Copyright (c) 2009 The University of Akron School of Law All rights reserved. http://works.bepress.com/akronlaw Recent documents in Selected Works @ Akron Law en-us Sun, 08 Nov 2009 06:00:33 PST 3600 http://works.bepress.com/william_jordan/22 http://works.bepress.com/william_jordan/22 Wed, 28 Oct 2009 07:18:50 PDT 9th Circuit Corrals Nationwide ADA Injunction Founded on Agency Interpretation. United States v. AMC Entertainment, Inc., 549 F.3d 760 (9th Cir. 2008).D.C. Circuit Distinguishes Alaska Professional Hunters. Devon Energy Corp. v. Kempthorne, 551 F.3d 1030 (D.C. Cir., 2008).10th Cir. Finds Counties Have No Standing to Challenge BLM Action. Stewart v. Kempthorne, 2009 WL 225874 (10th Cir. 2009).D.C. Circuit Splits on When Agency Has Constructively Reopened Long-Standing Rule. Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008). William S. Jordan Administrative Law http://works.bepress.com/elizabeth_reilly/13 http://works.bepress.com/elizabeth_reilly/13 Wed, 28 Oct 2009 06:32:52 PDT From the perspective of both religious entities and local governments, religious land use requests are best resolved quickly, locally and cooperatively. The traditional framework for addressing religious land use disputes, which the Religious Land Use and Institutionalized Persons Act (RLUIPA)1 adopted, is ill-suited to those goals. Legally, disputes have long been framed as denials of the free exercise of religion - the broadest of all claims and the one requiring the most intrusive and subjective determinations about a particular religious group and its proposed use (what religion is, what a particular sect requires and how religion qua religion is affected by land use decisions).I propose that the best method for analyzing land use decisions should be simple to apply, rely upon external and objective evidence to the greatest extent possible, create incentives for cooperation and resolution, reduce antagonism, and be deferential to both religious users and local government decisions. That can be better accomplished by flipping the traditional order of analysis by determining: first, if the land use decision violates Establishment clause norms; next, if it violates Equal Protection norms; and then, and only then, if the neutral decision nonetheless amounts to a denial of Free Exercise norms. Elizabeth Reilly http://works.bepress.com/elizabeth_reilly/12 http://works.bepress.com/elizabeth_reilly/12 Wed, 28 Oct 2009 05:50:24 PDT The original prototype of Section One of the Fourteenth Amendment, as introduced by its primary Framer, John Bingham of Ohio, read: The Congress shall have the power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property. Bingham went on to note expressly that "save the words conferring the express grant of power to the Congress," the principles of the rights were already in the Constitution. Had the power been given to Congress to enforce obedience to those principles, Bingham maintained that "that rebellion" would have been "an impossibility." Nonetheless, that power had been withheld "by every construction of the Constitution, its contemporaneous construction, its continued construction, legislative, executive, and judicial." Adherence to those "immortal bill of rights" had up to that point rested solely upon "the fidelity of the States." In Bingham's mind, the power in Congress to enforce the rights was not only "the want of the Republic," but also "absolutely essential to American nationality." On behalf of the Joint Committee on Reconstruction, Bingham recommended the amendment "for the purpose of giving to the whole people the care in future of the unity of the Government which constitutes us one people, and without which American nationality would cease to be."Thus did the Amendment and its framers herald the importance of Congress to meeting the purposes of the Amendment, especially the purposes of its grants of individual rights. Consistent with Republican legal and political ideology of the time, the necessity of congressional power and an affirmative grant of that power infused the Amendment from its inception.Nonetheless, concern about restricting the role of Congress was raised in the first case in which the Supreme Court interpreted the Amendment, Slaughter-House Cases, despite its inapplicability to its three years later in United States v. Cruikshank. In both instances, preservations of state power in the federal system and concerns about congressional vs. state power to define and protect rights underlay the reasoning. Recently, one of the most important and contentious issues in Fourteenth Amendment jurisprudence relates to Section Five of the Amendment and Congress' power with respect to individual rights. The Court continues to impose significant restraints on federalism grounds. But current decisions also specifically raise separation of powers concerns when determining the reach of the congressional Section Five power. Therefore, it is important to explore Section Five from the separation of powers perspective. I argue that the power conferred also encompassed a re-envisioning of the roles and boundaries of judicial and legislative power vis-à-vis individual rights.Throughout the debates during the framing and ratification of the Amendment, an understanding of the need to recast the Union was coupled with the understanding that to do so, the Constitution itself needed to repudiate doctrines that had undermined both union and liberty. This article argues that in reconstituting that Union, the 39th Congress and the Fourteenth Amendment not only altered the fundamental structural principles of the relationship between the states and the national government and the responsibility of government to protect individual liberties. It argues that the original structural alignment of national powers and the boundaries of their respective spheres were also, of necessity and by understanding, recast as well. Elizabeth Reilly Constitutional Law http://works.bepress.com/elizabeth_reilly/11 http://works.bepress.com/elizabeth_reilly/11 Tue, 27 Oct 2009 13:11:13 PDT The Fourteenth Amendment embodies hope. This article introduces the Symposium celebrating the 140th anniversary of its ratification, held at the University of Akron. The symposium was a fruitful occasion to reflect upon the meaning of the Amendment to its Framers in Congress and as it was initially interpreted by the United States Supreme Court and the public, and to examine the lasting impacts of both conceptions. Our participants especially examined three of the Supreme Court's earliest forays into applying the Fourteenth Amendment: The Slaughter House Cases, Bradwell v. Illinois, and Cruikshank v. United States. Those forays succeeded in cramping the Amendment's majesty and power in contravention to its design, intent, and language. Although our participants disagree about the extent to which the Court intended to or needed to be read as having eviscerated its meaning, all seem to agree that the propulsive force of the Amendment for legal change withered in the aftermath of those decisions. The authors also demonstrate the opportunities left open to use unaffected clauses to accomplish the goals of the Amendment. Several authors explore how the Amendment was incorporated into the public consciousness and used by citizens to reimagine the fabric of American life in ways that carried forward the promise of the Amendment. The symposium begins with general historical reviews of the Amendment in Congress, the public context against which it was enacted, its early application in the Supreme Court and the impact of those narrowing decisions upon the Amendment. It moves to an exploration of the doors that the early cases may have left ajar for future use to reinvigorate the promises of the Amendment and achieve its framer's goals. Although the main focus of our authors is upon legal arguments, they also examine the force of political expediency to support legal arguments or to prevent their being made in ways that might destabilize the fragile union. The third segment of the symposium looks much more directly at the impact of the actual public response to the Amendment and its meaning, and how that public response shaped the Amendment as well as keeping alive its potential to revise the fabric of American life and law. As with the abolitionists in the antebellum period, the understandings and actions of the people profoundly influenced the Amendment's legal as well as cultural meaning. Although most of the participants focus primarily or exclusively on Section One of the Amendment, one explicates the impact of Section Three and the intrigue accompanying its application against Jefferson Davis and another examines Section Five as an alteration to separation of powers as well as federalism principles. The development and meaning of the Amendment, even for contemporary and future use, is intimately related to the past. We cannot avoid continuing to ask vital questions and seek answers to them. What the Amendment meant in the past and how it has been interpreted and applied throughout its 140 years of existence have resonance today. Elizabeth Reilly Constitutional Law http://works.bepress.com/richard_aynes/46 http://works.bepress.com/richard_aynes/46 Tue, 27 Oct 2009 12:29:27 PDT This article traces, in broad strokes, the history of the disputes about whether or not the Bill of Rights can be enforced against the states. It begins with pre-Fourteenth Amendment claims and recounts the actions of the 39th Congress: The Freedman's Bureau, the Civil Rights Act of 1866, and the Fourteenth Amendment. Several speeches on the Amendment from the Congressional elections of 1866 are utilized, including those of Section 1 author John Bingham, Congressmen Columbus Delano, Rutherford B. Hayes, James Wilson, James Garfield, and Senator John Sherman, as well as Democrats who participated in what has been termed the most racist national political campaign in U.S. history. By looking at the political shift begun in 1871 and the "long depression" (Panic of 1873), the article documents the reasons why the public understanding of the amendment can best be found during the period prior to ratification. There is a brief examination of Slaughter-House, Cruikshank, Hurtado, and Twinning. It suggests that one of the key mistakes in current scholarship is the assumption that certain rights could only be enforced by the state or the national government. Borrowing from Madison's concept of "double security" and Pomeroy's then contemporary treatise, it suggests that many rights can be protected by both. Utilizing numerous articles from Harper's Weekly, free speech is used as an illustration of the common, public understanding of the rights the public believe they had and intended to secure as a result of the war. The article explores common mistakes in confusing claims of substantive rights with non-discrimination and equality, noting that the two approaches often overlapped. Later sections examine the debates involving Charles Fairman, W. W. Crosskey, Justice Frankfurter, Justice Black, Raoul Berger, Michael Kent Curtis, George Thomas and Bryan Wildenthal. The current perils of trying to rely exclusively upon incomplete and inaccurate newspaper data bases is documented. New light is thrown upon the role of Senator Jacob Howard and his relationship Senator Fessenden, Chair of the Joint Committee on Reconstruction. Further, responding to another article in the symposium, this work concludes that the only real contemporaneous conflict between enforcing the Bill of Rights against the states and the grand jury was in the single state of Kansas. Finally, there is a brief examination of the future of scholarship upon these issues. Richard Aynes Constitutional Law Legal History http://works.bepress.com/john_sahl/31 http://works.bepress.com/john_sahl/31 Thu, 24 Sep 2009 07:29:59 PDT There is significant risk today that lawyers will become the target of a disciplinary or legal malpractice action, especially given the complexity of the law and advances in technology that reduce the amount of time that lawyers have to reflect about client matters. This risk is heightened by the increased competition in the bar to deliver legal services in a cost-effective manner, the sophistication of clients who expect competent, efficient and reasonably priced services, and the litigious nature of consumers. The risk is further exacerbated by the ever changing methods and rules for electronic communication and the storage of information. The magnitude of the risk is underscored by the prediction that law school graduates "will be the subject of three or more claims of legal malpractice before finishing a career." This article examines some good practice standards that minimize the risk that a lawyer will become the target of a legal malpractice or disciplinary action. These standards should also reduce the risk of a lawyer becoming the object of a disqualification or Rule 11 motion. This article discusses these standards in the entertainment law context but they also apply to a variety of practice areas. Jack P. Sahl Professional Responsibility http://works.bepress.com/richard_aynes/45 http://works.bepress.com/richard_aynes/45 Mon, 21 Sep 2009 13:05:20 PDT The 39th Congress (1865-1867) was one of the important Congresses in our history. It passed more legislation than any other Congress up to that time. This preliminary examination of the 39th Congress begins with a look it composition. One of the critical factors was that while the 38th Congress contained a majority of unionists, the 39th Congress contained a super-majority which meant not only that they could override a Presidential veto, but also that they did not need to take the Democratic opposition seriously. This article also identifies the leadership of the 39th Congress. The 38th Congress was composed of 60% of the members who were freshmen and the 39th Congress had 40%of the members who had never been in Congress before. The relatively inexperience of the Congress as a whole would suggest that the senior members - men such as the members of the Joint Committee on Reconstruction - would exercise an enhanced amount of influence. This study also reports the initial results of a more detailed examination of its membership. A large majority - over 150 - of its members were lawyers. In an era in which only one per cent of the population had a college degree, a small sample of Congressman (those whose last name begins with the letter "D") 47% were college graduates. Further, an examination of individual Congressmen suggests that many of the college graduates had taken law-related courses in college. Though the apprenticeship model was still the predominant way in which lawyers came to the bar, there were numerous members of the Congress who both studied under the preceptor system and graduated from a law school. Three of the challenges the 39th Congress faced are examined. The first challenge was dealing with the immense of life and property because of the war. Second, though with the benefit of hindsight we know the Civil War was essentially over after the surrender of General Robert E. Lee's Army in April 1865, it was not clear at the time that this was the case. Not only did fighting continue, but individuals and whole military units fled to Mexico. President Johnson did not declare the insurrection at an end in most of the insurrectionary states until April 2, 1866 . President Johnson did not declare the insurrection over it in Texas until August 20, 1866, after three states had already ratified the Fourteenth Amendment. Third, Andrew Johnson's commitment to white supremacy mean that he was not just actively opposing the Congress on policy matters, but actually undermining the enforcement of the law and taking actions that, at least indirectly, resulted in the loss of life in the South. Congress responded to these conditions with the extension of the Freedman's Bureau Act, the adoption of the Civil Rights Act of 1866, and the proposal of the Fourteenth Amendment. Congress's overall goal - like national goals at the end of World War I, World War II, and the second Gulf War - was to end the war and secure the peace so that there would be no similar war in the future. The last portion of the article draws parallels between other post-war actions and that during Reconstruction and makes connections between the steps taken by the 39th Congress and their overriding goal of securing future peace. Richard Aynes Constitutional Law http://works.bepress.com/tracy_thomas/23 http://works.bepress.com/tracy_thomas/23 Fri, 11 Sep 2009 13:43:29 PDT A student study aid consisting of 200 multiple choice questions in remedies. Tracy A. Thomas Remedies http://works.bepress.com/tracy_thomas/22 http://works.bepress.com/tracy_thomas/22 Fri, 11 Sep 2009 13:36:08 PDT In March 2009, ailing insurance giant triggered a national outcry when it paid out $165 million in government bailout funds for employee bonus incentives. President Obama called the bonus payments an "outrage" and promised that his administration would "pursue every single legal avenue to block these bonuses and make the taxpayers whole." One possible answer lies with the remedy of restitution. Restitution, based on unjust enrichment, provides a common law solution that just might work. Unjust enrichment is a remedy directed at the defendant that requires the wrongdoer to return all ill-gotten gains. The goal is to return the defendant to the position it would have been in but for the wrongdoing, and prevent it from profiting at the plaintiff's expense. While some might consider the idea of an unjust enrichment remedy a "hail Mary" pass, this longshot provides a good analytical foundation to funnel the public outrage towards a legal resolution based on justice. Tracy A. Thomas Remedies http://works.bepress.com/tracy_thomas/21 http://works.bepress.com/tracy_thomas/21 Fri, 11 Sep 2009 13:27:08 PDT The battle for women's right to vote raged for almost seventy-five years before culminating in the Nineteenth Amendment to the U.S. Constitution in 1920. The U.S. Supreme Court initially interpreted the amendment broadly to give women general rights of equality. However, the Court soon retreated from this position, rendering the Nineteenth Amendment a narrow and silent actor in Supreme Court jurisprudence. This encyclopedia entry provides an overview of the history and development of the advocacy leading to the Nineteenth Amendment and the subsequent interpretation of that amendment in the courts. Tracy A. Thomas Legal History Gender and the Law