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Federal Judge Roger Cebull Should Resign for Racist E-Mail

By Wilson Huhn Published: February 29, 2012

Federal Judge Roger Cebull emailed a disgusting race joke to his friends and then issued a half-hearted apology.  He should resign.

Earlier this evening John S. Adams of USA Today posted Federal judge admits he sent anti-Obama, racist e-mail.  Adams reports that Roger Cebull, Chief Judge for the District of Montana, has admitted sending the following email through his official account to six friends, who forwarded the "joke" to others:

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2011-2012 Supreme Court Term: MBZ v. Clinton, No. 10-699 (Political Question, Separation of Powers)

By Wilson Huhn Published: February 29, 2012

In 2002 Menachem Binyamin Zivotofsky was born in Jerusalem to American parents.  His parents applied to the State Department for a passport for him and requested that it show his place of birth as 'Israel.'  The State Department instead listed his place of birth as "Jerusalem."  His parents brought this suit on his behalf requesting the courts to order the Justice Department to state on his passport that he was born in Israel.

The United States has followed a longstanding policy of not taking a position regarding whether Jerusalem is a part of Israel.  In keeping with that policy when Zivotofsky's parents applied for a passport for him the State Department listed Zivotovsky's place of birth as 'Jerusalem.'However, in 2002 Congress enacted the Foreign Relations Authorization Act.  Section 214 of that statute is entitled "United States Policy With Respect to Jerusalem as the Capital of Israel."  In Section 214(d) of the Act Congress ordered the State Department to designate 'Israel' as the country of birth for U.S. citizens born in Jerusalem at the request of the citizen or his guardian.

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2011-2012 Supreme Court Term: Reichle v. Howards, No. 11-362 (First Amendment)

By Wilson Huhn Published: February 28, 2012

The Tenth Circuit in Howards v. McLaughlin, 634 F.3d 1131 (10th Cir. 2011) dismissed Howards' Fourth Amendment claim because the arrest was based on probable cause since Howards lied about not having touched the President.  However, the Circuit Court reinstated his First Amendment claim, reasoning that the officers may have acted upon a pretext and arrested Howards because of their anger over what he had said, rather than what he had done.

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2011-2012 Supreme Court Term: The Respondent's Attack on the Stolen Valor Act at Oral Argument in United States v. Alvarez

By Wilson Huhn Published: February 27, 2012

Yesterday's post described the government's presentation at oral argument in United States v. Alvarez, where the Solicitor General defended the constitutionality of the Stolen Valor Act.  Today's post summarizes the respondent's argument.  Here is a link to the transcript of the oral argument.

Jonathan D. Libby argued on behalf of the defendant Alvarez, who was convicted of violating the Stolen Valor Act because he had falsely claimed to have won the Congressional Medal of Honor.  Libby began vigorously:

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2011-2012 Supreme Court Term: The Government's Defense of the Stolen Valor Act at Oral Argument in United States v. Alvarez

By Wilson Huhn Published: February 26, 2012

The principal doctrinal division in this case is whether "false statements of fact" are a "historically unprotected category of speech.  The principal practical division arises from the attempt to identify the "harm" that the government is seeking to prevent by prohibiting people from lying about earning military honors.  Oral argument exposed those divisions.  Today I describe the first half of oral argument, the government's defense of the Stolen Valor Act.

If "false statements of fact" are a historically unprotected category of speech, then the government has broad power to punish any speech that falls within that category.  If as a general rule false statements are not historically unprotected, then strict scrutiny applies, and the government has the burden of proving that it has a compelling reason to punish people who falsely claim to have won a medal or earned other military honors, and that there is no other feasible way of accomplishing the same purpose.

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What is "NIMBY" austerity?

By Stefan Published: February 25, 2012

2011-2012 Supreme Court Term: Summary of United States v. Alvarez (The Stolen Valor Act case)

By Wilson Huhn Published: February 25, 2012

The federal Stolen Valor Act provides:

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Same-Sex Marriage: 85,600,000 and Growing

By Wilson Huhn Published: February 24, 2012

More than one-fourth of Americans now live in jurisdictions that recognize same-sex marriage.  Within five years more than half of Americans may live in such jurisdictions.  But there are legal barriers.

Today's Kansas City Star has an article by Curtis Tate, Gay Marriage Question Evolves One State at a Time, in which he reviews the recent progress of the marriage equality movement and observes that this social issue is being decided one state at a time:

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2011-2012 Supreme Court Term: Court's Non-Decision in Douglas v. Independent Living Center of Southern California

By Wilson Huhn Published: February 24, 2012

Pffft.  Two days ago the Supreme Court issued its decision in Douglas v. Independent Living Center, a case that promised to answer the undying question whether Article III standing may be premised on the Supremacy Clause - a case only a standing junkie could love.  But nooooo, the Supreme Court found technical reasons not to answer the technical question posed by the case.  In 2008 and 2009 the California legislature enacted statutes reducing Medicaid payments to doctors, pharmacies, clinics, and providers of in-home care.  The medical providers sued the state in federal court contending that the cutbacks violated federal law.  The federal law in question does not give "standing" to medical providers to challenge state decisions like this one, but the providers came up with a novel theory; they claimed that the Supremacy Clause of the Constitution gave them standing to challenge the state law.  The Ninth Circuit ruled that they did have standing and the California Department of Health Care Services (of which Douglas is the Director) appealed that ruling to the Supreme Court.

Meanwhile, however, the Centers for Medicare & Medicaid Services (CMS), the federal agency that has the duty to review state reimbursement rates under federal programs, approved the reductions that California had adopted.  Two days ago the Supreme Court decided that the Ninth Circuit would have to try, try again and ask itself whether the doctors and other providers could credibly assert standing under the Supremacy Clause once the federal agency had approved the state action.  In other words, does it make any sense to say that a party has standing to challenge a state law under the Supremacy Clause once a federal agency has said that the state law is consistent with federal law?

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DOMA Struck Down by District Court in Golinski Case

By Wilson Huhn Published: February 23, 2012

In a ruling issued yesterday, Judge Jeffrey S. White of the Northern District for the State of California struck down the federal Defense of Marriage Act as unconstitutional under the Equal Protection Clause.  Judge White did not find that the Constitution requires the states to recognize same-sex marriage.  Instead he simply ruled that the federal government may not refuse to recognize the validity of same-sex marriages that the states have chosen to recognize.  But his reasoning leaves little doubt that the states will be required to follow suit.

In 1996 Congress enacted the Defense of Marriage Act in which it provided that the federal government would recognize as valid only marriages between a man and a woman.  In other words, under DOMA even if a state were to recognize same-sex marriages, these marriages would not be valid for purposes of federal law.  Same-sex couples could not file joint tax returns, take advantage of numerous tax deductions or exemptions, receive the benefit of health insurance or other benefits earned by federal employees, or qualify for social security survivorship benefits.  Ms. Golinski, a federal employee, sued the federal Office of Personnel Management contending that DOMA unconstitutionally deprives her and her wife of employment benefits.

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The Constitutional Right to Birth Control

By Wilson Huhn Published: February 21, 2012

Americans have a constitutional right to use birth control.  Under settled law no-one has the right to interfere with this basic right.

Presidential candidate Rick Santorum has chosen to make the use of birth control an issue in the campaign:

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2011-2012 Supreme Court Term: Coleman v. Court of Appeals of Maryland, No. 10-1016 (11th Amendment State Sovereign Immunity)

By Wilson Huhn Published: February 20, 2012

This is another of those wacky 11th Amendment cases that the Supreme Court has been entertaining lately.

Daniel Coleman was fired by the Maryland Court of Appeals after he requested ten days off because of personal illness. He sued his employer, a state institution, for violating the federal Family Medical Leave Act. The Maryland Court contended that under the Constitution it is immune from liability because of the newly-minted constitutional principle of state sovereign immunity, and the United States Court of Appeals for the Fourth Circuit agreed with the state employer.

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2011-2012 Supreme Court Term: Armour v. Indianapolis, Docket No. 11-161

By Wilson Huhn Published: February 19, 2012

One of the constitutional cases that the Supreme Court is currently reviewing is Armour v. Indianapolis, a tax case brought under the Equal Protection Clause.

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Does corporate political spending corrupt our democracy?

By Stefan Published: February 18, 2012

Some food for thought on that question here.

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Department of Justice Will Not Defend Law Prohibiting Military Benefits to Same-Sex Couples

By Wilson Huhn Published: February 18, 2012

Attorney General Eric Holder released a letter to House Speaker John Boehner today informing him that the Department of Justice will not defend the constitutionality of a federal law denying benefits to members of the armed forces who are lawfully married to persons of the same sex.

Igor Volsky of ThinkProgress reports on a lawsuit filed by servicemembers against the federal government:

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Rick Santorum's Call for a "Moral Impact Statement" Is Present in the Prop 8 Case

By Wilson Huhn Published: February 17, 2012

In his book "It Takes a Family" Presidential candidate Rick Santorum advocates preparing "moral impact statements" to evaluate changes in society, analogous to the requirement that there be an "environmental impact statement" before land use changes are undertaken.  I completely agree.

In Chapter 22 of "It Takes a Family" Santorum states:

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Akron Law Welcomes Yang Ming from China as Visiting Intellectual Property Law Professor

By Diana Published: February 14, 2012

The University of Akron School of Law Center for Intellectual Property Law and Technology welcomes Professor Yang Ming of the Peking University School of Law in Beijing, China as a visiting professor.

'Dean Belsky and I welcome Professor Yang Ming to Akron Law, where he will teach a course on Chinese Intellectual Property Law,' says Professor Jeffrey Samuels, director of the Akron Law Intellectual Property Center for Law and Technology. 'His visit follows a trip Dean Belsky and I made in October 2010 to Peking University Law School. In the future, we plan on further faculty exchanges, as well as student exchanges and other collaborative ventures.'

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My Research Projects

By Wilson Huhn Published: February 13, 2012

I am working on three major research projects: one short-term, and two others longer term.

The short-term project I wish to complete this year involves the current controversies over freedom of religion. Specifically, I intend to analyze several claims of conservative American religious organizations that their religious liberty is being violated. A number of religious organizations have challenged the constitutionality of laws that protect against discrimination or intimidation on the basis of sexual orientation; laws extending health insurance coverage for birth control; and laws that prohibit tax-exempt charitable organizations from endorsing political candidates. In connection with this project I intend to compare and contrast the Barmen Declaration of 1934 with the Manhattan Declaration of 2009.

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Hazma Kashgari Faces Death Penalty in Saudi Arabia for Apostasy

By Wilson Huhn Published: February 12, 2012

Hazma Kashgari, a 23-year-old Saudi journalist, faces the death penalty for tweeting his doubts about the divinity of the Prophet Mohammed.  This is a reminder of our own struggles to establish freedom of speech and freedom of religion.

There are times when we must express our gratitude to our ancestors for building a just and rational civilization.  Five hundred years ago we escaped the madness of the Inquisition; three hundred twenty years ago we held the last witch trials; in 1791 we made freedom of religious expression part of our fundamental law by adopting the First Amendment to the Constitution.  However, for most of our history the Supreme Court failed to enforce the First Amendment or adequately protect freedom of expression and freedom of religion.  In the 1920s two of our greatest justices, Oliver Wendell Holmes and Louis Brandeis, in a series of dissenting opinions, called for enforcement of the First Amendment.  It was not until 1940 in the case of Cantwell v. Connecticut that the Supreme Court, for the first time, applied the principle that religious speech may not be punished simply because it causes unrest or makes other people angry.  Since then the Supreme Court has vigorously protected freedom of expression.  

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Birth Control Funding - Not Just a Moral Debate, But an Economic One

By Wilson Huhn Published: February 11, 2012

The economics of funding for birth control under a system of universal health care complicate the debate but simplify the solution.

When every person pays for his or her own medical care the decision whether to use birth control is individual and private.  When medical care is paid for by health insurance, however, every policyholder or employer may be said to "pay" for other people's  medical care.  And when government subsidies for health insurance are added to the mix, every taxpayer may be said to pay for everybody else's health care.

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Are overly optimistic earnings pronouncements mere "puffery"?

By Stefan Published: February 11, 2012

Some thoughts on that here.

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Ninth Circuit Affirms District Court, Strikes Down Proposition 8

By Wilson Huhn Published: February 8, 2012

On Tuesday the United States Court of Appeals for the Ninth Circuit handed down its decision in the case of Perry v. Brown, the Prop 8 case.  The Court of Appeals struck down Proposition 8, but it did so on narrow grounds.  It is unlikely that the United States Supreme Court will agree to review the decision of the Court of Appeals.

On Tuesday the Ninth Circuit upheld the decision by District Court Judge Vaughn Walker declaring California Proposition 8 to be unconstitutional.  The Court of Appeals did not hold that same-sex couples have a constitutional right to marry.  Instead, the court ruled that it was unconstitutional for the people of the State of California to take away a previously granted right purely for symbolic reasons.

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How worried should directors be about negative "say on pay" votes?

By Stefan Published: February 6, 2012

Some thoughts on that here.

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