A research team at Harvard Medical School estimates 2,266 U.S. military veterans under the age of 65 died last year because they lacked health insurance and thus had reduced access to care. That figure is more than 14 times the number of deaths (155) suffered by U.S. troops in Afghanistan in 2008, and more than twice as many as have died (911 as of Oct. 31) since the war began in 2001.

Just passing this story along.

But this time it's not because of a technicality. A Pennsylvania judge has been sending children to jail on first-time misdemeanor offenses in order to provide financial support to the for-profit prison company that paid him millions under the table. Can you imagine losing two years of your childhood at the age of twelve for taking your mom's car on a joyride that injured nobody? It's a real crime.

Criminal law is not my area, but the Supreme Court on Monday agreed to hear two cases. In one, "a minor was given a life prison sentence for a crime in which the victim was not killed.  The Court became aware last October that a case on that issue was on its way — the case of Joe Harris Sullivan, who was given life without parole in Florida after a conviction for sexual battery, a crime committed when he was 13 years old.  Before that case was actually filed, however, the case of Terrance Jamar Graham arrived; he was given life without parole in Florida after violating his probation after an earlier guilty plea for armed burglary; he was 17 at the time of the life sentence." The SCOTUS blog has the full rundown.

The Court has already ruled that the death penalty imposed on minors is unconstitutional. Now the question is whether we can constitutionally impose a sentence of life without parole on minors–in two cases that don't involve the loss of life of a victim. What do you think?

Not a lot of analysis here, just a personal reflection. In the fall of 1990 I was fresh out of law school and had been Counsel to the Senate Judiciary Committee, Subcommittee on the Constitution, for less than a year.

My boss was the very authentic, old-fashioned, country liberal from Illinois, Senator Paul Simon. As a partisan, I was deeply suspicious of the nomination from the first President Bush. I had worked on the Dukakis campaign and I'm sure I held a grudge. In my memory, the White House was giving conservatives all kinds of signals that they could trust Souter, and I remember thinking that there must have been some kind of private assurances given that Souter was more conservative than he could be shown to be, especially on the subject of abortion/choice.

One exchange from the confirmation hearings I remember in particular. Senator Howard Metzenbaum of Ohio was pressing Souter hard on the abortion issue, and Souter delivered a response that had clearly been prepared very carefully. He told a story about a friend in college who had found herself pregnant, and who had come to Souter for advice. So he paints this picture that shows great empathy for the circumstances his friend was in, but the bottom line was, of course, what advice did he give?

And Souter says, something like (I'm sure someone can find this in the transcript): "Senator, I'm not going to reveal what we said, and I'm sure you will respect the privacy of that conversation."

It looked to me at the time like a huge dodge. And it worked! Metzenbaum was nonplussed, which was not an easy thing to do, and we couldn't gain any additional traction on the issue. I was a callow 28-year-old, and I was sure he had just made the whole thing up to feign sympathy for women.

Of course, we all know how things ended up. It was conservatives and pro-lifers who felt betrayed, and liberals and pro-choicers who were pleasantly surprised. Souter's story was a calculated hedge that worked in both directions. I still don't know if it was true.

That's seems to be the basic argument before the Supreme Court today. The case is Safford United School District v. Redding, which involves school officials strip-searching an honor student in search of prescription ibuprofen. I was listening to a story about it on NPR today, when i heard the school's lawyer making this argument:

"We just have to ask ourselves, as a policy matter, do you really want a drug-free environment? And if you do, then there are going to be some privacy invasions…"

Whatever the merits of the case, this kind of rhetoric has no stopping point. I couldn't help hearing the echoes of justifications for torture and police brutality.

If you've been following the matter of the "torture memos" recently released by the Obama administration you know that the President has determined that CIA operatives following legal guidance provided by the (previous) Administration should not be subject to prosecution. But apparently that leaves open the possibility that officials who approved the "enhanced interrogation" policies might be prosecuted. That means the lawyers.

There are a number of ideas involved. the Justice Department's Office of Professional Responsibility has already prepared a report regarding whether the White House attorneys who wrote the memos violated professional standards. Bush administration officials objected to the draft report being released a few months ago, but Indications are that the report will be issued soon, and will be quite harsh.

This report could be grounds for disciplinary action by a state bar. Since one of the lawyers involved is now a federal judge, there has been talk of impeachment.

What do you think?

This article in the New York Times caught my attention today:

Facebook’s Users Ask Who Owns Information

Apparently there has been a change in the fine print "Terms of Service" on the ubiquitous social networking site. The brouhaha started when the Consumerist blog posted a feisty entry challenging a recent unpublicized change to Facebook's "terms of use".The offending words:

You hereby grant Facebook an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to (a) use, copy, publish, stream, store, retain, publicly perform or display, transmit, scan, reformat, modify, edit, frame, translate, excerpt, adapt, create derivative works and distribute (through multiple tiers), any User Content…

This language was not new, but a sentence at the end of the paragraph has been removed, which stated:

You may remove your User Content from the Site at any time. If you choose to remove your User Content, the license granted above will automatically expire, however you acknowledge that the Company may retain archived copies of your User Content.

from which Chris Walters at the Consumerist concluded:

Make sure you never upload anything you don't feel comfortable giving away forever, because it's Facebook's now.

Facebook has responded with assurances that Users Control Content.

The fuss conjures up worries that Facebook users will wind up like the fashion designer Halston, who lost the right to use his own name, having conveyed that right to Revlon.

This concern does seem to me a bit overblown. Facebook needs a license to use your content in order to work. Technically, someone is storing, copying, transmitting, and displaying your content every time you send an email. Facebook is all about you using Facebook to share information with others. As long as Facebook continues to respect the privacy options you selected, you should be OK.

The evidence

Yes, it's the Associated Press v. Shepard Fairey. Turns out that the famous poster by artist Shepard Fairey (is that a great name or what?) was confessedly based on a photograph by freelance photographer Mannie Garcia.  The AP is claiming that the poster violates their copyright in the photo.

AP made the headlines by making the claim without actually filing a lawsuit. Now Fairey has sued AP preemptively, trying to get a court to determine that his use and alteration of the photo came under the "fair use" exception to the general prohibition on copying protected work. Predictably, at least some photographers think the poster definitely infringes the photographer's rights. Others think the poster is sufficiently different from the photo to make it a fair use. Various opinions here and here.

Of course, the whole claim is premised on AP owning the rights to the photo, which many have assumed is true. However, now it seems that the photographer is claiming he owns the rights, not AP. Stay tuned…

On Wednesday, the military’s highest court on war crimes prosecutions gave the Obama Administration a requested 120-day delay of a pending case to allow a new study of the fate of prisoners at Guantanamo Bay.

I loved this story about a dog owner and his fight against the condominium association. Typically, a state will have a Condominium Act that governs the various kinds of rules and restrictions a homeowners association can impose on owners of individual condominium units. Apparently this condo association had a rule prohibiting dogs over 12 pounds. Poor C.C., the Whippet/Lab mix featured in the story, reportedly weights about 30.

Condo association rules often rankle. Some prohibit such ordinary actions as parking your pickup truck in the driveway. Doonesbury once ridiculed widespread homeowners association efforts to restrict clotheslines. And the X-Files did an episode where homeowners who dared flout the authority of the homeowners association were done away with by the Slime Monster.

Condo association rules are a form of the efforts of property developers to impose a particular aesthetic look-and-feel to a neighborhood. Most ordinary single family homes have restrictive covenants on them, imposed by the developer, preventing you from building, say, an oil refinery on your residential lot. Your neighbor's lot has the same restriction, which you are probably happy to have. Other restrictive covenants are less benign. (For instance, racially restrictive covenants preventing non-Whites from living in White neighborhoods were in widespread use–were, in fact, encouraged and promoted by the federal government–until the U.S. Supreme Court declared them unconstitutional in 1948. Still, the racial segregation these covenants perpetuated contributes to continuing racial disparities in wealth and health.)

Two powerful legal themes intersect in this area. 1) People should be bound by what they agree to (corollary: you ought to read what you agree to). 2) People should be free to do as they please on their own property. Here, the fine print seems clear, and condo buyers are generally responsible to know the rules under which they are entering. On the other hand, there is usually a reasonableness test–the condo association can't make you pay your dues while kneeling in the direction of the waxing moon, even if the rules say so clearly. Also, this owner claims he was given a set of bylaws that clearly stated that he could own a dog, and making no mention of a weight restriction. Arguably he relied on this representation and they should not be able to enforce against him.

How you feel about this case probably depends on whether you are a pet owner. Do you imagine that the owner's relationship with C.C. is special, and somehow intrinsic to personhood and fundamental liberties? If so, you may feel they should no more be able to dictate how big a dog you can own than they can tell you what kind of music to listen to or how many children you can have. Or is owning C.C. just another in a long list of behaviors that your community is allowed to regulate? Then you probably think that this owner can no more keep C.C. than erect a billboard or store nuclear waste.

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?"

Lots of people who filled in the bubble and then also wrote in Obama and Biden. The machine spits out their ballot and they have to start all over with a new ballot.

One polite young man who had voted in the primary but was no longer on the rolls. We called the Board of Elections and they had canceled his registration due to a felony conviction on July 1. No notice, no opportunity to re-register. He is in fact eligible to vote as long as he is not incarcerated.

One Hispanic couple who didn't have any idea they had to register in advance. They couldn't vote.

Many people who were at the wrong precinct. I think we caught most of them because we had internet access at the library where this polling location was, and between my laptop and two other outside volunteers, we were able to find where people were supposed to go vote, rather than having them cast a provisional ballot at the wrong precinct, which would not have been valid.

One person who had no ID, only the last four digits of her Social Security number, which should have entitled her to vote provisionally. I had to rather firmly persuade the Presiding Poll Judge not to check the box that says she has to come back to confirm her identity within 10 days in order for her vote to count.

Poll workers very prone to just issue a provisional ballot at the drop of a hat–which are less likely to get counted, due to technical errors in filling out the required form.

A half-hour to 45-minute wait right when the polls opened at 6:30, but no lines at all at the usual rush time, 5 to 7:30 close. We were worried about turnout. The tentative summary currently shows that this precinct had 108 percent turnout, which can't be right.

Lots of first-time voters.

A friendly, helpful environment, even with the Republican observer there. (In Ohio, we have bipartisan rather than nonpartisan observers–I was appointed by Barack!)

Summit County's 57-40 margin and 45,000 vote edge contributed greatly to Ohio's 200,000 vote margin for Obama.

As a class project in my Election Law class, two of my students prepared a brief, nonpartisan "Elizabeth and Clarissa's Handy Dandy Summit County 2008 Election Guide." (I have changed their names to protect their anonymity.) They were dismayed to find how difficult it was to find information about various candidates and issues. They recommend such websites as Project Vote Smart, the League of Women Voters, the Summit County Board of Elections, and the Ohio Secretary of State. Their guide, with sources noted, is after the break.

The following is not a political advertisement, and nobody approved it.

Elizabeth and Clarissa's Handy Dandy Summit County 2008 Election Guide!

(Made in Association with Rock the Vote and Professor Lee's Election Law class)

Disclaimer: There are the issues according to our interpretation. All of our sources are listed. If you would like more information, you can look it up yourself. However, if you feel that we have blatantly misrepresented an issue or candidate . . . whine about it in your blog.

Happy voting!

Representatives

13^th District Court Congressional Representatives

David S. Potter

Bio:

• worked for Johnson and Johnson, Proctor and Gamble, and Cardiva Medical.

Issues:

• Supports Energy Independence – reducing our reliance on foreign oil, but using our own resources.
• Promotes exploration of alternative energy sources including nuclear power plants
• Will give tax breaks to companies using better energy sources.
• Increase efficiency of Medicare and Medicaid system, reducing government spending in these areas.
• Supports legislation to reduce illegal immigration and opposes any legislation that will offer more amnesty programs.
• Supports continuing the war on terrorism
• Supports increasing funding to intelligence agencies.
• Wants to widen I-71
• Implement Free Choice Flat Tax, Eliminate Death Tax and Capital Gains Tax
• Set single income tax rate at 17% for everyone. Information gathered at

Source: http://www.potterforcongress.com/issues.html

Betty Sutton

Bio:

• member of the House Rules Committee and the House Judiciary committee

Issues:

• Work toward keeping Oil prices down.
• Three part plan to revitalize the economy
  • Support Ethics regulations
  • Support Entreperneurial Innovation
  • Supports better education oppertunites
• Supports increasing veteran benefits.
• Dedicated to fighting corruption
• Would allow reimportation of drugs from Canada and other countries and supports legislation to set prices on prescription drugs.
• Supports protecting pension and retirement benefits, improving acess to health care and increasing the minimum wage.
• Supports legislation that would encourage small business.

Source:  http://www.bettysuttonforcongress.com/index.asp?Type=B_BASIC&SEC={7B4FF5BC-F1CD-4EA2-953C-67E866D3C429

14^th District Congressional Representative

Steven C. Latourette

Bio:

• Served Seven Terms in the House of Representatives
• Graduated from the Cleveland Marshall College of Law

Issues:

• Support legislation to prohibit the funding of abortion and would allow abortions if the mother's life is in jeapordy
• Supports decreasing Taxes
• Eliminate Inheritance taxes
• Supports constitutional amendment that would define marriage at between a man and a women
• Supports increasing funding to the war on drugs
• Supports strengthening environmental control standards
• Supports Oil Drilling in Alaska
• Opposes time lines in Iraq
• Supports legislation to provide healthcare to the uninsured
• Help support legislation to fix Ohio roads.

Source: Information found at http://votesmart.org/npat.php?can_id=21798

Bill O'Neill

Bio:

• Vietnam veteran
• Appellate judge until he ran for congress

Issues:

• Supports reducing the number of troops in Iraq and Increased veteran benefits
• Supports reducing imports from China until they meet labor and environmental regulations
• Supports expanding healthcare to all Americans and expanding Stem Cell research
• Opposes the No child Left behind act
• Supports increasing Pell Grants and Reducing Interest on Student loans.
• Supports reducing greenhouse gas emissions and clean energy standards.

Source: http://www.oneill08.com/homepage

David Macko

Issues:

• Never vote to institute a draft
• Never vote to increase taxes or regulations
• Promises to always support his constituents unless it violates the above principals

17^th District Congressional Representative

Duane v. Grassell

Bio:

• Math teacher

Issues:

• Supports balancing the budget and reducing the nations debt
• Supports imprisoning illegal immigrants living off welfare
• Opposes income tax
• Supports separating Medicare and Social Security from the general treasury, so that it can only pay out what goes into it
• Opposes funding for abortions and stem cell research
• Supports local government over federal government
• Opposes earmark legislation
• Opposes federal regulation of education – Supports State funded education
• Opposes any legislation that spends federal money to fight Global Warming
• Increase funding to the nation's intelligence agencies
• Supports reducing medical malpractice suits to drive down costs of healthcare

Source:  http://www.grassellforcongress.info/

Tim Ryan

Bio:

• Stuff

Issues:

• Supports eliminating public funding for abortions
• Supports increasing funding to public health services and universal healthcare
• Opposes the national missile defense program
• Supports campaign finance reform
• Supports measures to increase crime prevention and criminal rehabilitation
• Supports increasing funding to education programs
• Supports strengthening environmental regulations
• Supports improving the area through rivers, museums and amphitheaters

Source:  http://votesmart.org/npat.php?can_id=45638

28th District State Senator

James R. Carr

• No Information available

Thomas C. Sawyer

Bio:

• Ohio House of Representatives 1977-1983
• Mayor of Akron 1984-1986

Issues:

• Voted ‘yes' on ‘Gambling Restrictions' Bill in 2007
• Voted ‘no' on ‘Lethal Force Against Intruders' Bill in 2008
• Voted ‘yes' on ‘Short Term Loans' Bill in 2008

Source: http://www.votesmart.org

Attorney General

Richard Corday

Bio:

• State Treasurer since 2006
• Previously worked in Attorney General's office
• University of Chicago Law School
• Clerked for 2 U.S. Supreme Court Justices

Issues:

• Wants to "enforce legal standards at charter schools that receive state funds."
• Advocates for stricter disclosure laws for lending companies when giving loans to students to pay for college.
• Target on prosecuting online predators, scam artists who target the elderly, white collar criminals.

Source:  www.cordrayforohio.com

Mike Crites

Bio:

• Former United States Attorney
• Vietnam veteran
• Ohio Northern School of Law
• Experience as a federal, state, and local prosecutor

Issues:

• Streamline procedures for consumer complaints against companies.
• Expanding new criminal justice technologies to help law enforcement.
• Restore credibility to the AG's office.

Source: www.critesforohio.com

Robert M. Owens

Bio:

• County Prosecutor
• Clerked for U.S. District Court Judge
• Capital University Law School

Issues:

• Opposes "overreaching bureaucratic regulation being imposed by government agencies on small businesses and government managed free trade agreements which favor large corporations and special interests over small businesses and consumers."
• Make more AG's office activities available online for the public to review.
• Eliminate the "slush fund" system at the AG's office
• Expand law enforcement training of conceal and carry laws.
• Supports the choice of parents to home-school children.
• Enforce legal restrictions on abortion according to ORC §2919
• Reduce judge activism

Source: www.owens2008.com

Justice for the Ohio Supreme Court

Maureen O'Connor

Bio:

• Magistrate in Summit County 1985-1993
• Summit county Prosecutor 1995-1999
• Lieutenant Governor 1999-2003
• Ohio Supreme Court Justice since 2003
• Cleveland-Marshall College of Law

Judicial Philosophy:

• Interpret the law as written, not based on personal beliefs
• Importance of Separation of Powers

Source: www.oconnorforjustice.com

Joseph D. Russo

Bio:

• Cuyahoga County Common Please Court Judge, 2001-present
• Case Western Reserve School of Law

Judicial Philosophy:

• Restore philosophical and political balance to the Supreme Court.
• Reduce the influence of cash contributions to judicial elections.

Source: http://www.toledoblade.com/apps/pbcs.dll/article?AID=/20080928/NEWS09/809280322/-1/NEWS

Justice for the Ohio Supreme Court

Peter Sikora

Bio:

• Judge for the Cuyahoga County Court of Common Pleas
• President of the Ohio Association of Juvenile and Family court Judges
• Graduated from Case Western Reserve University of Law

Judicial philosophy/endorsements:

• Believes in protecting voter confidence by lessening favorable judicial decisions for large campaign contributors
• Supports increasing affordable legal help
• Recommended by the Ohio State Bar association
• Supports Scared Straight program for female offenders

Source: http://www.sikoraforjustice.com/About.html & http://www.lwvohio.org/pdf/LWVOEF%20Fall%202008%20Voter%20Guide.pdf

Evelyn Stratton

Bio:

• born to missionary parents in Bangkok Thailand
• Graduated from The Ohio State University College of Law

Judicial Philosophy/endorsements:

• Voted favorable to large campaign contributors 55%, and against 45%
• Encourages affordable legal help
• Led efforts to streamline appeals in adoption cases
• Helped form the Supreme Court of Ohio Advisory committee on Mental Illness – dedicated to mental health initiatives in the court system
• Won award for her leadership on behalf of abused and neglected children
• Supported by the Fraternal Order of Police of Ohio

Source: http://www.strattonforsupremecourt.com/?page=about_justice_stratton &             http://www.lwvohio.org/pdf/LWVOEF%20Fall%202008%20Voter%20Guide.pdf

9^th District Court of Appeals Judge

Eve Belfance

Bio:

• Member of the Akron Human Society
• Member of the League of Women voters
• Helped develop the Akron Court's DUI Court.

Judicial Goal:

• Interested in ensuring public safety, securing neighborhoods and families, and a fair judicial system.

Source:  http://judgebelfance.com/home.aspx

William Wellemeyer

Bio:

• Graduated from the University of Akron School of Law
• Currently the assistant prosecuting attorney for the Summit County Prosecutor

Issues:

• Supports an impartial and restrained judiciary
• Member of the NRA and Sons of the American Legion
• Endorsed my May Taylor, CPA, Ohio Auditor of State

Source: http://wellemeyerforjudge.com/_wsn/page2.html

Summit County Executive

Jim Laria

Bio:

• Clerk of Akron Municipal Court since 1997
• University of Akron graduate
• Bailiff for Judge Spicer 1979-1980

Source: www.electjimlaria.com

Russ Pry

Bio:

• Summit County Executive since 2007
• Kent State graduate
• University of Akron School of Law graduate

Issues:

• Job creation as #1 priority
• Open-door policy of interaction between political groups and public interest groups.
• Stressed importance on regionalism, economic development, tax incentives.

Source: www.russpry.com

State Issues

State Issue #1 : Change deadline for submitting signatures on initiatives from 90 days pre-election to 125 days pre-election.

Pro:

1) "ISSUE 1 PREVENTS WASTE OF TAXPAYER DOLLARS.

In 2007, taxpayers paid more than $300,000 to advertise information about a ballot issue that ultimately did not qualify for the ballot.  Additional expenditures were incurred by local boards of elections to verify signatures.  Issue 1 helps prevent this wasteful spending of taxpayer dollars from occurring in the future by establishing firm deadlines for the administration of state ballot issues and resolving legal challenges.

2) "ISSUE 1 HELPS MAINTAIN VOTER CONFIDENCE IN ELECTIONS.

Only statewide issues that qualify for voter consideration should be printed on the

ballot.  During the last two general elections, however, litigation had not concluded at

the time ballots had to be printed so voters considered issues that were ultimately not

counted.  Issue 1's new deadlines helps maintain voter confidence in elections by

preventing this waste from occurring.

3) "ISSUE 1 PROMOTES EFFICIENT AND EFFECTIVE ELECTIONS.

Issue 1 establishes clear timelines for filing and reviewing statewide issues petitions, and for filing legal challenges to those petitions.  This helps ensure smoother and more

efficient elections."

Source: Ohio State Representatives Jon Peterson and Dan Stewart, the group appointed by the Ohio General Assembly to prepare the argument for Issue 1

(http://www.sos.state.oh.us/SOS/Upload/ballotboard/2008/1ArgFor.pdf).

Con:

1) "Issue #1 creates delays in new laws taking effect.

The Constitution reserves to the People the power to propose laws, amendments to the

constitution, and to approve or reject laws passed by the legislature.  Issue #1 creates earlier filing deadlines which can cause a referendum petition to effectively delay for months the effective date of a law passed by the legislature.  This is because the deadline for filing a referendum petition depends on when the law being referred to the voters was passed by the legislature.  If the deadline to file the petition is after the new proposed deadline in the Constitution, the law referred by the petition won't be able to be on the ballot until the next election, which could be over a year away.

2) "The immediate effect of the filing of a referendum petition is to stop the law from going into effect until voters decide the issue at the ballot.  State Issue #1 gives people with the money to circulate petitions for hundreds of thousands of signatures increased power over the state legislature to delay laws passed from going into effect for months or even more than a year.

3) "Issue #1 means More Expensive State Issue Campaigns.

The delays caused by Issue #1 can be expensive.  Putting the issues off so long may mean that large amounts of money will have to be spent to get the attention of voters.  Millions of dollars are already being spent for issues that are fresh in the voters' minds.  More money is likely to be spent to inform voters when the issue is stale.  With these powers reserved to the People, this proposed amendment makes it even more expensive and difficult for ordinary citizens to undertake the efforts to speak through the state initiative and referendum process."

Source: Prepared by the Ohio Ballot Board in the absence of any submission in opposition, as required by Ohio Revised Code Section 3505.063(B)

(http://www.sos.state.oh.us/SOS/Upload/ballotboard/2008/1ArgAgainst.pdf).

State Issue #2: Borrow $400 million for environmental conservation, preservation, and revitalization purposes.

Pro:

1) Voting YES for Issue #2 l "protects clean water, creates jobs, conserves natural habitat, preserves family farms and does not raise taxes.

Source: Ohio State Representative Barbara Sears, Ohio State Senators Mark Wagoner and Sue Morano, the group appointed by the Ohio General Assembly to prepare the argument for Issue 2 (http://www.sos.state.oh.us/SOS/Upload/ballotboard/2008/2ArgFor.pdf).

Con:

1) "Issue #2 Would Authorize the Government to Spend More in Bond Money.

The economy is in bad condition. When times are hard, this is when we must tighten our belts and spend only what is necessary and only what we can cover with incoming revenues. Issue #2 authorizes the government to take out more debts to pay for environmental revitalization and conservation. While this may be worthwhile, the State of Ohio should not be going into further debt.

2) "Passing Issue #2 Means Taxpayers Will Have to Pay Back These Bonds.

Issue #2 authorizes $400 Million Dollars in debt to be used for conservation purposes.  You and your children will have to pay this money back.  This money could be retained by taxpayers for their own purposes or used for other plans and directly helping people in need."

Source: Prepared by the Ohio Ballot Board in the absence of any submission in opposition, as required by Ohio Revised Code Section 3505.063(B)

(http://www.sos.state.oh.us/SOS/Upload/ballotboard/2008/2ArgAgainst.pdf).

State Issue #3: Creates constitutional amendment protecting property rights along with the passage of the Great Lakes Water Compact.

Pro:

1) Voting ‘yes' on Issue #3 "protects the private property rights of Ohioans, safeguards

Ohio's natural resources, and maintains the stability of Ohio's jobs and economy by

recognizing and protecting property interests in ground water, lakes and watercourses."

Source: Ohio State Senators Timothy J. Grendell and Capri Cafaro, the group appointed

by the Ohio General Assembly to prepare the argument for Issue 3

(http://www.sos.state.oh.us/SOS/Upload/ballotboard/2008/3ArgFor.pdf).

Con:

1) "Issue #3 is an unnecessary addition to the Ohio Constitution. 

The Supreme Court of Ohio already determined that private property owners have rights to the ground water underlying their land and to the watercourse flowing on and through their land.

2) "Issue # 3 makes changes to the Constitution so specific that they mention legal doctrines that are not contained in the Constitution.

What if those legal doctrines change by court rulings? Parts of our Constitution would no longer be relevant. That is not appropriate for our Constitution, which is supposed to be the voice of the People.

3) "Issue #3 does not give an accurate picture of a private property owner's rights.

Property owners do not actually own the water beneath their land.  They have a right to a reasonable use of that water, but the state always has the power to regulate how it is used and take it for just compensation.  Issue #3 gives private property owners the false sense of security that their land cannot be taken away at a later date.

4) "We do not know what the future will hold.

We should not limit ourselves by passing this amendment.

Source: Prepared by the Ohio Ballot Board in the absence of any submission in opposition, as required by Ohio Revised Code Section 3505.063(B)

(http://www.sos.state.oh.us/SOS/Upload/ballotboard/2008/3ArgAgainst.pdf).

Issue 5: Referendum on legislation making changes to check cashing lending.

• Caps Interest rate payday lenders may charge at 28%.
• Limit borrowable amount to 25% of their monthly income, not to exceed $500.
• Limits barrowers to four loans per year.
• Minimum of 30 day period for barrower to pay back loan.

A YES vote will cap the annual interest for payday lenders only at 28%.

A NO vote will not put the issue into effect

Pros:

1) Lenders may currently charge up to 391% interest.

2) It breaks the "cycle of debt" many customers are trapped in.

3) Helps insure that customers only barrow what they can pay back.

Cons:

1) Payday lenders say they will be forced out of business by this law

2) Will take away access to emergency assistance loans that are cheaper  (if repaid on time) then overdraft fees

3) Limits barrower options. Each barrower has the right to choose the terms of their loans and what they do with their money.

Issue 6: Constitutional amendment to allow for a casino near Wilmington in southwest Ohio.

• Authorizes a privately owned casino in Clinton county that will be taxed 30% of its Gross Casino receipts.
• The tax allocation would be used to:
• Fund a gaming regulatory committee
• Up to 1% would be used to support programs for gambling addicts
• 10% of the tax would go to Clinton County. The remaining proceeds would be distributed to the remaining counties.
• Casino operator must make an initial investment of 600 Million dollars in a casino resort, including hotel and other amenities.
• Licensing fee caped at $15 million, which will be credited against the tax on the gross receipts.
• The state may not limit the amount of wages or hours of operation of the casino.
• If another casino enters Ohio, this Casino will pay the same tax rate as that casino.

A YES vote allows the Casino Amendment

A NO vote does not allow it.

Pros:

1) Keep competitive with the other 38 states that have casinos, instead of losing money to other states.

2) All counties in Ohio could receive some tax revenue from the casino.

3) Casino will create jobs and stimulate the economy with hotels, restaurant and other business.

Cons:

1) Will increase the number of Gambling addicts in Ohio and the allocated money for treatment of such problems may not be sufficient.

2) If an Indian Casino that is tax exempt enters Ohio, the casino may not pay at all.

3) Amendment reads more like a business contract with one Casino. It is not appropriate for a constitutional amendment.

Source: http://www.lwvohio.org/pdf/LWVOEF%20Fall%202008%20Voter%20Guide.pdf

My learned colleague Alan Newman tells me that this article is a good general overview of what is going on on Wall Street. Not my field, but I consider the bankers, financiers, executives, and real estate professionals who made a lot of money over the last decade to be corporate welfare queens. And I'm nervous about my retirement funds.

Ohio looks to be an important swing state (again!) in the upcoming Presidential elections. But you might not have realized that legal issues may determine the outcome. Efforts to settle these issues in advance seem to have failed. Here are a few of the battles currently being fought:

Five-Day Window: Republicans have sued to try to prevent voters from registering to vote (must be at least 30 days before the election) and then, on the same day, voting by absentee ballot (may be done up to 35 days before the election) during the 5-day window when they are eligible to do both. They claim to be concerned about vote fraud.

Vote Caging: Democrats are seeking to end the practice in some counties of eliminating or challenging the registration status of some voters based on mailed notices having been returned undelivered. They claim that typos, students away at college, and military personnel may have their votes unfairly taken away.

Meanwhile, in Cincinnati, voters who responded to an erroneous absentee ballot application mailed out by the McCain campaign may find their applications ruled invalid by Democratic Secretary of State Jennifer Brunner, although she has offered an easy way for voters to correct their applications. Pho has the statutory language.

Wouldn't it be nice if we could just focus on which candidates were supported by more people?

Law professor Gabriel "Jack" Chin from Senator John McCain's home state University of Arizona has concluded that Senator McCain is not eligible to become President of the United States. You see, Senator McCain was born in 1936 in the Panama Canal Zone.

Article 2 of the Constitution (Section 1, Clause 5) gives the qualifications for the office of President of the United States:

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution shall be eligible to the Office of President…

We see that the Founders left an escape hatch for any of their contemporaries  who might have been "a Citizen" but not a "natural born citizen" at the time the Constitution was adopted, but presumably that Grandfather Clause has long since expired.

Apparently, Congress passed a law declaring that children born to U.S. citizens in the Canal Zone were considered U.S. citizens at birth, but this law was passed in 1937, almost a year after McCain was born.

I'm no expert on this issue, but I can see the logic–it's hard to claim that McCain became a "natural born" citizen by virtue of a statute passed after he was born. Two respected Constitutional law experts, former Solicitor General Theodore Olson and Harvard Professor Laurence Tribe, looked at this issue in March and jointly concluded that Senator McCain was eligible to become President, apparently arguing that Congress in 1937 was merely clarifying what was already the case. Again, I'm no expert on that particular statute, but that's not typically how one interprets a new statute–usually we assume that Congress acted for a reason and accomplished something.

What do you think the Constitutional text means? What do you think the Founders intended?

Yesterday a federal appeals court released unclassified portions of its decision in Parhat v. Gates. Here's the lead from the New York Times:

In the first case to review the government’s secret evidence for holding a detainee at Guantánamo Bay, Cuba, a federal appeals court found that accusations against a Muslim from western China held for more than six years were based on bare and unverifiable claims.

Huzaifa Parhat, meet Gordon Hirabayashi.

Huzaifa Parhat is a Chinese citizen of the ethnic Uighur Muslim minority in Western China. What's the connection between him and a retired Japanese American sociology professor? Let's review:

1. After the World Trade Center attack on September 11, 2001, Congress authorized the President to use "all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks…" The President ordered the Armed Forces to invade Afghanistan.
2. Parhat fled China in May 2001 in response to, among other things, forced abortions, high taxes, and the taking of property. He arrived at an Uighur camp in Afghanistan in June, which camp was destroyed by U.S. airstrikes in October. With other Uighurs, he crossed into Pakistan, where local villagers gave him food and shelter until, in December, they were handed to Pakistani government officials, who turned them over to the U.S. military. He has been at Guantanamo since June 2002.
3. After and individual hearing in December 2004, a military tribunal determined that Parhat met its definition of an "enemy combatant." The court observed that the tribunal made this determination:

on the theory that he was“affiliated” with a Uighur independence group known as the East Turkistan Islamic Movement (ETIM), that ETIM was “associated” with al Qaida and the Taliban, and that ETIM is engaged in hostilities against the United States and its coalition
partners. The basis for the charge of Parhat’s “affiliation” with ETIM was that the Uighur camp at which he lived and received training on a rifle and pistol was run by an ETIM leader. The Tribunal acknowledged, however, that “no source document evidence was introduced to indicate . . . that the Detainee had actually joined ETIM, or that he himself had personally committed any hostile acts against the United States or its coalition partners.” The grounds for the charges that ETIM was “associated” with al Qaida and the Taliban, and that it is engaged in hostilities against the United States or its coalition partners, were statements in classified documents that do not state (or, in most instances, even describe) the sources or rationales for those statements. (Internal citations removed.)

The Parhat court concluded that the government's arguments "comes perilously close to suggesting that whatever the government says must be treated as true…" (at p.28). The court ordered that Parhat be released or promptly retried.

Gordon Hirabayashi's case comes from a different time:

1. After the attack on Pearl Harbor on December 7, 1941, the President issued Executive Order 9066, authorizing the military to exclude any or all persons from designated areas. Under this authority, General John L. DeWitt first imposed a Pacific Coast curfew, and then ordered the registration and evacuation of all Japanese Americans to detention camps. Congress passed a statute making it a crime to disobey these military orders.
2. In 1942, Gordon Hirabayashi, a senior at the University of Washington, was arrested and convicted of violating curfew and failing to report for evacuation. He challenged the race-based military regulations as violating the Equal Protection Clause of the Constitution.
3. In upholding Hirabayashi's curfew conviction, the Supreme Court emphasized its deference to military judgment:

Whatever views we may entertain regarding the loyalty to this country of the citizens of Japanese ancestry, we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained. We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it. (Emphasis added.)

Note that it was crucial to this determination that time was of the essence. The Court, with some reluctance, authorized temporary curfew and evacuation orders on the theory that the military's judgment was that there was no time to make individualized loyalty determinations. It turned out that the main evidence for the military's judgment was a Final Report issued by General DeWitt. In 1982 it was discovered that the Government had doctored the Final Report and tried to destroy all the copies of the original report. The original report had stated that

It was impossible to establish the identity of the loyal and the disloyal with any degree of safety. It was not that there was insufficient time in which to make such a determination; it was simply a matter of facing the realities that a positive determination could not be made, that an exact separation of the 'sheep from the goats' was unfeasible. (Emphasis added.)

General DeWitt's personal views ("A Jap's a Jap. It makes no difference whether the Jap is a citizen or not."") had been widely reported. Understanding that the bald assertion that Japanese Americans could never be determined to be loyal Americans would not pass Constitutional muster, government attorneys altered the document and massaged the "military judgment" so that the convictions would stand up to Supreme Court review. Moreover, the government attorneys hid from the Court the fact that it had evidence in its possession that contradicted conclusions in the Final Report regarding the military dangers posed by Japanese Americans. Based on these discoveries, Hirabayashi's conviction was vacated in 1987.

There are, of course major differences between these two cases. Parhat was not a case explicitly about racial bias, although one suspects that, had Parhat not been Muslim, he might not have ended up in detention. Once forced to reveal its evidence in a tribunal, the government's case against Parhat was merely weak, not apparently fraudulent. Most importantly, Parhat has prevailed in the (delayed) first instance, rather than waiting 45 years for the vindication of history.

But the core idea that links these cases is the requirement that there must at some point be effective review of military judgment. My point is not that the military or the government is evil or bad. All human institutions are run by human beings, and any human process unchecked by objective review is liable to be exploited or simply carelessly imposed. And then other human beings suffer.

What have you been doing over the last six years? Marriages, funerals, births and birthdays. Carpool headaches and soccer games and school performances. Seasons of change. Huzaifa Parhat sat in isolation at Guantanamo. Last year he asked his lawyers to get a message to his wife that she should remarry.

Here's an observation from Dahlia Lithwick on the Heller decision (concluding that the Second Amendment guarantees an individual right to own a handgun):

But I must first pass along this rather brilliant observation from professor Stephen Wermiel from American University, who wonders why none of the dissenters cautioned the majority that today's decision"will almost certainly cause more Americans to be killed." (Boumediene,
Scalia, J. dissenting.)

Boumediene, of course, is the recent Guantanamo detainee habeas corpus case in which the majority saw fit to give people in American custody a day in American court. Scalia, in dissent, thought it important to accentuate the negative. There has been a lively discussion among Akron Law faculty, and DIck Aynes, John F. Seiberling Chair of Constitutional Law and Director of the Constitutional Law Center laid it out for me:

I do think this [issue of the deaths that will result from Heller] is addressed — albeit in a subdued manner– in Justice Breyer's dissent. The Court's web site numbers each of the dissents as beginning at p. one.

He notes the D.C. ord.  concerns handguns "which are specially linked to urban gun death and injuries…." (p. 2) On the same p. he notes that handguns are the overwhelming choice of criminals.

P 14: "No one doubts the constitutional importance of the statute's basic objective, saving lives." On the same p. he quotes a district committee's conclusion that the goal of the ordinance was to "reduce . . . run-related deaths…" The summary, with statistics about gun deaths, continues on the next several pages.

P. 24 talking about one amici submissions: "…suggests that, statistically speaking, the District's law has indeed had positive life-saving effects."

P. 26: concludes that the statute "seeks to further the sort of life-preserving and public-safety interest that the Court has called 'compelling.'"

P. 40: litigation over the details of what gun regulation can exist "threatens to leave cities without effective protection against gun violence. . ."

Breyer also cites the studies coming to a contrary conclusion. Ultimately, his position is that where the studies (& counter studies) conflict, the Court should defer the legislative body which is in a better position to judge local conditions than the court.  I suspect this view of the case "tied his hands" on what he though he could do from a rhetorical standpoint.

So because Breyer wants to make a point about judicial deference to the legislature, he puts his point delicately, whereas Scalia's hands are rhetorically untied (while blasting the Court for its lack of judicial deference to the executive).