All posts filed under: Faculty Commentary

Why Was He Kneeling At My Front Door, Hands Raised?

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It was 4:55 a.m. when the door bell rang. Who could it be at this hour?  I looked out and saw him – crying, shivering in 20 degree cold, he waited.  And when I opened the inner door he backed away, raised his hands in the air, and kneeled down.  To tell me he was lost and needed directions.  That he approached my home because the living room light was on and the computer screen, with me at it, visible.  Kneeling, like a soldier surrendering to their captors. Growing up in the era of Ozzie and Harriet, Leave it to Beaver, and My Three Sons, this was not the image of how someone sought help.  The goofy or errant teenager could still turn to a neighbor, not fearing violence but perhaps expecting a stern headshake, and then having an arm put around his shoulders and taken to the kitchen for a warm drink, some fatherly advice, and a ride home. That is what my son could expect, even decades later.  A neighbor – even a …

Can we make ‘Sense’ of the Kyle Rittenhouse Acquittal?

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It is no surprise that many feel dismay over the acquittal of Kyle Rittenhouse and see the verdict as resulting from the American tolerance of gun culture; a nearly all-white jury favoring a white defendant; a baby-faced [in the jurors’ eyes] teen who did not match a stereotype of a ‘gun-toting’ marauder; and a reaction against the purported violence of racial justice protests. But those views impose social concerns on what is ultimately a trial, a process where a jury must confront two competing narratives.  Sorting out the possible social and cognitive contributing factors cannot be done with precision and in fact such an exercise may be fruitless.  But self-defense law Wisconsin style and the conduct of Rittenhouse’s trial offer easy explanations of how a ‘not guilty’ verdict was reached either because jurors simply followed the law or made the defense story fit with their implicit (or express) biases. What were the stories?  The prosecution’s was simple, laid out in the opening statement: [T]he defendant Kyle Rittenhouse, who was 17-years-old at the time, had armed …

Photo of Professor Melissa Jacob

Q&A with Professor Melissa Jacoby

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In September of 2019, Purdue Pharma LP filed for Chapter 11 protection after facing a wave of lawsuits over its opioid painkiller drug, OxyContin. The Sackler family, who own the pharmaceutical company, have attempted to use a controversial tactic to get bankruptcy-like protections to without filing for bankruptcy in order to protect their personal assets and holdings. On Wednesday, June 15th, according to Bloomberg, “U.S. Bankruptcy Judge Robert Drain approved an investigation into whether the drugmaker’s owners, members of the billionaire Sackler family, have had undue influence on an independent committee of Purdue board members,” a win for the advocacy group of parents whose children died as a result of opioid abuse. Professor Jonathan Lipson, Harold E. Kohn Chair and Professor of Law at Temple Law School, was of counsel to the movant. His colleague, Professor Melissa Jacoby, Graham Kenan Professor of Law at the University of North Carolina at Chapel Hill, put the ruling into context.  Temple Law School: In in the June 15th ruling, Judge Drain approved an investigation, which will give an …

Transgender Pride Flag of blue, pink, and white stripes

How Cisgender Advocates Can Honor Transgender Day of Visibility (Everyday)

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Last year, at the start of (our awareness of) the coronacrisis, I read the story of anthropologist Margaret Mead being asked by a student what she considered to be the first sign of civilization in a culture. The student expected Mead to talk about hunting tools, the wheel, grinding stones, or clay pots. Instead, the anthropologist answered that the first evidence of civilization was a 15,000-year-old fractured femur found in an archaeological site. The bone, which links hip to knee, had been broken and healed. Mead explained that in the animal kingdom, if you break your leg, you die. You cannot run from danger, get to the river for a drink, or hunt for food. You become easy prey for prowling beasts. A broken femur that has healed is evidence that someone helped a fellow human and took time to stay with the one who fell, rather than abandoning them to save their own life. The message was that we feel more human when we help others, and that generosity and altruism are (or should be) …

Prof. Carpenter speaks to a lecture hall with seated students

About Your First Semester Grades: What Ought to Come Next?

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So here we are again – it’s the beginning of another Spring semester for America’s law students. This time of year means a lot of different things for a law school; it’s the beginning of the end for some of you who are getting ready to (finally!) graduate, but for 1Ls, it’s the end of the beginning – that bewildering first semester when you have absolutely no idea how you’re doing. Well, 1Ls: now you know how you were doing. The question for you now, is this: what ought to come next? As a prof who primarily teaches in the first year and also experienced my own share of law school grades that were sometimes relieving, sometimes disappointing, and frequently confusing, I’d like to offer a few words of advice. If you’re happy and you know it, clap your hands – and then immediately get back to work. For those of you who received above-the-curve grades, you’re probably pretty pumped right now, and it’s appropriate that you should be! I’m sure you worked really hard, …

U.S. Capitol building in black and white

Soliciting or Encouraging Sedition

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What is Donald Trump’s culpability for the January 6th assault on the Capitol?  Morally, it is clear – Trump is a sentient being, aware of risks and consequences, who acted with disregard for the lives and well-being of others. Causally, the case is strong – in the terms of proximate cause and foreseeability, he spent months agitating and stirring discontent, he knew the volatility of his audience, and the actions of his followers were “not so extraordinary that it would be unfair to hold the defendant responsible for the actual result.” 1 W. LaFave, Substantive Criminal Law § 6.4, at 464 (2d ed. 2003). And in the eyes of history, culpability is beyond question – the “buck stops here” principle is the metric. But is he criminally responsible? Are there acts worth investigating, are there provable criminal acts attributable to the President? The President’s speech at the pre-insurrection rally may not, on its face, be sufficient to prove solicitation to commit a crime – here, riot, assault, theft, or damage to property. The language that …

Dear Justice Barrett

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Dear Justice Barrett, I hear that you will be asked to recuse yourself in the upcoming voting litigation about the presidential election. Here are my thoughts on how to rule on those requests: You have received an appointment for life. Now is the time that you start to prioritize your independence, your role in protecting the Court as an institution held in great respect among our citizens and the rest of the world, and yes, selfishly–your own legacy. *Independence: Your own view of whether you lack personal bias or prejudgment in these voting cases is only part of your consideration. The self-proclaimed independence of Justices does not fully satisfy the importance of judicial independent decision making. The public’s view of your independence is crucial. You were selected from the sea of hopeful qualified candidates by a man who announced that you would likely decide cases assisting him with holding onto the presidency. I understand that you did not have control over what this man was saying. But his announcement is part of the facts that …

Unpacking the Race, Gender, Disability and Class Implications of Juvenile Detention Decisions

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Race, gender, disability and class based injustices happen to our nation’s teens every day, in the mundane decisions that probation officers, caseworkers, and judges make, usually out of public view. An article in Pro Publica documents a judicial decision to detain a 15-year-old Black girl for violation of her probation. The violation involved her failure to properly attend her online school program and keep up with her assigned homework. The judge, citing a “zero tolerance” for probation violations, incarcerated her in May, 2020, in the midst of a massive disruption to the school lives of every American teenager. The decision was made without testimony by the girl’s special education teacher, who had to leave the online hearing to fulfill her other teaching duties. Studies make clear the disproportionate impact of race in all aspects of the juvenile justice process. Those involved in the process tend to see Black teens as more mature and therefore more culpable for their behavior than white teens of the same age. Juvenile detention also disproportionately impacts teens diagnosed with ADHD …

Temple Law Reacts to the June Medical Services, LLC v. Russo SCOTUS Decision

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On June 29, 2020, Supreme Court Justice Breyer delivered the 5-4 opinion in June Medical Services, LLC v. Russo, holding that Louisiana’s Unsafe Abortion Protection Act, requiring doctors who perform abortions to have admitting privileges at a nearby hospital, is unconstitutional. Rachel Rebouché Associate Dean for Research Professor of Law Generally, this is a win for abortion supporters, and a decision many did not expect. Justice Breyer relied heavily on the factual record developed by the District Court and ruled that the law was the same in its effect and purpose as the Texas law struck down in 2016. Chief Justice John Roberts wrote a concurrence, ruling on grounds of stare decisis and providing the 5th vote needed to strike down the restriction. His concurrence is quite narrow, though, and it suggests that the Chief Justice interprets prior caselaw as giving far more deference to states than the Court’s 2016 ruling did. Adrienne R. Ghorashi, Esq. Program Manager Center for Public Health Law Research This SCOTUS decision reaffirms what was already established 4 years ago …