Category Archives: Latest News and Updates

Official news releases, events and publications from Cooley Law School.

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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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’

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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

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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.

devin

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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Sometimes Football and Law School Row Together #RTB

In 2013, the WMU football program had a record of 1-11. One win, and 11 losses. This year, the team has gone undefeated with a record of 13-0. Fire up the bandwagon, and jump on! The Broncos are rowing to the 2017 Cotton Bowl Classic at AT&T Stadium in Arlington, Texas, on January 2! You may be wondering, “What does the football record have to do with the law school?” The similarities may surprise you, but I will use some Bronconese to explain it to you.

rtb

Bronconese is the language created by head football coach, PJ Fleck, to articulate life lessons to his players and to create a culture of success. While there are over 200 words and phrases in Bronconese, I’m going to use just a few to illustrate how the attitude of success on the football field mirrors the attitude of success in law school.

“Row The Boat.”  If you’ve heard anything about WMU football, you’ve likely heard the team’s mantra—“Row The Boat.” It is everywhere here in Michigan, but not many people understand its true meaning. According to Coach Fleck, “Row The Boat” has to do with the amount of effort you put into your task, the constant drive toward your goals, and the teamwork necessary for a team, a community, or a cause to succeed. It also refers to the idea that everyone has a choice to make every day—you can give up and pull your oar out of the water, or you can keep your oar in the water and persist toward your goal.

Here at WMU-Cooley, we expect our students to never give up—keep their oars in the water. We expect them to keep driving toward their goal of succeeding in law school and passing the bar exam. While law school appears to be a solo effort, there are multiple people helping, encouraging, and driving students toward success. We – faculty, staff, and alumni – all have an oar in the water for every one of our students.

“Change your best.”  This phrase is just what it sounds like – you can always do better. If you are simply doing your best, you are staying the same and not growing. In law school, your best isn’t limited to grades. As an attorney, you will need to constantly gROW and change in order to keep up with changes in the law, growth in your practice, and personal growth as a dedicated member of your community. We encourage our students to always strive for better: better grades, better careers, and better, more fulfilling personal lives.  Your best can always be better, and we’ll help you continually find a new “best.”

“F.F.F.”  Fuel. Fierce. Finish. Fuel comes from within. Each student at WMU-Cooley has a reason for being here. They have a goal, maybe even a dream, and it is that goal, that dream that fuels them every day. Fierce refers to the attitude of a champion. Without a fierce determination, law school can be overwhelming. We encourage our students to be fierce in their pursuit of their dream. Finishing is the hardest part. Finishing only happens by grit. Finishing is the drive to push through setbacks when fuel is low and success seems unattainable. We know that one of the greatest indicators of success in law school is a person’s grit and determination, and we challenge our students to finish every day.

“Heartwork.” Hard work with pride and passion. The pursuit of a law degree and the practice of law are as much about taking pride in your work and having a passion for what you do as they are about simply working hard. Everyone has the ability to work hard, but those that have a passion for what they do and the pride to do it well are what set WMU-Cooley students apart. Our students pursue their goals with purpose and a work ethic that leads to success both in the classroom and in life.

So while you may not think the intellectual pursuits of law school have much to do with football, the WMU football team and the law school share many of the same core values. We both seek excellence, self-determination, and we’re willing to sacrifice to achieve our goals. We put our oars in the water everyday so that we may live the life of champions.
Go Broncos! Good luck in the Cotton Bowl, and always ROW THE BOAT!


Blog author Professor Emily Horvath currently serves as the Director of Academic Services where she works with students and faculty to develop programming to improve student success.

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