Category Archives: Knowledge

WMU-Cooley Law School Celebrates Constitution Day 2016

Each year, in September, WMU-Cooley Law School joins the nationwide focus on the U.S. Constitution, commemorating the formation and signing of the historic document by focusing on a number of timely political and electoral issues. The official annual Constitution Day celebration takes place on Sept. 17, with this year’s observation date falling on Friday, Sept. 16. At WMU-Cooley, the celebration often gets extended, and this year continues into the following week.

beery_brendan-beeryThe WMU-Cooley campus in Tampa will celebrate Monday, Sept. 19, noon-1 p.m. with a political discussion. With election day less than two months away, panelists will discuss Clinton vs Trump as part of the law school’s annual Constitution Day activities. Constitutional Law expert and professor Brendan Beery, recent winner of the Stanley E. Beattie Teaching Award, will lead discussions regarding how results of the election will affect the U.S. Supreme Court and the Constitution.  During the discussion, Beery will analyze how legal issues, such as abortion, affirmative action and LGBT rights, could change depending on who is elected president.

warrenIn Auburn Hills,  the events take place Friday, Sept. 16. In honor of Constitution Day, the Hon. Michael Warren of Oakland County’s Sixth Circuit Court will present “The Presidency: Electors, Elections & Campaigns 1789-Today” at 12:30 p.m. Friday, Sept. 16. Following the presentation Warren will lead a discussion about how the Constitution’s founders would react to Clinton vs Trump.

ford-statueIn Grand Rapids, events are focused primarily on the WMU-Cooley student audience. In observance of Constitution Day, WMU-Cooley Law School is holding a Constitution Day Scavenger Hunt on Saturday, Sept. 17  at the Gerald R. Ford Presidential Museum.  Participants will pick up a list of questions from Professor Devin Schindler or Professor Victoria Vuletich.  Participants will visit the new exhibits at the museum the morning of the 17th, using the exhibits to answer the list of questions.  Professors Schindler and Vuletich will then meet the participants for lunch to discuss Watergate and the pardon at a local restaurant.  Small prizes will be awarded  to the first, second and third place winners.

In Lansing, the celebration will take place later in the month with campus organizers currently working on finalizing activities.

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Labor Day Reminder of the Absolute Equality of Rights Between Employer and Laborer

As we approach the unofficial end of summer with the Labor Day holiday weekend, it’s good to take time and look back at a significant and growing holiday that occurred earlier this season — Juneteenth, which celebrates the issuance of the Emancipation Proclamation. Although the primary focus of the proclamation was, of course, to end slavery, when Gen. Gordon Granger presented the proclamation to the citizens of Texas, the rights of laborers were expanded to all workers. “This involves an absolute equality of rights and rights of property between former masters and slaves, and the connection heretofore existing between them becomes that between employer and free laborer.”

juneteenth day background

This summer, WMU-Cooley students involved in the law school’s Sixty Plus, Inc., Elderlaw Clinic hosted their own Juneteenth Celebration with a day to honor our elderly and their contribution to labor and society.

Luis Vasquez, a third-year law student who was born in Guatemala and raised in Texas, said, “I found this event very interesting. Not only did I learn about some of the history surrounding Juneteenth, but I got to be a part of the festivities. It was my first time attending a Juneteenth celebration. The people, food, and atmosphere made the event meaningful and fun.”

Sixty Plus ambassadors worked with Professor Emerita L. Patricia Mock and the Stone Community Outreach project to provide free legal information to local elderly residents.

“The Juneteenth Celebration was definitely a cultural experience. It was packed with art, music, entertainment and amazing food. I enjoyed talking with individuals of all ages and of diverse walks of life. I was able to share one of my many passions – educating people about what we do at the Sixty Plus Clinic. The Juneteenth Celebration was a wonderful experience and I am happy that I was able to participate this year,” shared WMU-Cooley law student Khadija Swims.

“It was a mighty privilege to participate in the Juneteenth celebration. Being a Texan transplant from Alabama, and having only experienced the Texas-styled Juneteenth, the Lansing shindig was fun,” exclaimed weekend WMU-Cooley law student Stephanie Samuels. “I especially enjoyed the music, and it was a pleasure to work the booth with fellow students and Professor Mock, and to meet and share fellowship with the Lansing celebrants this year. I’m sort of a history geek and loved to share with anyone who would listen, the interesting, “did-you-know” and “better-late-than-never” stories about how Juneteenth celebrates the end of slavery in the United States. I usually got a “I didn’t know that” reaction to my explanation,” stated Samuels.

“Juneteenth is a celebration of a turning point in liberation where freedom begins to have more meaning and gives us a deep appreciation for those who have struggled in the past to bring us out of bondage,” said Rev. Dr. Melvin T. Jones, pastor of the Union Missionary Baptist Church in Lansing. “It’s really a celebration of life, especially African American life in this country.” Dr. Jones added that for children, “Juneteenth is an opportunity to peel back to the days before Martin Luther King, Jr. and look at those people from history whose shoulders we stood on, and on whose shoulders we stand, as it relates to what our freedom is all about,” he added.

It is fitting that, as we honor all workers with Labor Day, that we also honor the landmark events in history that make this possible for everyone. As Juneteenth attendee Jean Davis stated, “we need to remember the struggles our forefathers went through so we could have the privileges we have today.”

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Prof. Joe Kimble Is Right: In Legal Drafting Use the Word “Shall” at Your Peril

Robb PhotoJames D. Robb is Associate Dean of External Affairs and General Counsel at WMU-Cooley Law School.  

 

How often do you find the word “shall” in a contract or legislation you are reviewing? Have you wondered what precisely that word means? Or what the parties or legislature actually intended? Is “shall” a promise? Is it a command? Is it a declaration of determination? Is it a permissive term? Is its use clear to you?

Does it mean “must” as in a contractual promise?

 Seller shall maintain the property in good condition until closing.

Does it mean “will” as in a statement of future intent?

  I shall stop at the store on the way home from work.

Is it a statement of determination?

  I shall return!

Does it mean “may”?

  No pedestrian shall enter the intersection against the red traffic light.

Is it an invitation?

  Shall we go?

Obviously, the word “shall” has many meanings depending on the context. And often that context is clear. But consider what happens if the word shows up in a contract and is construed by a reviewing court to be ambiguous.

In fact, sloppy use of the word “shall” in a contract can be disastrous because a court that finds it ambiguous will construe it against the drafter. Our own Distinguished Professor Emeritus Joe Kimble, a leader of the plain language movement and one of the deans of America’s legal writing instructors, has pointed out how drafters use “shall” mindlessly. He has warned us that courts “read it any which way.” A recent important case bears him out, and even quotes him on the point.

In Orthopedic Specialists v. Allstate Insurance Company,  No. 4D14-287  (Fla. Dist. Ct. App.) (August 19, 2015), the Florida Court of Appeals held the word “shall” to be inherently unclear and ambiguous, particularly when used in the phrase “shall be subject to.” The court then construed the word against the insurer that wrote a policy for personal injury protection. Professor Kimble’s warning is quoted with approval in footnote 3 of the concurring opinion.

My abridged version of the Oxford Universal English Dictionary, published in 1937, devotes 23 column inches─more than two thirds of an entire page of blindingly tiny print─to the definition of “shall.”  That alone might suggest the word can be troublesome for those who need to draft with precision.

On a larger scale, Professor Kimble’s great book, Writing for Dollars, Writing to Please, demonstrates the undue cost and expense associated with forbidding, verbose, and unclear writing. I recommend it to you. In performing your own legal work, take his advice:  be precise. Write clearly and to the point. And when tempted to use “shall,” think again. Perhaps the words “must,” “will,” or “may” will more clearly, and more safely, express your intent.

Writing for Dollars, Writing to Please by Joseph KimbleProfessor Joseph Kimble

We welcome your comments by replying below.

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WMU-Cooley Constitution Day Speakers Impress Upon Law Students That the Constitution is the Law

We learn about the U.S. Constitution back in grade school, with teachers covering such historical subjects as the founders, the Bill of Rights, and fun facts about the times. As we go through life though, we often lose sight of the cornerstone document of our country in the pressures of daily life. 

us_constitution_01

Each September comes a reminder of our heritage in the form of a celebration called Constitution Day where schools across the country, from elementary classrooms on up through high schools and universities, take some time to reflect on the Constitution, citizenship, and other related topics. Law schools, with their obvious connection to the topic, are happy to get in on the celebration.

At Western Michigan University Cooley Law School, speakers brought history alive at all four campuses and touched on a variety of aspects of the Constitution.

In Lansing, the Cooley Center lobby was filled with people who came to hear Jonathan Sacks, the first executive director of the Michigan Indigent Defense Commission. The commission was created as a result of efforts to improve legal representation for indigent criminal defendants. Sacks said the commission has been working to propose minimum standards for attorneys representing indigent defendants in Michigan.

In Lansing, the Cooley Center lobby was filled with people eager to hear constitutional expert Jonathan Sacks talk about the right to defense counsel.

In Lansing, the Cooley Center lobby was filled with people eager to hear constitutional expert Jonathan Sacks talk about the right to defense counsel.

In Tampa, students, faculty and staff learned about the role of courts in society in the context of landmark decisions by the U.S. Supreme Court. A panel consisting of campus Associate Dean Jeff Martlew, and professors Jeffrey Swartz, Paul Carrier, and Brendan Beery, brought the concepts of constitutionalism clearly into focus for over 60 attendees.

Professor Jeffrey Swartz, Dean Jeffrey Martlew, event moderator Brianne Myers, Professor Paul Carrier, and Professor Brendan Beery, presented Constitution Day in Tampa.

Professor Jeffrey Swartz, Dean Jeffrey Martlew, event moderator Brianne Myers, Professor Paul Carrier, and Professor Brendan Beery, presented Constitution Day in Tampa.

“What too many people don’t understand,” Beery said, “is that the Constitution is law.  So it won’t do to say that a person has done something unconstitutional, but not illegal.  If it’s unconstitutional, it’s illegal. When the Supreme Court issues a judgment on a federal question, there is not a state employee in the United States who is not bound by that judgment.”

In Grand Rapids, the relevance of the U.S. Constitution in today’s political and social climate was brought to life by Warner Norcross & Judd LLP attorney Matt Nelson. Nelson made the argument that the majority of political decisions should be made by the people acting through their representatives, and not by a non-elected court. He suggested that the Court’s role should be limited to striking down laws that are contrary to the plain dictates of the Constitution.

In Grand Rapids, a crowd gathered to hear constitutional law expert Matt Nelson talk about the proper role of an un-elected court in a government dedicated to self-rule.

In Grand Rapids, a crowd gathered to hear constitutional law expert Matt Nelson talk about the proper role of an non-elected court in a government dedicated to self-rule.

In Auburn Hills, the 800th anniversary of England’s Magna Carta prompted a discussion of that document, and how it compares to the U.S. Bill of Rights, by speaker Ronald J. Rychlak, a professor at the University of Mississippi School of Law. He also gave an overview of the Bill of Rights and how it was was interpreted during the Civil Rights era.

From left, Federalists Society Co-President Krystal Yalldo, Assistant Dean Lisa Halushka, Professor Ronald Rychiak, the Hon. Michael Warren, Federalist Society Co-President Joseph Falzon, and SBA President Michael Ruso.

From left, Federalists Society Co-President Krystal Yalldo, Assistant Dean Lisa Halushka, Professor Ronald Rychlak, the Hon. Michael Warren, Federalist Society Co-President Joseph Falzon, and SBA President Michael Ruso.

According to We the People, “Constitution Day commemorates the formation and signing of the U.S. Constitution by thirty-nine brave men on September 17, 1787, recognizing all who, are born in the U.S. or by naturalization, have become citizens.” Take time to read the The United States Constitution today.

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U. S. Supreme Court Cites Justice Thomas McIntyre Cooley in Same Sex Marriage Decision

Associate Dean Nelson Miller

Associate Dean Nelson Miller

Author Nelson Miller is Associate Dean and Professor at WMU-Cooley’s Grand Rapids campus. He practiced civil litigation for 16 years before joining the WMU-Cooley faculty. He has argued cases before the Michigan Supreme Court, Michigan Court of Appeals, and United States Court of Appeals for the Sixth Circuit, and filed amicus and party briefs in the United States Supreme Court. He has has many published books, casebooks, book chapters, book reviews, and articles on legal education, law practice, torts, civil procedure, professional responsibility, damages, international law, constitutional law, university law, bioethics, and law history and philosophy.

While the reference won’t make any headlines other than the one immediately above, alumni should be glad to note that the law school’s namesake Justice Thomas McIntyre Cooley continues, well over a century after his death, to impress members of the United States Supreme Court.

Justice Thomas M. Cooley

Justice Thomas M. Cooley

Justice Scalia’s dissent in the Supreme Court’s gay-marriage stand cites Justice Cooley at the head of the historical list of great legal luminaries, “minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly….”

That Justice Cooley continues to receive recognition as a leading member of the jurist’s pantheon should surprise no one.  Over the past century and more, the Supreme Court has cited Justice Cooley and his opinions and treatises so many times that he will forever retain his status as a profoundly effective, even though unusually humble, guardian of the law and Constitution.

Yet this most-recent Supreme Court reference to the great jurist bears special note, placing Justice Cooley at the head of the list before Holmes, Hand, Black, and Brandeis.  Chronology may have had something to do with that prominence, given that Justice Cooley is the oldest of the references.  Yet Justice Scalia could have started his list of great jurists anywhere but decided to start with Justice Cooley.

We here at the great old jurist’s school celebrate Justice Cooley’s continued reputation as the nation’s premier jurist.  Let us all hope that the Constitution that he so vigorously, effectively, and humbly defended will survive just as long as his enduring prominence.

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Same-Sex Marriage: The ultimate decision of the Court will establish significant national precedent

Professor Gerald A. Fisher

Professor Gerald A. Fisher

The pending U.S. Supreme Court case of Deboer v. Snyder and its related cases, examining the legality and enforceability of same-sex marriage, present legal and policy issues of major importance to the nation.  Here is Western Michigan University Cooley Law Professor Gerald A. Fisher’s brief take on some of the key issues.

The cases present issues under two key clauses of the 14th Amendment: the Due Process Clause and the Equal Protection Clause. Arguments will address whether same-sex marriage is a “fundamental right” that triggers special protections under the Constitution.  The decision may address whether the plaintiffs or the states have the burden of proof, and the extent of that burden in terms of arguing the constitutionality of the regulations in question.  Also of equal importance, the cases have the potential of raising questions touching on the fundamental structure of our country by determining whether the individual states, or the federal government itself, have the jurisdiction to define marriage rights and privileges.

The most likely outcome in the case is a Justice Kennedy-written opinion expressing that there is no rational reason for a state to prohibit same sex-marriage. However, there is a long-shot outcome, consistent with the U.S. Supreme Court’s decision in the Defense of Marriage Act case, United States v. Windsor, written in 2013 by Justice Kennedy, that the definition of marriage is a matter appropriately left to the states.

WMU-Cooley Professor Gerald Fisher teaches Constitutional Law, Property, Secured Transactions, Zoning and Land Use Law, and State and Local Government Law. Professor Fisher has appeared on 21 occasions in cases presented to the Michigan Supreme Court. He was the recipient of the Roberts P. Hudson Award from the State Bar of Michigan in 1978, named a Best Lawyer in America in 2007, Recipient of the Cooley Law Review Michigan Supreme Court Distinguished Brief Award in 2001, and named a Lawyer of the Year in Michigan (one of ten) in 2001 by Michigan Lawyers Weekly.

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Forums Held on Heroin Addiction Generate Intense Interest

Personal tragedy combined with legal knowledge can make for a powerful combination when educating the public about some of society’s more troubling ills. Such is the case with bringing to light a growing national problem with drug addiction, specifically heroin and other opioids.

WMU-Cooley Professor Lauren Rousseau speaking to the media before the event.

WMU-Cooley Professor Lauren Rousseau speaking to the media before the event.

WMU-Cooley Professor Lauren Rousseau knows this well. Recently she spearheaded a program titled, “Silence Equals Death: How the Heroin Epidemic is Driving Change in Perception, Treatment, and the Law,”  with presentations held at both the Lansing and Auburn Hills campuses. It’s an interest founded in personal experience – a young man for whom Rousseau served as a guardian while he was in high school died at age 19 after a battle with addiction to heroin and other drugs.

WMU-Cooley Professor Lauren Rousseau

WMU-Cooley Professor Lauren Rousseau

Rousseau saw a need to highlight the growing crisis of heroin use among young people and explore ways to improve their odds of survival.

“We have an epidemic with respect to heroin and opioids in this nation,” said Rousseau. “We need to take action to change that. We need to demand that lawmakers recognize addiction as a disease, and ensure that treatment is available.”

Silence Equals Death panel of speakers

Silence Equals Death panel of speakers

The program was set up in a panel format, with various experts weighing in on the practical factors affecting drug addiction issues. Panelists discussed what those who work with people addicted to drugs should know concerning addiction and the best treatment options; what legislation has been passed to assist families affected by drug abuse, in particular, prescription drug misuse; and what tools first responders should have to save the lives of those who have overdosed on heroin and other drugs.

The programs generated a great deal of interest and interaction from attendees as the subject hit home for many.

Panelists from WMU-Cooley Law School’s “Silence Equals Death: How the Heroin Epidemic is Driving Change in Perception, Treatment, & the Law” symposium, (front row, left to right) Erica Clute-Cubbin, Lauren Rousseau and Hon. Jodi Debbrecht Switalski, (back row, left to right) Andre Johnson and Dr. Mark Menestrina.

Panelists from WMU-Cooley Law School’s “Silence Equals Death: How the Heroin Epidemic is Driving Change in Perception, Treatment, & the Law” symposium, (front row, left to right) Erica Clute-Cubbin, Lauren Rousseau and Hon. Jodi Debbrecht Switalski, (back row, left to right) Andre Johnson and Dr. Mark Menestrina.

“Many participants stayed after the programs to talk with me, the panelists, and each other,” Rousseau said. “People told me that they were extremely grateful to WMU-Cooley for organizing the event. Some said they struggled at certain points to hold back tears due to their own experiences with addiction. I did not expect this reaction, and it made me realize how hungry people are for the information we provided.”

 

Watch the entire program

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