All posts filed under: Faculty Commentary

“Saying “No” Is Not Client Betrayal

“Betrayed.”   Acting Attorney General Sally Yates said “no” to President Trump and refused to order the Department of Justice to defend the immigration/refugee ban.  This was decried as an act that “betrayed” the Trump administration, stood as “a further demonstration of how politicized our legal system has become[,]” and an instance of “people refusing to enforce our laws….” These attacks on this career prosecutor misunderstand a lawyer’s fundamental duty and the specific role the Attorney General plays. Lawyers say “no” to clients all the time.  We tell clients that a particular claim or defense can’t be raised or that an argument won’t be presented.  Our duty is to the client within limits set by law.  There is no principle that says a lawyer must (or may) do whatever the client wishes and defend any position no matter how unconstitutional or unlawful. Indeed, the Rules of Professional Conduct sometimes require us to tell the client “no.” We cannot lie or present false evidence to a court, and we are also forbidden from following a superior’s orders …

Why the C.D.C.’s Power to Quarantine Should Worry Us

By KYLE EDWARDS, WENDY PARMET and SCOTT BURRIS JAN. 23, 2017 The Centers for Disease Control and Prevention issued new regulations this month that give it broad authority to quarantine Americans. The rules outline for the first time how the federal government can restrict interstate travel during a health crisis, and they establish in­house oversight of whether someone should be detained, without providing a clear and direct path to challenge a quarantine order in federal court. State and local authorities had previously been the ones to usually deal with issues like this during epidemics. Now the administration of Donald J. Trump has even more authority to detain people than the Obama administration had during the Ebola crisis. It’s imperative that whenever the next outbreak hits, emergency health measures are grounded in scientific evidence and guided by clear, fair rules to protect people from wrongful deprivation of their liberties. Consider what happened to Kaci Hickox three years ago, when she landed at Newark Liberty International Airport after volunteering as a nurse for Ebola patients in Sierra …

Commentary: Roof Should Not Have Been Allowed to Represent Himself

The return of death sentences by the jury was inevitable in the case of Dylann Roof, who was on trial for killing nine black churchgoers during a Bible study in Charleston, S.C. But no one – fan or foe of capital punishment – should take comfort in how this came about; and an understanding of core Eighth Amendment values should make clear that the process and resulting sentence are unconstitutional. What went wrong first was the decision to permit Roof to self-represent. This flowed from a basic principle of autonomy – just as individuals have the right to the assistance of counsel, so too do they have the right to go it alone or, as some courts have put it, to be the captain of one’s ship. However, nearly a decade ago the U.S. Supreme Court held that, under the Sixth Amendment, “a right of self-representation at trial will not ‘affirm the dignity’ of a defendant who lacks the mental capacity to conduct his defense without the assistance of counsel. . .” Placing an unskilled …

The Life (and Death?) of Corporate Waste

At first glance, corporate law’s waste doctrine makes little sense. The classic definition of waste—a transaction “for consideration so disproportionately small as to lie beyond the range at which any reasonable person might be willing to trade,” an act equivalent to “gift” or “spoliation” of corporate assets—suggests that waste should never arise, for what corporation would ever enter into a transaction so absurd, absent self-dealing or gross negligence? Yet waste claims are regularly made. The conventional wisdom is that waste claims never succeed; but empirical studies show that’s wrong, and some of the most significant corporate law cases of the last two decades have dealt with waste. Respected judges have called for the doctrine’s abolition, referring to it as a “vestige” and memorably deriding it as the mythical “Loch Ness Monster” of corporate law; still, waste survives. It is a remnant of ultra vires, a doctrine proclaimed dead for over a hundred years—but waste is not dead. It confounds our model of managerial responsibility; after decades in which discussion of directors’ and officers’ duties have …

Sometimes Normal is the Best Medicine

This is a personal story about how Temple Law has been a community for me. In February of 2016 I was diagnosed with a rare and aggressive form of breast cancer.  For a variety of medical reasons, I needed to start chemotherapy immediately.  The drugs in question have almost all the horrendous side effects of which you’ve probably heard—hair loss, nausea, problems eating, low energy. For about a month before I received the diagnosis, I had been teaching Property to a first year section, as I have done here at Temple for many, many years.  The class seemed to me to be going well, and—though several of my colleagues offered to take over teaching it—I did not want to give it up and become a full-time patient.  On the other hand, there was no way the students would, over time, fail to notice that something was going on with me.  The drugs were going to have a visible effect. “Everyone I’ve told so far has asked if there is something they can do.  And my …

Op-ed: Fix the Electoral College and Let the People Decide

This is absurd. This is an outrage. For the second time in only five elections we are about to inaugurate a president who received fewer votes than his principle adversary. And the second time is going to be much worse than the first. In 2000, Al Gore’s popular vote margin over George Bush was about 500,000 votes — not insignificant, but still only about 0.5 percent of the total votes cast. In 2016, on the other hand, once all the votes are in from notoriously slow-to-count states like California and Washington (mostly from mailed ballots), Hillary Clinton is expected to have at least 2,000,000 more votes, or 2 percent of the total cast, than Donald Trump. That’s a larger gap in both the popular vote and percentage margin of victory over her opponent than John Kennedy in 1960, Richard Nixon in 1968, and Jimmy Carter in 1976. But they all won their races. Imagine how different our world would be if they had not. And even when the popular vote winner has won the Electoral …

Commentary: Here’s what a pro-Trump vote will accomplish

Many voters leaning toward Donald Trump, including me, have been alienated by his vile comments recorded in 2005 about sexually assaulting women. Others have been discouraged by polls and the mainstream media echo chamber proclaiming that Trump can’t possibly win now and that Hillary Clinton has already won. But here’s why those voters should consider voting for Trump anyway. Even if Trump has turned out to be a flawed bearer for his populist message, he has presented a set of original positions embraced by many voters, including at least a majority of Republican voters, much to the surprise of the American elite that dominates both political parties. Trump was the only candidate of either party to defy the conventional wisdom that said winning candidates had to define themselves as favoring more immigration, less rigorous enforcement of immigration law, and a “comprehensive” approach to reform that included legalization for illegal immigrants, which, of course, would encourage even more illegal immigration. From the beginning of his campaign, Trump stated that immigration needed to be restricted to protect …

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Charter Management Organizations and the Need for Reform

Two recent audits and a guilty plea show strong evidence of the need for reform of Pennsylvania’s charter law to provide for more effective oversight of the substantial public money going to the charter sector.  The Inspector General of the US Department of Education and the Pennsylvania Auditor General have both recently concluded that Pennsylvania’s charter law does not provide sufficient oversight or control over charter management organizations. CMOs are organizations that manage charter schools. Although charter schools in Pennsylvania must be organized as non-profits, CMOs can be and often are for-profit organizations. The Pennsylvania charter law doesn’t mention them because the legislature apparently did not envision such entities in the late 1990s when it wrote the law. But they have become an increasingly important part of the charter sector. The two audits highlight challenges that the growth and operation of CMOs present to effective oversight of public funds going to charter schools. The Office of Inspector General of the U.S. Department of Education found that “charter school relationships with CMOS posed a significant risk to Department …

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Seven Steps to (Hearsay) Heaven

The great jazz trumpeter Miles Davis recorded his classic Seven Steps to Heaven in 1963, with no explanation as to why this was the number of steps needed to ascend. He just laid down a seven beat, seven note structure and the music flew. Well, perhaps there are an equal number of steps to “hearsay heaven,” that place lawyers want and need to ascend to when proffering or confronting hearsay evidence. Yet virtually no attorney follows all of them, focusing either on admissibility or exclusion without regard to content, effective use or minimization should the proof be allowed. So this guide will offer the steps necessary to completely address hearsay in the courtroom. Step 1 – Is there an assertion by a human? The first reminder here is that hearsay comes from humans, so barking alerts by a drug dog, or computer printouts of telephone records are not covered by the rule. And what is an assertion? In effect, it is a factual declaration, a sentence that could be restated with the words “it is true …

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Yell, Compel, or Soft-Sell: How Blatant Must Cross-Examination Be?

Among Irving Younger’s commandments were the well-known dictates of “be brief” and “save the ultimate point of your cross for summation.” The latter was the model for an eyewitness cross-examination at a recent training on litigating mistaken identification cases, but when we polled the mock jury one of its members – discussing the cross – said “I had no idea what the lawyer was doing or what his purpose was.” It was only one juror, and others ‘got it,’ but the experience gave me pause. The question was, and remains – is it better to make your points and leave the rest for closing; or must we re-examine Younger’s proscription and ‘push’ the point more explicitly? Let me first present the cross as delivered and then the analysis. The cross was designed to make three essential points: that the witness had barely any time to view the perpetrator (and was looking at the gun rather than the robber’s face); that police ‘bad practices’ created the false memory; and that the accused did not fit the …