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.

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.

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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

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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.

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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.

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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!

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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.

 

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Is the President immune from conflicts of interest? Con Law Prof explains what the Constitution says

There’s been much national debate and discussion over whether or not the President of the United States is, or is not, immune from conflicts of interest. WZZM-TV recently interviewed Constitutional expert and WMU-Cooley Law School Professor Devin Schindler about what the Constitution says and to explain and interpret the Constitution in terms of conflicts of interest. Watch the interview here.

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schlinder_devinProfessor Devin Schindler is a frequent commentator on numerous Constitutional and healthcare issues, having been interviewed over 200 times by radio, television, print and internet media sources.  His comments have appeared in Time Magazine, The Huffington Post, The New York Times, The San Francisco Chronicle and numerous local media outlets.  For 15 years, Professor Schindler hosted his own radio program, “The Constitution among Friends” on WGVU public radio. He is a frequent author and has made hundreds of speeches on constitutional law issues and health care compliance. He most recently published articles in the Whittier Law Review, Case Western Reserve’s Health Matrix: Journal of Health-Medicine, and in Quinnipac Universities’ Health Law Journal.

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Finding Oneself on the Other Side of the World

The Northland region of New Zealand is full of legends and stories significant to Kiwi culture. Professor Kimberly O’Leary got to recently travel in the Northland region. She embraced the land – rich with beauty and meaning. Despite the possible difficulty to traverse the mountainous, hilly New Zealand terrain, she and her husband forged ahead to conquer Mount Manaia, located in the Whangerai Heads, like so many other travelers do each year.

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The hike, consisting of over 1000 stairs, makes a short but steep trail through New Zealand bush, ferns, mangrove trees, and blooming flowers. The mountain is the remnants of a volcano that erupted 20 million years ago. At it’s top are five vertical stones that can be seen for miles around. Legend says that Chief Manaia, the Chief’s children, a rival Chief, and the rival Chief’s wife all turned to stone by the God of Thunder.

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The hard climb was well worth the hardship and time.  Professor O’Leary and her husband were rewarded at the top with stunning view of the bays and the surrounding area. Travelers also enjoy the walk through the tropical bush,  replete with birdsong and the magnificent blooms of the Pahutakawa trees, often called by locals as the New Zealand Christmas tree due to its bedazzling red foliage during the holiday season.

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The nearby Bay of Islands is considered the birthplace of New Zealand; home to Maori origin legends and the first Maori encounters with western sailors. Professor O’Leary ventured out by boat, traveling past the black rocks, nesting sea birds, beautiful islands, several pods of dolphins, and the famous Motu Kokako, also known as the “Hole in the Rock.” Motu Kokako represents strength through adversity after all it had endured to withstand the sea. The Urupukapuka Island water is so clear and translucent that you can see all the way to the bottom. All are treated to another stunning view of the bay, blooming pahutakawa, and jacaranda trees after a climb to the top.

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The trip to Cape Reinga had a breathtaking view of 90 mile beach. The Cape is at the upper most tip of New Zealand, and the place where the Tasman Sea meets the Pacific Ocean. The Maori believe this spot is the place where souls leap into the afterlife. Along the Tasman Sea coast, unspoiled beach extends for dozens of miles. It is said that the beach is 90 nautical miles from the Cape to Dargaville, hence the name “90-mile beach.” You get to ride a special “dune bus” about 40 miles on the sand of this beach.

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Also in the region is the largest known living kauri tree. Kauri trees existed along with dinosaurs, formerly growing all over the world. The only living kauri trees are now in New Zealand, with sub-species growing in Australia. These trees are known for growing very large – second only to giant redwoods. They were harvested aggressively in the 19th century, and are now protected. The largest living tree is called Tane Mahuta, which is a Maori name meaning “Lord of the Forest.”

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Tane Mahuta is estimated to be between 1500 and 2000 years old. Ancient fossilized remains of these trees produces amber, and speculators came from all over the world in the 19th century to mine for amber. Tane Mahuta grows in the Waipoua forest – a protected forest of native trees and plants and a special place.

Finding herself in the midst of ferns, birds, mountain tracks, dolphins, volcanic formations, the meeting of oceans, unspoiled beach and towering ancient trees, Professor Kimberly O’Leary found her own center, clear on the other side of the world.20161218_112110

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Professor Christi Henke Personifies Griffith Award Tribute

The Frederick J. Griffith III Adjunct Faculty Award recognizes “that member of the adjunct faculty whose service best reflects the character and attributes of Professor Griffith: dedication to the law school; excellence in teaching; passion for persuasive advocacy; compassion for law students; and optimism about life and the future of legal education.” To show our gratitude, WMU-Cooley pays tribute by honoring one of them with this annual award. They are the unsung heroes of legal education. 

Griffith award winner Professor Christi Henke with Rick Griffith’s widow Margie Griffith.

Past award recipients have included judges and state officials, Assistant Attorneys General and local prosecutors, defense lawyers, solo practitioners and big-firm partners, corporate house counsel, and even a Canadian barrister.

This year’s recipient,Christi Henke, has taught Contracts I and II since 2008. She has also taught Sales, Agricultural Law, a Multi-state Bar Exam Skills course, and trained professors in both Contracts I and II.

About a year and a half ago, Professor Henke started teaching Con Law I, and this term is teaching Con Law II.  One term she taught five classes on three campuses! (Grand Rapids, Lansing, and Auburn Hills).

As hard a worker as she is, it is the quality of her teaching that makes her shine in the eyes of her students. Over the years, Professor Henke’s teaching effectiveness score on student evaluations averaged a superlative 9.87 out of 10.

Associate Dean Michael McDaniel shared these sentiments from her evaluations:

  • She provides her students with the tools to succeed in law school.
  • She affords each student the opportunity to ask questions and seek guidance both in the classroom and individually.
  • She shows tremendous compassion for students.
  • She encourages students to be passionate about the law.
  • She prepares her students for success in a legal career.

RateMyProfessor.com gives Professor Henke high marks as well. She has been tagged as:

  • Respected
  • Gives good feedback
  • Caring
  • Amazing
  • Hilarious

Overall, she scored 4.8 on a 5-point scale for “Awesomeness” and was awarded a Chill Pepper for Hotness!

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WMU-Cooley Law School established the Frederick J. Griffith III Adjunct Faculty Award in 1997 as a memorial to Rick Griffith, and to recognize the contributions that WMU-Cooley’s adjunct professors make to the mission of the law school. Rick Griffith was a former Michigan Supreme Court Commissioner, and practiced law Of Counsel with the Lansing firm of Murphy, Brenton & Spagnuolo, while teaching at Cooley as an adjunct professor for nearly two decades, until his untimely death at age 52.

The award was endowed by contributions to the Griffith Memorial Fund made in Rick’s memory by his family, friends, associates, and faculty colleagues. The award carries with it a cash stipend and a memento recognizing the recipient’s selection. The memento is a commemorative ceramic tile created by Detroit’s renowned Pewabic Pottery, commissioned specifically for this award.

From left: Distinguished Professor Emeritus Otto Stockmeyer, Griffith Award winner Christi Henke, Associate Dean Michael C.H. McDaniel, Rick Griffith's widow Margie Griffith.

From left: Distinguished Professor Emeritus Otto Stockmeyer, Griffith Award winner Christi Henke, Associate Dean Michael C.H. McDaniel, and Margie Griffith.

Blog contributor Distinguished Professor Emeritus Otto Stockmeyer began his teaching career at Cooley Law School as an adjunct professor in 1976. Over the years he has also taught as a visiting professor at Mercer University Law School and California Western School of Law. At one time, before entering teaching, he was Rick Griffith’s supervising attorney at the Michigan Court of Appeals.

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