All posts filed under: Faculty Commentary

History, Hysteria, and Syrian Refugees

A week after the ISIS terrorist attacks in Paris, American political hysteria is on full display. On Thursday, the House voted to tighten screening procedures on Syrian refugees; never mind that the extraordinarily rigorous background checks already in place make it more difficult to come to the United States as a refugee than through any other immigration status. This is legislation unmoored not only from facts but also from the lessons of history. The Facts The “American Security Against Foreign Enemies Act of 2015” adds layers of unnecessary bureaucracy onto the existing security checks applied to all refugees entering the United States. Applicable only to Iraqi and Syrian nationals or residents who left after March 1, 2011, the bill requires that the FBI Director certify to the Secretary of Homeland Security and the Director of National Intelligence that such refugees have undergone sufficient background investigation to determine that they are not a security threat to the US. If both Directors are in agreement, the DHS Secretary must certify this finding to 12 congressional committees before …

When “I Object” Is Not Enough

Published by Jules Epstein

The words “I object” should be passe. The availability of pre-trial motions in limine, as guaranteed by FRE 103, should ensure that evidentiary issues are thoughtfully considered and resolved before trial begins. But time constraints or unexpected developments may require a time-of-trial challenge to the admission of evidence, so knowing the “why” and “how” of objecting is essential. And, as is developed below, a mere “I object” may serve no legal or practical end.

Inequality and Economic Democracy

Published by Brishen Rogers

America’s inequalities are outrageous – and are suddenly all the rage. Thomas Piketty’s Capital in the Twenty-First Century and various social movements have given us a new language to dissect it: the “99 percent,” “r > g,” the “Fight for $15,” and “Uberization.” Policy professionals are taking note, with the Washington Center for Equitable Growth and various foundations funding research into its causes and consequences. Even Silicon Valley is talking seriously about a universal basic income. This is all to the good. And yet the debate is tepid in an important respect: It largely disregards the relationship between inequality and democratic participation. Granted, many criticize our campaign finance laws for tilting the playing field toward the rich. But the economic policy debate largely revolves around forms of tax-and-transfer. Picketty, for example, ultimately proposes little more than a global wealth tax. A universal basic income, for all its virtues, takes the same form. But aggressive campaign finance reform and a far more progressive tax code – even if politically possible – cannot ensure equality. The reason is …

Should You Use Notes During a Closing Argument?

Published by Jules Epstein

The Hollywood lawyer – whether Gregory Peck, Kate Hepburn, Paul Newman or Denzel Washington – never speaks from notes. And Cousin Vinny, although he never had to give a closing, certainly had no paper in hand when he delivered his inimitable opening statement of “everything that guy said is [expletive deleted].” But it is the rare lawyer who has spoken without notes and then not thought “darn, I wish I’d remembered to say that.” Whatever Hollywood and television have done to shape audience perceptions, there is no reason to conclude that audience expectations are that an attorney will never use notes (except in student mock trial competitions), or that an attorney who does so somehow has diminished credibility or effectiveness. Given the edict that preparation is key to success in advocacy, or as words attributed to Abraham Lincoln explain, “Give me six hours to chop down a tree and I will spend the first four sharpening the axe,” reliance on memory, that incredibly faulty and distractible tool, is a less than desirable approach. Consider this …

What if I Had No Sense of Humor? Oh Wait, I Don’t…

Published by Spencer Rand

Clinical teaching and lawyering for the poor can both be hard, and having a sense of humor can help with both. Or so I am told. I am also told I have no sense of humor. My family often struggles to explain me to others. They sometimes say to our friends after I tell a joke “Okay, let me explain to you what I think he’s trying to say and maybe you’ll think it’s funny. Then again, maybe you won’t.” My son has his “No Dad Jokes” t-shirt, which I of course bought him to support him for having to listen to way too many of them from me. A judge, a prosecutor, two law students, a cow, and a duck walk into a bar, and the bartender says, “What is this, some kind of joke?” Now you’re seeing it, too. I tried humor earlier this week in my teaching. I was teaching about letter writing. I wanted to make a point that writing short, clear sentences could be helpful. I also wanted to help …

A Vaccine Against the Epidemic of Mass Imprisonment

Published by Nan Feyler

A powerful group of United States senators unveiled a bill last month designed to reform federal criminal sentencing laws. If passed, the Sentencing Reform and Corrections Act of 2015 will begin to address some of the most troubling areas of federal criminal sentencing – the cause, many experts say, of exponential growth in the federal prison population. The bill would reduce mandatory life sentences without parole for some drug offenses, allow parole for people sentenced to life for crimes they committed when juveniles and expand the number of inmates over 60 years old who can seek compassionate release from prison. It provides judges with greater discretion at sentencing for some drug crimes and allows for retroactive application of the 2010 federal law that reduced the unfair disparity in sentence lengths between crack and powder cocaine. The bill is particularly noteworthy for its bipartisan support, which includes Sen. Charles Grassley. The Judiciary Committee chairman has been a staunch supporter of harsh punishments, including mandatory minimum sentences, reflecting a hopeful trend that the uniquely American experience of …

The Ashley Madison “Hack” and Witness Character

Published by Jules Epstein

The Ashley Madison website self-describes as “the most famous name in infidelity and married dating.” https://www.ashleymadison.com/ (last visited August 27, 2015). The hacking of the website resulted in the release of the names of tens of millions of subscribers – individuals who joined the website with the ability and apparently the intent to seek out a partner for an adulterous encounter, be it one-time or ongoing. And if one of those individuals were to now be a witness in a trial, would the act of registering an interest in or seeking out an adulterous relationship be admissible as an attack on credibility? To answer the question requires a parsing of the language, theoretical underpinnings and application of Federal Rule of Evidence 608(b). Before discussing the Rule, practitioners need to be chided for its apparent underuse. Available in many jurisdictions [Pennsylvania being a notable exception] as a tool for attacking witness credibility, its limited role in the litigator’s toolkit is confirmed in evidence lectures, when practicing lawyers and judges show unfamiliarity with the rule; and arguably …

Hearsay: Debunking or Extolling the Evidence Once Admitted

Published by Jules Epstein

Lawyers fight over hearsay admissibility, concentrating on whether foundational requirements have been met. But, once admitted, the hearsay is just ‘there.’ The leading textbooks on trial advocacy offer no advice on how to deal with hearsay, whether for the proponent to convince the jury of its reliability or the opponent to show its deficiencies. The lawyer’s toolbox seems empty. In actuality, the advocate has several mechanisms to attack or endorse hearsay evidence. For supporting the hearsay, the advocate has the reliability rationale for each hearsay exception. There is no barrier to the proponent incorporating those rationales into a closing argument and telling jurors Why does the law permit you to hear what the patient told the Doctor? Because when you go to get treatment, you tell the Doctor the truth to get the best care. You got to read the text message sent as the accident was unfolding. When people describe an event as it unfolds, it is the event talking, and not any mental manipulation. It’s in the daily business inventory. You know those …

LOVE Park Family Personifies Problems

Published by Nan Feyler

The story about a Philadelphia couple who told their two young children they were camping out in LOVE Park because they had no other place to spend the night shocked many people (“Help for a homeless family in LOVE Park“). But given Philadelphia’s high rate of poverty and lack of affordable housing, this family’s experience is not unique. The Philadelphia Office of Supportive Housing runs the city’s shelters, which are too often filled, and Community Legal Services has seen clients seeking family shelter wait weeks and even months for space to become available. Most tragically, parents who end up on the street or couch-surfing with their children risk having their children taken from them and placed in foster care. Absent signs of parental abuse or neglect, children should be allowed to stay with their parents, and the family should be offered emergency shelter. Children need not also suffer the trauma of being separated from their parents. We hope the city will focus on eliminating the waiting list for shelter beds for homeless families and significantly …

My Clinical Prof Can Leap Tall Buildings In Single Bounds!

Published by Spencer Rand

I try not to share too much of my personal life with my students. I already feel that sometimes the clinic is a little too much all about me. I tell stories about old cases that I think help prove points. I teach alone so am the go to person for questions students have. I select a lot of our client work and share my values with my students by helping them pick cases that meet clinic goals, which as much as I like to say are our goals we develop together are often mine. Lately, I feel I need rules to decide what personal things I should share. Is it only things that will help them lawyer? Is it things that make me seem human or approachable? What if I just want to? What helps and what is just forcing them have to learn about me whether they want to or not? A few years ago, I had no choice about revealing part of my personal life. On the front page of the Philadelphia …