aspect of the "Right to Privacy."  However, when we open up a business to the public, the government has the power to regulate that business in the public interest.  As the owners or operators of a business we may not sell dangerous products, maintain unsafe working conditions for our employees, and, for the last 45 years, it has been against the law to discriminate against patrons or employees on the basis of race, gender, and religion.  A little over a decade ago we added "disability" to the list of characteristics that may not be the basis of discrimination, and when ENDA is enacted businesses will not be permitted to discriminate on the basis of sexual orientation. 

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Souter's Confirmation

By Brant Published: May 4, 2009

Not a lot of analysis here, just a personal reflection. In the fall of 1990 I was fresh out of law school and had been Counsel to the Senate Judiciary Committee, Subcommittee on the Constitution, for less than a year.

My boss was the very authentic, old-fashioned, country liberal from Illinois, Senator Paul Simon. As a partisan, I was deeply suspicious of the nomination from the first President Bush. I had worked on the Dukakis campaign and I'm sure I held a grudge. In my memory, the White House was giving conservatives all kinds of signals that they could trust Souter, and I remember thinking that there must have been some kind of private assurances given that Souter was more conservative than he could be shown to be, especially on the subject of abortion/choice.

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Gay Rights and Religious Freedom: (7) The Gay Marriage Law Amendments

By Wilson Huhn Published: May 2, 2009

     Ben Smith at Politico has posted a report about the amendments to the New England gay marriage laws that exempt clergy and religious organizations from having to participate in same sex marriages.  Are these amendments constitutional?  And would it be constitutional for the states to extend the range of those amendments to apply to private parties?

     The  Connecticut same-sex marriage law exempts religiously affiliated organizations from nondiscrimination suits if they refuse to perform services or provide accommodations for wedding celebrations in connection with marriages that conflict with their beliefs.  The exemptions contained in the laws of the other states are more limited, essentially providing that clergy may not be forced to perform same-sex marriages.  In my opinion, these exemptions are redundant - both churches and clergy are already protected under the First Amendment from having to participate in marriages or any other sacraments against their will.  There is no harm in codifying these constitutional rights in statutes - there is instead the benefit that persons who are opposed to same sex marriage will be reassured that their ministers, congregations, and churches will not be required to allow the practice in their midst.

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How to bring a case in Small Claims Court

By Lynn Published: May 1, 2009

Are you thinking about filing a case in small claims court?

The purpose of small claims court is to handle simple cases quickly and inexpensively.  The rules are simpler and court hearings are informal.  You can bring the case yourself or you can use an attorney if you wish.   In this post I link you to several local small claims court web sites and to 2 useful brochures on how to bring a case in small claims court. 

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Justice David Souter to Retire

By Wilson Huhn Published: May 1, 2009

     There are news reports that David Souter will step down from the Supreme Court later this year.  What was his legacy, and how will his replacement with another justice affect the Court's interpretation of the Constitution?

      Souter has moved steadily leftward since his appointment to the Court in 1990, and he is now counted as one of the most liberal members of the Supreme Court.  In 1992, in Planned Parenthood v. Casey, he co-authored a plurality opinion with Justice O'Connor and Justice Kennedy reaffirming Roe v. Wade.  He and the other two justices indicated that although they might not have voted to recognize a woman's right to terminate a pregnancy in the first place, they were unwilling to overrule a decision of such magnitude in the absence of evidence that the Court's decision in Roe had been based upon false assumptions.  In 2000 he dissented from the decision of the Supreme Court in Bush v. Gore awarding the Presidency to George W. Bush.  Instead of terminating the case and halting the recount, as the majority of the Court did, Souter would have remanded the case to the Florida Supreme Court so that it could have devised a uniform statewide method for counting disputed ballots.  In 1996 and 2003 he joined Justice Kennedy and a majority of the Court striking down laws that discriminated against gays and lesbians in Romer v. Evans and Lawrence v. Texas.   In those cases the Court ruled that traditional notions of morality were insufficient to justify laws treating gays and lesbians differently.  Finally, in the detainee cases Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, and Boumediene v. Bush, Souter consistently voted in favor of the prisoners, recognizing their rights under statutes (the Uniform Code of Military Justice), treaties (the Geneva Convention) and the Constitution (the Due Process Clause).  

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