All posts filed under: Faculty Commentary

Parental Visitation Rights and Tragic Outcomes

The outcry over a decision that let a child have a weekend visit with her father, an action that led to the child’s death, includes cries for the judge’s removal and a call from the Governor for an inquiry by the Judicial Conduct Board. As we show below, this response misses the boat in two regards – the protection of judicial independence and the need to change the law.   Professor Jules Epstein addresses the former; Professor Sarah Katz the latter. JUDICIAL INDEPENDENCE We live in a world where the judiciary is under attack, with cries that “our legal system is broken” and that judicial decisions put our country “in peril.”  But we want and need judges to make tough decisions without looking over their shoulders.  And we want lawyers to be able to go into court on new cases without fearing that the judge will make a harsh decision to ‘look tough’ and appease the critics. Judicial misconduct warrants sanctions.  Lying, stealing, doing favors; not showing up for work; or being racist, sexist or otherwise hostile …

As a Lawyer and a Citizen

Like so many of my fellow citizens, I have been deeply troubled by the “family separation” policy recently enacted by the Trump administration in furtherance of its stated goal of curbing illegal immigration.  The vast majority of these families arrived at our southern border seeking asylum from unspeakable violence, persecution, and poverty in their home countries.  That they are then subjected to an official policy of our government that is callously indifferent to their suffering, or to the harm visited upon children from being forcibly removed from their parents, has been conscience shocking to me as an American. As a lawyer, however, I am equally aghast that the government has apparently separated these families without any semblance of due process as guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution.   After all, the right to the parent child relationship is a fundamental one, and has been described by our Supreme Court as “essential,” the “basic civil rights of man,” and a right “far more precious . . . than property rights.”  Stanley …

Creating American Land: A Territorial History From the Albany Plan to the U.S. Constitution

A DISSERTATION PRESENTED TO THE FACULTY IN CANDIDACY FOR THE DEGREE OF DOCTOR OF PHILOSOPHY RECOMMENDED FOR ACCEPTANCE BY THE DEPARTMENT OF HISTORY Adviser: Hendrik Hartog September 2018 “The rulers of Great Britain have . . . amused the people with the imagination that they possessed a great empire on the west side of the Atlantic. This empire, however, has hitherto existed in imagination only. It has hitherto been, not an empire, but the project of an empire.” Adam Smith, The Wealth of Nations 1 “A nation may be said to consist of its territory, its people, and its laws. . . . That portion of the earth’s surface which is owned and inhabited by the people of the United States is well adapted to be the home of one national family, and it is not well adapted for two or more.” Abraham Lincoln, Annual Message to Congress 2 “I take SPACE to be the central fact to man born in America, from Folsom cave to now. I spell it large because it comes large here. Large, and without mercy.” …

On Temple Lawyers, Mentorship, and Starbursts: Notes from the Breakfast of Champions

Before law school, I was a community organizer for the Children’s Defense Fund, a national child advocacy organization founded and directed by the extraordinary and inimitable civil rights lawyer Marian Wright Edelman.  In her book, Lanterns: A Memoir of Mentors, Edelman writes of “the crucial influences of the natural daily mentors” in her life, whom she refers to as “lanterns” who lit her path from her small hometown in Benettsville, South Carolina, to Spelman College, to Yale Law School, to the front lines of the civil rights struggle, to the founding of the Children’s Defense Fund.  Like Edelman, the path of my own career has been lit by mentors, who showed me what was possible and bolstered my confidence along the way.  I would not have decided to attend law school or pursued a public interest career were it not for my own mentors.  And I have done my best to light the path of others.  I am grateful that my role as a clinical professor at Temple Law affords me an ongoing opportunity to …

Dontia Patterson –Innocence or Injustice?

The May 16 news report that the Philadelphia District Attorney’s Office has dropped charges against Dontia Patterson (http://www.philly.com/philly/news/crime/judge-approves-philly-das-request-clears-man-of-murder-after-11-years-behind-bars-20180516.html ) because he was wrongfully convicted and is actually innocent prompted a retort from the original prosecutor that this is a “horrific travesty of justice.”  The case raised claims of actual innocence and of the failure to reveal to the defense information in the police file of an alternative suspect. I write here not to address the latter but to respond to the claim that this is a travesty of justice and that the conviction is valid because the case against Patterson “was not weak” and  two witnesses identified him.  What the prosecutor omitted is that neither witness could actually see the face of the shooter. How can this be, and how could a jury have convicted in such circumstances?  I was asked by the Pennsylvania Innocence Project to review Mr. Patterson’s case to see whether, based on the science of eyewitness perception and memory, it was possible that an innocent man had been convicted.  In a case …

Volun-tourism on the Island of Enchantment (Abandonment)

We like to go somewhere warm over the winter break but decided this year that, given the suffering caused by hurricanes, it would have to be where our dollars and time would do some good.  Research led us to Vieques, a beautiful island off of Puerto Rico; and an online community bulletin board hosted by island residents linked us to a host who would rent us an apartment and connect us to daily volunteer work.  What we found was that Puerto Rico, known as “Isla del Encanto,” or “Island of Enchantment,” could instead be called the “Island We Abandoned.” A Christmas day flight to San Juan was barely half-filled, testament to the collapse of the tourism industry.  San Juan International showed little effect of the storm until we passed a destroyed hanger, a skeleton of a building.  The flight to Vieques was more revealing – flying over towns one saw blue-topped home after blue-topped home, the color being the tarps that three months after the storm serve as roofs.  The island is verdant, but some …

Local Service Matters

I was recently appointed to serve on the Cheltenham Township Human Relations Commission. Like many local cities and towns, Cheltenham Township, where I live, has a Human Relations Ordinance prohibiting discrimination in housing accommodations, certain commercial property transactions, employment, and public accommodation, within the Township. The CHRC is a citizen committee that hears complaints and mediates disputes under the ordinance, and works with the Pennsylvania Human Relations Commission on situations that go beyond mediation to disputes in court. The CHRC also plays a valuable role in providing community education about the kinds of discrimination that are unlawful and what community members can do about it. The Cheltenham ordinance, like many similar local laws, covers a broader range of categories than the state or federal anti-discrimination statutes. Its purpose is to “ensure that all persons, regardless of actual or perceived race, color, age, religious creed, ancestry, sex, national origin, handicap, disability, or use of guide or support animals and/or mechanical aids because of blindness, deafness or physical handicap of the user or the user is a …

Sessions “De-Sciences” Forensics

The April 2017 decision by Attorney General Sessions to not renew the National Commission on Forensic Science (NCFS) was announced as part of what he claimed would be efforts to “advance forensic science and help combat the rise in violent crime.” Whatever the Department of Justice has in mind for combatting a putative rise in violent crime, its decision will not “advance” forensics or ensure that such testimony derives from “science.” A little background is necessary. In 2009, the National Academy of Sciences – since the presidency of Abraham Lincoln the preeminent body tasked with providing independent, objective advice to the nation on matters related to science and technology – issued its report STRENGTHENING FORENSIC SCIENCE – A PATH FORWARD. While emphasizing that forensic discipline testimony – DNA, fingerprints, firearms matching, etc. – was of critical importance in solving crimes and exonerating the wrongfully accused, the NAS made clear that much of the processes and conclusions lacked scientific foundation. Whatever the Department of Justice has in mind for combatting a putative rise in violent crime, its …

The Rise of FinTech and Compliance

An important transformation is happening in the financial industry. The rise of new technology and compliance has dramatically altered many of the key functions and functionaries of modern finance. Artificial intelligence, algorithmic programs, and supercomputers, instead of human actors, now constitute the core of many financial operations. At the same time, compliance officers have become just as critical to financial institutions as traders, bankers, and analysts. Finance as we knew it has changed and continues to change. My recent article, Compliance, Technology, and Modern Finance, offers a detailed commentary on these unfolding changes—the crosscutting developments in compliance, technology, and modern finance. It examines the concurrent and intersecting ascents of new financial technology and compliance as well as the potential perils linked with their ascents. It also highlights the larger implications of the changing financial landscape due to the growing roles of new technology and compliance. In particular, it focuses on the challenges of financial cybersecurity, the integration of technology and compliance, and the role of humans in modern finance. The modern financial industry is ostensibly …

transgender pride flag

Supreme Court Decides Not to Decide Transgender Student Bathroom Case

On Monday, March 6, the Supreme Court issued an order in a carefully watched case about the rights of transgender students. The order essentially decided not to decide the case, leaving many observers and activists on both sides of the issue somewhat confused about why the Court acted as it did, and where the case goes from here. To understand what just happened, it’s critical to understand the facts of this case, and the basis on which it was decided below. The facts of the case are relatively simple. Gavin Grimm is a transgender boy who attends Gloucester High School in Virginia. Gavin’s gender identity is male, and he began to transition during his sophomore year of high school. As his outward appearance became more congruent with his identity, Gavin grew increasingly uncomfortable using women’s restrooms – and found that women and girls were becoming increasingly uncomfortable with his presence there. When he asked his high school principal for permission to start using the boys’ restroom, he was given the go-ahead, and things seemed fine …