All posts filed under: Faculty Commentary

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 …

Trial Team Temple Law

Hearsay: Debunking or Extolling the Evidence Once Admitted

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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

LOVE Park Family Personifies Problems

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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 …

Superman

My Clinical Prof Can Leap Tall Buildings In Single Bounds!

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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 …

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 …