Law Commons^™

E-Elections: Time For Japan To Embrace Online Campaigning, Matthew J. Wilson

Akron Law Faculty Publications

Asia has embraced the Internet and social media. Japan and South Korea rank among the world’s leaders in technological innovation and Internet penetration. China boasts over 420 million Internet users, and other Asian countries have experienced the widespread acceptance of online technologies. With the rapid ascendency of the Internet and social media, however, Asian countries have sometimes struggled with striking the proper balance between individual rights and the legal regulation of online activities. One prime example of such struggle involves the clash between Japan’s election laws and individual political freedoms.

Although Japan generally subscribes to democratic traditions and the principle …

"Smile, You're On Cellphone Camera!": Regulating Online Video Privacy In The Myspace Generation, Jacqueline D. Lipton

Akron Law Faculty Publications

In the latest Batman movie, Bruce Wayne’s corporate right hand man, Lucius Fox, copes stoically with the death and destruction dogging his boss. Interestingly, the last straw for him is Bruce’s request that he use digital video surveillance created through the city’s cellphone network to spy on the people of Gotham City in order to locate the Joker. Does this tell us something about the increasing social importance of privacy, particularly in an age where digital video technology is ubiquitous and largely unregulated?

While much digital privacy law and commentary has focused on text files containing personal data, little attention …

Who Owns "Hillary.Com"? Political Speech And The First Amendment In Cyberspace, Jacqueline D. Lipton

Akron Law Faculty Publications

In the lead-up to the next presidential election, it will be important for candidates both to maintain an online presence and to exercise control over bad faith uses of domain names and web content related to their campaigns. What are the legal implications for the domain name system? Although, for example, Senator Hillary Clinton now owns ‘hillaryclinton.com’, the more generic ‘hillary.com’ is registered to a software firm, Hillary Software, Inc. What about ‘hillary2008.com’? It is registered to someone outside the Clinton campaign and is not currently in active use. This article examines the large gaps and inconsistencies in current domain …

Combating Cyber-Victimization, Jacqueline D. Lipton

Akron Law Faculty Publications

In today’s interconnected society, high profile examples of online victimization abound. Cyber-bullies, stalkers and harassers launch attacks on the less powerful, causing a variety of harms. Recent scholarship has identified some of the more salient damage, including reputational harms, severe emotional distress, loss of employment, and physical assault. Extreme cases of online abuse have resulted in death through suicide or as a result of targeted attacks. This article makes two major contributions to the cyber-victimization literature. It proposes specific reforms to criminal and tort laws to address this conduct more effectively. Further, it situates those reforms within a new multi-modal …

Celebrity In Cyberspace: A Personality Rights Paradigm For Personal Domain Name Disputes, Jacqueline D. Lipton

Akron Law Faculty Publications

When the Oscar™-winning actress Julia Roberts fought for control of the domain name, what was her aim? Did she want to reap economic benefits from the name? Probably not, as she has not used the name since it was transferred to her. Or did she want to prevent others from using it on either an unjust enrichment or a privacy basis? Was she, in fact, protecting a trademark interest in her name? Personal domain name disputes, particularly those in the space, implicate unique aspects of an individual’s persona in cyberspace. Nevertheless, most of the legal rules developed for these disputes …

The Influence Of Abraham Lincoln On The Supreme Court’S Interpretation Of The Constitutional Principles Of Liberty And Equality, Wilson Huhn

Akron Law Faculty Publications

The purpose of this article is to demonstrate that the Supreme Court has embraced Abraham Lincoln’s transcendent understanding of the principles of liberty and equality – transcendent in the sense that these principles are considered to be timeless, universal, and morally binding. The article briefly summarizes the Transcendental Movement, sets forth Lincoln’s understanding of liberty and equality, and describes how, in the modern era, the Supreme Court has “constantly approximated” the principles that Lincoln believed that this country is dedicated to.

Same-Sex Divorce, Tracy A. Thomas

Akron Law Faculty Publications

Same-sex marriage is now legal in seventeen states and sixteen countries. The question increasingly being asked is how these couples can divorce. For those who remain in their home state or in a marriage equality state, the divorce process should be the same as for any other marriage. The problem arises because people are transient; couples often relocate for jobs or family, or they initially traveled out of their home state for the marriage. “In a highly mobile society, state bans on same-sex marriage have in many cases made untying the knot far harder than tying it in the first …

Realism Over Formalism And The Presumption Of Constitutionality: Chief Justice Roberts’ Opinion Upholding The Individual Mandate, Wilson Huhn

Akron Law Faculty Publications

Chief Justice John Roberts upheld the individual mandate of the Affordable Care Act because he rejected formalism and embraced realism in constitutional analysis, and because he deferred to Congress, acknowledging its right to make policy choices.

Slaves To Contradictions: 13 Myths That Sustained Slavery, Wilson Huhn

Akron Law Faculty Publications

People have a fundamental need to think of themselves as “good people.” To achieve this we tell each other stories – we create myths – about ourselves and our society. These myths may be true or they may be false. The more discordant a myth is with reality, the more difficult it is to convince people to embrace it. In such cases to sustain the illusion of truth it may be necessary to develop an entire mythology – an integrated web of mutually supporting stories. This paper explores the system of myths that sustained the institution of slavery in the …

Back To The Future Of Abortion Regulation In The First Term, Tracy A. Thomas

Akron Law Faculty Publications

Abortion and women's reproductive rights have reemerged as front-page news. As popular culture grapples with election rhetoric, states continue to engage in aggressive anti-abortion regulation of first-term abortions. In the first half of 2011, more abortion bills have passed to restrict abortion than ever before. The 162 new abortion bills passed by 19 states in the first six months of the year dwarf the average number of abortion bills for the last three decades of 15 per year. Even more, these bills propose significantly more stringent limits on abortion than in the past, including mandatory ultrasound viewings, intensive counseling, and …

Supreme Court Review: Legalistic Argle-Bargle, Molly Mcburney, Kristen Barnes, Bernadette Genetin, Wilson Huhn, William Jordan, Marge Koosed, Rich Lavoie, Brant Lee, Elizabeth Reilly, Bill Rich, Kalyani Robbins, Jeff Samuels, Tracy Thomas, Katharine Van Tassel

Akron Law Faculty Publications

No abstract provided.

Excerpts From Chief Justice Roberts' Opinion In Nfib V. Sebelius, Wilson Huhn

Akron Law Faculty Publications

In NFIB v. Sebelius the Supreme Court upheld the constitutionality of all but one of the provisions of the Patient Protection and Affordable Care Act. The opinion of Chief Justice Roberts is the controlling opinion in all respects. This is an editted summary of the Chief Justice's opinion.

The Future Interpretation Of The Constitution, Wilson Huhn

Akron Law Faculty Publications

On November 6, 2012, Barack Obama was reelected President of the United States. What effect will this have on the future interpretation of the Constitution? This article identifies 19 areas of constitutional law that would likely change if one more liberal justice is appointed to the Supreme Court.

The Future Interpretation Of The Constitution As A Result Of The Reelection Of President Barack Obama, Wilson Huhn

Akron Law Faculty Publications

On November 6, 2012, Barack Obama was reelected President of the United States. What effect will this have on the future interpretation of the Constitution? This article identifies 19 areas of constitutional law that would likely change if one more liberal justice is appointed to the Supreme Court.

The Civil Rights Movement And The Constitution, Wilson Huhn

Akron Law Faculty Publications

This presentation of March 3, 2012, describes the influence that the Civil Rights Movement has had on the interpretation of the Constitution. The Civil Rights Movement not only broadened our understanding of the principle of equality under Equal Protection, it also expanded opportunities for Freedom of Expression and the Right to Privacy. In addition, the Civil Rights Movement stimulated the courts to recognize the power of Congress to enact legislation under the Commerce Clause and Section 5 of the 14th Amendment. Finally, as a result of the Civil Rights Movement, the Supreme Court has moved to a more realistic, consequentialist …

The Growing Acceptance And Legal Recognition Of Same-Sex Marriage In America Constitutes A Victory For Reality-Based Thinking, Wilson Huhn

Akron Law Faculty Publications

During the 20th century “pragmatism” emerged as the leading American philosophy and policy analysis – also called “legal realism” – became the dominant method of interpreting American law. The lightning speed with which same-sex marriage is gaining acceptance in the United States is due to the fact that Americans embrace realistic rather than ideological forms of thinking, and the growing recognition of same-sex marriage in the law is due to the fact that we interpret our Constitution in accordance with realistic analysis.

Elizabeth Cady Stanton And The Notion Of A Legal Class Of Gender, Tracy A. Thomas

Akron Law Faculty Publications

In the mid-nineteenth century, Elizabeth Cady Stanton used narratives of women and their involvement with the law of domestic relations to collectivize women. This recognition of a gender class was the first step towards women’s transformation of the law. Stanton’s stories of working-class women, immigrants, Mormon polygamist wives, and privileged white women revealed common realities among women in an effort to form a collective conscious. The parable-like stories were designed to inspire a collective consciousness among women, one capable of arousing them to social and political action. For to Stanton’s consternation, women showed a lack of appreciation of their own …

Law, History, And Feminism, Tracy A. Thomas

Akron Law Faculty Publications

This is the introduction to the book, Feminist Legal History. This edited collection offers new visions of American legal history that reveal women’s engagement with the law over the past two centuries. It integrates the stories of women into the dominant history of the law in what has been called “engendering legal history,” (Batlan 2005) and then seeks to reconstruct the assumed contours of history. The introduction provides the context necessary to appreciate the diverse essays in the book. It starts with an overview of the existing state of women’s legal history, tracing the core events over the past two …

Mcdonald V. Chicago, Self-Defense, The Right To Bear Arms, And The Future, Richard Aynes

Akron Law Faculty Publications

This article examines the opinion of the Court in McDonald v. Chicago and its implications for the future. The author participated as a party-amicus in the case and an article he authored in 1993 was cited by the Court.

Using a concept that others have applied in other situations, this paper suggests that Chicago was a “outlier” and that this case simply involved reigning in a maverick outlier. While the paper finds Justice Thomas’s concurring opinion (with the exception of dicta on the establishment clause) being the most faithful to the meaning, intention, and public understanding of the 14th Amendment, …

Constantly Approximating Popular Sovereignty: Seven Fundamental Principles Of Constitutional Law, Wilson Huhn

Akron Law Faculty Publications

The concept of “popular sovereignty” is not a simple, singular, unified concept; instead, as it has developed in the United States, popular sovereignty embraces the following seven fundamental principles:

1. The Rule of Law. The people are sovereign and their will is expressed through law.

2. Limited Government. The people are sovereign, not the government. By adopting the Constitution the people created the government, imposed limits upon its power, and divided that power among different levels and branches.

3. Inalienable Rights. Every individual person is sovereign in the sense that he or she retains certain inalienable rights, which the government …

Mcdonald V. Chicago, The Fourteenth Amendment, The Right To Bear Arms And The Right Of Self-Defense, Richard L. Aynes

Akron Law Faculty Publications

The Supreme Court of the United States has granted certiorari in the case of McDonald v. City of Chicago to consider this question:

"Whether the Second Amendment right to keep and bear arms is incorporated as against the States by the Fourteenth Amendment’s Privileges or Immunities or Due Process Clauses."

This case follows and seeks to build upon District of Columbia v. Heller which held that the Second Amendment protects both the right to self-defense and what has been termed an individual right to bear arms. Of course, Heller’s application is limited to the federal government and has no direct …

Enforcing The Bill Of Rights Against The States: The History And The Future, Richard Aynes

Akron Law Faculty Publications

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 …

Ink Blot Or Not: The Meaning Of Privileges And/Or Immunities, Richard Aynes

Akron Law Faculty Publications

This article examines the meaning of the terms privileges and immunities as used in Article IV of the U.S. Constitution and the Fourteenth Amendment. It begins by tracing the American use of the terms to April 10, 1606 in the first Charter of Virginia. Building upon the work of other scholars and citing original documents, it concludes that these words has a well-established meaning as “rights” well before the Fourteenth Amendment was adopted. The article notes that in Justice Miller’s decision in the Slaughter-House Cases he refers to the privileges and immunities of Corfield v. Coryell as “those rights which …

39th Congress (1865-1867) And The 14th Amendment: Some Preliminary Perspectives, Richard Aynes

Akron Law Faculty Publications

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 …

Cross Burning A Hate Speech Under The First Amendment To The United States Constitution, Wilson Huhn

Akron Law Faculty Publications

Under the First Amendment of the Constitution of the United States, ‘hate speech’ is constitutionally protected unless the circumstances of the case indicate that the speaker intended to threaten violence or provoke an immediate act of violence. While a person may be removed from a classroom or fired from employment for engaging in ‘hate speech’, under the First Amendment a person may be charged with a crime only if their statements constitute a threat or provocation of immediate violence. Moreover, even in cases where it is clear that a person is threatening violence or that violence is imminent, the person …

Legacy Of Slaughterhouse. Bradwell, And Cruikshank In Constitutional Interpretation, Wilson Huhn

Akron Law Faculty Publications

The Slaughterhouse Cases, Bradwell v. Illinois, and Cruikshank v. United States, which were all decided between 1873 and 1876, were the first cases in which the Supreme Court interpreted the 14th Amendment. The reasoning and holdings of the Supreme Court in those cases have affected constitutional interpretation in ways which are both profound and unfortunate. The conclusions that the Court drew about the meaning of the 14th Amendment shortly after its adoption were contrary to the intent of the framers of that Amendment and a betrayal of the sacrifices which had been made by the people of that period. In …

Ten Questions On Gay Rights And Freedom Of Religion, Wilson Huhn

Akron Law Faculty Publications

In my opinion most of the legal and social problems that arise under the Constitution stem from the belief, held by some people, that they are better than other people. They do not hate anyone. They simply believe that they are superior and that the law ought to treat them better than the other group. This is true of whites who think they are superior to blacks, men who think they are superior to women, and heterosexuals who think they are superior to homosexuals.

People have often justified these types of beliefs by appeal to religion and have attempted to …

Infinite Hope-- Introduction To The Symposium: The 140th Anniversary Of The Fourteenth Amendment, Elizabeth Reilly

Akron Law Faculty Publications

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 …

The Union As It Wasn't And The Constitution As It Isn't: Section Five And Altering The Balance Of Power, Elizabeth Reilly

Akron Law Faculty Publications

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 …

Bush V. Boumediene: The Court Is Back, Jay Dratler

Akron Law Faculty Publications

This short article is a follow-up to a piece I wrote two years ago on Hamdan v. Rumsfeld, SSRN No. 913822. While applauding the result in Hamdan, I critiqued the Supreme Court for missing a “teachable moment” and obscuring the great issues at stake in prolixity and mind-numbing technical detail.

In this article, I applaud the Boumediene v. Bush Court not only for its result—that the Constitution’s Suspension Clause can require habeas corpus for aliens held abroad under certain circumstances—but for its reasoning and style as well. This time, the majority of five did not miss its “teachable …