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Akron Law Café

Researching Ohio Case Law

By Lynn Published: March 27, 2009

2. I may be doing business with a company from Summit County. Is there any way to find out if they have been involved in any court cases?

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Trademark Expert to Speak at Akron Law

By Diana Published: March 27, 2009

Professor Graeme Dinwoodie from Chicago-Kent College of Law will visit Akron Law on Monday, April 6 at 5 p.m. as part of the annual Albert and Vern Oldham Intellectual Property Law Lecture Series. The lecture, which is free and open to the public, will take place at the Akron Law, 150 University Ave., Room 151. A reception will immediately follow.

Dinwoodie's lecture, titled "Trademarks as Keywords," will address questions such as, "Does a company that uses a competitor's trademark as a metatag or purchases another's mark as a search term violate U.S. trademark law?" Also addressed will be whether search engines that require companies to link their ads to particular terms offer software that results in pop-up ads when using certain search terms, or engage in so-called "pay-for-priority" practices run afoul of the trademark laws.

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The De-Regulation of Our Regulatory Regime

By Stefan Published: March 26, 2009

In researching the blogosphere for material for today's post, I came across a post quoting former SEC Chief Accountant Lynn Turner that I thought might be of interest.  What stood out to me was Turner's defense of our current regulatory system at a time when bashing it seems to be all the rage.  He argues that it is not the system that is the problem, but rather the fact that it "had been almost entirely dismantled by Congress and the various Administrations" over the past two decades.  Some of the dismantling he points to includes:

3. As new products such as credit derivatives were created and introduced to the credit markets, Congress and the Administrations took action to ensure those products could not be regulated.  Companies such as Enron and AIG used the law to avoid regulation of these products.  And history now has another chapter on how these products became financial weapons of mass destruction.

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"Just War" and the Constitution

By Wilson Huhn Published: March 24, 2009

     Responses to previous postings on torture of captured prisoners raise a related question - are there constitutional limits on going to war?  Both philosophers and people engaged in drafting and adopting international law have attempted to differentiate "just wars" from "unjust wars."  Do these notions inhabit the Constitution?

     Under the Constitution Congress has the power to "declare war" and the President is named "Commander in Chief of the Army and Navy of the United States."  The President's military rank means that he or she is the highest officer in the military, thus placing the military under civilian control.  There is an ongoing debate about whether the President has the authority to initiate military conflict without authorization from Congress.  Did Polk have the authority to invade Mexico?  Did Lincoln have the authority to resist southern secession?  Did Clinton have authority to send troops to Kosovo? 

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Searching for Federal Court Cases

By Lynn Published: March 20, 2009

2. What are the names of the 9 justices on the United States Supreme Court?

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Is al-Qaeda a Criminal Conspiracy or a Foreign Army?

By Wilson Huhn Published: March 20, 2009

     The government recently announced that it would no longer use the term "enemy combatants" to describe the persons captured in the war on terror and being detained at Guantanamo Bay in part because these persons are no longer actual "combatants" but are in fact prisoners.  The semantic change merely foreshadows a possible change in policy regarding the treatment of prisoners in the war on terror.  In addressing that issue we might fairly ask: "Is our action against al-Qaeda a foreign conflict or is it a criminal prosecution?  Are we at war or are we battling crime?  Should we treat the members of al-Qaeda as soldiers or as criminals?" 

     The foregoing questions set up a false dichotomy.  The correct answer is that this is both a war and a criminal prosecution, and the dual nature of this conflict gives us great freedom of action in dealing with al-Qaeda.

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Constitutional Rights and the Octuplets

By Wilson Huhn Published: March 19, 2009

     On January 26, 2008, Nadya Suleman gave birth to eight children.  Ms. Suleman, as you are no doubt aware, is single and divorced, and already has six other children aged 2 to 7.  These eight newborn children were conceived by means of in vitro fertilization and all eight embryos were implanted into her uterus.  My wife and I have raised four children and like all parents we are aware of the challenges and responsibilities of parenthood.  The action of Ms. Suleman is at a minimum irresponsible, and the complicity of the fertility clinic that enabled her to do this is extremely troubling,   Under the Constitution, can anything be done about this situation, and can the government prevent these kinds of occurances in the future?

     To begin with, whether they are married or single, people have a constitutional right to have children.  In 1942 in the case of Skinner v. Oklahoma the Supreme Court ruled that the right of procreation is "one of the basic civil rights of man."  The contraception and abortion cases are simply aspects of the principal right to procreate.  Nor is the Court likely to say that the government may limit the number of children that a person or a couple may have.  Furthermore, I predict that the Court would find that people have a constitutional right to use assisted forms of procreation such as artificial insemination and in vitro fertilization to conceive children.

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The Intractable Problem of Executive Compensation

By Stefan Published: March 19, 2009

I'm not even going to try and summarize all that has been written in response to the AIG bonus "crisis" in the past few days.  My esteemed colleague, Prof. Huhn, takes on the fraudulent conveyance angle here.  And, if you go to my favorite blogroll you'll likely find 2/3 of the sites with something to say about AIG.  (I'm also on spring break.  So, believe it or not, I am not going spend all day writing this post.)  But I would like to take a more global view of why I believe the problem of executive compensation in the corporate setting will remain in some ways an intractable problem despite all the looming regulatory changes.

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Were the AIG Bonuses Fraudulent Conveyances?

By Wilson Huhn Published: March 18, 2009

     At the AIG hearings before the House Financial Services Subcommittee today several members of Congress raised the possibility that the bonuses constituted "fraudulent transfers" or "fraudulent conveyances."  What were they referring to?

     The concept of a "fraudulent conveyance" is an ancient one.  Basically, the law prohibits a person from giving away their property in an attempt to defraud a creditor.  For example, if I injure someone in an auto accident and face a huge lawsuit, I cannot simply put my house in my sister's name to prevent the accident victim from being able to seize the house after winning a judgment.  If I am about to go bankrupt I cannot put all of my investments in my children's names and expect to be able to shield those assets from creditors.  These kinds of transfers of property are "fraudulent" and can be unwound.  The accident victim or the bankruptcy trustee may appeal to the courts to treat the transfer as if it never occurred, and to have those assets placed back in my name so that my creditors can collect what they are owed.

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Red Cross Concludes that C.I.A. Engaged in Torture

By Wilson Huhn Published: March 16, 2009

     In an article published today, the Washington Post reports that in a secret memorandum issued in 2007 and given to a limited number of American officials the Red Cross described the actions of C.I.A. interrogators as including "beatings, sleep deprivations, extreme temperatures, and, in some cases, waterboarding, or simulated drowning" of prisoners in their custody.  The Red Cross concluded that this treatment constitutes "torture."

     Drawing from an article by Mark Danner in the New York Review of Books, the describes the following treatment of prisoners:

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Government Jobs Listed on Government Web Sites

By Lynn Published: March 13, 2009

I know, I know, this post is not about the law, but it is about government web sites.  The Akron Law Café blog is supposed to focus on the law but bloggers sometimes get off topic and so today, I will vary from our theme somewhat.  When I use government web sites to help patrons, I notice many services that  would be useful to the public.  Today, with so many looking for employment because their jobs were eliminated, I felt an urgency to point people to job postings on federal, state, and local government web site.  These open positions are not just law related, but range from professional positions to general staff support. 

Watch out for the ".com" web sites that offer to connect you to government jobs.  Some collect your personal information when you register for their site and then share this information with their partners (read their privacy statement).  Other ".com" sites try to sell you products related to your job search.  Why bother, just use the government web sites to apply for the jobs.

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Deep Thoughts on Corporate Morality, Behavioral Law & Econ, and Mark Cuban

By Stefan Published: March 12, 2009

This week, I've got three "hat tips."  I set up the posts here and provide you the links.  Enjoy!

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Noonan v. Staples - truthful defamation?

By Wilson Huhn Published: March 10, 2009

     The Federal Court of Appeals for the First Circuit recently issued an opinion upholding a century-old Massachusetts statute that allows a person to sue for defamation even though the statement that was made was completely true.  Some commentators have already decried this decision as a blow against freedom of the press - however, there is a disclaimer tucked away in the opinion indicating that the court has not yet reached a final decision on this matter.

     Several websites have reported - here, here, and here - on a recent decision by the First Circuit Court of Appeals that reinstated a lawsuit for defamation even though the court found that the statements that were made were substantially true.  An employee of Staples was fired for filing inaccurate expense accounts, and a company executive sent an email message to 1500 employees reporting what happened.  Everything in the email was true, but the company had never sent out a similar announcement naming someone who was being discharged.  The plaintiff sued the company for defamation. 

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Supreme Court Affirms Verdict for Plaintiff in Wyeth Case and Dismisses al-Marri Case as Moot

By Wilson Huhn Published: March 7, 2009

     The Supreme Court has decided for the plaintiff who sued the drug manufacturer Wyeth and has granted the government's request to dismiss the prisoner al-Marri's constitutional claim. 

     Two days ago, in an decision authored by Justice Stevens, the Supreme Court found that Diana Levine's lawsuit against the drug manufacturer Wyeth was not preempted by federal law.  Three justices (Roberts, Alito, and Scalia) dissented from the ruling of the Court, and would have barred Levine's claim.  I had discussed both the doctrine of preemption and the facts of this case in a previous post.

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Where to find federal law on the web

By Lynn Published: March 6, 2009

When is downloading music on the internet illegal?

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The Bradbury Memos

By Wilson Huhn Published: March 5, 2009

    On January 15, 2009, just five days before tne end of the Presidency of George W. Bush and five days before the Inauguration of Barack Obama, Stephen G. Bradbury, a Bush administration official with the Justice Department, issued a memorandum withdrawing a number of Justice Department opinions that had been written by other Bush appointees in 2001 and 2002 declaring that the President had the constitutional authority to ignore laws against torture and eavesdropping.  Essentially, after seven years of defending the theory of "the unitary executive" and claiming that laws preventing the President from eavesdropping on American citizens or torturing prisoners were unconstitutional, with five days left in its term the Bush Justice Department changed its mind and decided that the President of the United States must obey these laws after all.  Why did the Bush administration decide to change course at the very end of its term? 

     There is an even more intriguing question.  According to an article published October 4, 2007, in the New York Times, in 2005 Stephen Bradbury issued two opinions of his own which are still secret approving the use of "the harshest interrogation techniques ever used by the Central Intelligence Agency," including "simulated drowning and frigid temperatures."  When are we going to see those two memos and why didn't Bradbury withdraw them or even mention them in his memo of January 15?

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Holding Corporate Directors Liable for the Financial Crisis (Part II)

By Stefan Published: March 5, 2009

Last week I blogged about a recent decision of the Delaware Chancery Court dismissing many of the shareholder claims brought against Cititgroup in connection with the current financial crisis.  In that opinion, the court concluded that Citi's board did not violate its oversight duties under the Caremark case because those duties were essentially limited to detecting fraud, as opposed to bad business decisions.  I suggested that this conclusion ignored the fraud arguably at the heart of much of the subprime debacle.  I now want to update you on some of the further discussion of this case that has taken place on the blogosphere in the past week.

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Rove, Miers to Testify - Reach Agreement on Executive Privilege

By Wilson Huhn Published: March 5, 2009

     News reports indicate that all parties - former President Bush, the Obama administration, the House Judiciary Committee, and the witnesses themselves - have reached an agreement under which Karl Rove and Harriet Miers will give testimony to the Committee regarding the U.S. Attorney scandal.  The key sticking point had been "executive privilege."  The Committee announced yesterday that "invocation of official privileges would be significantly limited."  What does this mean?

     Rove and Miers have agreed to testify on deposition behind closed doors.  The deposition will be transcribed and although their testimony will not be under oath penalties for perjury will attach, as it is a crime to lie to federal investigators or to Congress.  The key to obtaining their testimony was the agreement as to executive privilege.  Former President Bush took the position that executive privilege prevented them from giving any testimony on this matter, and he had ordered them not to obey the Committee's subpoenaes.  His representatives had insisted that even though he was no longer in office the privilege still attached.  This dispute had gone to court, and last night was the deadline for the Obama administration to submit arguments laying out its position on the scope of executive privilege.  Instead, that court case will be suspended and the testimony of the witnesses will go forward under the agreement reached yesterday.  In addition, Karl Rove's attorney has stated that Mr. Rove will not assert any "personal privileges," which I assume is a reference to the Fifth Amendment.

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United States v. Hayes: Should Statements of Members of Congress Be Considered in Determining the Meaning of Statutes?

By Wilson Huhn Published: March 4, 2009

     The Supreme Court recently handed down a decision in the case of United States v. Hayes concerning a defendant's right to possess a gun in the home, but the Court did not interpret or even mention the Heller case or the Second Amendment; instead the Court was interpreting the meaning of a federal statute that prohibits individuals from possessing firearms if they have been convicted of a "crime of domestic violence."  The case is interesting from an analytical standpoint for what it reveals about the methods that different justices rely upon to interpret the law.  Specifically, this case demonstrates that Justice Roberts has joined Justice Scalia and Justice Thomas in opposing the use of statements of members of Congress as evidence of how the law should be interpreted.

     The federal Gun Control Act of 1968 prohibits persons who have been convicted of felonies from possessing a firearm.  In 1996 the law was amended to provide in addition that persons who have been convicted of "a misdemeanor crime of domestic violence" are also forbidden to have a gun in their possession.  In 1994 Randy Hayes was convicted of battery against the woman who was at that time his spouse.  In 2004 law enforcement officers were called to Hayes' home by a 911 call reporting another incident of domestic violence.  The police found a rifle in his home and learned that Hayes had recently owned other firearms.  As a result Hayes was charged with and convicted of violating the federal Gun Control Act.

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Is the al-Marri case moot?

By Wilson Huhn Published: March 3, 2009

     In a previous post I described the al-Marri case which is currently before the Supreme Court.  Al-Marri legally entered the United States on September 10, 2001 for the purported purpose of attending school, but the government suspects that al-Marri is an al-Quaeda agent who was sent to the United States to disrupt our financial system.  (I have news for you, Osama - you're too late!)  In 2003 President Bush ordered al-Marri to be detained as an enemy combatant without trial in a South Carolina military prison.  The Supreme Court had agreed to decide whether the government could continue to hold him in military detention or whether the government had to charge him with a crime and try him in federal court.  I predicted that the Supreme Court would rule in favor of al-Marri and that Justice Scalia would join the majority in ordering the government to either charge him with a crime or release him.

     The Obama administration has now indicted al-Marri for the crime of providing material support to al-Quaeda and is transferring him to a civilian jail in Illinois where he will be tried in federal court.  Lawyers representing al-Marri still want the Supreme Court to decide whether or not it was lawful for the Bush administration to have imprisoned him for over five years without trial.  The Supreme Court will have to decide whether the case is now "moot."  Is it?

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