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Myths About Issue 6 and Indian Gaming

By Diana Published: October 31, 2008

The passage of Issue 6 will not make it easier for Indian tribes to open casinos in Ohio. Tribes have significant hurdles to overcome in order to operate casinos in the state.  Opponents of Issue 6 are attempting to link it with Indian casinos, but the two issues are separate and distinct.  In order for voters to make an informed decision on November 4, it is necessary to dispel the myths about Issue 6 and its relation to Indian gaming. 

The "Vote No Casinos Committee" submitted to the Ohio Ballot Board arguments against Issue 6, stating that voting in favor of Issue 6 "will make Ohio a Class III gambling state, making it easier for Indian casinos to open."  This statement is wrong. 

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Today, National City; tomorrow--the world!

By Stefan Published: October 30, 2008

So, National City is being bought by PNC.  Putting aside the jokes about Pittsburgh (PNC's home) extending its football dominance over Cleveland, there are a number of interesting points floating around about the deal:

Professor Oesterle, of the Moritz College of Law at The Ohio State University, notes that this acquisition (which is a "take-under"--with PNC paying less than market value) is tax-payer financed and raises serious questions about the federal government's role in deciding which institutions live or die in the drama that is Financial Crisis 2008.  (He also points out that by selling themselves to PNC, National City executives get to avoid having to deal with those nasty limits on compensation that come with partaking of the government dole.)

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Negative Liberties and Affirmative Duties under the Constitution

By Wilson Huhn Published: October 29, 2008

     In attempting to characterize Barack Obama as a "socialist," Senator McCain's campaign and some news reports have misrepresented Barack Obama's views on a fundamental question of constitutional law.  In a 2001 radio interview Barack Obama actually opposed the idea that the courts, acting pursuant to the Constitution, should be engaged in the "redistrubution of wealth."  In that interview Obama stated: 

     Almost all of our constitutional rights are, as Obama stated, "negative liberties."  The government is prohibited from interfering with freedom of speech.  The government may not infringe freedom of religion.  The government may not invade the right to privacy.  

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Seminar: How Patents, Copyrights and Trademarks Can Help Your Business and Exports

By Diana Published: October 29, 2008

Akron Law with the cooperation of the U.S. Export Assistance Center in Cleveland, will present a half-day program on Monday, Nov. 10 from 8 a.m. - 12:30 p.m. describing how Northeast Ohio businesses and exporters can protect their patents, copyrights and trademarks in the United States and overseas markets.

The program will provide basic information on intellectual property (IP) and how businesses can exploit it in local, regional, national and international markets. The course is designed primarily for businesses that have not yet established IP programs and procedures. It will cover what IP protects, how to secure protection at home and abroad, and important pitfalls and opportunities in IP law. It will also describe the assistance the United States Commercial Service offers small businesses in finding foreign customers and business partners and beginning export trade, and programs to assist U.S. companies to protect their intellectual property rights in foreign markets.

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Guantanamo Military Judge Throws Out Confession Obtained by Torture

By Wilson Huhn Published: October 29, 2008

     The Miami Herald reports that Col. Stephen Henley, a military judge at Guantanamo, has thrown out a confession that Afghan authorities obtained from Mohammed Jawad.  Jawad is charged with the commission of a war crime for allegedly having thrown a grenade and wounding American soldiers in an Afghan bazaar in 2002.  There was evidence that Afghan authorities drugged Jawad, a teenager, chained him to a wall, and threatened to kill him and his family unless he confessed to throwing the grenade.  There was also evidence that two other persons also confessed to throwing the same grenade, and that Jawad was subjected to sleep deprivation and other severe interrogation techniques in Afghanistan and at Guantanamo.

     Section 948r of the Military Commissions Act of 2006 permits the introduction of statements obtained by cruel and inhuman treatment prior to 2005 so long as the statement is reliable and probative, but the law does not permit the introduction of evidence obtained by use of "torture."  The United States government reportedly argued that the interrogation of Jawad involved coercion but that it did not rise to the level of torture.  However, Colonel Henley ruled that the death threats against Jawad and his family constituted torture and that the confession was therefore inadmissible.

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Why People Disagree About the Meaning of the Constitution: Tradition

By Wilson Huhn Published: October 28, 2008

     The fourth major type of legal argument is "tradition."  Our view of society and the proper relations among people is shaped by our upbringing and our experiences.  In all areas of law, tradition plays a major, if often silent and invisible, role.

      In the law of tort, for example, the guiding principle is the "reasonable person" standard - "What would the reasonable person have done under the circumstances?"  But our opinion of how a reasonable person would act is often determined by how people have traditionally acted.  For example, is it reasonable for corporations to sell products which are both addictive and carcinogenic?  Of course not, but tradition allows the cigarette companies to stay in business.  And why do bars have parking lots?  From a logical standpoint it is not consistent with the public interest to make it easy for people to drink and drive, but that's the way it's always been, so our law allows it!

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Akron Law to Host World War II Expert

By Diana Published: October 24, 2008

Professor Herbert R. Reginbogin, from European University of Lefke, North Cyprus, will give a lecture titled 'Holocaust Reparations: Global Justice or U.S. Imperialism?' on Tuesday, Oct. 28 at 12:15 p.m. in Room 151 at Akron Law. Pizza and beverages will be provided.

Professor Reginbogin, a graduate of Whittier College and Berne University, is a World War II expert dealing with issues involving international relations and international law today. In the mid-1990s he was involved in the litigation between Jewish organizations and Swiss banks as well as diplomatic attempts to avert a total economic boycott between the United States and Switzerland. Over the last ten years Professor Reginbogin has conducted archival research in numerous countries in Europe, Russia and the United States of America while a visiting professor at several universities on both sides of the Atlantic such as Potsdam University, (Germany), Bogazici University, (Istanbul, Turkey), and Touro Law School (United States of America).

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Is it too soon to start thinking about Enron III?

By Stefan Published: October 23, 2008

I was having a discussion with a colleague the other day, and the topic of the future of regulation of the financial markets came up.  I stated that I was skeptical about whether we would have any truly effective regulatory oversight 5-10 years from now, despite all the loud talk from Washington that we will "never again give Wall Street enough rope to hang us with."  (I heard that quote on the radio last week, but I haven't been able to track down the source.)  We have, after all, heard such lines before:

First, wasn't it just a few years ago that we were supposed to have addressed the transparency issue with SOX I?  And yet here we are again talking about how the root of the current crisis is the opacity of balance sheets.  True, SOX I wasn't enacted to respond to problems with credit default swap agreements or mortgages.  But the point is that regulators are always the cat chasing the tail that is Wall Street whiz kids.  Whatever regulatory reform percolates up from this crisis, our best and brightest will be paid handsomely to create the next newfangled instrument that flies below the radar till it blows up in our face.  In addition, effective regulation generally requires full and fair disclosure.  And yet it is insiders who will be relied on to make these disclosures properly.  Exactly how much faith should we have in that?

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Why People Disagree About the Meaning of the Constitution - Precedent

By Wilson Huhn Published: October 21, 2008

     So far we have looked to the text of the Constitution and to the intent of the framers to discover what the meaning of the Constitution is.  But there is another source of authority that we have to consider - the courts.  It has been said that the Constitution means what the Supreme Court says it means, and in our system of law this is to a large extent true.      In Marbury v. Madison Chief Justice John Marshall said "It is emphatically the province of the judicial department to say what the law is," that is, it is for the courts to interpret the meaning of the law as applied in any particular case.  Because the Constitution is a law, the courts must interpret and apply it as they would any other law.  Because the Constitution is the highest law - that law that all other laws must conform to - the courts have the power to strike down any lesser laws (statutes, ordinances, regulations, administrative policies, police actions, etc.) that conflict with the Constitution.  Because the Constitution is a federal law, the federal courts have the power ultimately to determine the meaning of the Constitution.  And finally, because the United States Supreme Court is the highest federal court, the Supreme Court has the last and final word as to the meaning of the Constitution.

     When a court hands down a decision in a case, the parties, their attorneys, the legal profession as a whole, and the whole of the general public expect these decisions to conform to the law.  Accordingly, In our legal tradition, judges write opinions explaining why they decided cases in a certain way.  This necessarily requires the judge to say what the law is.  In many countries the opinions of judges are not considered to be a source of law - they are no more a statement of the law than a newspaper editorial or this blog is.  But in the English tradition judicial opinions are law in and of themselves.  The principle of stare decisis ("let the decision stand") means that judges have to follow precedent unless there is good reason not to - and this good reason must amount to something more than simple disagreement with a prior decision.

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Akron Law to Sponsor The Fourteenth Amendment: The 140th Anniversary Symposium

By Diana Published: October 20, 2008

Academic experts from across the country will gather at The University of Akron School of Law for The Fourteenth Amendment: The 140th Anniversary Symposium on Oct. 23 and 24 at The University of Akron School of Law.

The symposium will feature discussions on how the amendment came to be; how the early cases of the court are being used today by the U.S. Supreme Courts and other courts; what the Court's first three cases tell us about the amendment and the court; what drafting choices the 39th Congress made and why; how Section 3 of the amendment was used and what the potential is for continuing use; and how the citizenship clause changed African-American discourse. View the complete program here.

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What is Voter Registration Fraud and Should We Care?

By Stewart Published: October 19, 2008

Presidential candidate John McCain said in last week's debate that ACORN, a group pushing to register over a million new voters this election cycle, "is now on the verge of maybe perpetrating one of the greatest frauds in voter history in this country, maybe destroying the fabric of democracy."  Wow.  Very strong words.  But is this really the case?  What kind of fraud are we talking about here?

The allegations seem to be that certain ACORN registration collectors, who were paid for each registration collected, filled in fictitious registrations in order to get paid more.  This is voter registration fraud.  Thus we get the the stories that Mickey Mouse, Donald Duck, and the starting lineup of the Dallas Cowboys were newly registered to vote in Nevada this fall.  (After today's loss, the Cowboys MAY want to move to Nevada ...)  But it's not an election fraud problem -- that is, it has no potential to effect the election -- unless Mickey Mouse and his friends show up to vote in November.

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Does a religious group have the right to qualify for government funding despite discriminatory employment practices?

By Wilson Huhn Published: October 18, 2008

     Religious organizations discriminate on the basis of religion in their employment practices.  Christian churches employ ministers and priests, synagogues retain the services of rabbis, and mosques hire imams to perform religious duties.  In addition, for the most part, each individual sect hires clergy of the same sect to lead religious services - Methodists hire Methodists, Roman Catholics hire Roman Catholics, Reform Jews hire Reform Jews, and so on.  Moreover, most denominations extend this practice of employment discrimination to other positions within the institution - teachers, coaches, secretaries, and janitors.  The Supreme Court has ruled that religious institutions have a constitutional right to discriminate  on the basis of religion even when they are engaged in secular activities such as running a gymnasium.  But when religious organizations seek government funding to carry on an activity, are they exempt from provisions of federal law that prohibit discrimination in employment within the funded activity?  In a 2007 memorandum that the New York Times reports has just been made public the Justice Department's Office of Legal Counsel concluded that religious institutions that engage in employment discrimination do qualify for public funding even when Congress has expressly provided that organizations that discriminate on the basis of religion are ineligible to qualify for funding under the specific program.  Is the Justice Department right?

     The Justice Department claims that this case is governed by Corporation of the Presiding Bishop of the Church of Latter Day Saints v. Amos (1987), in which the Court ruled that the government may not prosecute religious organizations for employment discrimination.  The Court's ruling in this case should not be surprising - even non-religious organizations have the right to discriminate in certain circumstances.  For example, the Boy Scouts cannot be required to employ a gay man as a Scoutmaster (Boy Scouts v. Dale (2000)), and the Democratic Party cannot be required to allow Republicans to vote in their primary elections (California Democratic Party v. Jones (2000)).  Organizations have the right to discriminate in hiring or membership or participation in order to protect their First Amendment right to band together and express themselves.

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Race and politics? I thought this was "business law" Thursday!

By Stefan Published: October 16, 2008

I had an epiphany the first time I read the Wall Street Journal.  It turns out that almost every item of news makes someone a bit wealthier and someone a bit poorer.  And, of course, anything that has to do with the distribution of wealth must be regulated.  (Unless, of course, you're dealing in credit default swaps and have made effective use of your campaign contributions--but that's a discussion for another post.)  So, I can pretty much blog about anything in the news and still stay true to my "business law" designation.

So, here's the news item I just had to blog about before the election or it was going to drive me insane: "Poll: Racial views steer some white Dems away from Obama."

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Handy Dandy Summit County Election Guide

By Brant Published: October 15, 2008

As a class project in my Election Law class, two of my students prepared a brief, nonpartisan "Elizabeth and Clarissa's Handy Dandy Summit County 2008 Election Guide." (I have changed their names to protect their anonymity.) They were dismayed to find how difficult it was to find information about various candidates and issues. They recommend such websites as Project Vote Smart, the League of Women Voters, the Summit County Board of Elections, and the Ohio Secretary of State. Their guide, with sources noted, is after the break.

The following is not a political advertisement, and nobody approved it.

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Why People Disagree About the Meaning of the Constitution - Intent Arguments

By Wilson Huhn Published: October 14, 2008

     In the previous posts in this series I described the three types of textual arguments that people can make to interpret the Constitution: plain meaning, canons of construction, and intratextual arguments.  These are the various techniques that can be employed to interpret the written words of the Constitution.  But it is also possible to go outside the text and search for meaning in the documents and events surrounding the writing and adoption of the document.

     When the language of the Constitution is unclear, it is appropriate to look outside the document for evidence of what the text was supposed to mean.  More surprisingly, even when the words of the Constitution seem to be clear, we may learn that the framers did not agree about their meaning.  To properly interpret the Constitution it is necessary to consider not only its text but also evidence of the framers' intent. 

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Brady Campaign Endorses Obama

By Stewart Published: October 13, 2008

The Brady Campaign to Prevent Gun Violence has this morning endorsed Senator Barack Obama in the presidential race.  Perhaps not a surprise, though I wonder whether it helps Obama or hurts him.  The Brady Campaign says in its press release that "The difference between the two tickets is clearest with regard to assault weapons," pointing to Obama's statement in his nomination acceptance speech that "the reality of gun ownership may be different for hunters in rural Ohio than they are for those plagued by gang violence in Cleveland, but don't tell me we can't uphold the Second Amendment while keeping AK-47s out of the hands of criminals."

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Public Lecture: Israeli Law Expert to Speak at School of Law

By Diana Published: October 10, 2008

Professor Orit Kamir, visiting professor at University of Michigan Law School and research fellow at the Hartman Institute for Judaic Studies, will present 'Separation of Church and State in Jewish-Democratic Israel' on Monday, Oct. 13, at noon at The University of Akron School of Law in room 151. The lecture is part of the Israeli Lecture Series presented by the Jewish Community Board of Akron. Akron Law will host a luncheon reception immediately following the lecture. Both the lecture and luncheon are free to the community. R.S.V.P. at 330-869-2424 or shlichim@jewishakron.org .

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Ohio Supreme Court makes it Easier for Corporations to Avoid Liability

By Stefan Published: October 9, 2008

The Ohio Supreme Court made national news last week when it issued its opinion in the case of Dombroski v. Wellpoint, Inc. In that case, the Court ruled that plaintiffs could only "pierce the corporate veil" to pursue shareholders directly if the shareholders had committed "fraud, an illegal act, or a similarly unlawful act."  Understanding why this ruling made national news, and why it provides additional cover for corporate defendants, requires a bit of background information.

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

By Wilson Huhn Published: October 7, 2008

     One way of divining the meaning of the Constitution is to treat it as a dictionary or better yet a codex - as if you were faced with deciphering a large block of hieroglyphics with only internal clues to work with.

     When we wish to interpret the meaning of a term or a phrase in the Constitution, one important tool that we may utilize is the Constitution itself - the other words and phrases as well as the very structure of the document.  In general, intratextual arguments look to one part of a legal document in order to interpret other parts.  For example, if one provision of a contract contains an ambiguous term, it is possible that the same term is used in another portion of the contract where its context makes the meaning of the term more clear.  Similarly, one portion of a deed or a will, taken in isolation, may be unclear as to what persons or property are being referred to, but the document as a whole may contain sufficient clues to remove the ambiguity.  We may interpret statutes and even the Constitution itself using the same technique.

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Public Lecture: The Law and Domestic Partner Benefits

By Diana Published: October 6, 2008

Professor Marc Spindelman of The Ohio State University Moritz School of Law, will give a public lecture titled The Law and Domestic Partner Benefits. The lecture will be held Thursday, Oct. 9 at 3 p.m. in Room 151 at The University of Akron School of Law. The lecture is free and open to the public. A reception will follow the lecture.

Professor Spindelman is a graduate of the University of Michigan Law School. After law school, he clerked on the U.S. Court of Appeals for the Sixth Circuit, and was an associate at Cadwalader, Wickersham & Taft in New York City. After leaving Wall Street, he was a Reginald F. Lewis Fellow for Law Teaching at Harvard Law School, taught as a Visiting Instructor at the University of Michigan Law School, and spent two years as a Greenwall Fellow in Bioethics and Health Policy at Georgetown University and Johns Hopkins University. While a Greenwall Fellow, Professor Spindelman was also an Adjunct Professor of Law at the Georgetown University Law Center, a Faculty Associate at the Johns Hopkins University Bloomberg School of Public Health, and a Research Fellow at the U.S. Food and Drug Administration's  Center for Drug Evaluation and Research. Since joining the faculty at the Moritz College of Law, Professor Spindelman has also been a Visiting Professor of Law at the Georgetown University Law Center, and at the University of Michigan Law School. His recent scholarship focuses on certain problems of inequality, chiefly in the context of sex and death. He regularly teaches courses on Family Law, Bioethics and Public Health Ethics, Health Law, and Sexual Violence.

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Presidential Candidates and Gun Control

By Stewart Published: October 6, 2008

Interesting story over at MSNBC today:  "Shooting for the sweet spot:  How McCain, Obama say they'll balance crime and the Second Amendment."  It compares the presidential candidates' positions on 2nd Amendment and gun control/gun rights issues.  We already know what the National Rifle Association thinks:  it is planning to spend $40 million this year opposing Obama, after spending $20 million against John Kerry in 2004.

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What went wrong at the SEC?

By Stefan Published: October 2, 2008

Since I am teaching Securities Regulation this fall, I was interested to read about the "scathing report" recently issued by the Securities and Exchange Commission's inspector general in connection with the collapse of Bear Stearns.  According to the Wall Street Journal, the report concludes that the SEC missed "numerous potential red flags" and "failed to carry out its mission in its oversight of Bear Stearns."  Certainly this is not the only source of criticism the SEC has faced in recent weeks.  Assuming at least some of these concerns are valid, I got to wondering what some of the likely candidates were for causes of the SEC's shortcomings.  Here's my current short list:

1.  The SEC lacked the necessary expertise. We have been told repeatedly that the financial instruments underlying the current financial crisis were complex to the point of being indecipherable.  Did this complexity create problems for the SEC that it wasn't prepared to deal with?  True, the inspector general's report noted that the SEC missed "numerous potential red flags" in connection with its supervision of Bear Stearns.  However, flags have a funny way of turning a brighter and brighter shade of red the more hindsight and crises you add to them.

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