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Akron Law Café

Thinking About Thanksgiving During a Time of Financial Crisis: Is There Always Something to Be Grateful For?

By Stefan Published: November 27, 2008

Holidays can be a time for reflection, and it is hard for me to think about Thanksgiving without thinking about the Native Americans who make up so much of the popular imagery surrounding the holiday.  This reflection is often a somber one.  It is written that Wampsutta, an Aquinnah Wampanoag Elder, had this to say about Thanksgiving: "The National Day of Mourning":

We, the Wampanoag, welcomed you, the white man, with open arms, little knowing that it was the beginning of the end; that before 50 years were to pass, the Wampanoag would no longer be a free people.

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The Power of the President to Issue Midnight Regulations

By Wilson Huhn Published: November 27, 2008

     Among the developments in constitutional law that occurred in the 20th century that I consider to be most unfortunate are the changes that have allowed the President of the United States to, in effect, legislate.  We are seeing a flurry of Presidential legislation being issued right now as President Bush has his administrative agencies issue regulations on a number of different subjects.  I explain below how this has come about.

     In an article for the National Journal Jeannette Lee describes the flurry of "midnight regulations" being adopted by the Bush administration:

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The 2008-2009 Supreme Court Term: (3) Dirty Words on TV

By Wilson Huhn Published: November 25, 2008

    The Federal Communication Commission, interpreting a federal law that makes it a crime to broadcast obscene, indecent, or profane language, issued a regulation which provides:

     The Supreme Court may simply affirm the decision of the Second Circuit on procedural grounds - the Supreme Court may decide to strike down the agency's rule on the ground that the agency failed to give an adequate reason explaining why it decided to change its policy on indecent language.  If the Court decides the case on those grounds it would not reach the First Amendment issue.  However, if the Supreme Court finds that the agency did give an adequate explanation for adopting a new policy, then the Court may proceed to decide whether or not the new rule prohibiting even "fleeting and isolated" indecent language is constitutional.

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More Questions On The National City Sale

By Stefan Published: November 20, 2008

This past Sunday, the Plain Dealer asked some troubling questions regarding the sale of National City:

Let's take a look at some of the statements made by corporate officers in the days leading up to the sale of National City, along with the corresponding stock price (the disclosures are taken from the Plain Dealer article linked to above--I have inserted the closing stock price):

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The 2008-2009 Supreme Court Term: (2) Preemption of Drug Warning Claims

By Wilson Huhn Published: November 18, 2008

     This year in Wyeth v. Levine the Supreme Court will decide whether or not people can sue a drug manufacturer under State law when the label for the drug is misleading or insufficient.  The drug manufacturers contend that these lawsuits are preempted by the Federal Food, Drug, and Cosmetic Act (FDCA). 

     The plaintiff, Diana Levine, lost her arm after she was injected with the drug Phenergan by means of an "IV push."  She sued Wyeth, the manufacturer, because the instructions for use of Phenergan published by the manufacturer stated that IV injection of the drug was a permissible use of the drug even though there would be a risk of gangrene in the case of accidental arterial injection.  Levine contended that the instructions were negligent because they should have utterly prohibited injection by means of IV push.  The Vermont jury agreed with Levine and awarded her $7.4 million in damages.  Wyeth's defense was that the Food and Drug Administration approved and even required these instructions, and that the decision of the federal agency should preempt state law (the state law of negligence) and prevent a recovery.

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More on Obama and Guns

By Stewart Published: November 17, 2008

Interesting post over at ABC News about a question on the Obama Transition Team questionaire.  The question reads:

The NRA (over?)reacts:  "One thing is for sure:  If the Obama team thinks these are good questions to ask job applicants, it's only a matter of time before they'll want to ask the rest of us, too."

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A Proposed First Amendment Challenge to Proposition 8

By Wilson Huhn Published: November 16, 2008

     On November 4 California voters adopted Proposition 8, an amendment to their state constitution which simply states, "Only marriage between a man and a woman is valid or recognized in California."  Opponents of the measure contend that it was adopted in an unconstitutional manner because the California Constitution provides that while "amendments" to the constitution may be adopted by a majority of the people, "revisions" must also be approved by two-thirds of each house of the state legislature.  It is not clear, however, whether Proposition 8 constitutes a revision or an amendment to the California constitution.  Furthermore, insofar as it refuses to recognize same-sex marriages performed in other states, Proposition 8 could be challenged on the ground that it violates the "Full Faith and Credit Clause" of the Constitution which requires the States to give "full faith and credit" to the laws and judicial proceedings of other states, or it could be challenged on the ground that by denying the same marriage rights to gays and lesbians as it does to hetersexual couples the amendment violates the Equal Protection Clause of the Constitution of the United States.  However, constitutional scholar Larry Tribe has expressed the opinion that neither of these challenges is likely to be successful at the present time.  But there is one other constitutional argument that opponents of the measure might raise - and it is one that I think would be likely to work, in light of the current makeup of the United States Supreme Court - and that is a First Amendment challenge to Proposition 8.

     I do not mean to suggest that Proposition 8 directly affects Freedom of Expression or Freedom of Religion.  Instead, I would argue that Proposition 8 takes away the equal rights of gays and lesbians to participate in the political process in order to gain the right to marry.  Heterosexual couples are free to petition the legislature to recognize their marriages as valid.  After the adoption of Proposition 8, gays and lesbians may not.  Propostion 8 deprives gays and lesbians of the opportunity to persuade the California legislature to allow them to enter into the institution of marriage. 

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Veterans Day and the Military Industrial Complex

By Stefan Published: November 13, 2008

This past Tuesday, a student approached me before class and thanked me for my military service.  I have to admit I was caught a bit off guard by the gesture, but I was also quite touched.  It led me to reconsider my planned post for the week (I was going to write about taxes --  aren't you glad I reconsidered?).  Instead, I've decided to take a moment to comment on a subject that touches on my status both as a U.S. Army veteran and current business law professor -- the military industrial complex.

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Public Lecture: "How to Communicate a Complex Issue to a Jury - And Win"

By Diana Published: November 12, 2008

Robert C. Kahrl, a partner with Jones Day, Cleveland will present a public lecture on Nov. 19 at noon in Room 151 at Akron Law.

What do jurors think when they are empanelled to decide a big civil case disputing issues that they never knew existed and legal principles that they have never encountered?  The job of the trial lawyer is to bring these issues before them in a way that not only engages their minds, but moves their hearts to the sense of justice in the law.  Jurors are smarter than most lawyers think. They will do the right thing if given cogent reasons and clear guidance about their upcoming task in the jury room. The lawyer builds his case by thematic repetition (not by saying the same thing over and over) and by establishing the credibility of his or her case by every single event in the courtroom, from behavior of the trial team through the clarity of the witness testimony to the compelling presentations of evidence.

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2008-2009 Supreme Court Term: (1) The Ten Commandments vs. the Seven Aphorisms

By Wilson Huhn Published: November 10, 2008

     Like many American towns, Pleasant Grove City, Utah, prominently displays a statue of the Ten Commandments in the town square.  Summum, a Gnostic religion headquartered in Utah, wishes to have a similar monument to the Seven Aphorisms of its own religion displayed there as well.  In the case of Pleasant Grove City v. Summum the Supreme Court will decide whether or not the City may refuse to display Summum's statue.

     The first words of the First Amendment are:  "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."   The Supreme Court has ruled that these provisions mean that the government must be neutral with respect to religion - it may neither advance nor inhibit religion.  For example, while children have the right to pray in school, the government is not allowed to have public school teachers lead the children in prayer.  Similarly, while the public schools may not teach religious doctrine such as the story of Creation from Genesis, the schools are also prohibited from teaching that God does not exist.  Essentially, while the government has the right to express itself on every other subject, it must remain silent about religious matters, while at the same time allowing individuals and private organizations to freely express their religious opinions.  

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What Will Happen With Alaska's Senate Seat?

By Stewart Published: November 9, 2008

In Alaska, there is still no call in the race between Democratic challenger Mark Begich and Republican incumbent (and recently convicted felon) Ted Stevens, who has a 3,200 vote lead with 81,000 ballots still to be counted.  Some think that the uncounted ballots may push Begich over the top.  But what if Stevens wins?  Will he get to keep his Senate seat despite his conviction?

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Visiting Law Professor to Re-examine "Lake Pleasant Bodies Case"

By Diana Published: November 7, 2008

Professor Lisa Lerman from Catholic Law School will present 'Re-examining the Lake Pleasant Bodies Case: A Case Study in Ethical Decision-making' on Monday, Nov. 10 at 3 p.m. in Room 151 at Akron Law. Coffee and cookies will be served along with this presentation.

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Federal Circuit, en banc, Revises Test for Patentable Subject Matter in Bilski

By Jay Published: November 6, 2008

On Friday the Federal Circuit issued its long-awaited en banc decision in In re Bilski (No. 2007-1130 , Serial No. 08/833,892), clarifying the legal test for patentable subject matter under 35 U.S.C. § 101.  The nine of twelve judges who signed the majority opinion announced a "machine-or-transformation" test for patentable subject matter.  Although urged to do so by Judge Mayer in dissent, they declined to overrule State Street-the 1998 decision that has produced a flood of software and business-method patents.  The rule they announced, however, replaces the "useful, concrete and tangible result" test of State Street.

Under the new rule, inventions involving "fundamental principles"-laws of nature, natural phenomena, or abstract ideas-are patentable only if they use the fundamental principles in a specific machine or in a process that transforms a specific article into another state or thing.  In order to pass that test, the machine or process of transformation must involve more than "insignificant extra-solution activity," i.e., structure or steps beyond applying a formula, algorithm or other fundamental principle.

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At the polling place

By Brant Published: November 6, 2008

I was a poll observer on election day. I saw:

One poll worker who called everybody "baby," as in: "Have you ever voted before, baby? Well, sweetie, you just fill out the bubble for the person you want, OK baby? But don't write anybody's name down there where it says 'write-in,' baby, because then you're voting twice. OK, baby?"

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President-Elect Obama and the Future of Business Law

By Stefan Published: November 5, 2008

A friend of mine is fond of saying that we are always at crossroads, faced with choices about which direction we will take from here that will impact the rest of our lives.  Last night, President-elect Obama echoed those sentiments when he said:

The road ahead will be long.  Our climb will be steep.  We may not get there in one year or even one term, but America -- I have never been more hopeful than I am tonight that we will get there. I promise you -- we as a people will get there.

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The 2008 Election in Constitutional History: Reasons to Rejoice

By Wilson Huhn Published: November 5, 2008

     Some reflections on the meaning of the 2008 Presidential election in the context of Constitutional history.

     Let us give thanks to our ancestors who bequeathed us a country that is devoted to the peaceful transfer of power.  The President of the United States commands huge armies and has untold wealth at his disposal, and yet we determine who ascends the office by debate and by ballot.  As evidence of this there could not have been a more graceful concession speech than that delivered by Senator McCain, nor one that better reflected devotion to this country and to democratic principles.

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Legal Ethics Expert Geoffrey Hazard to Give Public Lecture on Nov. 21

By Diana Published: November 4, 2008

Geoffrey Hazard, a renowned expert in the areas of legal ethics and professional responsibility, will be the inaugural Joseph G. Miller and William C. Becker Institute for Professional Responsibility Distinguished Lecturer on Nov. 21 at Akron Law.

His lecture, Not the "City of God:" Confronting Multiple Obligations, examines the idea that the standard modern method of thinking is analytic, isolating a specific problem for attention. The reality for clients, however, is that their practical and legal problems usually come in complex clusters, for which Professor Hazard proposes a different and arguably more effective framework for lawyers to follow when counseling clients confronting a cluster of problems.

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

By Wilson Huhn Published: November 4, 2008

     The fifth and final type of argument under the Constitution is a policy argument.  Policy arguments are fundamentally different from arguments based upon text, intent, precedent, or tradition.  The four standard types of arguments are grounded in the past, while policy arguments look to the future.

     Policy arguments have an inherently different structure than the other types of legal arguments.  Every policy argument consists of two steps - a predictive statement and an evaluative judgment.  First, you must predict what the consequences of interpreting the Constitution one way or another will be, and second, you must evaluate whether or not those consequences are or are not consistent with the underlying values and purposes that the Constitution serves.

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Gun Company President Forced to Resign Over Obama Support

By Stewart Published: November 3, 2008

I, for one, don't think an Obama administration would be that much different than a McCain administration on gun-control issues.  Both candidates have come out in support of closing the gun-show loophole in the Brady Law background-check requirement.  McCain is against assault-weapons regulation, but most people know that the 1994-2004 assault-weapons ban didn't do much but change the way a few weapons were configured (in order to get around the simplistic express definitions of the ban).  Most importantly, D.C. v. Heller (pdf) has been decided, so the most basic question -- Is there an individual right to bear arms in self defense? -- has been answered affirmatively.  As the Brady Campaign has opined, Heller, which takes the extreme positions of both sides of the gun-control debate off the table, should help clear some of the wedge politics that have marked the debate.  Whether there's much federal movement on gun control probably has more to do with 1) whether the Dems get a filibuster-proof majority in the Senate, and 2) whether the Dems really want to take on this relatively toxic issue.

But don't bother telling that to Dan Cooper.

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