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Do Past Presidents Have Executive Privilege?

By Wilson Huhn Published: January 30, 2009

     Michael Isikoff of Newsweek reports that George W. Bush's attorney Fred Fielding has written Karl Rove's attorney a letter instructing Rove not to respond to subpoenas issued by the House Judiciary Committee.  The Committee recently reissued those subpoenas seeking information about whether the firing of U.S. Attorneys in December, 2006, was for political purposes, possibly constituting the crime of obstruction of justice.  Former President Bush is invoking executive privilege to prevent Mr. Rove from testifying.  Do past Presidents have executive privilege?

     I don't know.  Here are what I think would be the strongest arguments on both sides.

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Equal Pay for Women: The First Step

By Tracy Published: January 30, 2009

Yesterday, President Obama signed his first legislative action, endorsing the Fair Pay Act intended to give workers more time to sue in court for pay discrimination based on sex or race.  The new law passed by Congress, the 'Lilly Ledbetter Fair Pay Act' reverses the Supreme Court decision in Ledbetter v. Goodyear which held that the 180-day statute of limitations for pay discrimination cases begins to run from the time of the first initial pay decision.  That rule meant that Lilly Ledbetter, a manager at a Goodyear plant in Alabama for 19 years, could not sue for her unequal pay that continued up until she filed suit, but which first began 19 years ago.  The Court was sharply divided, with Justice Alito writing the opinion for the conservative majority of 5.  Justice Ginsburg wrote the dissent, noting that that such pay disparities are 'often hidden from sight.'  In signing the new legislation, the President cited Census Bureau figures demonstrating that women still earn about 78 cents for every dollar men earn for doing equivalent jobs, and the disparity is even greater for women of color.  Michelle Obama's first official First Lady function was a luncheon yesterday for Ledbetter as the figurehead of the equal pay movement: 'She knew unfairness when she saw it, and was willing to do something about it because it was the right thing to do plain and simple.'

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Poker Chips as Securities

By Stefan Published: January 29, 2009

In the famous case of SEC v. W. J. Howey Co., the Supreme Court ruled that the sale of an orange grove tract plus a land management contract constituted an "investment contract" and was thus a security subject to federal regulation.

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Law, Love and Chocolate - Feb. 19

By Diana Published: January 28, 2009

Akron Law and the Akron Bar Association will join forces on a special benefit event titled "Law, Love and Chocolate." The event will be held from 4 - 6:30 p.m. on Feb. 19 at the Akron Bar Association (Fire Station No. 1, South Broadway).

Local celebrities will prepare sweet treats and a quartet from the Akron Symphony will perform for attendees. Proceeds from this event will benefit Akron-Summit County Library's Reading Festival. Additional promotional support for this event is being provided by the Akron Symphony.

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Lincoln's Style: The Greeley Letter

By Wilson Huhn Published: January 27, 2009

     I am greatly indebted to the students in my Jurisprudence class.  In three hours yesterday evening they gave me more insight into Lincoln's thought and work than I had gained in thousands of hours of solitary work.  I shall be drawing upon their ideas for some time to come.  In this posting I shall present simply one of the ideas suggested by a student and discussed by the class last night.  It concerns the stucture of Lincoln's letter to Horace Greeley, dated August 19, 1862.

     Greeley, the editor of the New York Tribune, had written an editorial addressed to Lincoln entitled "The Prayer of Twenty Millions" in which he stated that the people who had supported Lincoln were "sorely disappointed and deeply pained by the policy you seem to be pursuing" - namely, Lincoln's failure to confiscate slaves from persons in rebellion.  At the time that this editorial appeared, Lincoln had already drafted the Emancipation Proclamation and told his cabinet that he intended to issue it, but he believed that it should be released in the wake of a great victory, which until then had eluded the Union army.  Lincoln wished to respond to Greeley, not primarily to reinforce his personal political popularity, but rather to prepare the Nation for emancipation - to convince people, when it was issued, that it was a necessary wartime measure by the Commander-in-Chief, and not a moral imperative uttered without constitutional authority.  Here is Lincoln's response to Greeley:

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Proposed Constitutional Amendment to Fill Senate Vacancies

By Wilson Huhn Published: January 26, 2009

     The 17th Amendment was ratified in 1913.  Clause 1 of the Amendment provides for the direct election of Senators, which was an important reform.  Before the adoption of the 17th Amendment Senators were selected by the State legislatures, not by the people, which led to anomalous results such as Stephen Douglas defeating Abraham Lincoln for the Senate in 1858 even though Lincoln won the popular vote.  Clause 2 of the 17th Amendment, however, failed to cure a similar defect of the original Constitution, which allowed state governors to fill vacancies when Senators resign, die, or are removed from office.

     Clause 2 of the 17th Amendment states:

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Corporate Power and "the Ideals of our Forebearers"

By Stefan Published: January 22, 2009

Here is the portion of President Obama's inauguration speech most obviously relevant to business law:

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Lincoln and Equal Opportunity

By Wilson Huhn Published: January 20, 2009

     Lincoln's greatness stems in part from his ability to summarize a difficult and complex problem in terms that everybody can understand.  The power of his prose is demonstrated in the following two passages on equal opportunity.

     On October 15, 1858, in his seventh and last debate with Stephen Douglas, Abraham Lincoln drew an analogy between black freedom and American Independence from the English monarchy:

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Lincoln, Obama, and Shared Sacrifice

By Wilson Huhn Published: January 19, 2009

     In a previous posting I had predicted that Barack Obama would, in his Inaugural Address, call for shared sacrifice from all Americans.  It is now being widely reported that this will be a theme of his address.  What did Lincoln have to say about this, and as a practical matter, what sacrifices might Obama ask us to make?

     At Gettysburg, Lincoln called upon us to make a moral commitment - to rededicate ourselves to the work that the soldiers who died there had left unfinished - the great task of giving to the world a new birth of freedom:

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Back to School: Why Corporate Law Matters

By Stefan Published: January 15, 2009

Classes are back in session and I'm teaching Corporations to a whole new batch of future lawyers.  Here's my course summary:

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So Help Me God

By Wilson Huhn Published: January 14, 2009

     Michael Newdow has filed suit to prohibit the Chief Justice John Roberts from stating and President-Elect Barack Obama from repeating the phrase "so help me God" following the oath of office next week at the Inauguration.  Three provisions of the Constitution bear upon this question: the Clause prescribing the presidential oath of office, the Establishment Clause, and the Clause prohibiting any religious test for public office.

     Article II, Section 1, Clause 8 of the Constitution prescribes the oath of office that the President must say in order to take office.  It says:

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Lincoln's First and Second Inaugural Addresses: What Will Obama Say?

By Wilson Huhn Published: January 13, 2009

     One week from today Barack Obama will be inaugurated as the 44th President of the United States, and he has announced that Lincoln will be a theme for the Inauguration.  Obama will take the oath of office with the same Bible used by Abraham Lincoln at his inauguration in 1861.  Will Obama model his Inaugural Address after one or both of Lincoln's?

     Lincoln's Inaugural Addresses framed the Civil War.  At the time of the First Inaugural in March of 1861 seven southern states had seceded and were assembling an army and preparing a new constitution for the Confederacy.  At the time of the Second Inaugural in March of 1865 Northern armies had conquered the Confederacy in the west and the deep south and were closing in on Richmond and Petersburg, Virginia, the last redoubts of Lee's army.  In early 1861 Congress, in an attempt to placate the South, had adopted a constitutional amendment which if it had been ratified would have protected the institution of slavery in every state where it still existed; in early 1865 Congress adopted the Thirteenth Amendment, which when it was ratified later that year would abolish slavery throughout the United States.  In the First Inaugural Lincoln attempted to prevent the Civil War by appealing to our shared sense of patriotism - in the Second, he attempted to unify North and South and to give meaning to the War through an appeal to human rights. 

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College Football is Un-American

By Stefan Published: January 8, 2009

Imagine that there is a state in the Union where the residents of a particular county are precluded from holding that state's highest office solely due to their residence.  It doesn't matter how well the scorned residents perform their civic duties -- in fact, they could perform them perfectly -- they will not be allowed to hold the highest office.  I imagine at least some of you would call such a practice un-American.

Well, when the Utah Utes college football team, which went 13-0 with victories over four Associated Press top-25 teams and was the champion of a conference that went 6-1 in the regular season against the Pac-10, is forced to watch one-loss teams Oklahoma and Florida play in the Bowl Championship Series (BCS) "National Championship" game tonight, they are basically being told:  "You are a citizen, but you cannot hold the highest office."

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Lincoln and the Transcendent Constitution: (3) The Rule of Law

By Wilson Huhn Published: January 5, 2009

     The first principle of Constitutional Law is that the Constitution is a law - a supreme and paramount law that governs the government.  Lincoln, a prairie lawyer, was devoted to the rule of law.

     Lincoln's first public address was before the Young Men's Lyceum of Springfield, Illinois, on January 27, 1838. His speech was entitled "The Perpetuation of Our Governmental Institutions," and it was concerned with the same principle that Chief Justice John Marshall had made the subject of the first portion of his opinion in Marbury v. Madison - the Rule of Law. While Marshall had addressed the duty of government officials to obey the law, Lincoln condemned "mobocracy".

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2008 in Review: The Year Wall Street Died?

By Stefan Published: January 1, 2009

Happy New Year!

This is a great time to look back, as well as forward.  Here are some links you may find interesting:

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