All posts filed under: Faculty Commentary

Bankruptcies Shaped Trump Political Style

Restructuring a failing business requires puffery, threats, gambles and head fakes. Sound familiar? Donald Trump’s campaign for president often seems baffling. That’s because he is playing a very different game from what we expect in general elections. He learned it in bankruptcy proceedings. Having taken his Atlantic City casinos through bankruptcy multiple times, this is a game Trump knows how to play and win — at least for himself, if not necessarily for his companies or others who may depend on him. The process of restructuring troubled businesses such as Trump’s casinos is replete with posturing, table pounding, empty threats, puffery, head-fakes, and the occasional desperate gamble. If all that sounds familiar, it’s probably because you heard it from Trump in this week’s presidential debate. Bankruptcy may be the real model behind his unconventional political behavior. Corporate bankruptcies are complex and contentious affairs. Scores of creditors and shareholders grapple for slices of a pie that is too small to feed all of them. Ordinarily, the expectation is that shareholders will be wiped out, because the company is insolvent, and managers will …

Why are Feminist Judgments Necessary?

Published by Kathryn Stanchi

Last week marked the passing of Phyllis Schlafly, who arguably did more to undermine the equal rights of women than any other woman in United States history. As most know, Mrs. Schlafly tirelessly campaigned against the Equal Rights Amendment to the US Constitution (“ERA”). First drafted in 1923, the ERA stated that “[e]quality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.” The ERA failed to obtain ratification in the requisite number of states and Mrs. Schlafly is usually seen as a key architect of its demise. Mrs. Schlafly’s death made me ponder what American law, particularly American Constitutional law, would have looked like without her – that is, with an ERA. Would an ERA have allowed Title VII to have a bona fide occupational qualification, a provision that says that sex is a genuine job requirement for some employment? Would Geduldig v. Aiello (1974), the case finding that pregnancy discrimination was not an equal protection violation, have been decided differently …

Learning From Mistakes: Failing to Story Tell in a Defense Opening

Published by Jules Epstein

A successful opening statement: Draws in the listener from the first sentences Narrates facts into a story-board or framework that the audience – judge or jury – is familiar and comfortable with Tells that story with less attention to finite details and more to ensuring that the gist is grasped Is persuasive without becoming argumentative Strikes an emotionally resonant chord Leaves the listener desirous of and receptive to confirmation as the evidence unfolds The dilemma is for the defense lawyer, he/she who opens second. If the moving party has indeed set the stage with a compelling narration, the defense must quickly move the listener to a new narrative, a story at least as compelling, familiar and morally satisfying. If this does not occur, there is only one framework and one set of expectations. One author has described this as having and setting a “hook,” much as in fishing: An ordinary opening statement relies upon each juror to supply the motivation to actively listen. A hook is a story device that functions in three important ways: …

Abreu: McGonagall Replies to Snape on Taxes—’Be Proud Of The Tax Law You Have, Rather Than The One You Wish You Had’

Published by Alice Abreu

Because Professor Minerva McGonagall is my favorite member of the Hogwarts faculty, particularly as played by the inimitable Dame Maggie Smith, and because she and Severus Snape led rival houses, here’s how I think she would reply to Adam Chodorow’s reimagined Snape, who as a TaxProf warns his students on the first day of class that because there is “little foolish argument by analogy here, many of you will hardly believe this is law.” Humph . . . It’s high time you learned to be proud of the tax law you’ve got, rather than the one you think you ought to have. Our rival houses are the House of Tax Exceptionalism and the House of Tax as Everylaw. Snape as a TaxProf may wish that the tax law were exceptional, different from other fields of law in such fundamental ways that it is perhaps not law at all, but that is not the tax law we actually have. Our actual tax law has reveled in analogical reasoning from the early days in which some of …

Unreasonable Certainty: A Call To Abandon “Reasonable Degree of Scientific Testimony” Terminology

Published by Jules Epstein

The prevailing practice in many jurisdictions, usually compelled by custom rather than law, is to ask a testifying expert whether the opinion proffered or the conclusion drawn is held “to a reasonable degree of scientific certainty.” Yet scientists do not proclaim certainty in their domains; instead they acknowledge and embrace scientific knowledge as an area of change and evolution. And any attempt to define the term fails – how certain is “reasonable” certainty, and how is that measured except as a subjective appraisal rather than a uniform measure within a discipline? The origins of the term also confirm its inutility and inappropriateness in most if not all circumstances. The history of this legal term – and its beginnings with medical experts – was traced in Lewin, The Genesis and Evolution of Legal Uncertainty About “Reasonable Medical Certainty,”, 57 Md. L. Rev. 380 (1988). The emergence of this terminology came from early precedent in regard to expert testimony predicting future consequences such as the need for medical care in years to come or the likely harm …

Learning Lawyering From Film: “Let Him Have It”

Published by Jules Epstein

Film, Hollywood and otherwise, draws attention to what it means to be a lawyer, both good and bad. Think Atticus Finch, heroically portrayed by Gregory Peck and of such iconic stature that “the American Film Institute deemed Atticus Finch the number one movie hero of all time…” McMillian. A DIALOGUE COMMEMORATING THE FIFTIETH ANNIVERSARY OF TO KILL A MOCKINGBIRD’S PUBLICATION: ATTICUS FINCH-Christian?, 77 Tenn. L. Rev. 739, 748 (Summer, 2010). But filmed versions of trials, real and imagined, also do much more. As described by Professor Thomas Sullivan: Just as film audiences may learn from filmmakers, the writers, directors, actors, and cinematographers are able to create art that informs lawyers and other actors in the legal system about how film viewers may perceive them. Of course, it is equally true that filmmakers may create wholly unreal pictures of the legal system and the work of lawyers that distort, rather than inform film viewers of this process. SYMPOSIUM: IMAGINING THE CRIMINAL LAW: WHEN CLIENT AND LAWYER MEET IN THE MOVIES*, 25 U. Ark. Little Rock L. Rev. …

witness pointing at defendant while judge looks on

In-Court Eyewitness Identifications – What Process is “Due” Process?

Published by Jules Epstein

In any case where identification is at issue, the proverbial drumroll sounds at the crescendo of the witness examination when the prosecution asks “and do you see the person, here in this courtroom, who committed this crime?” And invariably the finger points at the accused. Who else would it be pointed at? The lawyers are known and obvious, the defendant is often a person of color and/or not in the garb of the courtroom professionals, and the courtroom security people are seated nearby. Although there have been rare instances of witnesses pointing to the court reporter or, in one case, the judge, the easy and recurring choice is the obvious one – as if there were an arrow with neon lights shouting “pick him” pointing at the accused. The science is clear – an identification in a courtroom, months or years after an encounter, is much less reliable and probative than one in the immediate aftermath of a crime, a point brought home by the 2014 report IDENTIFYING THE CULPRIT: ASSESSING EYEWITNESS IDENTIFICATION, a survey …

Nuclear symbol with binary code and random images

Russia and the DNC Hack: What Future for a Duty of Non-Intervention?

Published by Duncan B. Hollis

There are lots of important issues implicated by this morning’s above-the-fold story in the New York Times that U.S. officials and certain cybersecurity experts (e.g., Crowdstrike) have concluded Russian government agencies bear responsibility for hacking the Democratic National Committee’s servers and leaking internal e-mails stored on them to Wikileaks (Russian responsibility for the hack itself was alleged more than a month ago). The domestic fall-out is already on evidence with theresignation of Debbie Wasserman Schultz and I’m sure we’ll see other impacts here in Philadelphia at this week’s Convention (although Senator Sanders so far is not using the event to walk back his endorsement of Hillary Clinton). U.S. national security officials are treating the news as a national security and counter-intelligence issue (as they absolutely should). But what does international law have to say about a foreign government obtaining and leaking e-mails about another country’s on-going election processes? This is obviously not a case violating Article 2(4) since that only prohibits the “threat or use of force against the territorial integrity or political independence of any state” …

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Learning From Mistakes: An Imperfect Cross-Examination

Published by Jules Epstein

“By seeking and blundering we learn” – Goethe “I have not failed. I’ve just found 10,000 ways that won’t work” – Thomas Edison. “A spelling mistake in the DNA of a gene within the brain seems to impair the ability of a person to improve their performance based on knowledge of earlier errors.” – News Story, The Telegraph, 2007. The first two quotes above are inspirational and reflect insight; the third, sadly, seems to fit many lawyers who never recognize their errors and thus persist in their bad habits, especially in the courtroom. It is probably not genetic, but the recurrence argues for a model where we study error, diagnose and diagram it, and then take corrective steps. That is the rationale for this and forthcoming “learning from mistakes” columns. Although there are no hard data to back up this assertion, it is undeniable that poorly constructed cross-examinations occur on a daily basis in courtrooms across this nation. And they are conducted by lawyers with years of experience who, sadly, don’t recognize mistakes and learn …

If The Driver Had Been White…

Published by Jules Epstein

As the nation reels after multiple shootings of civilians by police and the subsequent attack on police officers in Dallas, Texas, the words of Minnesota’s Governor that, “Would this have happened if those passengers would have been white? I don’t think it would have,” bear examination. Was he guessing? Condemning a specific police officer? Or simply suggesting that an implicit bias caused the officers to perceive a threat when none was present? The word “bias” needs explication, in particular as “cognitive bias.” “Cognitive bias” does not connote prejudice, an overt and explicit hatred of an individual or group. Instead, it is a psychological term and means that hidden cognitive processes drive what we see and our interpretations of those observations. That racial bias can affect how information is processed cannot be doubted. Study after study has shown that respondents will judge the same scenario differently depending on the name of the suspect; for example, more people were likely to vote for the death penalty when reviewing a case file if the name of the defendant …