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.

So, You Want to Be a Criminal Lawyer? Seven Things Your Law School Should Offer

krause-phelan_tonyaBlog author WMU-Cooley Law School Auxiliary Dean and Professor Tonya Krause-Phelan teaches Criminal Law, Criminal Procedure, Defending Battered Women, Criminal Sentencing, and Ethics in Criminal Cases. She coaches national mock trial and moot court teams with the West Michigan Defenders Clinic and frequently appears as a commentator on numerous radio, television, print, and internet media sources regarding criminal law and procedure issues.

When I attended law school in the late ’80s, becoming a criminal practitioner was probably the least desired career choice a law student could make. At that time, many law students, law professors, and practitioners alike thought that the only people who would “settle” for a job as a public defender or as a prosecutor were those who could not get a job with a mega-firm or as in-house counsel for a Fortune 500 company.

Because I knew when I went to law school I wanted to be a public defender, I followed my passion instead of conventional wisdom. I was fortunate enough to land a job right out of law school as a public defender.  Eventually, I went into private practice, where I specialized in criminal defense. But, I never gave up my passion for indigent defense, and as a result, I continued to accept court-appointed cases. Throughout my many years of practice, criminal practitioners continued to be viewed as a sub-category of lawyers.

But, nothing could be further from the truth. Criminal practitioners are some of the most passionate, dedicated, and talented lawyers in the profession. After all, practicing in the area of criminal law is not for the faint of heart; it is one of the most demanding, challenging, and specialized areas of practice with clients’ lives and liberty literally hanging in the balance. With everything known today about DNA exoneration cases, mistaken identification cases, police shootings, and other systemic and ethical challenges facing the criminal justice system, people have changed their minds about public defenders, criminal defense lawyers, and prosecutors. Today people are actually deciding to attend law school for the specific purpose of becoming a criminal practitioner.

For those who want to become a criminal practitioner, they should look for a law school that does everything possible to adequately prepare its students for the rigors of a criminal practice. Whether a law school advertises itself as a “practice ready” school or not, several factors foretell a school’s pledge to preparing its students for criminal practice. Prospective law students interested in practicing criminal law should consider the following factors:

  1. Experienced Faculty: Professors who have practiced in the field are uniquely qualified to provide students with a practical context in which to learn substantive criminal law. Learn whether the professors who teach Criminal Law and Procedure practiced criminal law prior to becoming full-time faculty members.  Also, determine whether the school’s adjunct faculty are criminal practitioners. By hiring criminal law practitioners to serve as adjunct faculty, a law school demonstrates its dedication to keeping its curriculum current and relevant.
  2. Criminal Law-based Clinics: Ensure the law school hosts a clinic that focuses on criminal law, usually public defender or prosecutor clinics. Because many states allow students to work under the direct supervision of a licensed attorney, this type of clinical experience provides students with the ability to apply the knowledge and skills they have learned in the classroom to real-life, real-time clients.
  3. Innocence Project: Several law schools run Innocence Project programs. In these programs students have the responsibility to investigate and process cases for individuals who have been wrongfully convicted. Nothing speaks louder about a law school’s commitment to the efficacy of the criminal justice system than its commitment to representing individuals who should not have been convicted and need assistance in gaining their freedom.
  4. A Strong Skills-based Program: Law schools that are committed to developing strong criminal practitioners will also have a strong skills-based program. Look at the classes the law school requires students to complete. A curriculum that requires several research and writing, trial and appellate advocacy, and other skills-based courses demonstrates that the school is preparing its students for practice.
  5. Community Collaboration and Engagement: Look to see if the law school regularly engages with community organizations and events.   By hosting and participating in events that foster interaction with community organizations, local leaders, and members of the criminal justice system, a law school demonstrates a strong responsibility to fostering and improving an ethical and dedicated criminal justice system.  Look to see if the law school has hosted or participated in round-table and panel discussions, town hall-style meetings, and lecture series that include such people as police officers, judges, criminal practitioners, and experts within the criminal justice system.
  6. Proximity to Local Courthouses, Legal Community, and Organizations: If a law school is close to courthouses, law firms, and other legal entities, law students will more likely augment their educational opportunities by visiting local courthouse, watching trials and other legal proceedings, connect with members of the bar, and become student members of local bar organizations, events, and public service opportunities.  Observing how lawyers conduct cases helps students develop their own skills.
  7. Strong Alumni Base: Finally, many law schools provide prospective students with a list of alumni. Ask the law school to provide you with a list of alumni who are practicing criminal law and contact them. Not only can alumni answer questions about practicing criminal law, they can discuss whether the school adequately prepared them for criminal practice.  Ask their advice regarding which elective classes to take, clinics or externships to apply for, and which extra-curricular activities most adequately prepared them for criminal practice.

Leave a comment

Filed under Faculty Scholarship, Knowledge, Skills, Student Experiences, The Value of a Legal Education, Uncategorized

WMU-Cooley Con Law Prof Brendan Beery on Supreme Court nominee Judge Neil Gorsuch hearing

Professor Brendan BeeryBlog author, WMU-Cooley Professor Brendan Beery, starts the discussion regarding the Supreme Court nominee Judge Neil Gorsuch hearing. 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. LISTEN to Professor Brendan Beery as he speaks with WILS Radio about SCOTUS nominee Neil Gorsuch.

The Senate hearing begins today on the nomination of Neil Gorsuch for a seat on the Supreme Court. He will offer few, if any, answers about specific cases or issues. So look for senators to probe deeply into his broad approach to legal problems.

Conservatives will seek assurances that Judge Gorsuch is a reliable “originalist,” meaning that he anchors constitutional meaning to those times when the Constitution’s language was first adopted. Conservatives will also seek assurances that Gorsuch is a “textualist,” meaning that he adheres to a narrow view about words like “liberty” and “equal protection” in the Constitution. A textualist is less likely to seek out the broad underlying principles that animated constitutional rules, focusing instead on the narrowest meaning of those rules.

Liberals, on the other hand, will seek assurances that Judge Gorsuch is at least open to the idea of “the living Constitution” reflected in the organic view of the Constitution. Under this view, the broad language of the Constitution – again, words like “liberty” and “equal protection” – are seen as an invitation to apply evolving standards over time. Liberals will also be asking about broad notions of liberty and equality that animate broader constitutional protections for groups like women and the LGBT community. These broader principles also undergird constitutional protections for more controversial practices, like abortion, marital freedom, and private sexual conduct.

If he is true to the conservative leanings of the people supporting his nomination most vociferously, Judge Gorsuch will likely sympathize most overtly with notions of originalism and textualism.

If Judge Gorsuch is confirmed, the Court will revert to the status quo ante – meaning largely the same position, ideologically, where it stood before the death of Justice Antonin Scalia. The three oldest justices on the Supreme Court are two liberals and the Court’s swing vote, and were President Trump to replace one of those three, we would see an ideological shift on the Court.

Leave a comment

Filed under Faculty Scholarship, Latest News and Updates, Uncategorized

Addiction Breaks Hearts of Family and Friends: Finding Support in Wayne County

Addiction is a family disease, and it is devastating our community. We are losing an unprecedented number of young people to this illness, and families need resources, education, and support. – Western Michigan University Cooley Law School Professor Lauren Rousseau, and president of the Northwest Wayne County Families Against Narcotics Chapter

Professor Rousseau is a long-time resident of Livonia and is personally acquainted with the destruction that heroin can cause.  From 2010 to 2012, she was legal guardian for a young man, also a Livonia resident, who struggled with heroin addiction and ultimately died in his teens.

“In April 2012, I lost someone I loved due to heroin addiction,” shared Rousseau. “He was a kid – only 19 years old – and I was his legal guardian. We had spent the better part of the previous year battling his disease. He had gone through part of an intensive outpatient program, but had been kicked out for using. He had done inpatient treatment twice, relapsing within 48 hours of release each time. And exactly one week after his last inpatient treatment, with his addiction once again in full force, the disease took him to the place where he lost his life. His death broke my heart, and the hearts of his family and friends. We will never be the same.”

Judge Kathleen McCann of Livonia’s 16th District Court has also personally witnessed the horrors of opioid abuse in her community, observing it escalate to epidemic proportions.

“As a sobriety court judge, I see the extraordinary pain and effort that our participants expend to finally be free of their dependency on opiates and heroin,” she said.  “Unfortunately, I have had to close too many files when parents bring me a death certificate because their child overdosed before we could reach them.”

Judge McCann sits on the advisory board of the new Northwest Wayne County Chapter of Families Against Narcotics, which will hold its first meeting at the LifeChurch annex building, located at 6900 N. Haggerty Road in Canton, on April 10 at 6:30 p.m.

Families Against Narcotics, or FAN, is a grassroots organization dedicated to eliminating the stigma associated with addiction and providing families struggling with the disease the support and resources they need.  Its membership includes people and families affected by addiction, concerned citizens, law enforcement, and leaders in health care, education, business, and religion.  Founded in 2007, FAN originated in Macomb County, and now has 12 chapters throughout Michigan, including a chapter in Oakland County that is divided into nine “regions,” each with its own monthly meeting.  Until now, there has been no FAN chapter in Wayne County.

“The public and the schools are still not in tune with how pervasive this problem is, and how young and vulnerable the population is that is being targeted,” said Judge McCann.  “Families Against Narcotics will open another avenue of information, coordination and resources to communities that are very much in need.”

Judge Linda Davis of the 41B District Court will be the keynote speaker at the chapter launch meeting on April 10.  Judge Davis is the president and founder of FAN.  She also chairs Governor Snyder’s Prescription Drug and Opioid Abuse Commission, and is the driving force behind Hope Not Handcuffs, a program that enlists police departments and volunteers to help addicts seeking recovery find immediate treatment.  She is a frequent speaker on the subject of addiction and the opioid epidemic.

The federal Centers for Disease Control recently reported that more than 52,000 people died from drug overdose in 2015, and approximately 33,000 of those deaths were due to opioid pain pills and heroin.  Michigan has been hard hit by the epidemic, losing 1,960 residents to drug overdose in 2015, a 13 percent increase over 2014 numbers.

“There is an enormous need for more addiction resources and support for families in Wayne County,” said Brian Spitsbergen, director of Community Relations for Growth Works, an adolescent and adult addiction treatment organization in Canton.  “I regularly work with young people struggling with this disease, and I am encouraged by new efforts to support parents and other family members affected by addiction.”  Spitsbergen serves as vice president of the new FAN chapter.

Andy Hopson, a Livonia resident whose son Dakota died from a heroin overdose in May 2016, also sits on the board of directors of Northwest Wayne County FAN.  He understands addiction better than most – in addition to losing his son to the disease, he’s been in recovery from substance use disorder himself since 1991.

“A big problem in getting these families the help and support they need is the stigma surrounding addiction,” Andy says.  “Families feel embarrassed and ashamed that their loved ones are struggling with this disease, and they isolate and withdraw.  What they really need to do is reach out for help.”

Jeff Jedrusik, chief of police for the city of Westland, Michigan, sits on the new FAN chapter’s advisory board along with Judge McCann.

“Throughout my career I’ve learned that the majority of residents living in northwest Wayne County believe that heroin, cocaine and synthetic drug epidemics are inner city problems and not a suburban issue,” said Chief Jedrusik.  “Eyes are not generally opened to such problems until it affects a personal friend or a family member.  Unfortunately, this is a current epidemic that is affecting all of our communities, young people and families.” 

lauren_rousseauWMU-Cooley Professor Lauren Rousseau is a strong advocate and frequent speaker on the very personal and painful topic of addiction. She was a featured  during a Unite to Face Addiction (UFAM) statewide rally held at the State Capitol in Lansing, Michigan on June 2, 2016.

The Northwest Wayne County FAN Chapter launch meeting on April 10th is free and open to all who would like to attend.  For more information, please go to the chapter’s web page at http://www.familiesagainstnarcotics.org/northwest-wayne, or send an email to nwwayne@familiesagainstnarcotics.org.

Leave a comment

Filed under Ethics, Faculty Scholarship, Uncategorized

Is Attorney General Jeff Sessions at Risk of Professional Discipline?

Blog author and WMU-Cooley Law School Professor Victoria Vuletich teaches Professional Responsibility and Evidence at the Grand Rapids campus of Western Michigan University Cooley Law School. Before joining the WMU Faculty, she served as former staff ethics counsel of the State Bar of Michigan. Professor Vuletich was a guest lecturer at Hertford College, Oxford University, England, and will be returning to teach at Oxford in the summer of 2017.

As the political story of Attorney General Sessions’ recusal was unfolding last week, ethics attorneys around the country were busy discussing another potential twist to the situation: the possibility that Attorney General Sessions may be subject to professional discipline under the Alabama Rules of Professional Conduct. The possibility was first raised in a recent Rolling Stone article that quoted Fordham Law Professor Russell Pearce.1

Alabama Rule of Professional Conduct 8.4 states, in part:
It is professional misconduct for a lawyer to:
(c) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

The standard in 8.4(c) is a lower standard than the standard required to prove perjury. Several cases have suggested that: “dishonesty” includes “conduct evincing a lack of honesty, probity or integrity in principle; a lack of fairness and straightforwardness,” but need not involve conduct legally characterized as fraud, deceit, or misrepresentation. In re Scanio, 919 A.2d 1137 (D.C. 2007).

Additionally, the comments to Alabama Rule of Professional Conduct 8.4 state, in part:

Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer’s abuse of public office can suggest an inability to fulfill the professional role of attorney.

In short, attorneys who hold public office are held to a higher standard than other lawyers.

Here are the facts of Attorney General Sessions’ situation, as reported in a March 7, 2017 USA Today story:2:

Sen. Al Franken, D-Minn . . . asked Sessions what he would do if he became aware that “anyone affiliated with the Trump campaign communicated with the Russian government in the course of this campaign.”. . .

“I’m not aware of any of those activities,” Sessions responded at the time. “I have been called a surrogate at a time or two in that campaign and I didn’t have have — did not have communications with the Russians.” . . .

“I did not mention communications I had had with the Russian ambassador over the years because the question did not ask about them,” Sessions said in a letter to the committee, explaining the disputed testimony.

“I answered the question, which asked about a ‘continuing exchange of information during the campaign between Trump’s surrogates and intermediaries for the Russian government,’ honestly,” Sessions maintained.

Attorney General Sessions admits that he met with the Russian Ambassador Kislyak both in July at the Republican National Convention and in September in his Senate office, both meetings occurring while the presidential campaign was in full steam.

What is problematic for Attorney General Sessions is that:

1) by his own admission, he a “Trump surrogate,” – someone connected with the Trump campaign; and

2) the question did not inquire about a “continuing exchange of information during the campaign” but rather whether anyone affiliated with the campaign “communicated” with the Russian government during the course of the campaign.

At the moment he answered the question, he knew he had met with the Russian ambassador during the campaign. Whether it was about the subject matter of the campaign is irrelevant legally, as the question was asking, in essence, whether any communications had occurred, regardless of the content of the communications.

If a request for investigation is filed with the Alabama State Bar’s Office of General Counsel, the Office of the General Counsel is required by law to investigate and make a determination as to whether Attorney General Session’s response to the question and his subsequent reactions to the allegations of misrepresentation constitute a violation of Rule 8.4(c). Possible outcomes range from dismissal of the complaint outright if the Alabama State Bar believes 8.4(c) was not violated to suspension of Attorney General Sessions’ law license if it believes 8.4(c) was indeed violated. Other possible measures include a private or public reprimand.

If a discipline matter is pursued, Attorney General Sessions will have the benefit, like all other citizens, of being presumed innocent until proven guilty. But that will not halt the lingering political/policy question of what it means to have the nation’s top lawyer being subject to a professional discipline proceeding while in office.

1Rolling Stone, March 2, 2017, Why Jeff Sessions Must Resign as Attorney General

2USA Today, March 6, 2017, Attorney General Jeff Sessions: Senate testimony was ‘correct’

Leave a comment

Filed under Faculty Scholarship, Latest News and Updates, Uncategorized

Success as a New Solo – Five Essentials!

Professor Gary Bauer

WMU-Cooley Law School Professor Gary Bauer, a recent ABA Solo and Small Firm Trainer award winner, teaches Estate Planning to third-year law students and a directed study class he created called Solo By Design.

His blog, sololawyerbydesign.com, provides law students, recent solo practitioners, and seasoned professionals who wish to go solo, with information and resources to be successful in the legal business. This blog was first published on Feb. 16, 2017 at sololawyerbydesign.com.

What lies behind us and what lies before us are tiny matters compared to what lies within us. – Ralph Waldo Emerson

You just passed the Bar and now you have a license to practice law. If you want long term success, here are what I believe are the top five essential ingredients for a successful practice.

First, Find Where Your Passion and Excitement Intersect with the Economic Realities You Will Face.

It is not enough alone to want to change the world by defending the oppressed. You need to connect that passion with a way to manage student debt and put food on the table. If you can live off what you produce in your practice – fine. But, if your passion includes supporting a family and ultimately planning for your retirement, passion and excitement alone are not enough. It is a good start, but the graveyard of exhausted and disheartened former lawyers is full of those who failed to weigh and balance their passion with the other demands and realities of their lives. The best way to guarantee professional success is to do what you enjoy doing the most that allows you to make a good living.

Second, Limit Your Scope of Practice to Maximize Your Efficiency and Competence.

Too many new lawyers take whatever comes through their door. Niche practice is not just trendy. It is commonplace these days because the competitive nature of legal practice no longer mitigates in favor of generalized legal practice. It is nearly impossible to stay abreast of all the developments in the law in such broad areas of practice as family law, bankruptcy, estate planning, debt collection and landlord-tenant law. Yet you will find attorneys who advertise for all of these areas of practice and more. Thirty years ago you could open a practice and compete offering services in all of those areas. But those times are gone. Now, you compete on the internet with services that appear to have all the benefits of compilation and advice without the high cost of seeking professional services from a lawyer. In addition, you are competing more and more with other specialists. If you were seeking a divorce and given the choice between someone who advertises practice expertise in six or eight areas of law including family law and someone who advertises services only for males seeking divorce; as a male seeking a divorce who would you contact?

When marketing your firm as a general practitioner, who is your potential audience? It is true, this expands your potential area of influence. But, omit those who would choose a specialist when given the chance. Also, when you find you have a medical condition and your health is at stake, wouldn’t you seek the opinion of a specialist? If the opinion you got was from a general practitioner, how much would you be willing to pay compared to a specialist? The same is true of a general practice lawyer. The expectation is that, since you don’t specialize your fees should be less. Counting yourself among all the other general practice lawyers also means that, unless you can distinguish yourself from your competition, you will not be able to charge any more than the competitors down the street. And as a general practice lawyer, you will not be able to distinguish yourself in every area of practice that you offer your clients.

When advertising, as someone who specializes, you can tailor your message to address the pain points of your clients in unique and targeted ways. You can find publications or websites that draw the specific type of person you wish to reach with a message tailored to meet those individuals needs. When you reach them with your tailored message, they will be drawn to you for your unique skills and not by price alone. As a result, you are no longer competing with every other attorney in your area on price alone.

Third, Find the Identity and Brand That Fits You.

Too many attorneys have no brand at all or a brand that does not suit their personality or style of practice. Ask any court clerk about any attorney and they will tell you how their characteristics play out in reality. If you want to know your brand, first be yourself and not in the style of what you perceive to be the norm for a lawyer. Too many new grads assume the persona of how they believe someone with a law degree should interact with others. And too often, it means that they are aggressive, impolite and demanding. They do this because their law school professors projected that persona in law school and demonstrated a demanding and aggressive style while using the Socratic method of teaching.

Step back and evaluate yourself before law school. Find the real you. When you do, display that thoughtful, caring persona out as you engage clients, opponents, judges and, yes, court clerks. You know how confused and worried you were when you first started law school? Now that you are out in the field practicing law, it is OK to tell others that you don’t know all the answers. In fact, you know very few of the answers when you first start out. You will continue to learn each day that you practice. Every day will present new challenges with legal concepts or applications of the law that you had never considered before.

Finding your brand is like trying on different suits until you find one that feels right to you – but most important, feels right to your clients. How do you know if you have found it? If you are true to yourself and candid about your insecurities (at the appropriate times), the real you will come out. Ask the court clerk what they find most appealing about your personality? How would they describe you to a potential client? That is your brand – become aware of it and sell it.

Fourth, Produce High Quality Legal Work and Bill Accordingly.

If you feel you can just get by practicing law on the margins – you are right! We see it every day in the courts or when opposing counsel calls us clearly unaware of how the law works in their case. They find the judges telling them what to do in court or pointing out the legal or procedural mistakes they made in pursuit of their client’s objectives. Often their clients stand by their sides unaware of the very real damage that their lawyer did by missing deadlines or misunderstanding the law. The level of professionalism in the courts is quite diverse and often discouraging to someone like myself who trains law students how to practice law. Yet, many of those attorneys who are producing unsatisfactory legal work still find themselves fully booked with clients in spite of their inadequacies. That is not to say that they are highly successful. Many times, these are the lawyers who are struggling financially and end up being sanctioned by the state bar or sued for malpractice.

If you apply yourself, obtain good mentorship, communicate often and competently with your clients, and pay attention to business management principles, you will set yourself apart from those who practice on the margins. Your client base will continue to increase every year and you will not have to attract clients by pricing yourself below the competition. Survival will not be your goal and minimal competence will not be your standard if you work hard to do well. There are no short cuts.

Fifth, Keep Your Expenses Low, but Don’t Be Afraid to Spend Money to make Money.

Opening a law office can be very stressful, but don’t make the mistake of substituting STUFF for why the client comes to see you. Once in your office and your counseling session begins, all that stuff around you disappears. The focus is on you, not your stuff. That means that if you can get by with a laptop computer that you used in law school to do your work initially, then don’t buy a new one. If you can find someone to give you a broom closet for your office at low cost when you start out, then make the best of it.  Case management software isn’t going to help you make money when you first start out, but down the road as your client base expands and tracking a lot of open files in various states of development may require that you spend the money to access that resource to be able to use your time more efficiently billing for legal work and less on administrative work – which leads to hiring someone to help you. Resist at all costs hiring a full time employee until you absolutely need one. When you find you are spending hours doing what a high school student can do instead of billable work for your clients – it may be time to consider hiring someone and spending the money to make more money.

Leave a comment

Filed under Faculty Scholarship, The Value of a Legal Education, Uncategorized

PricewaterhouseCoopers Puts WMU-Cooley Grads to Good Work

From offices towering more than 30 floors above the heart of downtown Detroit, four WMU-Cooley Law School graduates practice their skills at the second largest professional services firm in the world, PricewaterhouseCoopers (PwC). READ MORE in the Winter 2016 Benchmark Alumni Magazine (pages 8-11). 

fotorcreated

PwC is a network of firms in 157 countries with more than 200,000 employees. In Michigan, PwC has over 800 employees working in three core lines of service: tax, assurance, and advisory. When PwC’s Detroit office needs to fill the ranks in its tax division, Tim Pratcshler, principal in PwC’s state and local tax group, focuses his attention on recruiting top talent from colleges and universities, including law schools.

Tim Pratcshler, principal in PwC’s state and local tax group, talks about the qualities he looks for when hiring an attorney.

Justin Call (Coleman Class, 2009), Andrew Lane (Sharpe Class, 2008), Jennifer Paillon (Trimble Class, 2015), and Albert (A.J.) Robison (Johnson Class, 2013) are among the nearly 200 professionals who make up PwC’s tax practice for the company’s greater Michigan market.

pwc_attorneys

Justin Call (Coleman Class, 2009), talks about WMU-Cooley’s rigorous, but confidence building, legal education.

Andrew Lane (Sharpe Class, 2008), talks about the experience and quality of the professors.

Jennifer Paillon (Trimble Class, 2015), talks about the non-traditional path she took before she was able to fulfill her dream of being an attorney.

Albert (A.J.) Robison (Johnson Class, 2013), talks about how WMU-Cooley’s well-connected professors led him to a job at PwC.

 

Leave a comment

Filed under Alumni Stories and News, Faculty Scholarship, Skills, The Value of a Legal Education, Uncategorized

Bill Gets Some Love on Valentine’s Day

On Feb. 14, Gov. Rick Snyder will sign two new laws which support Michigan citizens who have been wrongfully convicted. I am honored to be invited to attend the ceremonial signing, scheduled at 3:00 P.M. on Valentine’s Day. Exonerees and supporters from across the state will attend. I look forward to attending the ceremony with WMU-Cooley Innocence Project exonerees Kenneth Wyniemko, Nathaniel Hatchett, and Donya Davis.

exonerees_legislation_capitol

For over a decade, state Senator Steve Bieda sponsored legislation to compensate Michigan citizens, wrongfully convicted at the hands of the state. Senate Bill 291, sponsored by Bieda, provides $50,000 for each year of incarceration to individuals convicted and imprisoned for crimes they did not commit. House Bill 5815, sponsored by state Representative Stephanie Chang, provides for reentry services. The bills, now Public Acts 343 and 344 of 2016, will take effect on March 29, 2017. Michigan joins 31 states, the District of Columbia and the federal government in providing compensation to the wrongfully convicted.

No amount of money can make up for all that is lost from a wrongful conviction. Kenneth Wyniemko lost his father during his wrongful imprisonment and Donya Davis lost time with his children. Nathaniel Hatchett was still in high school when he went to prison for a crime he didn’t commit. Hearts are broken and slow to mend. True criminal justice reform comes from laws, policies and practices that prevent a wrongful conviction from happening in the first place.

Public Acts 343 and 344 will provide Michigan exonerees with needed services and financial compensation for years lost to a system that failed them. On Valentine’s Day, let search our hearts for how we can do more.


marla-mitchell-cichon-editThe author, Marla Mitchell-Cichon, is the director of WMU-Cooley Law School’s Innocence Project.  She was honored in fall 2016 with the State Bar of Michigan’s Champion of Justice Award, Michigan Lawyers Weekly 30 Leaders in the Law, and Ingham County Bar Association’s Leo A. Farhat Outstanding Lawyer Award. She led the efforts for the release of WMU-Cooley Innocence Project’s client Donya Davis. Davis was wrongfully convicted of carjacking, armed robbery and rape in 2007. Davis was exonerated in 2014, and is the third client exonerated by the WMU-Cooley Innocence Project. The Project is currently working on 15 promising cases and screening approximately 200 cases for factual innocence.


The WMU-Cooley Law School Innocence Project will host a reception for exonerees and their supporters at the law school on Feb. 14, 2017 from 1:00-2:00 p.m. Media inquiries should be directed to innocence@cooley.edu or a WMU-Cooley News & Media contact:

Tyler Lecceadone, SeyferthPR, lecceadone@seyferthpr.com
 1-800-435-9539

Terry Carella, Director of Communications, carellat@cooley.edu
517- 371-5140, ext. 2916

Leave a comment

Filed under Faculty Scholarship, Latest News and Updates, Uncategorized, WMU-Cooley Innocence Project

Professor Marjorie Gell: Proud of my French Huguenot Ancestors

My ancestors were refugees. This is a mural hanging in Borough Hall, Staten Island. The man holding the hat is Pierre Billiou, my 8th great-grandfather, a French Huguenot who fled religious persecution in France. He arrived in New Amsterdam (New York) on August 6, 1661 on the ship St. Jan Baptiste as the leader of nineteen Huguenot refugee families who later established the first European settlement of Staten Island (Old Town, now South Beach). The baby shown here, held by my 8th great-grandmother Francoise DuBois Billiou, is Issac Billiou, my 7th great-grandfather, born at sea right before the ship landed in 1661.

image1

Pierre was a judicial officer of the first local district court established on January 1, 1664, a delegate to the General Assembly in Manhattan elected on April 10, 1664, appointed a Lieutenant of the militia on May 14, 1669, and elected Schout and Scllepen (sheriff and magistrate) on August 25, 1673 during the Dutch re-occupation of Staten Island.

The Pierre and Francoise Billiou house still stands and is owned by the Staten Island Historical Society.

I’m very proud that my French Huguenot ancestors held on to their identity and beliefs and kept going. They landed here and helped create a country that was premised on tolerance of differing viewpoints (religious and otherwise), basic human rights protected by written laws, and democratic processes of government.

gell_marjorieBlog author Professor Marjorie Gell, outside of her keen interest in heritage and genealogy, is also a WMU-Cooley tax professor. She is the co-editor of the Guidebook to Michigan Taxes 2017 (CCH/Wolters Kluwer), as well as Past Chair of the Taxation Section of the State Bar of Michigan.

1 Comment

Filed under Faculty Scholarship, Uncategorized

Law Students Go One More Step: Teach Access, Not Just How To Fish

nelson millerBlog author Nelson Miller, associate dean and professor at WMU-Cooley’s Grand Rapids campus, gives high marks to law students and area entrepreneurs for bringing business and law together during a Poverty Relief/Entrepreneurial Law workshop. Participants and legal experts worked together to generate creative ideas, along with business solutions.

The old saying goes, “Give a man a fish, and you feed him for a day. Teach a man to fish, and you feed him for a lifetime.” This is true, but lawyers can go one more step by giving the poor the access to the fish market. Poverty remains a real concern in the United States, and a real concern worldwide. Many poverty-relief efforts focus on the importance of charitable giving.

Grand Rapids Organization for Women Executive Director Bonnie Nawara

Grand Rapids Organization for Women Executive Director Bonnie Nawara asks for a show of hands.

Yet the poor need, indeed want more than a handout. While charitable donations provide critical support, many poor may benefit more from the opportunity to provide for themselves, putting to work their own skills. What they really need is access to the markets that produce the goods and services that others so generously offer.

Law can provide access. A legal knowledge ensures that ambitious individuals can put to work their creative energies to not only earn an income but protect their hard-earned capital for themselves and others. Yet, the law can also create obstacles. Sometimes law unduly complicate and obstruct people and their business by stealing and harming capital capacity.

Founder of Painting by Jeff, employing commercial and residential painters, makes concluding remarks.

Founder of Painting by Jeff, employing commercial and residential painters

In an effort to generate solutions, WMU-Cooley law school students are working with community entrepreneurs in several workshops. The Poverty Relief/Entrepreneurial Law workshops were designed to investigate how to help area citizens, especially populations of African American, Hispanic Latino, and women, gain access to market opportunities.

Community leaders and business owners spoke in inspiring testimony to both the opportunities and challenges of capitalizing on one’s own creative energies. The businesses included barbers, painters, designers, inventors, caterers, drivers, therapists, consultants, and professionals. From their testimony, workshop participants listed 20 steps, from entity formation through contract development, property lease or purchase, and first employees, to dispute resolution, mergers and acquisitions, and succession, where lawyers provide critical help to business owners. A team of WMU-Cooley students are working do develop a checklist and educational brochure to help participants along their way.

Inspiring Hispanic-Latino entrepreneurs join Varnum partner Luis Avila.

Inspiring Hispanic-Latino entrepreneurs join Varnum partner Luis Avila.

The workshop also illustrated the great service opportunities for lawyers. Lawyers are makers, creators, and economic drivers. Watching law students and small-business owners working together, and imagining success and opportunity shows the world a new way to attack poverty. Welcome to the fish market!

Leave a comment

Filed under Faculty Scholarship, Latest News and Updates, Student News, The Value of a Legal Education, Uncategorized

Presidential Executive Orders – Can He Do That??

Professor Brendan Beery

Professor Brendan Beery

Blog author, Constitutional Law expert and WMU-Cooley Professor Brendan Beery, clarifies a complicated concept in today’s political arena. 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.

An Executive Power Primer for the Trump Era

Executive orders are coming fast and furious: people from seven predominantly Muslim nations barred from entering the United States; “sanctuary cities” targeted; federal employees muzzled; deportations accelerated; pipelines approved; reproductive counseling overseas banned. And a single question echoes through the land: can a president do this?

There are dozens of legal considerations that go into answering that question, but let’s start with the fundamentals. The leading Supreme Court case about presidential authority is Youngstown Sheet & Tube Co. v. Sawyer from 1952. That case arose from President Harry Truman’s attempted seizure of privately owned domestic steel mills to stop the mills from closing down over a labor dispute during the Korean War. Justice Robert Jackson laid out a three-tiered test for determining the constitutionality of an executive order.

Article II of the Constitution makes the president the chief executive of the United States, so the president’s job is to execute the laws. Those laws, in turn, are made by Congress, so the president’s power is tied to Congress. As Jackson put it, when the president is acting in a way that has been explicitly or implicitly authorized by Congress, the president is operating in “zone one” and his power is at its maximum. Conversely, congressional disapproval (i.e. a statute, resolution, or other evidence that Congress does not want the president doing whatever it is that he’s doing) puts the president in “zone three,” where his power is at its minimum.

That leaves what Jackson famously called a “zone of twilight,” or “zone two.” The president acts in zone two when Congress is silent as to whatever matter the president is addressing. When that happens, courts look to history to determine whether such matters have been addressed by the president alone in the past with little or no controversy or pushback.

Critically, courts also look to whether the president is setting domestic policy or addressing external concerns. Remember: the president is supposed to be executing the laws, not making law. And setting domestic policy is the quintessence of the lawmaking function. When it comes to foreign or external affairs, on the other hand, courts have long said that the president is the sole face and voice of the United States. The question whether the president is setting domestic or external policy is especially important when the president is operating in zone two. (Under this approach, Truman’s executive order was deemed unconstitutional because Congress had not authorized it and it involved the seizure of domestic industrial facilities.)

As with so many constitutional questions, resolving whether a president’s executive order is an abuse of the president’s constitutional authority is not as easy as it might seem.  Take, for example, Trump’s recent executive order barring the entry into the United States of people from seven predominantly Muslim nations. The order clearly and expressly discriminates against visa applicants on the basis of their nationality (country of origin). Is Trump operating in zone one, two, or three? As you’ll see, Congress is not silent, so zone two is out.

Congress enacted a law in 1952 that provides as follows:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. (8 USC 1182.)

Trump’s lawyers will argue that this law puts him in zone one, and they have a point. This law seems to give the president virtually unfettered discretion to exclude whatever class of non-citizens he wants to from the United States.

But in 1965, Congress passed another law designed to address the widespread practice up until then of excluding people from entering the United States on the basis of irrational prejudices against certain ethnic groups – especially Asians. President Lyndon Johnson signed the law, saying it represented the end of shamefully discriminatory decision-making as to immigration. That law provides as follows:

Except as specifically provided in [other sections of the U.S. Code irrelevant here], no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence. (8 USC 1151.)

This law seems to put Trump squarely in zone three; Congress has expressly prohibited that which he has clearly attempted to do (discriminate on the basis of nationality).

See why we need lawyers and judges? One law puts Trump in zone one, and another puts him in zone three. (Since more specific laws typically trump less specific laws and new laws typically trump older laws, he’s more likely in zone three, but not every judge would agree). To complicate matters, immigration arguably is a matter of external and foreign affairs, which usually means the president gets more leeway, so even if Trump is in zone three, he still has one leg to stand on.

And we haven’t even touched on the issues whether the order violates the Establishment Clause by indulging preferences for Christian minorities over Muslim majorities in the affected countries; the Equal Protection Clause by targeting a suspect classification (religious minorities); or the Due Process Clause by diminishing certain liberty interests (especially as to non-citizens who already have visas and “green cards”) without any notice or hearing.

Incidentally, this is why yet another constitutional principle comes into play: the “political question doctrine,” which I discussed in an earlier post about the Emoluments Clause. A federal court could look at all this mess and decide to punt, and it could do so by saying that the whole immigration issue is constitutionally committed to the two political branches: Congress and the president (so let them fight it out). If a court says that, then it will refuse even to entertain any claim as to the constitutionality of the immigration order.

At any rate, now you know the two questions to consider when someone asks, “Can a president do that?” First, has Congress authorized the president to do it? Second, which does it involve – domestic or foreign policy? Here’s a handy way to address the constitutionality of the president’s actions:

  • If Congress authorizes the president’s action and it relates to external affairs, the president is a constitutional Dirty Harry: he can do whatever he wants.
  • If Congress authorizes the president’s action and it relates to domestic affairs, the president is good to go.
  • If Congress is silent and the president’s action relates to foreign affairs, the president is probably good to go.
  • If Congress is silent and the president’s action relates to domestic affairs, the president is on shaky ground; a court will look to how such actions have been handled historically.
  • If Congress appears to stand in opposition to the president and the president’s action relates to foreign affairs, the president is on shaky ground and a court will likely look for other violations (like equal protection or due process), but a court could still defer to the president as to external affairs.
  • If Congress appears to stand in opposition to the president and the president’s action relates to domestic affairs, the president’s action is most likely unconstitutional.

Put on your judge hat and consider these questions again. Do the laws quoted above put Trump in zone one or zone three? And is Trump addressing domestic policy or foreign policy? What is your ruling?

All of this presumes that the order does not violate some other constitutional provision, like the Establishment Clause, the Equal Protection Clause, or the Due Process Clause. Congress may not authorize the president to do something unconstitutional any more than it may do something unconstitutional itself. As of this writing, at least one federal judge has partially halted Trump’s order banning travel from Muslim nations on the basis that it likely violates the equal-protection and due-process principles mentioned above.

There will be many more legal decisions in coming days, weeks, months, and years.

 

2 Comments

Filed under Faculty Scholarship, Latest News and Updates, Uncategorized