March 2010 Archives
 University of Pennsylvania Law School students’ work on the Supreme Court case, Padilla v. Kentucky has resulted in the Court ruling in their favor. The Supreme Court decision means that lawyers must tell non-citizen criminal defendants whether pleading guilty to a crime could lead to their deportation. “For the many, many non-citizens caught up in the American criminal justice system, there’s a very important point of making sure they know what they’re getting into,” says Professor Stephanos Bibas. Jose Padilla, a legal permanent U.S. resident who lived in the United States for 40 years, had been wrongly told by his attorney that although he wasn’t a citizen, he would not be deported if he pleaded guilty to a drug charge. "This is a historic decision," said Stephen Kinnaird, Penn Law lecturer and partner of the Washington, DC law firm, Paul Hastings, who argued the case on behalf of Padilla." The Court has now recognized that the lawyer's duties have evolved with the increased intertwining of criminal and immigration law.” Professor Bibas and students in his Supreme Court Clinic helped shape the arguments for the case, which tests the limits of the Sixth Amendment’s guarantee of effective assistance of counsel for non-citizen criminal defendants. Bibas says, “There were students volunteering as we were getting the Clinic set up, to go off and do research on these different things. How many non-citizens are going to be affected, and for what kinds of things will they be affected? How many times are they not getting the right information from their lawyers?” The ruling will have a tremendous impact on criminal cases against non-citizens. “The defense lawyer has to be effective in warning you about this major thing that’s looming and on the horizon,” says Bibas. “The defense lawyer has to tell the client, ‘This crime carries automatic deportation’ and maybe where it’s not so automatic, warn him ‘there’s a possibility of deportation here, and you need to talk with someone about it for more details.’” The students researched state laws to see whether there are differences concerning the ethical obligations attorneys have when advising clients on the consequences that a guilty plea might have on immigration status. “The students got to watch us bring together more than half a dozen amici from different perspectives from the American Bar Assn, immigrants’ rights groups, criminal defense groups, each of which wrote a brief that told a different story,” Bibas says. “The Supreme Court’s opinion relied on these different perspectives, examples and stories of people who’ve been hurt by laws and courts being insensitive to this problem. Another big part was an argument that Clinical Supervisor and Lecturer Yolanda Vazquez first pioneered, which is telling the whole story about how immigration used to be separate from the criminal process and yet over the last two decades, it’s become more and more interwoven, such that you can’t realistically say that a criminal defense lawyer can ignore deportation. It’s triggered automatically by certain convictions.” In October, students were at the Supreme Court to hear oral arguments in the case. “Penn is very fortunate to be partnered with excellent lawyers who allow us to leverage our own abilities and for our students see top notch advocacy at work,” Bibas says. “It’s great for the students to be able to watch the laws as they’re being made. It’s a capstone to their third year of legal education. It’s something they can get here that not many law students have an opportunity to do.”
Health care reform has been and continues to be one of the highest priorities in the Obama Administration’s domestic agenda. The proposals for reform played a major role in the debates leading up to President Obama’s election and dominate the Administration’s, and Congress’s, current domestic activities. While most policymakers seemingly agree that reform is necessary, there is much disagreement about the particulars of the appropriate reform. One of the more contested features is the so-called individual mandate—a federal requirement that every American possess a certain level of health insurance. In A Healthy Debate, David Rivkin and Lee Casey debate Professor Jack Balkin over the constitutionality of such a mandate. In their Opening Statement, Rivkin and Casey argue that if Congress has the power to reform the health care system, it must be found in the Commerce Clause. After examining the Supreme Court's modern Commerce Clause jurisprudence, Rivkin and Casey conclude that the mandate is even less defensible than the laws struck down in United States v. Morrison or United States v. Lopez. Nor can the mandate be based on the Taxing and Spending Clause because Congress cannot use a tax to regulate conduct that is otherwise indisputably beyond its regulatory power. In his Rebuttal, Balkin disagrees on both points. Examining the bill passed by the House on November 7, 2009, Balkin argues that, irrespective of the Commerce Clause, the mandate is a bona fide tax that is within Congress's powers to tax and spend for the general welfare. Moreover, Congress could also pass a mandate under the Commerce Clause because the practices of individuals without health insurance—such as substitution of emergency room services and over-the-counter health remedies—cumulatively and substantially affect interstate commerce. Read the full debate at the University of Pennsylvania Law Review PENNumbra website.
The University of Pennsylvania Law School has appointed two new members to its standing faculty: William Wilson Bratton, a nationally renowned expert in business law, and Tess Wilkinson-Ryan, a rising interdisciplinary scholar in law and psychology. “I am delighted to welcome these outstanding scholars to Penn Law's standing faculty,” said Dean Michael A. Fitts. “As a leading expert in business law, Bill Bratton will be a valuable addition to the Law School’s already strong concentration in business law. And Tess Wilkinson-Ryan, an up-and-coming legal talent, will further Penn Law’s standing as a pioneer in interdisciplinary legal education. Just as important, both Bill and Tess are exceptional teachers and collaborators who will enhance the intellectual vitality of the Law School.”  | William Wilson Bratton is presently the Peter P. Weidenbruch, Jr. Professor of Business Law at the Georgetown University Law Center. He served as a Visiting Professor of Law at the University of Pennsylvania Law School for the 2009-10 academic year. Bratton is also a Research Associate at the European Corporate Governance Institute in Brussels, Belgium and this year’s Anton Philips Professor at the Faculty of Law at Tilburg University in the Netherlands. Bratton is an expert in corporate law, legal history, and law and economics. His recent scholarship addresses a range of topics, including shareholder primacy, hedge fund activism, financial accounting standards, dividend policy, executive pay, and merger valuation. He is the editor of Corporate Finance: Case and Materials and the co-editor of an Oxford Press Collection of essays on regulatory competition. He is a member of the American Law Institute, the American Economics Association and the American Finance Association. Before joining Georgetown Law, Bratton served on the faculties of Cardozo Law School, Rutgers School of Law-Newark and George Washington University Law School. He previously clerked for Judge William H. Timbers of the Second Circuit, U.S. Court of Appeals and practiced corporate law at Debevoise & Plimpton in New York. Bratton earned his BA and JD from Columbia University. |  | Tess Wilkinson-Ryan, a rising interdisciplinary scholar who studies the crossroads of law and psychology, is currently a Sharswood Fellow at the University of Pennsylvania Law School. Wilkinson-Ryan’s recent research applies experimental paradigms from psychology and behavioral economics to investigate the role of moral intuitions in legal decision-making, including breach of contract and divorce negotiations. She has published numerous articles in law reviews and peer reviewed journals. Wilkinson-Ryan holds a BA from Harvard University and a JD and PhD in psychology from the University of Pennsylvania. |
 Speakers recounted visits to Haiti in the wake of the catastrophic earthquake in January, as well as their visions for how to rebuild the country, at the University of Pennsylvania Law School’s “Forum on Haiti: Relief, Recovery, and Aid” on Feb. 22. The challenge facing the international community, Paoletti said, was how to contribute to the Haiti relief effort in a way that is mindful of Haiti’s history and avoids a paternalistic attitude toward the country. Each speaker presented a unique glimpse at the crisis. ABC News Associate Producer Ayana Harry traveled to Haiti immediately after the earthquake and stayed there for one month, reporting on the progress of the aid effort. Harry and her news team caught extraordinary glimpses of the scope of the devastation wreaked by the earthquake. At one remote Red Cross clinic, she saw a girl whose toe was being amputated without medication because there was no way to get medical supplies to the clinic. She met dozens of Haitians afraid of being indoors, and realized that the earthquake had “transformed the way people thought about shelter.” Harry also witnessed the opposite face of the crisis: the remarkable hope of the Haitian people. One man she met was convinced his brother had survived the collapse of a large building, and enlisted the help of a Greek search-and-rescue team to dig him out, alive. The surviving students of Haiti’s leading music school salvaged the instruments they could and performed a concert at a tent camp. Christiaan Morssink, president of the United Nations Association of Greater Philadelphia, emphasized the unprecedented global response to the disaster. The UN called for $1.5 billion in aid to Haiti, which was, Morssink reminded the audience, its largest request ever. “We are experiencing international empathy — something we couldn’t have imagined a few decades ago,” he said. As for ordinary Americans who wish to mitigate the current situation in Haiti, Morssink said, he hopes to see them form “corps of volunteers” and not only help rebuild Haiti, but also reevaluate U.S. relations with the country. One volunteer who has already started working toward both goals is Aldo Magazzeni, the third panelist and the founder and director of Traveling Mercies, a non-profit relief foundation. Magazzeni spent two weeks in Haiti after the earthquake, working with local communities to bring people food and rebuild basic infrastructure, such as wells and medical centers, in areas where communities of displaced people are forming. “If we can build something permanent that gives them an idea of why they should remain in that particular area, then we’ve done something good,” Magazzeni said. Magazzeni also reiterated Morssink’s call for a huge international volunteer corps, pointing out that foreign corporations and donations alone can’t truly revive the nation. “If we want Haiti to be a better country, we need to decide as communities to be involved,” said Magazzeni. “There has to be a commitment of at least three generations to fix this.”
 Originalism may be preoccupied with the views of Americans who died centuries ago, but the debate over its merit as an approach to constitutional law is lively as ever. Saikrishna Prakash, a professor at the University of Virginia Law School, opened the discussion by defending originalism against the charge that it is solely a tool of the conservative movement. “It's not a handmaiden of the Republican National Committee or the Tea Party movement,” he said. The only way to meaningfully interpret the U.S. Constitution, according to Prakash, is to follow it according to the intent of its authors. “The very idea of a fixed meaning is contradictory to the principles of a living Constitution.” Richard Fallon, professor of constitutional law at Harvard Law School, was less forgiving. When originalism was first propounded in the 1970s, he said, it was “understood that it would have a conservative valence.” Even in the founding era, Fallon argued, educated people disagreed over exactly what was protected by some parts of the Constitution. As a result, “most originalists don't have very specified theories,” which makes originalism even more useful for rationalizing a particular political agenda. Conservatism and originalism can be teased apart, countered Keith Whittington, professor of politics at Princeton University. “We'd be fooling ourselves to think that any contemporary movement would fit perfectly with the ideas embedded in a 200-year-old document,” he said. Judges and lawyers shouldn't expect the Constitution to provide all the answers they'd like, Whittington added, but neither should they skew what they know to be the original intent of the founders. Mary Anne Case, a professor at the University of Chicago Law School, prefaced her comments with the observation that she held, as a female scholar, rights that “original intent would not allow me.” Abigail Adams's famous plea that the founding fathers “remember the ladies,” was ignored, according to Case; women were “not just passed over, but specifically left out” of the political society envisioned by the founders. The rules that the Constitution authors originally intended for women “are not rules that I want to live with,” Case told the audience.
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