Law Research with Sarah Welling

Law Research with Sarah Welling - Podcast Transcript

Have you ever wondered who was doing the research that will impact your future? The research podcast lets you met those people, and learn how the University of Kentucky is exploring and strengthening our understanding of the world through research and discovery.   

Here's Alicia Gregory, director of Research Communications. 

Alicia: Today we’ll meet Sarah Welling from the UK College of Law. She’s the Ashland-Spears Distinguished Research Professor of Law and the Laramie L. Leatherman Professor of Law. She focuses on criminal law and she has consulted with Congress and the CIA on money laundering. She begins by telling us how she ended up in Kentucky.

Sarah Welling: I grew up in Evanston, IL, which is the first suburb north of Chicago. And, I went to the public schools there. And then I went to college at the University of Wisconsin at Madison. 

Alicia: So how did you end up in Kentucky? 

Sarah Welling:  Well, my sister, who was older than I was, was accepted here. And, she and her husband were both accepted for a PhD program. She was in Clinical Psychology. And so, she moved here while I was in college. And after I got out of college, I didn't have a job. I was a history major. I came to visit Martha, my sister. And, our family had no connections with Lexington or Kentucky, but she was like in her second year of a PhD program, and I came to visit her. And, and then, pretty soon, my dad said, you know Sarah, you've got a college degree. Now you have to go support yourself. I was a little dumbfounded. At any rate, I got a job in Frankfort as an Industrial Resources Representative. And, I did that for a year. And, then when I was a state resident, I applied for Law School. And, I went to law school here. So, I came to visit her and just never went away. 

Alicia: So, what motivated you to go into law? 

Sarah Welling: There was a little process of elimination going on. There wasn't going to be any science or math in my future. I had good luck writing and good luck with words. So, it seemed to me, the funest thing to do with words. And, nobody in my family had ever been a lawyer. So, it appealed to me to set out and be the first. 

Alicia: So, tell me a little bit about what research looks like in the field of law.

Sarah Welling: There are two kinds of research I do. One is, I write what's called a hornbook, which is a description of the law. And, what I do is, I look at the data, which for us is court decisions and statutes, and I summarize that into a coherent statement of the law for practicing lawyers. I like doing that a lot, but that's not my most interesting project.

My most interesting project is that I work on Jury instructions. Kentucky is in the Federal 6th Circuit, which has Ohio, Michigan, Kentucky, and Tennessee. And, in the 6th circuit, we have drafted a set of patterned jury instructions that are sort of a default. Like, trial courts can use these instructions. Unless there's something very weird and different going on. And so, the challenge with those is to take fairly complicated cases, distill them into language that is an accurate restatement of the case, but is still enough plain English that you are communicating to the jury.

So, it's sort of like translating. It's like, taking really formal, complex, legal concepts, and translating them into terms that a jury can absorb. And that's fun for me, because I like to fool around with words. I like writing words. I like writing words clearly and, and I like taking really complex words and making them simple but clear and fair. There's all kinds of studies about juror comprehension. And, it turns out juror comprehension of the instructions that trial judges give them is pretty low. Of course, now, see as lawyers we're not so worried about that as we are accurately communicating what the appellate court decisions did. But, meanwhile, the jury is sitting there like, what, say what, what did they say? So we’re trying to make them both accurate, but plain English. The jury instructions. That's not about the process, it's about the substance of what's criminal and what's not. And, it's in the federal system, as opposed to the state system.

Alicia: The website mentions you have done things on money laundering. 

Sarah Welling: I have. I have. One of my earliest and biggest, most successful, publications was on money laundering. And it was about people who were doing a process called smurfing. And, partly I was drawn to in because of the silly nickname, but you know, I thought, what a fabulous marketing idea. So, smurfing broke out during the height of the drug wars when drug dealers in cities were creating such voluminous money that just the bulk of it became a problem. So, they had to get it into the banking system. So, they would hire people to go and stand in line at banks, and convert 9,900 dollars into a cashier’s check. And, the reason they did that, is that at the 10,000 dollar level, that transaction would have been reported to the federal government. 

So, they didn't want that. And... and, that was the whole point of the reporting requirement, was to create a paper trail so that you could track large cash transactions. Well, pretty soon, drug dealers would rent charter airplanes and fly a bunch of people into... see they didn't want to stand in line in New York or Chicago, so would fly into Nebraska, and several people would hit a bank and simultaneously stand in each different teller line. And, the guys in the DEA, who are only slightly less colorful than the dealers themselves, the guys in the DEA nicknamed them Smurfs.  So, yeah. That's how I got started. So, I had a lot of fun. And I still follow the money laundering law real carefully. 

Alicia: That's fascinating. I had no idea. 

Sarah Welling: It's a hoot. Yeah. 

Alicia: So, what are you doing, right now? 

Sarah Welling: Right now I am trying to take a federal statute called the Hobbs Act. That's its name. And, it basically sets up three crimes. It sets up robbery, that's physically taking property from someone. So, it's not like you fake them out with documents, it's like you physically yank it off their person. It's a crime of violence. The other two crimes it covers though, are forms of extortion. And, that's more like, you get them to give it to you, you get the victim to give the money to the defendant, but they're not happy about it. It's either bribery, or they're doing it out of fear or something. 

So, in the federal system, the statute is poorly drafted, and the Supreme Court decisions on it are so obtuse. And the one that I'm struggling with right now is this most recent one, United States versus McDonnell, where the governor of Virginia got convicted for bribery. I'm trying to take the lessons of McDonnell, that case, and roll it into a jury instruction that plainly describes the crime of bribery. We're going to have a meeting on August 9th, in Cincinnati, to see if we're getting close. 

Alicia: That sounds challenging. 

Sarah Welling: It is. In fact, what the Supreme Court just concluded about Governor McDonnell, was that he didn't do bribery. So, they narrowed the crime, and we need to be sure to have our instructions reflect this new narrowing.

Yeah. So, it's tricky. Plus, of course, with bribery, the whole thing is that it's a conspiracy. There are no real victims. Everybody's on the inside of it. So, it's very difficult to investigate and prosecute. If people reach an agreement with just knowing winks and nods, it's very difficult. Yeah. 

Alicia: So, how did you end up choosing academia, versus practicing law? 

Sarah Welling:  I did well in law school, and I liked it. I thought it was fun. The idea of doing something that you can do well is huge. And then I- I clerked for a judge for one year, here in Lexington. And, then I practiced for two years in Chicago. And, I didn't like it as well as law school. When I got a chance, I went through the law schools hiring conference. And, sometimes we colloquially refer to it as the Meat Market. Because, what happens is, everybody who wants to go into teaching signs up for this conference, and we all go to this Sheraton Hotel in Washington D.C., and everybody rotates wildly around every half hour. So, when I went to that,I got a job offer to come back to Kentucky. So, I was very happy. 

Alicia: Tell me a little bit about the most rewarding part of working with UK law students. 

Sarah Welling: They're not at all brimming with entitlement. You know, they're very, very nice people, very enthusiastic. Generally, of course, the only ones in law school are the ones who wanted to go, and worked hard to get there. I mean, they didn't just roll into law school. And they're very smart. So, so, it's weird to stand in front of a class of 60 really smart people, who’ve never studied criminal law, and just listen to their thoughts. It's real fun. And when I see lawyers out in practice, or judges... As you mature, it seems more and more enticing to be around youth and it's just fun and energizing to be around them. And, and so, it's a cool career. 

Alicia: What have you liked best about working at UK? 

Sarah Welling: I like all my peers that I work with. You know, they're real smart people. I've always been happy to be around real smart people, just because they don't miss a thing, but they're not know-it-alls. And, I like just talking to them. Because you are never casting your pearls before swine. They are catching it all. And helping you. I mean, I've also, here at UK, been around people at the law school, who I think are unequivocally smarter than I am. And, that's sort of fun. You wouldn't want it to be your whole thing, but, but it's fun to see it happen.

I have a friend who's a law professor at Duke, and that's of course, a way fancier school, and she said that from time to time, she's jealous of people like me, who work at sort of more the front-line school. Because our chance to provide value added to the students, is much higher. You know, she's going to get at Duke Law School, you know, a whole bunch of people who are real smart and real entitled. And, they all went to prep schools. And, her chance to really, really help them, is maybe not as obvious or enduring as my chance to help people at the state law school. I love that it's the state law school. That's... that's... I guess that's my favorite part. 

Sometimes when I get exposed to other professors, they are in an ivory tower. They really are. Whereas, with the law, for criminal law anyway, everybody has a right to a jury trial. And if you can't convince 12 people unanimously to find that person guilty, then it doesn't matter. It doesn't matter what's going on. And so, in some ways, being a law professor is really grounded. You can't ever wig-off into the atmosphere. In criminal law, if you can't get people to understand why that conduct is bad, why it's a crime, then you're nowhere. And so, that's one thing that I think is really appealing about it. 

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