All posts filed under: Faculty Commentary

Photo of Professor Melissa Jacob

Q&A with Professor Melissa Jacoby

In September of 2019, Purdue Pharma LP filed for Chapter 11 protection after facing a wave of lawsuits over its opioid painkiller drug, OxyContin. The Sackler family, who own the pharmaceutical company, have attempted to use a controversial tactic to get bankruptcy-like protections to without filing for bankruptcy in order to protect their personal assets and holdings. On Wednesday, June 15th, according to Bloomberg, “U.S. Bankruptcy Judge Robert Drain approved an investigation into whether the drugmaker’s owners, members of the billionaire Sackler family, have had undue influence on an independent committee of Purdue board members,” a win for the advocacy group of parents whose children died as a result of opioid abuse. Professor Jonathan Lipson, Harold E. Kohn Chair and Professor of Law at Temple Law School, was of counsel to the movant. His colleague, Professor Melissa Jacoby, Graham Kenan Professor of Law at the University of North Carolina at Chapel Hill, put the ruling into context.  Temple Law School: In in the June 15th ruling, Judge Drain approved an investigation, which will give an …

Transgender Pride Flag of blue, pink, and white stripes

How Cisgender Advocates Can Honor Transgender Day of Visibility (Everyday)

Last year, at the start of (our awareness of) the coronacrisis, I read the story of anthropologist Margaret Mead being asked by a student what she considered to be the first sign of civilization in a culture. The student expected Mead to talk about hunting tools, the wheel, grinding stones, or clay pots. Instead, the anthropologist answered that the first evidence of civilization was a 15,000-year-old fractured femur found in an archaeological site. The bone, which links hip to knee, had been broken and healed. Mead explained that in the animal kingdom, if you break your leg, you die. You cannot run from danger, get to the river for a drink, or hunt for food. You become easy prey for prowling beasts. A broken femur that has healed is evidence that someone helped a fellow human and took time to stay with the one who fell, rather than abandoning them to save their own life. The message was that we feel more human when we help others, and that generosity and altruism are (or should be) …

Prof. Carpenter speaks to a lecture hall with seated students

About Your First Semester Grades: What Ought to Come Next?

So here we are again – it’s the beginning of another Spring semester for America’s law students. This time of year means a lot of different things for a law school; it’s the beginning of the end for some of you who are getting ready to (finally!) graduate, but for 1Ls, it’s the end of the beginning – that bewildering first semester when you have absolutely no idea how you’re doing. Well, 1Ls: now you know how you were doing. The question for you now, is this: what ought to come next? As a prof who primarily teaches in the first year and also experienced my own share of law school grades that were sometimes relieving, sometimes disappointing, and frequently confusing, I’d like to offer a few words of advice. If you’re happy and you know it, clap your hands – and then immediately get back to work. For those of you who received above-the-curve grades, you’re probably pretty pumped right now, and it’s appropriate that you should be! I’m sure you worked really hard, …

U.S. Capitol building in black and white

Soliciting or Encouraging Sedition

What is Donald Trump’s culpability for the January 6th assault on the Capitol?  Morally, it is clear – Trump is a sentient being, aware of risks and consequences, who acted with disregard for the lives and well-being of others. Causally, the case is strong – in the terms of proximate cause and foreseeability, he spent months agitating and stirring discontent, he knew the volatility of his audience, and the actions of his followers were “not so extraordinary that it would be unfair to hold the defendant responsible for the actual result.” 1 W. LaFave, Substantive Criminal Law § 6.4, at 464 (2d ed. 2003). And in the eyes of history, culpability is beyond question – the “buck stops here” principle is the metric. But is he criminally responsible? Are there acts worth investigating, are there provable criminal acts attributable to the President? The President’s speech at the pre-insurrection rally may not, on its face, be sufficient to prove solicitation to commit a crime – here, riot, assault, theft, or damage to property. The language that …

Dear Justice Barrett

Dear Justice Barrett, I hear that you will be asked to recuse yourself in the upcoming voting litigation about the presidential election. Here are my thoughts on how to rule on those requests: You have received an appointment for life. Now is the time that you start to prioritize your independence, your role in protecting the Court as an institution held in great respect among our citizens and the rest of the world, and yes, selfishly–your own legacy. *Independence: Your own view of whether you lack personal bias or prejudgment in these voting cases is only part of your consideration. The self-proclaimed independence of Justices does not fully satisfy the importance of judicial independent decision making. The public’s view of your independence is crucial. You were selected from the sea of hopeful qualified candidates by a man who announced that you would likely decide cases assisting him with holding onto the presidency. I understand that you did not have control over what this man was saying. But his announcement is part of the facts that …

Unpacking the Race, Gender, Disability and Class Implications of Juvenile Detention Decisions

Race, gender, disability and class based injustices happen to our nation’s teens every day, in the mundane decisions that probation officers, caseworkers, and judges make, usually out of public view. An article in Pro Publica documents a judicial decision to detain a 15-year-old Black girl for violation of her probation. The violation involved her failure to properly attend her online school program and keep up with her assigned homework. The judge, citing a “zero tolerance” for probation violations, incarcerated her in May, 2020, in the midst of a massive disruption to the school lives of every American teenager. The decision was made without testimony by the girl’s special education teacher, who had to leave the online hearing to fulfill her other teaching duties. Studies make clear the disproportionate impact of race in all aspects of the juvenile justice process. Those involved in the process tend to see Black teens as more mature and therefore more culpable for their behavior than white teens of the same age. Juvenile detention also disproportionately impacts teens diagnosed with ADHD …

Temple Law Reacts to the June Medical Services, LLC v. Russo SCOTUS Decision

On June 29, 2020, Supreme Court Justice Breyer delivered the 5-4 opinion in June Medical Services, LLC v. Russo, holding that Louisiana’s Unsafe Abortion Protection Act, requiring doctors who perform abortions to have admitting privileges at a nearby hospital, is unconstitutional. Rachel Rebouché Associate Dean for Research Professor of Law Generally, this is a win for abortion supporters, and a decision many did not expect. Justice Breyer relied heavily on the factual record developed by the District Court and ruled that the law was the same in its effect and purpose as the Texas law struck down in 2016. Chief Justice John Roberts wrote a concurrence, ruling on grounds of stare decisis and providing the 5th vote needed to strike down the restriction. His concurrence is quite narrow, though, and it suggests that the Chief Justice interprets prior caselaw as giving far more deference to states than the Court’s 2016 ruling did. Adrienne R. Ghorashi, Esq. Program Manager Center for Public Health Law Research This SCOTUS decision reaffirms what was already established 4 years ago …

Temple Law Faculty React to the Department of Homeland Security v. Regents of Univ. of California SCOTUS Decision

On June 18, 2020, Chief Justice John G. Roberts Jr delivered the 5-4 opinion in Department of Homeland Security v. Regents of Univ. of California,  holding that DHS’s decision to rescind the Deferred Action for Childhood Arrivals program, known as DACA, was arbitrary and capricious under the Administrative Procedure Act. Jennifer J. Lee Associate Clinical Professor of Law For the over 600,000 DACA recipients across the country, the Supreme Court’s decision is essential in providing them with a temporary reprieve. While eventful, today’s decision solely ruled that the Trump administration’s rescission of the program was improper based on procedural grounds. The reality, therefore, is that any presidential administration in the future can wipe out the DACA program so long as it does so with proper procedure. For this reason, DACA recipients are continuing to fight for a more permanent pathway to citizenship. As DACA recipients have ample support, the challenge is not in getting such a law enacted. Rather, they want a “clean” law that does not otherwise include harsh enforcement provisions against the immigrants …

Temple Law Faculty React to the Bostock v. Clayton County, Georgia SCOTUS Decision

On June 15, 2020, Supreme Court Justice Neil Gorsuch delivered the 6-3 opinion in Bostock v. Clayton County, Georgia, holding that employment discrimination on the basis of sexual orientation or gender identity is prohibited under Title VII. The landmark decision is widely viewed as an historic moment in the movement for LGBTQ equality. Leonore F. Carpenter Associate Professor of Law Don’t underestimate the enormous power of this decision. Everyone loved the marriage decisions because everyone loves love. But frankly, not everyone has any desire to get married. However, in a nation with a fraying social safety net, job security is absolutely critical to all of us, particularly those on the economic margins. In my mind, this decision is at least as important as Windsor or Obergefell.   Ellie Margolis Professor of Law The Bostock decision is a huge victory for legal equality in this country. It will provide a measure of security to countless LGBTQIA workers who no longer have to fear losing their jobs because of who they are or who they love. The …