All posts filed under: Faculty Commentary

Donald Trump

Trump’s Anti-Muslim Plan Is Awful. And Constitutional.

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Donald J. Trump’s reprehensible call to bar Muslim immigrants from entering the United States tracks an exam question I’ve been giving my immigration law students since Sept. 11. Would such a proposal be constitutional? The answer is not what you might think — but it also raises the issue of what, exactly, we mean when we say something is “constitutional” in the first place. In the ordinary, non-immigration world of constitutional law, the Trump scheme would be blatantly unconstitutional, a clear violation of both equal protection and religious freedom (he had originally called for barring American Muslims living abroad from re-entering the country as well; he has since dropped that clearly unconstitutional notion). But under a line of rulings from the Supreme Court dating back more than a century, that’s irrelevant. As the court observed in its 1977 decision in Fiallo v. Bell, “In the exercise of its broad power over immigration and naturalization, Congress regularly makes rules that would be unacceptable if applied to citizens.” The court has given the political branches the judicial …

Students in the classroom

Case Selection and Secondary Trauma

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I don’t relish my student’s traumatic experiences. I am happy, however, that they are happening with me there to support them. Perhaps I should be a little less overtly honest about it with my students. As they came in over the last few weeks to relay some of their traumatic experiences to me, maybe I should not have moved so quickly to tell my students how much I thought they were learning from it and instead commiserated more on how bad it must be to experience clients’ trauma for the first time. One student, on meeting his SSI client for the first time, had her tell him it wasn’t worth living once she was denied benefits and that she had considered killing herself over the case. Another student went before an ALJ quite convinced that her severely mentally ill client should win only to have the ALJ badger her and the client about drug use that seemed truly irrelevant. Like many clinicians, I have sent students to see dying clients, had clients insult and run …

Cross-Examination

The Prosecutor Cross-Examines: A Guide to Avoiding Unfairness and Reversible Error

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Prosecutors cross-examine much less frequently than do defense counsel, for good reason. Often defendants do not testify (with some data sets putting the number below the 50% threshold for felony cases that go to trial), whether because they have little too say, there is ample impeachment evidence the jury will not hear if they remain silent, or their educational and developmental limitations make them poor candidates for taking the witness stand. And the proportion of defendants who do testify may vary region to region and crime to crime. All of these factors make cross of a criminal accused a less practiced art. Just as fundamental skills may become rusty with limited use, knowledge of controlling principles of law may also erode or become lost entirely when the cross of a defendant is a relative rarity. And there is enough developed law to warn prosecutors away from potential pitfalls, areas of cross-examination that can end in a mis-trial or reversal on appeal. “Are you calling the police witnesses liars?” In the heat of battle and the …

Refugees at Train Station

History, Hysteria, and Syrian Refugees

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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 …

Temple Trial Team

When “I Object” Is Not Enough

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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.

Protest

Inequality and Economic Democracy

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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 …

Pen on a Notepad

Should You Use Notes During a Closing Argument?

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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 …

People laughing

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

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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 …

Jail Cell

A Vaccine Against the Epidemic of Mass Imprisonment

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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

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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 …