All posts filed under: Faculty Commentary

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 …

Law & Morality

Judging the immorality of the four police officers charged with the death of George Floyd is easy. Mr. Floyd was handcuffed and on the ground, with four armed officers over him. All the police had to do was listen and stop – he would still be handcuffed, he would still be unable to harm them; but he could be permitted to breathe anew. Ignoring that, or not intervening or at least protesting a fellow officer’s behavior, is indisputably inhumane. But the criminal law and morality lack a perfect overlap. What warrant examination are the charges that have been brought and whether and how they can justly apportion legal blame. Minnesota Attorney General Keith Ellison, after announcing charges against the four officers, cautioned that “[w]inning a conviction will be hard…because history shows that trying and winning a case like this one is hard.” General Ellison was referring to the historic reluctance of jurors to convict police acting in the line of duty in what are often fraught circumstances, especially where the deceased is a racial minority. …

We Sustain Each Other

We are living in the most worrisome, uncertain and swiftly changing time in our lives. Many of us find it hard to take a break from the unfolding pandemic, even for an evening. All of us have been personally affected in some way — if only by shelter-in-place orders and endless hours online. Others are coping with illness, grievous loss and worry about this month’s rent and future economic security. While no one is exempt, some members of our Temple community have been and will be hit much more severely than others. How can our Temple Law community to come together and not only survive, but thrive? Two key values can help us through. First, we can each take responsibility to our collective well-being. Reach out to support each other, if only to listen. Second, we need the courage to be vulnerable. We can let others know that we need their aid. Responsibility and vulnerability further each other. I’ve learned first-hand the power of support from the Temple Law community. In the past few years, …

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 …