The Faculty Lounge

Survey Anyone? Participate in a poll of legal academics

Kevin Tobia is conducting an anonymous survey, with a graduate student collaborator, to learn more about the legal academy and legal theory. Anyone who self-identifies as a member of the “legal academy” is invited to participate. Participants might include, among others: law professors, fellows, and students; legal practitioners; and scholars from adjacent fields.

The survey has three parts: 1. Demographics; 2. Your views about which areas of law are most “central” in the legal academy; 3. Your views about substantive questions in legal theory. You are invited to take all parts of the study and are welcome to skip any questions, for any reason. The survey has obtained ethical approval and no identifying information will be retained. Details about the survey construction can be found here. The survey will close on September 1, 2021. Thank you for your help!

To take the survey, follow this link.

Using Rewritten Judicial Opinions to Teach CRT While Reinforcing Doctrinal Lessons

These are certainly interesting times to teach and write about critical race theory. As CRT becomes the new political scapegoat, US law schools are (finally) beginning to explore how to teach students law while also teaching them about the racism (and misogyny and homophobia) embedded in the law.

The question, of course, is always how to integrate CRT. Standalone courses are great, but they reach only a handful of students. And law professors often feel like they cannot add lengthy critical scholarship readings to already overpacked doctrinal courses.

One answer to the dilemma is to use rewritten judicial opinions. The Feminist Judgments series offers opinions that look like “real” judicial opinions but include critical race reasoning (as well as other critical legal perspectives). These rewritten opinions are shorter than most scholarly articles and can be a quick and effective way to incorporate CRT into your class. Because they are relatively short, they can be assigned ahead of time along with the original opinion or can be read as part of an in-class exercise as described by Bridget Crawford in this book chapter.

Teaching sexual harassment law? Dean Angela Onwuachi-Willig’s rewritten opinion in Meritor Savings Bank v. Vinson uncovers the racial dynamics of sexual harassment that were obscured in the original opinion. Or maybe you are teaching employer appearance codes in your employment law class. Consider assigning Professor Wendy Greene’s rewrite of EEOC v. Catastrophe Management Solutions, in which she reveals the racism and misogyny underlying what US law considers professional or appropriate for the workplace.

Teaching battery in Torts and want to stimulate a critical discussion of the bias inherent in determinations of intent or damages? Consider Professor Alena Allen’s rewrite of Robinson v. Cutchin, in which she criticizes the argument that an African American woman subjected to an unwanted tubal ligation during her C-section had suffered “no additional physical pain, injury or illness.” Professor Allen’s opinion is the perfect vehicle to teach students about the dangers of an ahistorical approach to doctrine because it places the concept of informed consent in the context of the history of involuntary sterilization of poor African American women in the United States.

These are just a few examples. Others include Professor Marley Weiss’s rewrite of Ricci v. Distefano in the Employment Discrimination volume, Professor Jennifer Wriggins and Professor Sara Cressey’s rewrite of G.M.M. v. Kimpson in Torts, Professor David Brennen’s rewrite of Bob Jones University v. United States in the Tax volume, and Dean Browne Lewis’ rewrite of O’Neal v. Wilkes in the Trusts & Estates volume, and Professor Teri McMurtry-Chubb’s rewrite of Loving v. Virginia in the Supreme Court volume, to name just a few. Go to the Feminist Judgments website for resources about how to teach using alternative judgments.

The best part is that if your library subscribes to the electronic versions of the volumes on Cambridge Core, students and faculty can read and download individual opinions via their library websites with no extra charge. Right now, Cambridge University Press is running a promotion where readers can access free chapters and libraries (and others) can get a discount on purchases of volumes in the series.

If we are going to be criticized for teaching CRT anyway, we might as well run with it.

-Kathryn M. Stanchi

New Book Announcement: Integrating Doctrine and Diversity: Inclusion and Equity in the Law School Classroom

Editors Nicole P. Dyszlewski, Raquel J. Gabriel, Suzanne Harrington-Steppen, Anna Russell, and Genevieve B. Tung are thrilled to share that their new book Integrating Doctrine and Diversity: Inclusion and Equity in the Law School Classroom, is now available in print and digital formats from Carolina Academic Press.

Here is a description of the book:

Drawing upon the experience of faculty from across the country, Integrating Doctrine and Diversity is a collection of essays with practical advice, written by faculty for faculty, on specific ways to integrate diversity, equity and inclusion into the law school curriculum. Each chapter focuses on a subject traditionally taught in the first-year curriculum (Civil Procedure, Constitutional Law, Contracts, Legal Writing, Legal Research, Property, Torts). Each chapter also includes an annotated bibliography curated by a law librarian. With submissions from over 40 scholars, the collection is the first of its kind to offer reflections, advice and specific instruction on how to integrate issues of diversity and inclusions into first-year doctrinal courses.

You can see a full list of contributors and read the foreword from Boston University Law School Dean Angela Onwuachi-Willig here.

Teaching the Breonna Taylor Grand Jury Announcement in Real Time

"Justice failed us today. It failed us in a way that's been failing us for generations."

-Kentucky State Rep. Charles Booker

The Breonna Taylor grand jury announcement started immediately before my criminal adjudication class this past Wednesday, and while I knew the announcement would be disappointing and painful, I also knew I couldn’t ignore it. Rather than moving forward with class as usual, I decided to livestream the announcement of the grand jury’s decision as well as the Kentucky State Attorney General’s press conference with my class.

I was shocked and angered: By the grand jury’s decision to indict only one of the LMPD officers, Brett Hankinson, with three counts of first degree wanton endangerment, not for killing Ms. Taylor or endangering her or her boyfriend, Kenneth Walker, but for endangering their neighbors in surrounding apartments. By Daniel Cameron’s press conference, which made it plain that prosecutors presented exculpatory evidence to the grand jury, which prosecutors only ever seem to do for cops. By Cameron’s continuing defense of the officers and of law enforcement in general. By his suggestion that many of the ills in the execution of search warrants could somehow be remedied by the formation of a new task force, likely to be headed by police officers and to accomplish nothing. 

My students were just as angry, confused, and heartbroken as I was. I let my students ask whatever questions or express whatever thoughts they felt comfortable sharing. They had astute questions about the operation of the grand jury, about the types of evidence allowed, about the meaning of “wanton endangerment,” and about whether grand jury transcripts would be released. A student remarked that, for the first time, they were having to confront the fact that “the law” and “justice” are not one and the same. Another asked, “Why do we keep using the grand jury when it seems fundamentally broken?”

I was honored and grateful to be able to discuss the grand jury’s decision, in real time, with my students. I’ve recently adopted a more thematic and problem-centered approach to my criminal procedure teaching as advocated by Lanni and Steiker in A Thematic Approach to Teaching Criminal Adjudication, rather than the traditional, strictly chronological approach. The class is more flexible and more immediately relevant to my students by incorporating more supplemental readings and materials outside of our traditional casebook, reflecting more recent developments in the field. This adaptability made it easier for us as a class to depart from the syllabus altogether to focus on the Taylor case, yet another important chapter in the story of criminal law, procedure, and police violence that unfolded that day before us. 

With the upcoming fight over the nomination of Amy Coney Barrett to the Supreme Court, Election Day only a few weeks away, and the COVID-19 pandemic wearing on, we as law professors should be mindful not just that our students may feel spread thin, but that their law school experience--oftentimes tons of reading and discussion of often fusty old cases and other materials--may feel completely disconnected from their everyday lives. All our students likely have strong feelings about much of the recent news. Using current events in the law school classroom gives students the opportunity to connect what they’re learning with the world around them in concrete fashion, and can help to illustrate the importance of what they’re studying in a much more immediate and relatable way. Students have so many important questions and observations about the current political and legal environment; giving them the opportunity to voice them provides important opportunities for them to learn from each other anad for us, as professors, to teach and learn from them, even if doing so pushes us outside our pedagogical comfort zones.

Miranda basics & the interrogation of James Holmes

Last week’s post dove into the controversial story of the West Memphis Three, focusing on how the interrogation of Jesse Misskelley offers a strong tool in the criminal procedure classroom for teaching the Fourteenth Amendment’s voluntariness doctrine. This week, in the final post of our series, we return to July 20, 2012, to the interrogation of James Holmes—just hours after he opened fire on a movie theater audience in Aurora, Colorado.

The West Memphis Three & Fourteenth Amendment Voluntariness

Last week’s post told the story of two New York rappers whose separate traffic stops demonstrate how officers rely on the automobile exception to the Fourth Amendment’s search warrant requirement. Today we shift gears—and Amendments—to enter the interrogation room in order to discuss how the internationally-known story of the West Memphis Three makes for an incredibly powerful tool for teaching students the Fourteenth Amendment’s voluntariness doctrine.

TF Mafia & the Automobile Exception

Last week’s post considered how just a slice of the investigation into Steven Avery—widely known from the true-crime documentary series, Making a Murderer—makes a compelling tool for teaching students the basics of search warrants. This week, we shift gears to explore the tale of two New York rappers whose stories both setup and explain how the automobile exception works in modern practice.

Steven Avery & Search Warrants

Last week’s post discussed how the initial investigation into Aaron Hernandez presents a compelling opportunity for students to learn the Fourth Amendment’s plain view doctrine. This week, we explore just a slice of the investigation that led to the arrest of Steven Avery—widely known from the true-crime documentary series, Making a Murderer.

In summer 1985, Steven Avery was twenty-two years old and a resident of Manitowoc, Wisconsin. Avery worked at his family’s salvage yard, Avery Salvage, which his family had operated since 1965. On July 29, 1985, a fellow Manitowoc resident named Penny Ann Beernsten was jogging along Lake Michigan when she was brutally attacked and raped. During the investigation that followed, Beernsten described her attacker as a white male, approximately 5′6′′, stocky, with brown eyes and long sandy hair, and dressed in a black leather jacket. Manitowoc County Deputy Sheriff Judy Dvorak overhead Beernsten’s description and commented, “[that] sounds like Steven Avery.”

Avery was ultimately arrested, charged, and convicted for the forcible rape of Penny Beernsten. He was sentenced to serve thirty-two years in prison. After eighteen years of that sentence, DNA testing revealed evidence that both exonerated Avery from the rape charge and implicated a man named Gregory Allen, a suspect in similar rape investigations at the time of Avery’s arrest. Avery was released from prison on September 11, 2003. Thirteen months later, he filed a lawsuit for 36 million dollars in damages as compensation for his wrongful imprisonment.

Aaron Hernandez & the Fourth Amendment’s Plain View Doctrine

Last week’s post discussed how the federal government’s investigation into Alex Levin provides a compelling illustration of the Fourth Amendment’s exclusionary rule. This week’s story begins in 2010 when the New England Patriots acquired Rob Gronkowski and Aaron Hernandez in the NFL Draft. Together, Hernandez and Gronkowski became the first pair of tight-ends in NFL history to each catch five or more touchdown passes, while on the same team, in consecutive seasons. By 2011, the duo was setting records for yardage, receptions, and touchdowns by tight-ends, combining for 169 receptions, 2,237 yards, and 24 touchdowns in that season alone. In recognition of their success, the Patriots offered the dynamic duo the largest contract extensions in NFL history—locking Hernandez and Gronkowski into five-year contracts collectively worth more than $90 million.

But Hernandez’s on-the-field success masked a darker persona away from football. In 2013, just two years after signing his exorbitant contract extension, Hernandez was prosecuted for the murder of Odin Lloyd. By 2017, Hernandez was dead. This post peers into a small facet of the state’s initial investigation into the murder of Odin Lloyd; specifically, the search of Hernandez’s home shortly before his arrest. Although law enforcement had a warrant to search the house, officers seized items not listed in the warrant during its execution. Enter the plain view doctrine.

Alex Levin & the Fourth Amendment’s Exclusionary Rule

Last week’s post discussed how bringing the investigation of John Wayne Gacy into the investigative criminal procedure classroom benefits teaching the material on probable cause. We shift gears this week to discuss how the federal government’s investigation into Alex Levin makes for a fantastic discussion (and illustration) of the Fourth Amendment’s exclusionary rule. Compared to the defendants featured in prior posts, Alex Levin is no Adnan Syed or OJ Simpson in terms of pop culture fame, but that’s largely because the government’s methods to investigate Levin stole the show.

In Operation Pacifier, the government embodied the phrase “it takes a thief to catch a thief” by operating a child pornography server as part of a wide-ranging child pornography investigation that caught hundreds of users—including, Alex Levin. Investigative methods aside, Levin’s case grew in prominence because his victory at the motion to suppress stage gave other defendants hope—if just for a while.

But we’re getting ahead of ourselves.

John Wayne Gacy & Probable Cause

In last week’s post, we explored how the 1994 investigation into OJ Simpson offered an excellent real-world example of how the exigent circumstances doctrine worked in the first moments of a high-profile homicide investigation.

This week, in my fourth post of this series, we explore how the issuance of two search warrants for the home of John Wayne Gacy broke open the investigation into one of our country’s most horrific and notorious serial killers. Specifically, the second of those two warrants led to the discovery of twenty-seven teenage corpses in the crawl space under Gacy’s house and two more under his garage and driveway. As you will read in this post, however, the probable cause supporting those warrants was, at best, questionable. But no appellate court in the country would, on this evidence, be interested in overturning Gacy’s convictions—despite the strong merits of what became the core of his appellate clams. Collectively, the investigation of Gacy’s home provides an extraordinary opportunity for students to learn and apply the probable standard through a real-world investigation.

O.J. Simpson & Exigent Circumstances

In last week’s post,  we explored how the case of Adnan Syed serves as a powerful vehicle to teach Strickland v. Washington in the investigative criminal procedure classroom.  This week, in my third post of this series, we explore how investigative decisions made on June 13, 1994—the night of Nicole Brown Simpson and Ron Goldman’s murders—offer students an unparalleled opportunity to apply the Fourth Amendment’s exigent circumstances doctrine.

Teaching Strickland v. Washington through the case of Adnan Syed

In my post last week titled “Bringing famous defendants into the Criminal Procedure classroom,” I suggested that case filings from (in)famous defendants present the legal academy with a special opportunity to bring the classroom alive—particularly and especially the investigative criminal procedure classroom—in a manner superior to more traditional teaching methods.  At the end, I promised a series of follow-up topic-specific posts that would include my thoughts about teaching the investigative criminal procedure course through the lens of famous defendants. Today we dive into how the performance of Adnan Syed’s attorney, Cristina Gutierrez, at his murder trial makes for a compelling way to teach Strickland v. Washington.

Bringing famous defendants into the Criminal Procedure classroom

Last year, I drafted a series of posts for this blog wherein I suggested the many benefits of bringing Brendan Dassey’s prosecution into the law school curriculum (the intro post from that series is here). In that series, I mentioned that I twice taught a course called (Un)Making a Murderer and assembled course materials to accompany the class. Those materials relied, in part, on filings from Dassey’s case. Doing so intimately acquainted me with his case and its many associated legal issues.

To bring the Dassey prosecution to life for students, I expose them to numerous filings from the case alongside several law enforcement investigatory materials (including, for example, search warrants and interrogation videos). Teaching that class taught me this:  in-class conversations that focus on actual case filings has significant advantages compared with the more typical classroom conversation that revolves around discussing one case at a time in a vacuum—disconnected from how that case applies to a real person.

The aftermath of Len Kachinsky’s defense representation

Across several prior posts, I have outlined how the 2007 conviction of Brendan Dassey for the murder of Teresa Halbach—part of the largest criminal investigation in Wisconsin’s history—can enhance the investigative criminal procedure classroom for law students and law professors alike. I have argued there is much for law students (and even lawyers) to learn from law enforcement’s numerous interrogations of Dassey alongside the pretrial defense representation he received. On that latter topic, I have focused on Len Kachinsky’s representation of Dassey during a five month period from March through August of 2006.

During that period, Kachinsky hired a defense investigator who would end up also interrogating Dassey in an effort to elicit a further confession from him in order to aid law enforcement. Kachinksy would also waive Dassey’s (extremely viable) Miranda arguments during a hearing on Kachinksy’s motion to suppress. And, to top the representation off, Kachinsky invited law enforcement to interrogate Dassey without representation prior to trial.

That remarkable behavior is constitutional pursuant to the Supreme Court’s 1984 decision in Strickland v. Washington, which sets an extremely low bar for attorney performance under the Sixth Amendment. Strickland poses two distinct problems: (1) the low standard itself, and (2) lower courts’ interpretation of that standard to further lower the bar sets. In my last post, I explored that first problem—the standard—and today I’ll explore how the lower courts interpreted Strickland to reject his claim that Kachinksy provided unconstitutional representation. Both problems point in the same direction, which is for law schools to demand more from students. At the end of this post, I’ll offer one concrete suggestion for how schools might do exactly that.

Len Kachinsky & the fallible Strickland standard

In a series of prior posts, I explored the various interrogations of Brendan Dassey in 2005 and 2006. Then sixteen, Dassey was interrogated numerous times across a several-month span about his involvement in the murder of photographer Teresa Halbach. One of the interrogations, which took place on March 1, 2006, was the centerpiece of the state’s case. His March 1 statements—including that Dassey cut Halbach’s throat—were featured in the Making a Murderer series and were the focus of Dassey’s recently denied petition for a writ of certiorari to the Supreme Court.

Dassey’s confession aside, I began more recently to explore the concerning pretrial representation Dassey received from his appointed lawyer, Len Kachinksy. During a five-month span representing Dassey from March to August of 2006, Kachinsky waived critical issues, spoke to the media more than he spoke to his client, and hired an investigator to interrogate his own client—among other blunders. Kachinsky’s performance is enough to elicit any number of emotions, ranging from general disappointment to downright anger. Indeed, Kachinsky himself received that full range of responses to his behavior via nasty letters, angry phone calls, and even death threats.

The public outcry condemning Kachinsky’s representation of Dassey hides a powerful and unfortunate reality: Kachinsky’s representation was constitutionally adequate pursuant to Strickland v. Washington, the Sixth Amendment’s measuring stick for attorney performance. As teachers, we often assume that satisfying a constitutional standard is equivalent to competence. But that’s simply not true in the “effective assistance” arena. The constitutional standard is well below an acceptable minimum level of attorney competence.   

Short of calls to revise or overrule Strickland, which for decades have gone unanswered, the question shifts to whether there is another way to address Strickland’s low bar. The answer is yes and law schools are particularly well situated to raise expectations for the defense bar. At present, Strickland is not sufficiently representative of what the profession—in practice—demands of professional well-regarded criminal defense attorneys.  Law schools must develop curriculum that is not tightly calibrated to Stickland but, rather, reflects true standards of acceptable competence for defense attorneys.   

The other explanation for Brendan Dassey’s conviction

In a series of seven prior posts, I explored the primary reason—aggressive use (and misuse) of interrogation methods—for the 2007 murder conviction of Wisconsin teen Brendan Dassey. Dassey, now (in)famous for his role in the Netflix documentary, Making a Murderer, was interrogated several times during law enforcement’s investigation into the murder of photographer Teresa Halbach. One of the interrogations, which took place on March 1, 2006, was the centerpiece of the state’s ca

His March 1 statements—including that Dassey cut Halbach’s throat—were featured in the Making a Murderer series and were the focus of Dassey’s recently denied petition for a writ of certiorari to the Supreme Court. Given the absence of physical evidence tying Dassey to the killing, many scholars, myself included, think Dassey’s confession was false.

That Dassey’s confession was the primary reason for his conviction is uncontested. But there is one other major reason for Dassey’s conviction: bad lawyering. In this post, we consider the representation provided by Len Kachinsky during five months of representing Dassey—from March 2006 until his removal from the case later that August. Speaking from my own experience, Kachinsky’s decision-making is a powerful teaching illustration for what not to do as a criminal defense lawyer. I have found that exploring Kachinsky’s mistakes with students is a very productive way to help them see how criminal procedure is actually practiced alongside how criminal procedure protections depend almost entirely on strategic thinking by lawyers.

Reigniting the need for Dassey in the classroom

Brendan Dassey’s court case came to an abrupt halt last week when, on June 25, 2018, the Supreme Court denied his petition for a writ of certiorari. The petition sought review of Dassey’s March 1, 2006, confession to law enforcement wherein he admitted to participating in raping and killing photographer Teresa Halbach. More specifically, the petition asked the Court to evaluate whether Dassey’s incriminating statements were voluntary pursuant to the due process clause.

The March 1 interrogation’s fame beyond legal circles arose from the Netflix documentary, Making a Murderer, which episode 3 focused on. I consider that interrogation in this post. In doing so, I argue that it makes for compelling criminal procedure teaching material in four main areas outside the voluntariness doctrine: Miranda custody, Miranda waiver, interrogation techniques, and the legal import of sequential interrogations. With Dassey’s petition denied, using Dassey’s case as a teaching tool seems all the more important. After all, forthcoming Supreme Court guidance seems unlikely given that the Court has not heard a juvenile interrogation case since Fare v. Michael C., decided in 1979.

Reid & sequential interrogations

The Supreme Court has yet to decide whether it will review the voluntariness of Brendan Dassey’s March 1, 2006, confession to raping and killing photographer Teresa Halbach. It will do so today. Numerous interrogation-related issues of first impression arose in Dassey’s case, largely in the context of Miranda custody, Miranda waiver and use of the Reid interrogation technique on juvenile offenders. But sadly, none of those issues were available for presentation to the Supreme Court because trial counsel for Dassey waived them. All that was left for appellate counsel before the Supreme Court was the question of whether his March 1, 2006, confession was voluntary for purposes of the due process clause. Dassey’s petition for Supreme Court review would have been much stronger if these issues were available for inclusion. Unlike the uniqueness of his Miranda-related issues, the Court has considered innumerable voluntariness issues dating back to Hopt v. Utah in 1884.

Today, we consider another set of unpreserved issues, largely focused on Miranda custody and waiver, which arose on Feb. 27, 2006, when law enforcement interrogated Dassey for the third time and the second time that day. The second Feb. 27 interrogation went unexplored by the Netflix documentary series Making a Murderer and untested by his trial counsel. Had Dassey’s then lawyer had a firm understanding of the Reid interrogation technique, then perhaps he would have had a fuller range of preserved Miranda-related arguments to present in his Supreme Court petition.

Reid & Brendan Dassey’s Lost Defense

Brendan Dassey is down to his last strike. Having filed his petition for a writ of certiorari before the U.S. Supreme Court, his case is over if the Court declines to grant cert. The petition argues that Dassey’s March 1, 2006, confession was involuntary. Using that confession against him at trial, the petition argues, violated the Fourteenth Amendment’s due process clause. Dassey’s petition has appropriately generated considerable media coverage (here and here for example) alongside scholarly commentary (here and here for instance).

But the value of Dassey’s case for educational purposes involves much more than the voluntariness issue.  That issue has taken prominence only because it is an issue preserved for appeal.  But Dassey’s case presents other perhaps more fruitful grounds for challenging his conviction that were not preserved by earlier lawyers.  Most critically, Dassey’s early lawyer failed to preserve critical Miranda-based arguments related to custody.

One of those unpreserved issues arose on Feb. 27, 2006, when law enforcement interrogated Dassey for the second time. The interrogation, which the Making a Murderer Netflix documentary series did not feature or mention, offers another example of how an attorney’s knowledge of the Reid interrogation technique can better inform Miranda-related arguments. Investigators would interrogate Dassey three times that day. Today, in this fifth post, I’ll consider what took place in the first of those interrogations and how it could have supported an important Miranda-based defense that a defense attorney with an understanding of Reid could have raised.