All posts filed under: Faculty Commentary

Cross-Examination

Are The “10 Commandments of Cross-Examination” Sufficient?

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For forty-plus years, learning the art of trial advocacy has included the obligatory viewing of a tape of Irving Younger’s “10 Commandments of Cross-Examination” lecture. And every lawyer who has ventured into the courtroom has seen – if not personally experienced – the dire consequences when a commandment is violated, in particular when the cross-examiner asks the one question too many or inquires about a subject where the answer is not already known. Younger himself acknowledged that the Commandments he posited were meant to be broken by masters of the craft, but urged that adherence to them ensured a safe, productive cross. And the latter point can’t be denied. Were every cross-examiner to follow Younger’s directives, there would be less error in courtroom proceedings. But are there more or different Commandments? Did Younger’s approach leave gaps? The answer to both questions is “yes.” Let’s first recall the 10 that Younger preached. They are: Be brief Use plain words Ask only leading questions Be prepared Listen Don’t get into a quarrel Avoid repetition Disallow witness explanations …

Income Tax

Extreme Makeover: Tax Edition

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Tax gets a bad rap. For many people, including law students, tax is often thought of as: too boring, too complicated, too mathematical, too volatile, and too arcane. It is also thought to be too much like accounting, relevant only for the rich and their advisors who help them keep as much of their money as possible. What’s more, the suggestion that there might be an interesting tax lawyer is an oxymoron, and popular media depictions of tax lawyers are limited to white men: Tom Cruise in The Firm, Michael Tucker in L.A. Law and Paul Newman in The Young Philadelphians. Viola Davis plays a lawyer on TV and Julia Roberts has played one on film, but neither has been a tax lawyer. That tax can be complex is undeniable, but the rest of the stereotype misses the breadth of the tax law and the ways in which it can be a concrete and succinct expression of social policy. Indeed, the tax system is now a cornerstone of the contemporary social safety net. For nearly …

Data Hacking

Cyber War – A Duty to Hack and the Boundaries of Analogical Reasoning

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Back in 2012, I was pleased to receive an invitation to a conference that Jens, Kevin Govern, and Claire Finkelstein were hosting on the law and ethics of cyberwar.  It was a great conversation; so great, in fact, that Jens and his colleagues were inspired to use it as the launching pad for this volume — Cyberwar: Law and Ethics for Virtual Conflicts.  They asked me to write a chapter on an idea I’d been thinking about since my first foray into the cyber arena back in 2007 — whether and when IHL (international humanitarian law, or the law of armed conflict for those of you trained in the United States) might involve a duty to hack?  The basic idea was straightforward — if a cyber-operation could achieve a military objective (say disabling a power grid or a war-supporting factory’s operations) without killing anyone or causing any lasting damage to the facility, shouldn’t IHL require States to employ it in lieu of kinetic operations that might cause civilian casualties or property damage? Looking at the …

Tax Forms

Ten Reasons You Should Consider the ABA’s Law Student Tax Law Challenge

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Every year, The Law Student Tax Law Challenge, a competition sponsored by the Young Lawyer’s Forum of ABA Tax Section, draws teams of JD and LLM participants from over 60 law schools for a competition that includes drafting and submitting two documents – one a memorandum to a partner and the other a letter to the client – providing tax advice raised by transactions that the client has been involved in. The competition is intensely transactional – it’s not about writing a brief and arguing to a court but rather doing what most tax lawyers do in practice, which is to advise clients on the likely tax consequences of transactions they have engaged in or are considering engaging in. Students work in teams of two – final submissions are due November 6, 2015, and further information, including how to get the problem and the Competition rules, are below. First, however, are the top ten reasons Temple Law students should consider participating in the Law Student Tax Law Challenge. 10. Semi-finalists get a free trip to …

Temple Law Classroom

Don’t Believe Me? Just Watch!

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Maybe I am not that old. Yet sometimes I feel that way with my students. Perhaps last week did not help. In my clinic, we were talking about what students wear to interview clients when they dress down during the day for school and then have to see clients in the office. I told them about my first legal aid office in Cleveland in the mid 80’s. We all thought we had to dress down for our clients but knew we had to dress up for court. To solve this problem for women, we had the denim wrap-around skirt in the closet—any woman who found herself running to any court could use it and all of a sudden seem somewhat professional. My students laughed at it. Really?  They wore those? That was dress up? As the discussion moved to other topics, they kept saying, “Is that how they did it in the land of the wrap around skirt?” The problem got worse a few days later. I moved from my clinical class to my poverty …

Birth Control

Birth control and the Affordable Care Act (and, yes, the pope)

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With much of the East Coast enthralled by the visit of Pope Francis, let’s review an issue that pits – perhaps – the pontiff’s enduring commitment to the disenfranchised against his religious beliefs: More than 50 years ago, the U.S. Supreme Court ruled in the landmark case Griswold v Connecticut that women have a constitutional right to birth control. Even with the right granted by the court, many women have had a hard time accessing contraception. Lack of health insurance, limits to coverage, and hefty co-pays have been obstacles keeping women from fully enjoying this right. Things have gotten better, however, since enactment of the Affordable Care Act (ACA), which requires free preventive health-care services for women. The law mandates that health insurers offer an employee and her dependents the full range of FDA-approved contraceptives – including the more costly injectables and IUDs – without any cost-sharing such as a co-pay. Access to reproductive healthcare is critical in allowing women to lead full lives. A comprehensive review of more than 60 research studies by the …

Did ‘Confirmation Bias’ Play a Role Espionage Case?

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The report that all espionage charges against Temple University physicist Xiaoxing Xi have been withdrawn raises the obvious question: How could things have gone so wrong? According to published accounts, prosecutors and agents saw documents that appeared to be suspicious and concluded – erroneously – that they were schematics for a particular device. Reading the story raises a concern about cognitive biases at work. The term biases does not refer to a prejudice or dislike, but rather a process in which the brain biases the observer to favor a particular conclusion. One particular type, “confirmation bias,” is common and particularly human: What a person expects to see colors the perception of what is then examined. Confirmation bias is no stranger to criminal and forensic investigations. It played a part in the misidentification of a suspect in a 2004 terrorist train bombing in Madrid, and its effect has been shown repeatedly in research. Whether it is a DNA analyst or a fingerprint examiner, erroneous information or our expectations can cause the person to see what is …

Temple Law Library

My Path to Law Librarianship

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My path to law librarianship was a circuitous one. I always loved reading, writing, and arguing about the law, so I was sure I would spend my legal career litigating cases for several decades. After three years as an associate in a large law firm, however, I was ready for a change. I took a position in a smaller, thirty-lawyer family law firm in order to have more client contact and more time in the courtroom. It was a decision that would change my life in ways I never expected. While at my second firm, I worked on a very contentious, high-asset divorce case. The case went to trial and resulted in a significant “permanent maintenance” (alimony) award for our client, which was affirmed on appeal. The permanent maintenance award stemmed from the fact that, decades earlier, our client left the workforce to raise the parties’ three children and manage their household, thus severely limiting her earning potential and employment opportunities. As part of his case, the opposing spouse argued that our client should return …

Robot

Rise of the Robots: Technology and the Threat of a Jobless Future

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Many American adults remember from our childhood the cartoon series “The Jetsons” which imagines a future where machines do all the work, and people just get to play and relax. But as Silicon Valley futurist Martin Ford points out in his new book “Rise of the Robots”, even in such a high-tech future, people will still have to eat and therefore buy food. How will they do that if there are no jobs left for people to do? This book is about how the technology revolution has eliminated, and continues to eliminate American jobs, and how that process is constantly accelerating. Automation, fast computers, robotics, and especially big data and artificial intelligence are all interacting to rapidly reduce or eliminate whole categories of American jobs. We can all think of blue collar jobs which have been automated and reduced in numbers if not totally eliminated. But the author tells us that the rapid advance of technology is not only threatening but eliminating all kinds of high-skill jobs, too. How many analysts does Wall Street need …

Statue of Liberty

Does the U.S. Issue More Green Cards for Permanent Legal Immigration than All the Rest of the Nations of the World Combined?

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It has long been my contention that the United States has the most generous legal immigration policy in the world, issuing more green cards for permanent legal immigration every year than all the rest of the nations of the world combined. This contention has been regularly questioned, so I’d like to re-state my case. What is a green card? The Migration Policy Institute says this: “Also known as green-card holders, immigrants are persons lawfully admitted for permanent residence in the United States who have the right to reside, work, study, and own property in the country. In contrast, foreign students, H-1B workers, and tourists are part of the large category of temporary nonimmigrant admissions.”[1] How many other countries even have green card immigration like the U.S., admitting immigrants as permanent, not temporary residents, with rights comparable to those of citizens, including a clear path to full citizenship? The answer is not very many. Most countries do not think of themselves as immigrant countries, and do not offer green card immigration in any formal program to …