Monthly Archives: March 2017

Law school and journalists discuss Fake News: What can be done about it?

This story was written by Grand Rapids Legal News writer Cynthia Price and was originally published by the Legal News on March 24, 2017. It is reprinted here with permission of Detroit Legal News Publishing LLC.

It is difficult to find anyone who is in favor of what has come to be called “fake news,” but for some, the challenge it poses to truth and the rule of law is a subject they view as of overriding urgency.

Western Michigan University-Cooley Law School Professor and Auxiliary Dean Martha Denning Moore is one of those people.

At a panel discussion Wednesday hosted by WMU-Cooley and sponsored by the Michigan Capital Chapter, American Society for Public Administration (known as ASPA/MICAP), Prof. Moore led out with a fiery speech about the need to hold purveyors of news accountable for the information they put foward.

“Truth is not optional,” she said. “It is necessary for maintenance of our democracy. Not only will the truth set us free, it will keep us free. So, we can’t just go our merry way — we can’t be passive consumers of information.

“Truth matters. We must seek it, we must pursue it. Truth is not the same as the most persuasive argument, and it is not a merger of options. We have to hold people accountable for their actions.”

Moore knows whereof she speaks. Prior to joining WMU-Cooley, she practiced in legal ethics and legal malpractice defense as an attorney for Moore and Pozehl; before that, she was staff counsel for the Michigan Attorney Grievance Commission.

A firm believer in a strong ethical system in the law and in life, Moore has published a number of articles consistent with her philosophy, including “Reclaiming Civility”and “The Ethical Duty of Communication.”

As Moore finished, Moderator Meegan Holland, herself a former journalist and now the Michigan Veterans Affairs Agency Senior Policy Advisor, commented, “I love your passion.”

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Holland also noted that she agreed with Moore’s reluctance to use the term “fake news.” The title of the event, “Social Media and the Ethics of Fake News,” notwithstanding, both Moore and Holland said they find the term misleading, since it implies there are shades of truthfulness permissible in reporting.

The other panelists were both working journalists: Emily Lawler, a reporter for MLive who covered the Trump campaign in Michigan and currently has the capitol beat for the statewide news organization; and John Lindstrom, the long-time publisher of Gongwer News Service.

In his welcoming remarks, WMU-Cooley Dean and President Donald LeDuc noted, “I’m opposed to poor ethics in any context.” Also referring to himself as “an unrepentant former public administrator” (working primarily in State of Michigan offices), he thanked ASPA/MICAP for putting the panel together.

Then Dean LeDuc added more seriously, “Our country’s embroiled in the greatest test of our country’s structure since the Civil War. There’s never been a more interesting time to be a law student, or to be in government — certainly not to be in administration of the law.”

Lindstrom, a seasoned professional whose specialty publication is aimed at decision-makers and politicians, pointed out that, historically, there has always been fake news, including falsely staging influential events. What makes it different now is the ability to disseminate information immediately, and without the filter that fact checkers provide.

“From the standpoint of a practicing journalist,” he said, “there’s an old saying ‘If your mother says she loves you, check it out.’ That’s the essence of what we are supposed to do as an industry, and in many respects that’s really what we should do as citizens of a free republic, and, frankly, as adults.”

Lawler is more of the generation that grew up comfortable with social media, but she expressed dismay at what widespread use of Twitter and Facebook has done to her own profession, and the distrust that causes in the eyes of the general public.

She said, “One of the most enlightening articles I read, right after the election, was in the Washington Post. They profiled some producers of fake news, including those with a for-profit model. One man was pretty honest in admtting that he’d manufactured the story about Hillary [Clinton] supporters being paid to go protest at Donald Trump’s events.

“He made a fake ad looking for people to go interrupt Trump campaign stops on a couple Craig’s List sites, and then he manufactured a story based off his own ad.

“That was something that made it into the natural rhetoric, and Donald Trump made some nods to that in his speecies, including one I covered.”

Lindstrom also noted that over the past 20 years brain science has made significant discoveries about human’s cognitive function. He said these add to an exploration of why “a man hears what he wants to hear and disregards the rest,” quoting the Paul Simon song “The Boxer.”

When Holland asked whether it was likely that news outlets could be persuaded to eliminate covering, for example, Donald Trump’s early-morning tweets, Lawler gave a fairly subtle response: one of the effects of social media is that stories can become so widespread independent of traditional media that they require journalistic coverage, and debunking, in order to assure that any semblance of truth continues to exist.

Moore drew parallels to the legal profession. “One principle that’s critical to achieving justice is for people to ask, ‘Where is the evidence?’ As lawyers, we’re trained not to just take somebody’s word but to find and look at the evidence.”

About 30 people attended the event at WMU-Cooley’s Lansing campus, drawn from a variety of places. Some were WMU-Cooley students, some members of ASPA/MICAP, and a few were members of the general public who had heard about the panel. The questions posed were thoughtful and ranged in topic from the need for viable business models for news organizations to the potential for ongoing sanctions and punishment if news was found to be false.

Pictured from left to right: WMU-Cooley Professor and Auxiliary Dean Martha Moore; MLive Capitol Reporter Emily Lawler; Veterans Affairs Agency Senior Policy Advisor Meegan Holland and Publisher of Gongwer News Service John Lindstrom.

Pictured from left to right: WMU-Cooley Professor and Auxiliary Dean Martha Moore; MLive Capitol Reporter Emily Lawler; Veterans Affairs Agency Senior Policy Advisor Meegan Holland and Publisher of Gongwer News Service John Lindstrom.

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Preparing for the Multistate Bar Exam Just Got A Little Easier For Law Students

Preparing for and passing the bar exam is no easy task. Professors at WMU-Cooley Law School now have something new to help students do well on the Multistate Bar Examination (MBE), a 200-question multiple-choice exam given in nearly every state.

“We take great pride in our students here at our Grand Rapids campus and how they have done on the Bar exam,” stated Associate Dean Nelson Miller, who leads that campus and its Bar Exam preparation. “We especially want every single student and graduate to do well on the Multistate Bar Examination component,” he asserts, “because comprehensive law knowledge is instrumental to practice success.”

To that end, Dean Miller and colleagues have recently published three new books on preparing for the Multistate Bar Examination. Volume I in the series offers four 100-question banks of specially designed practice questions, mixing all seven MBE subjects into each bank, just like the exam itself. The second volume offers seven 100-question banks separating each of the seven MBE subjects into its own bank, so that readers can practice each subject.

Beyond offering hundreds of new practice questions with answers and explanations for why each option is correct or incorrect, these two volumes have added value by being crafted in the same style as the MBE questions that test every topic and subtopic on the MBE.

“The examiners who draft the MBE publish a list of the exam’s roughly 350 topics,” explained Miller. “We figured, why not test every topic?”

In fact, the two volumes test every topic at least twice, keying each question, answer, and explanation to the MBE topics list. Those preparing for the MBE can now practice questions on every topic or on any topic on which they feel they need a test.

The effort didn’t stop there, though. Dean Miller explains, “In writing the hundreds of answer explanations, I realized that examinees might also benefit from a concise summary of the law on every MBE topic.”

So, the third volume in the series provides a summary page on each of the MBE’s approximately 350 topics.

“Law school, bar none, is the greatest intellectual exercise anyone can endeavor,” Miller contends. “Preparing for the Multistate Bar Examination is an extraordinary accomplishment and privilege. Anyone who does, deserves all of our support.”

The three legal preparation book volumes are available online at amazon.com and free in electronic form to any WMU-Cooley student or graduate.


Preparing for the multistate bar exam vol. 1Preparing for the Multistate Bar Examination: Multiple-Choice Strategies and Multiple-Choice Questions, Answers, and Explanations for Every MBE Topic and Subtopic (Volume I: All Subjects) (Crown Mgt. 2017) (authors Nelson P. Miller and Tonya Krause-Phelan);


preparing for the multistate bar exam vol. 2Preparing for the Multistate Bar Examination: Multiple-Choice Strategies and Multiple-Choice Questions, Answers, and Explanations for Every MBE Topic and Subtopic (Volume II: The MBE Subjects Separated Into Seven 100-Question Banks) (Crown Mgt. 2017) (authors Nelson P. Miller and Tonya Krause-Phelan);


Preparing for the multistate bar exam vol. 3Preparing for the Multistate Bar Examination, Volume III: An Outline of Every MBE Topic and Subtopic (Crown Mgt. 2017) (author Nelson P. Miller).


Are you prepared to take the MBE? Make sure you give yourself every advantage!

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Contracts quintessential first-year course: Law school professor makes his case

WMU-Cooley Law School Professor Otto StockmeyerBlog author WMU-Cooley Distinguished Professor Emeritus Otto Stockmeyer presented a paper at the 2017 annual conference of the Michigan Academy of Science, Arts & Letters, held March 10, 2017, on the campus of Western Michigan University. He titled his presentation “Reflections on Teaching the First Day of Contracts Class.” Professor Stockmeyer offered his thoughts on why he believes Contracts is the most significant course in the first-year curriculum, why the study of contract law should begin with the subject of remedies, and why Hawkins v. McGee (the “hairy hand” case made famous by the book and movie versions of The Paper Chase) makes an ideal starting point.

In my view, Contracts is the quintessential first-year course. It presents an excellent introduction to the common law and legal reasoning. The course is foundational to several upper-level courses, and the best predictor of law school success.  Lawyers have reported that they use Contracts in their practice almost twice as much as any other law school subject.

Although traditionalists begin the course with offer and acceptance, there are both pedagogical and practical reasons to start with remedies. Studying remedies is not easy going for beginning students, who tend to hate working with numbers. But they tell me that they like difficult topics placed early in the term so they have longer to process the material.

The most important reason to start with remedies is the opportunity to begin the first day’s class with Hawkins v. McGee.

Here are my Top Ten reasons why:

10. The opinion immediately demonstrates to beginning students their need for a law dictionary. The first paragraph alone contains five legal terms.

9. The opinion shows how judges sometimes load their opinions with empty overstatements, such as “clearly” and “obviously” when the facts were neither.

8. The opinion demonstrates the process of analysis that courts employ when direct legal authority is lacking.

7. The opinion allows an early exploration of some distinctions between tort (medical malpractice) and contract (promise of 100 percent success) in a context readily understood by beginning students.

6. The opinion revolves around two of the central themes in Contract law: the objective theory of assent and the expectation objective of contract remedies.

5. The opinion is an excellent introduction to remedies and the difference between tort and contract damages.

4. The opinion illustrates that general principles are easier to state than to apply.

3. The opinion has more poignancy than the commercial disputes that will follow.

2. The case has a rich subsequent history that can be explored as time permits.

1. Three words: The Paper Chase. Many students will have read the book or rented the movie. They expect Contracts to begin with a study of the “hairy hand” case. Disappoint them the first day and they may question their choice of law schools.

The Paper Chase

The movie version of this law school classic contains two scenes that I’ve used in my class. The first is Professor Kingsfield’s ‘skull full of mush’ explanation of why law schools use the Socratic method. That needs to be addressed the first day.

The second is Kingsfield’s encounter with a student, Mr. Hart. After recapping the facts of Hawkins v. McGee, Kingsfield asks, ‘Now Mr. Hart, what sort of damages do you think the doctor should pay?’

I then would call on several students and ask whether Mr. Hart gave the right answer (no, he didn’t). The ice having been broken, another term of Contracts has been successfully launched.

Read the full text of Professor Stockmeyer’s paper on the Social Science Research Network.

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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.

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WMU Broncos Hockey Team in NCAA Championship Tournament!

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The Law School salutes our  WMU Broncos ice hockey team in making the NCAA hockey championship tournament this year.  The Broncos are ranked 8th in the nation and are the number 2 seed in the east regional following an outstanding  22-12-5 season record on the ice.  Here are the tournament brackets.

We face off against Air Force in the east regional semifinal held in Providence, R.I. this coming Friday, March 24, at 7:30 p.m.  You can watch the game on ESPN 3.

Following WMU’s great football success this year culminating in an appearance in the Cotton Bowl, our hockey Broncos have brought WMU into the national limelight in a second sport this year!  It’s a great day to be a Bronco!

Bronco Hockey Heads to Providence for East Regional Semifinal Against Air Force

 

 

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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.

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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.

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