All posts filed under: Faculty Commentary

Sorting hat from Harry Potter series

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

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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 …

Microscope

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

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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 …

Film Equipment

Learning Lawyering From Film: “Let Him Have It”

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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?

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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?

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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” …

Incorrect Math Equation

Learning From Mistakes: An Imperfect Cross-Examination

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“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 …

Police lights in car mirror

If The Driver Had Been White…

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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 …

Checklist

Do Lawyers Need Checklists to Reduce Error?

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Can checklists reduce lawyer error? As they do for doctors or airline pilots or building engineers? Although the focus on this technique has largely been outside of the realm of the legal system, there is enough known to say that its application to lawyers is both necessary and likely to be beneficial. That lawyers do make errors, and errors of grave consequence, cannot be doubted. While it has been written that “[n]o empirical research exists regarding error rates by lawyers, but it is reasonable to assume they make errors as often as doctors[,]’ McClurg, FIGHT CLUB: DOCTORS VS. LAWYERS – A PEACE PLAN GROUNDED IN SELF-INTEREST, 83 Temp. L. Rev. 309, 349 (2011), there are some estimates if not hard data. The late Justice Scalia, when defending death penalty jurisprudence and practice, famously (or perhaps infamously) quoted a New York Times article that “the error rate [in criminal cases is] .027 percent–or, to put it another way, a success rate of 99.973 percent.” Kansas v. Marsh, 548 U.S. 163, 198 (U.S. 2006). Of course, this …

Flags

Brexit Will Fuel Citizenship Arbitrage

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The unexpected result in the British referendum is hitting the news today like a thunderclap. As the financial markets tumble, few will escape Brexit’s consequences. But none will feel Brexit more than those whose employment and residential security have been contingent on the UK’s continued EU membership. An estimated 3 million citizens of other EU member states live in the UK. Meanwhile, 1.3 million Brits live in other EU member states. For this population, Brexit spells uncertainty, at least. No more will moving across the Channel for work, study, and other purposes be almost as easy as moving across the Hudson River from New York to New Jersey. Getting another nationality will in many cases be the answer. Think citizenship insurance. Free movement rights formerly guaranteed under the EU treaty regime will be up for grabs. Those who are allowed to stay will face visa applications, registration regimes, and other bureaucratic hassles. Others may face expulsion. As EU citizens – a status that comes with citizenship in an EU member state — these individuals have …

The Franklin Institute

Why The Franklin Institute Can No Longer Charge Disabled Guests Twice

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My son, Michael, is a 34-year-old who has cerebral palsy. Despite his disability, he knows how to enjoy life. He’s very active in politics, he loves sports, he loves museums, and he loves going to concerts. But he can’t do any of these things by himself. While he can drive his own power wheelchair, for just about everything else – getting dressed, eating, showering, transferring from bed to wheelchair, shaving, driving in his van, going to the bathroom – he depends on somebody else to help him. He has attendants 24/7. Because of his disability, jobs are hard to come by, and even when he finds one, it’s always part-time. He relies mostly on Supplemental Security Income and food stamps to get by. Accordingly, even more than most, financial considerations limit the number of things he can do. But he also faces an additional obstacle. When he goes to an event, he gets charged twice – once for himself and once for his attendant. Now on the surface, this might seem reasonable. After all, the …