Category Archives: Faculty Scholarship

Cooley has one of the largest and most experienced faculty in the nation. Faculty members come to Cooley with years of experience in the practice of law. They combine “real world” knowledge with exceptional academic backgrounds. The full-time faculty make Cooley an outstanding legal education program. They are professionals dedicated to the ideals of practical legal scholarship and academic excellence.

WMU-Cooley Prof. Brendan Beery: What does the Constitution say about High Crimes & Misdemeanors? Let me explain.

WMU-Cooley Law Professor Brendan Beery

Blog author, Constitutional Law expert and WMU-Cooley Professor Brendan Beery explains what the Constitution says about High Crimes and Misdemeanors, and why issues surrounding impeachment and removal are for Congress – and not courts – to decide. Professor Beery, a summa cum laude graduate of the law school, teaches Constitutional Law, Criminal Law, and Criminal Procedure at WMU-Cooley Law School, and is a frequent legal expert in the media.

Much media attention is now focused on whether President Donald Trump or any of his associates are guilty of some crime involving obstruction of justice. As to the President himself, that question might be strictly academic; legal memoranda from the Justice Department’s Office of Legal Counsel (one dated 1973 and the other 2000) conclude that a sitting president cannot be indicted for a crime because a criminal indictment would cripple the president’s ability to fulfill his or her duties under Article II of the Constitution.

While associates of the President may be indicted (depending on where the evidence leads, of course), the larger concern for the President himself is whether anything he has done – or an accumulation of everything he has done – implicates the constitutional standard for impeachment and removal from office: “high crimes and misdemeanors.”

Interestingly, these words in the Constitution – “high crimes and misdemeanors” – follow two specific examples of impeachable offenses: treason and bribery (put all together, what the Constitution says is that an officer of the United States may be impeached and removed for committing “Treason, Bribery, or other high Crimes and Misdemeanors”). In the law, when a more general term (high crimes) follows more specific terms (treason and bribery), the general term is to be interpreted as meaning something of the same kind as those items specifically mentioned. For example, suppose that a law bans the use of “any saber, sword, dirk, dagger, knife, blade, or other dangerous instrument.” In analyzing the meaning of “dangerous instrument,” most lawyers and judges would look to the specific items listed before that general term to conclude that “dangerous instrument” must mean some kind of stabbing device.

Applying this principle (for the ambitious reader, it’s called – in Latin – e jusdem generis), it would seem that “high crimes and misdemeanors” means something on par with treason and bribery. That’s why most scholars agree that not just any crime will do; we’re probably talking about the kind of misdeed that represents a serious breach of the public trust. (Recall that the issue in the Bill Clinton impeachment was whether lying under oath about an extra-marital affair constituted such a misdeed.)

But this question (as much as lawyers will be involved in fighting about it) is more a political than a legal one. That’s because the U.S. Supreme Court, in a case called United States v Nixon (not as in Nixon the president, believe it or not) said that issues surrounding impeachment and removal are for Congress – and not courts – to decide. If and when Congress reaches such questions, the issue for members of Congress will be whether the allegations against the President – that he tried to get federal investigators to drop the Russian-collusion investigation and fired the FBI Director with Russia in mind – establish a serious breach of the public trust. It will be up to the House of Representatives to decide whether any constitutional charges (called Articles of Impeachment) should be brought; and if charges are brought, it will be up to the Senate to decide whether to remove the President from office (that would require a 2/3 vote).

Whatever decisions Congress might reach on these questions will not be second-guessed by any court of law. Our system is designed such that the President is answerable to Congress, which in turn is answerable to the people. Constitutionally, then, the fate of the President is in your hands.

LISTEN to Professor Beery on The Tom Sumner Program (at the 20 minute mark) May 23, 2017.

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WMU-Cooley Professor Joseph Kimble Honored By Scribes – The American Society of Legal Writers

Joseph Kimble, WMU-Cooley Law School Distinguished Professor Emeritus, was recently honored by Scribes (the American Society of Legal Writers) with the renaming of the organization’s Distinguished Service Award to the Joseph Kimble Distinguished Service Award. Kimble, a former executive director and 15-year board member of Scribes, was surprised with the honor during Scribes’ 2017 CLE conference at the Oklahoma City University School of Law.

Scribes - The American Society of Legal Writers - Honors WMU-Cooley Professor Joseph Kimble

Scribes was founded in 1953 and is the oldest organization devoted to improving legal writing and honoring legal writers. Kimble joined the organization’s board of directors in 2001, when he became the editor in chief of The Scribes Journal of Legal Writing, a position he held for 11 years. He is now senior editor of the Journal. In 2005, Kimble was appointed as executive director and served dual roles with the organization for the next five years.

“No one has ever deserved an award such as this more than Joe,” said Professor Ralph Brill, IIT Chicago-Kent College of Law, coauthor of A Sourcebook on Legal Writing Programs and eminent figure in the field of legal writing. “His work instilling the goal of writing in plain English is so important and has been so successful.”

Kimble joined the WMU-Cooley in 1984. He is the longtime editor of the “Plain Language” column in the Michigan Bar Journal. He has published dozens of articles on legal writing and written two acclaimed books—Lifting the Fog of Legalese: Essays on Plain Language and Writing for Dollars, Writing to Please: The Case for Plain Language in Business, Government, and Law.

When speaking about Kimble’s work teaching attorneys and law students to use plain language in legal documents, Professor Laurel Oates, Seattle University School of Law and cofounder of the Legal Writing Institute, said, “Joe Kimble has, in fact, changed the world.”

Read JUST. April 23, 2017  article An Interview with Joseph Kimble, Distinguished Professor Emeritus at Western Michigan University–Cooley Law School and  longtime editor of ‘Plain Language’ in the Michigan Bar Journal.

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President has “right” to fire Comey, but unprecedented action according to legal experts

WMU-Cooley Law School Constitutional Law Professors Devin Schindler and Brendan Beery were invited to share their expert analysis regarding the firing of FBI Director James Comey. WMU-Cooley Law School Constitutional Law Professor Devin Schindler shares expert analysis on the firing of FBI Director James Comey.

While speaking with WZZM TV in Grand Rapids, Michigan, Schindler said, “Let us remember that under Article Two of the Constitution the president has specific authority to appoint heads of departments of the United States,” said Schindler. “The president has the right to appoint these officers, but he also has the right to terminate them as well.”

Read more expert analysis on other issues from Professor Schindler here.

Beery, who was also interviewed by Tampa, Florida’s, Bay News 9, agrees with Schindler, but also reflects on the historical significance of Comey’s firing.  “It was unquestionably within President Trump’s constitutional authority to fire former FBI Director James Comey, said Beery. “It is also historically unprecedented for a president to fire an FBI director while that director is actively investigating the president’s administration. Trump’s allusion in his letter firing Comey to communications between Comey and himself also raises serious questions: such contact between the White House and an investigative agency is highly improper.”

Professor Beery is often tapped in the media as an expert on the Constitution. Viewers respect his clear, concise and objective analysis.

Want to understand more about the legal ramifications under the U.S. Constitution as it relates to the latest news and events? Read more from Professor Beery here.

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Boy Scouts of America to Honor WMU-Cooley Associate Dean and Ret. Brig. Gen. Michael C.H. McDaniel

A life dedicated to public service was the continuation of a journey that Brigadier General Michael C.H. McDaniel began as Boy Scout. McDaniel, the Associate Dean of the Lansing campus of Western Michigan University Cooley Law School, is the recipient of the 2017 Distinguished Citizen Award from the Water and Woods Field Service Council, for his service on the local, state, and national level.  Water and Woods is part of the Michigan Crossroads Council, Boy Scouts of America. McDaniel will be honored during a breakfast on May 16 beginning at 7:30 a.m. at the Eagle Eye Golf Cub in Bath.

McDaniel joined a Boy Scout troop in his hometown of King Ferry, N.Y., when he was 11 and learned the importance of public service on a smaller scale.

“This gave me the confidence and ability to search out public service opportunities on a larger scale as an adult,” he said.

Scouting experiences encouraged McDaniel to participate in ROTC while in college and to join the Michigan National Guard in 1983.  He eventually went on to law school at Case Western Reserve University in Cleveland.

“I think it’s absolutely true that the values you learn in Scouting stay with you your whole life,” McDaniel said.  “I could rattle them all off now, but I think the bigger message is that I learned about the value and importance of a life of public service from my time as a Scout.”

Part of his work at WMU-Cooley involves training future lawyers to practice law with the highest degree of ethics.  His own adherence to a strict code of moral and ethical standards has been publicly acknowledged by officials who asked him to take lead roles in investigations into a controversy surrounding Lansing’s Board of Water and Light and later the Flint water crisis.

McDaniel led a Community Review Team that reviewed documentation and conducted interviews with BWL personnel, resulting in a report with recommendations on improvements in customer  service and emergency response.  He got involved as a liaison in the Flint water crisis at the request of that city’s mayor and Gov. Rick Snyder.

“General McDaniel’s decision to pursue a life of public service continues to positively impact the lives of countless individuals in ways too numerous to list here,” said Paul Schwartz, Scout Executive for Water and Woods FSC.  “He is a powerful example of the positive impact Scouting makes on the lives it touches and we are grateful to him for his willingness to share that story.”

McDaniel, who  joined Troop 53 in his hometown of King Ferry, N.Y., said his fondest memories are of time spent at camp as a participant and later as a counselor.

“The idea that you could go out in the woods all summer and go canoeing and swimming anytime you want was great,” he said.  “I had a natural affinity for that life.”

As a child, McDaniel said there were very few activities for kids where he lived and Scouting was a natural progression for him because his mother was a biology teacher who introduced him to outdoor activities such as bird watching and shell collecting.

That interest in nature helped him complete a beautification project at a cemetery in King Ferry for which he earned his Eagle Scout rank.  He said the skills he learned in Scouting as a youth remain relevant today.

“They’re designed to teach Scouts a large degree of resiliency and to be self-supportive,” McDaniel said.  “The lesson as a youth is that if you get lost in the woods, you’ll know what to do and the lesson as an adult may be that if you get lost in the city, you’ll know what to do.

“It’s the moral lessons you learn.  The values in the Scout Law are what you want a young man to learn.”

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WMU-Cooley graduate will capitalize on first career to begin on second in the law

“I wanted to push my boundaries,” says Chris DeLucenay of his decision to pursue a legal career after 10 years as a hardware engineer specializing in digital design custom logic. “I’m kind of a lifelong student,” DeLucenay says. “I was originally looking into an MBA, but I didn’t want to go into business. Then my wife noticed that I could do law school part time and keep working if I went to Cooley. I was always interested in IP law, and I love problem solving, so that was a great solution.”

WMU-Cooley student Chris DeLucenay

The Indiana native worked for five years for Rockwell Collins and five years for GE Aviation, at the latter designing components that went into flight data recorders and “other processing elements.”

Though of course his exemplary years at WMU-Cooley were a large factor, it was also that expertise that landed him a position at Gardner, Linn, Burkhart, and Flory, which is dedicated exclusively to Intellectual Property law.

GLBF was the subject of a 3/13/2013 Grand Rapids Legal News article, when it was the only firm in West Michigan to receive a first-tier ranking in all six of the categories in the prestigious U.S. News and World Report/Best Lawyers ranking: Patent Law, Trademark Law, Copyright Law, Litigation-Intellectual Property and Litigation-Patent. The 2012-2013 designation was the second time for the firm, and it has continued its first-tier ratings since.

DeLucenay barely skipped a beat between school and employment. He took off Monday and Tuesday, but returned to school Wednesday for his last exam, and started work on Thursday of last week.

While he is not an attorney yet since he does not take the bar exam until July, DeLucenay is eligible to work at the firm as a registered patent officer because he has already passed the patent bar.

That makes him feel somewhat more comfortable with the bar exam than many of his fellow students. “Most take a couple months off to study for the bar,” he says,” but I can’t do that. Still, I’m dedicated to working on my bar prep around my work schedule, and I think I’ll be all right.”

He says that he did find law school challenging. “Engineering school was hard, so I was prepared. But even though it wasn’t really that hard, law school was more work than I thought; the hardest part was balancing the time for classes and all the reading with continuing to work full-time.”

DeLucenay gives WMU-Cooley a great deal of credit. “I thought the teachers were fantastic to be honest,” he says. “I was really impressed with the professors and especially with Dean [Nelson] Miller.”

Especially notable, DeLucenay says, were David Berry, who is Of Counsel at Brooks Kushman and has taught at WMU-Cooley since 2002, and Gerald Tschura, who is now director of the Intellectual Property LL.M. program.

WMU-Cooley Team Joyce Hill and Christopher DeLucenay

WMU-Cooley Team Joyce Hill and Christopher DeLucenay

It was Tschura who coached the winning team of DeLucenay and Joyce Hill (from the Auburn Hills campus) in the Detroit U.S. Patent Office’s Midwest Regional International Patent Drafting Competition. In the competition’s inaugural year, 2016, the team came in second, but the field was small. By the second competition earlier this year, 14 teams from different states and even Canada, including several from Michigan, participated; WMU-Cooley was the only Michigan school which advanced to the finals.

“I was a little disappointed with getting third, but we beat a lot of the big schools in Michigan,” DeLucenay comments.

Regardless of outcome, the experience was quite worthwhile for DeLucenay. At the time of the 2016 competition, he was quoted as saying, “Professor Tschura was the only team coach that attended the competition. We were fortunate to have one so well versed in intellectual property law there to assist… He also introduced us to some of the law partners, examiners, and managing directors in the IP industry. What a fantastic networking opportunity that was! I learned that each practitioner, corporation, law firm and USPTO has their own unique way or spin on writing patents.

“I was honored to represent WMU-Cooley respectably.”

Originally from the very small town of Angola, Ind., DeLucenay received his bachelor’s from Rose-Hulman Institute of Technology in Terra Haute, and went to Iowa State University for his graduate degree.

He married his high school sweetheart, and the two live in Ada, which he says is a very comfortable two hours from their childhood home. “We’ve put our roots down here in Grand Rapids,” he says. The couple has one daughter, born a few months after DeLucenay started at law school.

DeLucenay was particular about what firms he wanted to work for, particularly about the not-too-big, not-too-small size he sought.He did a lot of research and started his job search early.

He recognizes that he is lucky to have succeeded in obtaining employment immediately after law school in a market that can still be glutted, though he comments, “It’s strange, you always hear there are too many lawyers but on the other hand we have massive problems with people having representation.”

He attributes that success to choosing IP law as his concentration and to his experience. “At GE Aviation I volunteered in the legal department for the last two years, so I’ve been doing similar work,” he notes.

WMU-Cooley Team Joyce Hill and Christopher DeLucenay

WMU-Cooley Team Joyce Hill and Christopher DeLucenay

“My degree impacted my employment directly in that I couldn’t have taken the patent bar without it,” he says, adding, “You need to be able to understand the technical merits of their work. There are varying degrees of complexity; I’m sure some will be way over my head. But my specialty in electrical and computer is in the field with the highest demand in the patent area, which also factored into my decision to pursue IP law.”

Burkhart Gardner Linn and Flory is expanding. At the time of the Grand Rapids Legal News article there were six attorneys, but DeLucenay will be the ninth and there are plans for at least one more this year.

One of the main attractions of for DeLucenay is the firm’s commitment to mentoring. “The primary reason I went to this firm is because they really emphasize the training. I won’t have one specific mentor, they’re all going to mentor me,” he says.

“It’s just a great opportunity, because they’re really good at what they do.”

This story was written by Grand Rapids Legal News writer Cynthia Price and was originally published by the Legal News on April 19, 2017.  It is reprinted here with permission of Detroit Legal News Publishing LLC.

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WMU-Cooley Associate Dean Michael C.H. McDaniel Inducted into U.S. Army ROTC Hall of Fame at St. Bonaventure University

Retired Brigadier General and current WMU-Cooley Law School Associate Dean and Professor of Law Michael C.H. McDaniel was inducted into the alumni ROTC Hall of Fame for the Seneca Battalion of the U.S. Army Reserve Officers’ Training Corps at St. Bonaventure University, located  in Olean, New York, on April 1, 2017. Following the induction ceremony McDaniel presented the keynote during the University’s annual ROTC Military Ball.

On April 1, Brigadier General (ret) and WMU-Cooley Law School Associate Dean and Professor Michael C.H. McDaniel was inducted into the ROTC Hall of Fame at his alma mater St. Bonaventure University.

Brig. General (ret) and WMU-Cooley Associate Dean and Professor Michael C.H. McDaniel was inducted into the ROTC Hall of Fame at his alma mater St. Bonaventure University.

During his remarks McDaniel advised the audience of cadets, alumni and guests that what makes our military great is still our people, the men and women in uniform, and always will be.

“It is because of the values not just instilled in us but required of us, as students of St. Francis, here, at St. Bonaventure University, because we take an oath to defend the U.S. Constitution, not a loyalty oath to the Commander in Chief​, and because our Army values are based on that legacy,” he said.  “The oath to the Constitution is in the Constitution, significantly placed at the end of the body and before the Bill of Rights. The oath then is to defend both the system of co-equal republican government and the rights of the individuals. And so we fight, voluntarily, for the principles in the Constitution and because of the promise to all Americans embodied in the Constitution.”

McDaniel, a 1975 St. Bonaventure graduate, earned a bachelor’s degree in history, then earned his Juris Doctor from Case Western Reserve University School of Law in 1982.  Having been an active participant in the Army ROTC program for two years as an undergraduate student, he applied for and received a direct commission from the Michigan National Guard as a Judge Advocate General Corps officer in November 1985.

He began his career as the staff judge advocate for the Camp Grayling Joint Training Center, then served as trial counsel and then staff judge advocate for the 46 Infantry Brigade, 38th Infantry Division, and  as detachment commander (Mich.) for the 38th Inf. Div. He served as a military judge, then, upon promotion to colonel, as state judge advocate.

His civilian career as a trial attorney with the Michigan Attorney General’s Office began in January 1984. From 1998 to 2003, he was the assistant attorney general for litigation in the Executive Division of the Michigan Department of the Attorney General. His duties included the review of all civil and criminal actions proposed to be initiated by the department in state or federal trial courts, and evaluation of all proposed settlements of every court case.

Appointed by the governor as Michigan’s first Homeland Security adviser in 2003, he served in that capacity until July 2009. In this position, McDaniel was the liaison between the governor’s office and all federal, state and local agencies for homeland security, with responsibility for developing statewide plans and policy on homeland security preparedness. During this assignment, he served concurrently as the assistant adjutant general for homeland security in the Michigan National Guard.

From August 2009 to January 2011, McDaniel was the deputy assistant secretary for homeland defense strategy, force planning and mission assurance at the Department of Defense.  He advised the DOD secretary, undersecretary of Defense for Policy, and assistant secretary of Defense for Homeland Defense and America’s Security Affairs on all homeland defense-related strategies (quadrennial defense review, homeland defense & civil support strategies, the mission assurance strategy, and domestic counterterrorism and counter-narcotics strategies, among other efforts).

McDaniel graduated from the U.S. Army War College and earned a Master of Strategic Studies in 2005. He also earned a master’s in security studies (homeland security) from the Naval Postgraduate School in 2007. He was promoted to brigadier general in 2007 and his final military assignment was as assistant adjutant general for Army Future Missions, Michigan National Guard, from January 2011 until October 2012. He retired in December 2012.

Professionally active, McDaniel served as a member of the National Governors Association’s Homeland Security Advisors Council, where he was elected to the Executive Committee in 2006 and 2008. He was named by the Office of Infrastructure Protection, Department of Homeland Security, as chair of the State, Local, Tribal, and Territorial Government Coordinating Council in 2007. He joined the Western Michigan University Cooley Law School faculty as a full-time constitutional law professor in 2011 and was promoted to associate dean in 2016.

McDaniel’s military awards and decorations include the Legion of Merit (1 OLC), Meritorious Service Medal, Army Commendation Medal, Army Achievement Medal, Reserve Component Overseas Training Ribbon (with 2 devices) and the Michigan Distinguished Service Medal (Fifth Award).

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Law graduates take Florida Bar’s Oath of Admission, along with Law Professor

The  Hon. Christopher C. Sabella of the 13th Judicial Circuit Court administered The Florida Bar’s Oath of Admission to WMU-Cooley Law School graduates this week, along with one of WMU-Cooley’s professors. International Law Professor Paul Carrier adds Florida to the states he now can practice in. The Oath contains important principles to guide attorneys in the legal profession.

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Carrier, who has taught at WMU-Cooley’s Michigan campuses since 2003, recently joined the law school’s Tampa Bay campus. He has been a member of the Michigan bar since 1991 and hopes to use lessons from the Florida Bar Exam while teaching. Carrier also plans to begin doing pro bono work at the law school’s debt relief clinic, which serves the Hillsborough County community.

In addition to Professor Carrier being approved for admission, other new admittees to The Florida Bar participating in the ceremony included WMU-Cooley graduates Eric Nelsestuen and Marisol Perez.

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