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Akron Law Café

Stewart / Colbert "Rally to Restore Sanity / March to Keep Fear Alive"

By Wilson Huhn Published: October 31, 2010

     I felt that I counted for three at John Stewart's and Stephen Colbert's rally yesterday on the National Mall.

     They were there in force - tens if not hundreds of thousands of young people at a rally that attempted to imbue rationalism with a sense of fun.

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What do you get when corporations help write the laws of the land?

By Stefan Published: October 30, 2010

Better laws?  More corruption?  Both?

I provide some related items of interest here.

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2010-2011 Supreme Court Term: Oral Argument in Brusewitz v. Wyeth

By Wilson Huhn Published: October 29, 2010

     On October 12, the Supreme Court heard oral argument in Brusewitz v. Wyeth, No. o9-152.  Here is a link to the transcript of the oral argument.  The issue in this case is whether the federal Vaccine Act utterly preempts design defect lawsuits against manufacturers of certain vaccines, or whether some of these lawsuits may go forward in state courts.

     In 1986 Congress enacted the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-1 to 300aa-34, which protects the manufacturers of childhood vaccines against most lawsuits while still attempting to compensate persons who are harmed by these products.  The federal law creates an administrative system (the "Vaccine Court") for adjudicating claims against the manufacturers of vaccines.  Persons who win these cases almost always accept the federal award and do not bring suit in state court.  Persons whose claims are not granted by the Vaccine Court are often tempted to sue in state court.  However, the federal law contains an oddly worded "preemption clause" to preclude some types of claims from being brought in state court.  Section 300aa'22(b)(1) provides:

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Great web site on the Wall Street Reform Act

By Lynn Published: October 29, 2010

Just announced this week, the Law Librarians' Society of Washington, D.C. created this web site for the Dodd-Frank Wall Street Reform and Consumer Financial Protection Act.  It has a brief legislative history and has links to reports, summaries and commentaries.

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Business Law Prof Blog Selected As One of LexisNexis's Top 25 Business Law Blogs of 2010

By Stefan Published: October 28, 2010

The link to the proof can be found here.  (Please go and vote for the BLPB for Blog of the Year.)

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Career Planning and Placement Office Launches Law Clerk for Hire Database

By Diana Published: October 26, 2010

The Law Clerk for Hire Database, or 'LC4H' as it has become known, is the brainchild of Barbara Weinzierl, Director of Career Planning and Placement. The idea for LC4H came to Barbara after attending a meeting of the Akron Bar Association Small and Solo Practitioners Section. At that meeting, Barbara learned that many small law firms and solo practitioners may need law clerk help, but that the need went unfilled for a variety of reasons, including cost and lack of time to devote to hiring. Specifically, many small firms and solo practitioners do not have a need for a 'permanent' law clerk but might need help for projects on a case-by-case, hourly basis. Section Chairs Diana Colavecchio, Susan Durr, and Lynne Earhart  agreed with Barbara that if Akron Law and its students could meet this need, it would be a great resource for the Akron legal community.

With that in mind, Barbara met with the Akron Law Technology Support to discuss her goals and vision for LC4H. Technology Support, working closely with Joel Holt, Assistant Director of Career Planning and Placement, created a web-based database where students create a profile and upload their resume and potential employers have the ability to search those resumes. Specifically, students create a profile indicating, among other things, what year of law school they are in, their class rank, and what kind of work they are interested in. Students then upload their resume to a confidential, personal 'resume page.'

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Polls on Constitutional Issues

By Wilson Huhn Published: October 26, 2010

     Here are links to polls surveying Americans' attitudes on constitutional questions. 

1.  Pew Research Center, October 6, 2010: Support for Same-Sex Marriage Edges Upward - Majority Continues to Favor Gays Serving Openly in Military. This polls shows:

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I'll take the Giants in 7.

By Stefan Published: October 24, 2010

Go here to find out why.

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President Obama Warns of Repeal of Dodd-Frank if Republicans Gain Power

By Stefan Published: October 23, 2010

Suddenly, I see two months of research swirling down a drain before my eyes.  An expanded version of the foregoing sentiment can be found here.

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United States v. Arizona: Updates on The Federal Challenge to the Arizona Immigration Law

By Wilson Huhn Published: October 23, 2010

     There have been a number of developments in the Arizona immigration law case, United States v. Arizona, which is pending in the Ninth Circuit Court of Appeals.

     On July 30 I posted a report Key Portions of Arizona Immigration Law Struck Down by Federal Court describing the decision of Judge Susan R. Bolton striking down portions of the Arizona immigration law known as SB 1070 on the ground that it is preempted by federal law.  That decision is now on appeal to the Ninth Circuit Court of Appeals in the case of United States v. Arizona.  Over the past month there have been a number of developments in the case.

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Akron Law Meets the Far East

By Diana Published: October 21, 2010

Read about Dean Belsky and Professor Jeff Samuels' recent trip to Peking University Law School here .

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James Madison, Thomas Jefferson, and Roger Williams on the Separation of Church and State

By Wilson Huhn Published: October 20, 2010

     Ben Evans of the AP reports that Christine O'Donnell has expressed the opinion that the Constitution does not embody the principle of "separation of church and state."   Is she correct?

    Yes and no.  She is correct in that the words "separation of church and state" do not appear in the Constititution.  But the Constitution also does not contain the words "Separation of Powers" or "Federalism," and yet no-one would deny that the Constitution embodies and protects those ideals.

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Akron Law Students Have Strong Showing at Landskroner Competition

By Diana Published: October 18, 2010

On Oct. 14, 2010, The Landskroner Foundation for Children hosted its 12th Annual Law Student Closing Argument Competition in the courtroom of the Honorable Michael Donnelly at the Cuyahoga County Justice Center. The twelve students participating in the event were selected from a pool of applicants from law schools across the state of Ohio. The participants included second-and third-year law students from The University of Akron, Cleveland State University, and Case Western Reserve University School of Law. Read about Akron Law's second and third place finishes here .

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Is it really "your" money?

By Stefan Published: October 18, 2010

Health Care Financing Reform (118): Does Congress Have Power under the Commerce Clause to Enact the Individual Mandate?

By Wilson Huhn Published: October 18, 2010

     On October 14, Judge Roger Vinson of Florida issued  his decision addressing the government's motion to dismiss a lawsuit claiming that the health care legislation adopted by Congress earlier this year is unconstitutional.  In Saturday's post, Florida Federal Court Dismisses Four Challenges to Health Care Act, Upholds Two Challenges, I discussed the four arguments that Judge Vinson rejected.  In yesterday's post, Federal District Court Finds that Individual Mandate Was Not Enacted Pursuant to Taxing Power, I critiqued the portion of Judge Vinson's opinion finding that the individual mandate within the PPACA is not a valid exercise of Congress' power to tax for the general welfare.  In today's post I will address Judge Vinson's finding that the plaintiffs have a "plausible" claim that this law exceeds Congress' power under the Commerce Clause.

     The Commerce Clause states:

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Anthony Sowell Case Expenditures Do the Trial Right the First Time, or Don't Seek Death

By Marge Published: October 17, 2010

From: Margery Koosed (Margery Koosed is a Professor of Law at University of Akron School of Law) and
Phyllis L. Crocker (Phyllis L. Crocker is Interim Dean and Professor of Law at Cleveland-Marshall Law School, Cleveland State University)

Fairness Costs Money

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Health Care Financing Reform (117): Florida District Court Finds that Individual Mandate Was Not Enacted Pursuant to Taxing Power

By Wilson Huhn Published: October 17, 2010

     Florida State Attorney General Bill McCollum and other parties brought this lawsuit alleging that the Patient Protection and Affordable Care Act violates the constitution.  As reported in yesterday's post, in his ruling on October 14 Judge Roger Vinson of the federal District Court for the Central District of Florida dismissed four of Florida's arguments, but is allowing the state to move forward with two other claims, including the claim that the individual mandate is not a valid taxing measure.  In tomorrow's post I will discuss the disposition of the other claim: Judge Vinson's finding that that the individual mandate may not be a valid enactment under the Commerce Clause.

     Both of the plaintiffs' remaining claims relate to one provision of the health care bill; they contend that the "individual mandate" - the requirement that all individuals who earn over a certain income must purchase health insurance - is unconstitutional.  They claim that Congress does not have the constitutional authority to require individuals to purchase health insurance.  The government takes the position that it does have the power to require individuals to purchase health insurance under both the commerce clause and the tax and spending clause.  The district court found that the plaintiffs' arguments were at least "plausible" and that the matter will proceed to summary judgment, where the issues will be fully briefed and argued.  Today's post concerns the judge's finding that the individual mandate is not a "tax."  In tomorrow's post I will discuss the portion of the judge's opinion relating to the Commerce Clause.

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Listening to Law Review Articles While Driving to Work

By Stefan Published: October 16, 2010

Really, what more could one want?  More thoughts on using Kindle for legal research here.

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Health Care Financing Reform (116): Florida Federal Court Dismisses Four Challenges to Health Care Act, Upholds Two Challenges

By Wilson Huhn Published: October 16, 2010

     Twenty states, two private individuals, and the National Federation of Independent Business filed a lawsuit in a Florida federal court challenging the constitutionality of the Patient Protection and Affordable Care Act that was adopted by Congress and signed by the President earlier this year.  The government filed a motion to dismiss this case for lack of jurisdiction and because the plaintiffs failed to state a claim.  On October 14, Judge Roger Vinson dismissed four of the claims against the Act, but ruled that the plaintiffs may proceed against the government on two of their claims.  Today's post concerns the four claims that were dismissed.  In tomorrow's post I will discuss the two that remain.

     Judge Vinson's 65-page opinion is a model of clarity.  I will attempt to emulate that quality in my analysis of his opinion.

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Ronald Rotunda to Visit Akron Law Oct. 29

By Diana Published: October 14, 2010

Akron Law's Joseph G. Miller and William C. Becker Center for Professional Responsibility Distinguished Lecturer Series presents 'Lawyers: Why We are Different and Why We Are the Same'. The lecture will be given by Ronald D. Rotunda, The Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence Chapman University School of Law.  

 The lecture, which is free and open to the public, will be held Friday, Oct, 29 at 4 p.m. in Room 151 at Akron Law, 150 University Ave., Akron, Ohio. One hour of free continuing legal education credit will be offered. A reception will immediately follow the lecture. To register to attend, visit here; e-mail or call ext. 6363.

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Is it too late to sue Ayn Rand for the financial crisis?

By Stefan Published: October 14, 2010

Find out what made me ask that question here.

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Federal Judge Strikes Down DADT Worldwide / Administration Appeals DOMA Ruling

By Wilson Huhn Published: October 14, 2010

     Judge Virginia Phillips of the Central District of California has issued an injunction prohibiting the United States from enforcing "Don't Ask, Don't Tell" anywhere in the world.

     Judge Phillips based her original decision issued on September 9 on the ground that the law prohibiting gays and lesbians from serving openly in the military violates both the First and Fifth Amendments to the Constitution.  The judge then asked the parties to debate how broad the injunction should be - whether it should protect only the gay and lesbian soldiers who brought this action, or whether it should pertain to all soldiers serving anywhere in the world.  (I discussed that aspect of the case in a September 24 post entitled Should the President Appeal a Judicial Ruling Striking Down DADT? )  In the ruling issued on October 12, Judge Phillips made her choice, stating that the court:

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Oral Argument in NASA v. Nelson, the Informational Privacy Case

By Wilson Huhn Published: October 10, 2010

     Last Wednesday the Supreme Court heard oral arguments in NASA v. Nelson, in which employees of the Jet Propulsion Laboratory have challenged the authority of the government to ask certain questions in order to obtain clearance to work.  Soliciter General Neal Katyal represented the government, and attorney Dan Stormer represented the employees.  Here is a link to the transcript of the oral argument.  An analysis follows.

     A few years ago the government began to ask the employees of government contractors the same questions that it asks when it hires its own employees.  These questions are very broad-ranging.  The government asks, for example, whether the employee has engaged in the use of any illegal drugs, and whether the employee has sought treatment for drug or alcohol abuse.  The government also requires prospective employees to sign releases allowing the government to ask employers, landlords, and other references for "any adverse information" about the employee.  Employees of the Jet Propulsion Laboratory brought this lawsuit claiming that some of the questions are overbroad and that the government is prohibited from intruding into people's personal lives to this degree.  The employees claim that the Constitution extends a right of "informational privacy" to all individuals.

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Fighting Back Against Ohio's Foreclosure Crisis

By Stefan Published: October 10, 2010

Some links to interviews with Ohio Secretary of State Brunner can be found here.

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Kindle, Legal Research, and Happy Trees

By Stefan Published: October 9, 2010

Oral Argument in Snyder v. Phelps, the Military Funeral Protester Case

By Wilson Huhn Published: October 9, 2010

     On Wednesday, the Supreme Court heard oral argument in the case of Snyder v. Phelps, in which the parents of Lance Corporal Matthew Snyder sued the Westboro Baptist Church and members of the Phelps family for their outrageous behavior during Matthew's funeral.  This case presents several difficult questions under the First Amendment, and the questioning by the members of the Court reflected those difficulties.

     I have previously posted about this case: Awards for Amicus Briefs in Snyder v. Phelps, A Response to Your Comments on Snyder v. Phelps,  and Snyder v. Phelps: The Military Funeral Protester Case.   

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Constitutional Challenges to Individual Mandate Moving Forward

By Wilson Huhn Published: October 3, 2010

     The lawsuits by several governors and state attorneys general challenging the constitutionality of a key component of the health care reform legislation are moving forward.

     Kevin Sack of the New York Times reported on September 14 that the challenges to the health care bill in federal district courts in Florida and Virginia will not be dismissed outright but will instead be heard on the merits.  He states that the Virginia case is scheduled for oral argument in the trial court on October 18 and the Virginia case on December 16.  Doug Trapp of American Medical News reports the same news in his September 29 article.

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Securities Law Publication Opportunity

By Stefan Published: October 3, 2010

Go here.

PS -- Akron lost 50-14, Kansas lost 55-7, and Brown lost 27-24.  Oh well, there's always a new day.  Go Browns!  Go Giants!

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The Zips Are Undefeated!

By Stefan Published: October 2, 2010

It's 6:13 p.m. on Saturday, Oct. 2, and the Zips are undefeated in conference play.  Go Zips!

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The Case of Anwar al-Awlaki v. Barack H. Obama

By Wilson Huhn Published: October 1, 2010

     Does a court have the power to enjoin the President from capturing or killing a senior member of al Qaeda who is in hiding in Yemen?

     Anwar al-Aulaki is a dual citizen of the United States and Yemen.  According to the United States government, al-Aulaki is a leader of al Qaeda, responsible for recruiting and training terrorists.  He is believed to have had contact with and encouraged three of the 9/11 hijackers and Nidal Hasan, the Fort Hood shooter, with whom he exchanged 18 email messages.  The government also asserts that Aulaki prepared Umar Farouk Abdulmuktallab, the "underpants bomber," for his attempt to bring down a Northwest Airlines flight on Christmas Day, 2009.  Al-Aulaki is believed to be in hiding in Yemen, and the President has reportedly issued an order that al-Aulaki be captured or killed.  His father brought this suit on his behalf against the President, the Secretary of Defense, and the Director of the C.I.A., seeking an injunction against his son's killing.  

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