DOCSLIB.ORG

Recent Event

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text

Load more

RECENT EVENT CRIMINAL LAW — CAMPUS POLICING — UNIVERSITY POLICE OFFICER SHOOTS AND KILLS NON-UNIVERSITY-AFFILIATED MOTORIST DURING OFF-CAMPUS TRAFFIC STOP. — The Shooting of Samuel DuBose. In many ways, the shooting of Samuel DuBose appears to fit an all-too-familiar pattern of police violence.1 On the evening of July 19, 2015, in Cincinnati, Ohio, Officer Raymond Tensing — who is white — stopped DuBose — who was black — for a minor moving vi- olation.2 After DuBose was unable to produce his driver’s license, Tensing directed him to remove his seatbelt and tried to open DuBose’s driver’s side car door.3 “I didn’t even do nothing,” DuBose protested, as he held his door closed and turned the key to his car’s ig- nition.4 Yelling for DuBose to stop, Tensing reached for him with one hand and his service weapon with the other. He then fired one shot — killing DuBose instantly.5 Although Tensing claimed that he dis- charged his weapon only after being dragged by DuBose’s vehicle,6 his body camera footage plainly contradicted his account.7 In announcing Tensing’s indictment for murder, the county prosecutor condemned the officer’s actions as “asinine,” adding: “It’s an absolute tragedy in 2015 that anyone would behave in this manner. [Tensing] lost his tem- per because Mr. DuBose wouldn’t get out of his car quick enough.”8 There are any number of narratives that might be spun from DuBose’s killing. However, one especially notable aspect of this par- ticular instance of police violence is that Tensing was an officer of the University of Cincinnati (UC) Police Department — yet he pulled ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 1 See, e.g., Richard Pérez-Peña, Fatal Police Shootings: Accounts Since Ferguson, N.Y. TIMES (Apr. 8, 2015), http://www.nytimes.com/interactive/2015/04/08/us/fatal-police-shooting -accounts.html. 2 See Eric Weibel, Univ. of Cincinnati Police Div., Information Report, Case No. 201502732, at 1, 3 (July 20, 2015) [hereinafter Police Report], http://www.uc.edu/content/dam/uc/ucomm/docs /incident-report.pdf [http://perma.cc/QCZ8-U2ZH] (indicating that Tensing pulled over DuBose due to a missing front license plate). 3 See Sharon Coolidge et al., Prosecutor: UC Officer “Purposefully Killed” DuBose, CIN. ENQUIRER (July 30, 2015, 12:57 PM), http://www.cincinnati.com/story/news/2015/07/29/publish /30830777 [http://perma.cc/K3CV-LMU4]. 4 See id. 5 See id. 6 See Police Report, supra note 2, at 1–2. 7 See Coolidge et al., supra note 3. 8 Scott Eric Kaufman, “This Is, Without Question, a Murder”: Prosecutor Indicts “Asinine” White Cop in Shooting Death of Unarmed Black Motorist, SALON (July 29, 2015, 2:08 PM), http:// salon.com/2015/07/29/this_is_without_question_a_murder [http://perma.cc/A77D-TF2D]. 1168 2016] RECENT EVENT 1169 DuBose over on a public street several blocks south of UC’s campus.9 DuBose was neither affiliated with the university, nor suspected of committing a crime on university property or against a university- affiliated individual.10 That he was nonetheless stopped, seized, shot, and killed by a UC police officer casts new light upon the increasing role that colleges and universities play in policing the public at large. Although campus police departments have come to take on many of the characteristics of traditional police forces, they remain troublingly insulated from democratic control and public oversight. How DuBose found himself on the other end of a campus police of- ficer’s gun warrants further explanation. While campus police de- partments have existed for well over a century, they initially served a largely “custodial” function.11 But as colleges and universities began experiencing rapid growth in the mid-twentieth-century — and as in- stances of student unrest began occurring with greater frequency — school administrators increasingly sought to recast campus police de- partments in the mold of their municipal counterparts.12 To that end, state legislatures, as well as state and local police de- partments, proved to be willing facilitators.13 By the turn of the mil- lennium, most states had passed laws authorizing campus “policing” in some form.14 Ohio, for example, not only permits private and public ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 9 Compare Police Report, supra note 2, at 1 (indicating that DuBose was stopped near the in- tersection of Vine Street and Thill Street), with ROBIN S. ENGEL ET AL., UNIV. OF CINCINNATI CAMPUS CRIME REDUCTION COMM., 2014 CAMPUS CRIME REPORT 14 fig.1 (2015), http://uc .edu/content/dam/uc/publicsafety/docs/2014%20Campus%20Crime%20Report_FINAL.pdf [http:// perma.cc/854J-KU98] (showing that the intersection of Vine and Thill is beyond the university’s “Clery Timely Warning Area,” which the university defines as “a zone with a high concentration of students,” id. at 14). Notably, UC’s “Clery Timely Warning Area” constitutes “a larger geo- graphic area than the area identified for mandatory crime reporting” by the Jeanne Clery Disclo- sure of Campus Security Policy and Campus Crime Statistics Act, 20 U.S.C. § 1092(f) (2012). ENGEL ET AL., supra, at 14. 10 See Police Report, supra note 2 (making no mention of a connection between DuBose and UC). 11 See John J. Sloan, The Modern Campus Police: An Analysis of Their Evolution, Structure, and Function, 11 AM. J. POLICE, no. 2, at 85, 86–87 (1992). 12 See id. at 87–88; see also Clifford D. Shearing & Philip C. Stenning, Private Security: Im- plications for Social Control, 30 SOC. PROBS. 493, 496 (1983) (offering the university campus as an example of “mass private property”: “huge, privately owned facilities” with largely public func- tions). Concern over liability for campus crimes may have also contributed to this shift. See Max L. Bromley, Policing Our Campuses: A National Review of Statutes, 15 AM. J. POLICE, no. 3, at 1, 2 (1996). 13 See Jamie P. Hopkins & Kristina Neff, Jurisdictional Confusion that Rivals Erie: The Juris- dictional Limits of Campus Police, 75 MONT. L. REV. 123, 129 (2014) (“[S]tate and private educa- tional institutions cannot merely establish campus police offices with full police power and au- thority on their own initiative; it must be granted through some type of state authority.”). 14 See id. (citing Bromley, supra note 12, at 5); SEYMOUR GELBER, NAT’L INST. OF LAW ENF’T & CRIMINAL JUSTICE, U.S. DEP’T OF JUSTICE, THE ROLE OF CAMPUS SECURITY IN THE COLLEGE SETTING 35 (1972), http://www.ncjrs.gov/pdffiles1/Digitization/8966NCJRS 1170 HARVARD LAW REVIEW [Vol. 129:1168 colleges and universities to “appoint” or “designate” campus police of- ficers, but also vests those officers with full law enforcement power.15 In states where no such laws exist — or for officers of private institu- tions not covered by state law16 — state or local law enforcement agencies commonly deputize campus police officers, thereby “enabling the [campus] police to exercise state police powers.”17 Today, it is customary for colleges and universities to be patrolled by campus officers who are nearly indistinguishable from municipal officers in both appearance and practice.18 Student activism may no longer pose the same threat to the higher education establishment that it once did,19 but both federal law and market forces have increased awareness (and, arguably, concerns) about campus safety.20 And in ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– .pdf [http://perma.cc/VZ86-9NY4] (noting that many “states permit the state governing body for higher education to appoint campus police officers with power to arrest”). 15 See OHIO REV. CODE ANN. § 1713.50(C) (LexisNexis 2015) (vesting private campus police officers with “the same powers and authority that are vested in a police officer of a municipal corporation or a county sheriff”); OHIO REV. CODE ANN. § 3345.04(B) (LexisNexis 2013) (author- izing “state university law enforcement officers” to, inter alia, “serve as peace officers”). 16 Whereas a few states make no distinction between officers at private rather than public in- stitutions, see Hopkins & Neff, supra note 13, at 132 (observing that for the purpose of its campus police law, Georgia defines “college or university” as “an accredited, nonproprietary, public or pri- vate educational institution of higher learning” (emphasis added) (quoting GA. CODE ANN. § 20-8-1(3) (2010))), the majority of states grant authority solely to public institutions or otherwise make this distinction more clear, see id. at 132–33. 17 Id. at 130 n.53; see also Jeffrey S. Jacobson, The Model Campus Police Jurisdiction Act: Toward Broader Jurisdiction for University Police, 29 COLUM. J.L. & SOC. PROBS. 39, 65–69 (1995) (“After completing all training requirements for municipal police in Connecticut, and after approval by the New Haven Board of Police Commissioners, Yale officers receive badges and shield numbers identifying them as New Haven (not Yale) police.” Id. at 65.). 18 As of the 2011–12 academic year, nearly two-thirds of four-year colleges and universities with 2500 or more students employed sworn and armed officers. See BRIAN A. REAVES, BU- REAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CAMPUS LAW ENFORCEMENT, 2011–12, at 2 tbl.2 (2015), http://www.bjs.gov/content/pub/pdf/cle1112.pdf [http://perma.cc/3BQC -K29C]. Although a significantly higher percentage of public institutions employ such officers, a substantial portion of private institutions do the same. See id. (indicating that 91% of surveyed public institutions and 30% of surveyed private institutions employed sworn and armed officers). 19 This is not to say that campus administrators no longer task campus police officers with responding to student unrest. See, e.g., CRUZ REYNOSO ET AL., UC DAVIS NOVEMBER 18, 2011 “PEPPER SPRAY INCIDENT” TASK FORCE REPORT 11 (2012), http://ahed.assembly.ca.gov /sites/ahed.assembly.ca.gov/files/hearings/1.%20Reynoso%20Task%20Force%20Report.pdf [http:// perma.cc/4AST-R267] (finding it “difficult to avoid the conclusion” that university leaders’ “analy- sis of alternatives to the immediate deployment of the [campus] police [to disband the Occupy UC Davis campsite]” was “inconsistent and incomplete”).
Recommended publications
  • Rethinking the Boundaries of the Sixth Amendment Right to Choice of Counsel

    Rethinking the Boundaries of the Sixth Amendment Right to Choice of Counsel

    RETHINKING THE BOUNDARIES OF THE SIXTH AMENDMENT RIGHT TO CHOICE OF COUNSEL I. INTRODUCTION Criminal defense is personal business. For this reason, the Consti- tution’s ample procedural protections for criminal defendants are writ- ten not just to provide a fair trial, but also to put the defendant in con- trol of his own defense. Courts and commentators alike have rec- ognized that the constitutional vision of liberty requires not only protection for the accused, but also the right of the accused to speak and act for himself.1 The Sixth Amendment also reflects the common understanding that the assistance of counsel can be crucial — even necessary — to effective defense,2 but its language and structure nev- ertheless make clear that the rights and their exercise belong to the de- fendant himself, not his lawyer.3 The right to the assistance of counsel has many facets, but its most ancient and fundamental element is the defendant’s right to counsel of his own choosing. Indeed, the Supreme Court has identified choice of counsel as “the root meaning of the constitutional guarantee.”4 Yet ac- tual choice-of-counsel doctrine gives the state broad authority to inter- fere with the exercise of this right. For example, a defendant may not choose an advocate whose representation creates a potential conflict of interest for the defendant, even if the defendant knowingly and intelli- gently waives any objection to the potential conflict,5 and a defendant has no right to be represented by an advocate who is not a current member of a state bar association.6 The remedy for a choice-of- ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– 1 See, e.g., Faretta v.
  • The Socratic Method in the Age of Trauma

    The Socratic Method in the Age of Trauma

    THE SOCRATIC METHOD IN THE AGE OF TRAUMA Jeannie Suk Gersen When I was a young girl, the careers I dreamed of — as a prima ballerina or piano virtuoso — involved performing before an audience. But even in my childhood ambitions of life on stage, no desire of mine involved speaking. My Korean immigrant family prized reading and the arts, but not oral expression or verbal assertiveness — perhaps even less so for girls. Education was the highest familial value, but a posture of learning anything worthwhile seemed to go together with not speak- ing. My incipient tendency to raise questions and arguments was treated as disrespect or hubris, to be stamped out, sometimes through punish- ment. As a result, and surely also due to natural shyness, I had an almost mute relation to the world. It was 1L year at Harvard Law School that changed my default mode from “silent” to “speak.” Having always been a student who said nothing and preferred a library to a classroom, I was terrified and scandalized as professors called on classmates daily to engage in back-and-forth dia- logues of reasons and arguments in response to questions, on subjects of which we knew little and on which we had no business expounding. What happened as I repeatedly faced my unwelcome turn, heard my voice, and got through with many stumbles was a revelation that changed my life. A light switched on. Soon, I was even volunteering to engage in this dialogue, and I was thinking more intensely, independently, and enjoyably than I ever had before.
  • John F. Kennedy School of Government Harvard University Faculty Research Working Papers Series Is Satisfaction Success? Evaluati

    John F. Kennedy School of Government Harvard University Faculty Research Working Papers Series Is Satisfaction Success? Evaluati

    John F. Kennedy School of Government Harvard University Faculty Research Working Papers Series Is Satisfaction Success? Evaluating Public Participation in Regulatory Policymaking Cary Coglianese September 2002 RWP02-038 The views expressed in the KSG Faculty Research Working Paper Series are those of the author(s) and do not necessarily reflect those of the John F. Kennedy School of Government or Harvard University. All works posted here are owned and copyrighted by the author(s). Papers may be downloaded for personal use only. Is Satisfaction Success? Evaluating Public Participation in Regulatory Policymaking Cary Coglianese* Harvard University Dispute resolution seeks to find satisfactory solutions to conflicts, and researchers who evaluate dispute resolution procedures understandably want to consider whether disputants using these procedures are eventually satisfied with the resulting outcomes. A similar emphasis on satisfaction pervades the literature on techniques for resolving disputes and involving the public in regulatory policymaking. These techniques include the broad range of procedures and methods available to government for allowing input, feedback, and dialogue on regulatory policymaking, including comment solicitation, public hearings, workshops, dialogue groups, advisory committees, and negotiated rulemaking processes. Researchers evaluating these various techniques have often used participant satisfaction as a key evaluative criterion. While this criterion may seem suitable for evaluating private dispute resolution techniques, those who disagree in policy-making processes are not disputants in the same sense that landlords and tenants, creditors and debtors, or tortfeasors and victims are disputants in private life. Disputes in regulatory policymaking arise over public policy, not * Associate Professor of Public Policy and Chair of the Regulatory Policy Program, Harvard University, John F.
  • Recent Publications

    Recent Publications

    RECENT PUBLICATIONS THE TRIALS OF ACADEME: THE NEW ERA OF CAMPUS LITIGA- TION. By Amy Gajda. Cambridge, Mass.: Harvard University Press. 2009. Pp. x, 334. $35.00. In this well-written new book, Professor Amy Gajda delves into the explosion of university-related litigation and questions why judges have moved away from their previous wil- lingness to allow the academy to regulate itself. Gajda argues persua- sively that this litigiousness creates a strange academic environment in which “[c]ollege administrators may . wish to check with counsel before assigning teaching packages” (p. 104). Of particular note is the incredible range of subjects touched on by campus litigation — most of which receive their own chapters in this work — including lofty subjects such as free speech, tort law, and privacy, but also more ab- surd claims seeking the regrading of papers or promissory estoppel ac- tions to prevent expulsion. Gajda lays blame for this trend fairly even- ly at the feet of litigants, legislators, and courts, decrying the ultimate outcome: a “trajectory of court decisions [that] . encourages and channels ever more campus controversies into court” (p. 109). While ultimately a work of retrospection and not a prescription for the fu- ture, this book is a useful primer on the legal challenges facing higher education. THE SOUL OF CREATIVITY: FORGING A MORAL RIGHTS LAW FOR THE UNITED STATES. By Roberta Rosenthal Kwall. Stanford, Cal.: Stanford University Press. 2010. Pp. xviii, 247. $24.95. Ameri- can copyright law attempts to strike a balance between protecting au- thor’s rights and preserving the public domain. In an insightful new book, Professor Roberta Rosenthal Kwall offers a new perspective to this ongoing conversation.
  • Corporate Political Speech: Who Decides?

    Corporate Political Speech: Who Decides?

    CORPORATE POLITICAL SPEECH: WHO DECIDES? Lucian A. Bebchuk∗ and Robert J. Jackson, Jr. ∗∗ For Professor Victor Brudney, who long ago anticipated the significance of corporate law rules for regulating corporate political speech. I. INTRODUCTION The Supreme Court spoke clearly this Term on the issue of cor- porate political speech, concluding in Citizens United v. FEC1 that the First Amendment protects corporations’ freedom to spend corpo- rate funds on indirect support of political candidates.2 Constitutional law scholars will long debate the wisdom of that holding, as do the au- thors of the two other Comments in this issue.3 In contrast, this Comment accepts as given that corporations may not be limited from spending money on politics should they decide to speak. We focus in- stead on an important question left unanswered by Citizens United: who should have the power to decide whether a corporation will engage in political speech? Under existing law, a corporation’s decision to engage in political speech is governed by the same rules as ordinary business decisions, which give directors and executives virtually plenary authority. In this Comment, we argue that such rules are inappropriate for corporate po- ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– ∗ William J. Friedman and Alicia Townsend Friedman Professor of Law, Economics, and Finance and Director of the Corporate Governance Program, Harvard Law School. ∗∗ Associate Professor of Law, Columbia Law School. Although Professor Jackson recently served as an advisor to senior officials at the Depart- ment of the Treasury on matters related to corporate governance and Professor Bebchuk recently served as an advisor to the Department of the Treasury’s Office of the Special Master for TARP Executive Compensation, their work on this Comment commenced after their government affili- ations ended, and the views expressed in this Comment are solely their own.
  • LAURA ANN ROSENBURY Washington University School of Law Campus Box 1120 One Brookings Drive St

    LAURA ANN ROSENBURY Washington University School of Law Campus Box 1120 One Brookings Drive St

    LAURA ANN ROSENBURY Washington University School of Law Campus Box 1120 One Brookings Drive St. Louis, MO 63130 718-909-0173 (cell) [email protected] EMPLOYMENT Washington University Law School, St. Louis, MO (2002-present) Professor of Law (tenure effective July 1, 2008) John S. Lehmann Research Professor (2013-2014) Affiliated Faculty, Women, Gender, and Sexuality Studies Program (2007-present) Administrative Appointments Associate Dean for Research and Faculty Development (2010-2012) Association of American Law Schools Membership Review Committee (2014-present) Courses Children and Law, Employment Discrimination, Family Law, Feminist Legal Theory, Property, Public Law Theory Seminar, Trusts and Estates Awards David M. Becker Professor of the Year Award, 2006 Best Paper in Family Law, Stanford/Yale Junior Faculty Forum, 2006 Harvard Law School, Cambridge, MA (2012-2013) Sullivan and Cromwell Visiting Professor of Law Taught Children and Law, Feminist Legal Theory, Property. University of Illinois College of Law, Champaign, IL (spring 2010) Visiting Professor of Law Taught a short course on the Regulation of Intimacy. University of California, Los Angeles School of Law, Los Angeles, CA (winter 2010) Visiting Professor of Law Taught a short course on Relationships at Work. University of Chicago Law School, Chicago, IL (winter and spring 2009) Visiting Professor of Law Taught Family Law and Employment Discrimination. Stanford Law School, Palo Alto, CA (fall 2008) Visiting Professor of Law Taught Children and Law and Feminist Legal Theory. Laura A. Rosenbury curriculum vitae / page 2 Fordham University School of Law, New York, NY (2001-2002) Adjunct Associate Professor of Law Taught Feminist Legal Theory as an evening seminar.
  • Nicholas Stephanopoulos

    Nicholas Stephanopoulos

    NICHOLAS O. STEPHANOPOULOS Professor of Law, Harvard Law School Areeda Hall 230, 1545 Massachusetts Ave, Cambridge, MA 02138 (781) 248-8145 | [email protected] EMPLOYMENT HARVARD LAW SCHOOL, Cambridge, MA Professor of Law, 2020-Present Austin Wakeman Scott Visiting Professor of Law, Fall 2018 Research interests include election law, constitutional law, legislation, administrative law, and comparative law. Classes taught include Election Law; Constitutional Law; The Future of Voting Rights; and Law & Politics Workshop. UNIVERSITY OF CHICAGO LAW SCHOOL, Chicago, IL Professor of Law and Herbert and Marjorie Fried Research Scholar, 2017-2019 Assistant Professor of Law, 2012-2017 Classes taught included Election Law; Constitutional Law; Administrative Law; The Future of Voting Rights; Canonical Ideas; The Comparative Law of Democracy; and Public Opinion, Public Policy, and the Law. Helped organize Public Law & Legal Theory Workshop. Committee memberships included Appointments and Clinical and Experiential Learning. COLUMBIA LAW SCHOOL, New York, NY Associate-in-Law, 2010-2012 Taught Legal Practice Workshop to first-year law students. Coordinated weekly Associates’ and Fellows’ Workshop. Contributed to DrawCongress.org redistricting project. JENNER & BLOCK LLP, Washington, DC Associate, 2007-2010 Practice focused on complex federal litigation, appellate advocacy, and election law. Drafted sections of ten Supreme Court briefs, on subjects including Voting Rights Act, Establishment Clause, and criminal procedure. Election law work included redistricting and campaign finance matters. OBAMA FOR AMERICA, Washington, DC Volunteer Attorney, 2007-2008 Carried out legal work for Obama presidential campaign. Served in Election Day legal “war room.” HON. RAYMOND C. FISHER, NINTH CIRCUIT COURT OF APPEALS, Pasadena, CA Law Clerk, 2006-2007 Wrote bench memoranda addressing all aspects of federal appellate cases.
  • Provocation Frank’S Way

    Provocation Frank’S Way

    PROVOCATION FRANK’S WAY Robert Post∗ I know that Dean Martha Minow would like me to begin with a provocation, but I can’t help beginning instead with an acknowledg- ment. Throughout my career as a legal academic, I have always had two guiding lights, two pole stars whose integrity and depth I have trusted to steer me in the right direction. One is Owen Fiss, and the other is Frank Michelman. No one would ever confuse these two scholars. Owen’s style is di- visive and pugnacious. His MO is to enter a controversy, the way that Clint Eastwood might enter a saloon, clarify the dispute, and adopt a position. Whether you agree or disagree, you are guaranteed to come away with a better sense of the stakes in question. Frank’s style, by contrast, is anything but swaggering. Frank is empathetic, polite, generous (almost to a fault), indirect, and tentative. His archetypical article worries a question. And when I say worries, I mean the way that a terrier might worry a rat — by turning it over every which way, by attacking it from every possible angle, and by tasting its every implication. In the end Frank may (or as likely may not) reach some provisional conclusions. But in the process the reader will certainly have reaped rich rewards, for he will have experienced how a deep scholarly mind, exercising perfect scholarly integrity, illu- minates depths hitherto unseen and unimagined. He will have been inspired by the gift of insight. Frank’s writings offer wisdom in the service of a passionate fidelity to the intractable complexity of legal issues.
  • Kenneth W. Mack

    Kenneth W. Mack

    KENNETH W. MACK Harvard Law School 522 Hauser Hall 1545 Massachusetts Ave. Cambridge, MA 02138 (617) 495-5473 [email protected] EMPLOYMENT 2013- Lawrence D. Biele Professor of Law, Harvard University 2015- Affiliate Professor of History, Harvard University 2006-13 Professor of Law, Harvard University 2000-06 Assistant Professor of Law, Harvard University 2015- Affiliate, Committee on Higher Degrees in American Studies, Harvard University 2015-19 Visiting Professor of Law, Stanford University 2014 Frank Boas Visiting Professor of Law, University of Hawai’i 2013 Senior Visiting Scholar, Joint Centre for History and Economics, Magdalene College and King’s College, Cambridge University 2010-11 Visiting Professor of Law, Georgetown University 1992-1994 Associate, Covington & Burling, Washington, D.C. 1991-1992 Law Clerk, Hon. Robert L. Carter, United States District Court for the Southern District of New York 1987-1988 Member of Technical Staff, AT&T Bell Laboratories, Whippany, N.J. EDUCATION Princeton University, M.A., 1996, Ph.D., 2005, History Harvard Law School, Juris Doctor, cum laude, 1991 Drexel University, B.S., Electrical Engineering, high honors (magna cum laude), 1987 Harrisburg University of Science and Technology, D. Pub. Serv. (honorary), 2010 PUBLICATIONS Books: Representing the Race: The Creation of the Civil Rights Lawyer (Harvard University Press, 2012) Washington Post Best Book of the Year Honorable Mention, J. Willard Hurst Prize, Law and Society Association National Book Festival Selection Finalist, Julia Ward Howe Award, Boston Author’s Club Kenneth W. Mack - Page 2 (Books, cont’d) The New Black: What Has Changed – And What Has Not – With Race in America (New Press, 2013) (co-editor, with Guy-Uriel E.
  • The Statistics

    The Statistics

    THE STATISTICS a TABLE I (A) ACTIONS OF INDIVIDUAL JUSTICES Opinions Writtenb Dissenting Votesc In Disposition by Opinions Concur- Memo- of Courtd rencese Dissentse Total Opinion randumf Total Roberts 6 1 4 11 5 0 5 Kennedy 6 5 2 13 6 0 6 Thomas 7 15 9 31 14 1 15 Ginsburg 6 3 6 15 18 0 18 Breyer 7 3 9 19 20 0 20 Alito 7 2 6 15 15 1 16 Sotomayor 7 7 9 23 21 2 23 Kagan 6 2 1 9 16 0 16 Gorsuch 7 4 6 17 11 0 11 Per Curiam 12 — — 12 — — — Total 71 42 52 165 126 4 130 a A complete explanation of how the tables are compiled may be found in The Supreme Court, 2004 Term — The Statistics, 119 HARV. L. REV. 415, 415–19 (2005). Table I, with the exception of the dissenting-votes portion of section (A) and the memorandum tabulations in section (C), includes only full-opinion decisions. Twelve per curiam decisions contained legal reasoning substantial enough to be considered full-opinion decisions in October Term 2017. See Sause v. Bauer, 138 S. Ct. 2561 (2018); Sexton v. Beaudreaux, 138 S. Ct. 2555 (2018); North Carolina v. Covington, 138 S. Ct. 2548 (2018); Benisek v. Lamone, 138 S. Ct. 1942 (2018); Azar v. Garza, 138 S. Ct. 1790 (2018); United States v. Microsoft Corp., 138 S. Ct. 1186 (2018); Kisela v. Hughes, 138 S. Ct. 1148 (2018); CNH Industrial N.V. v. Reese, 138 S. Ct. 761 (2018); Tharpe v. Sellers, 138 S.
  • On the Ethics of Exporting Ethics: the Right to Silence in Japan and the US

    On the Ethics of Exporting Ethics: the Right to Silence in Japan and the US

    John F. Kennedy School of Government Harvard University Faculty Research Working Papers Series On the Ethics of Exporting Ethics: The Right to Silence in Japan and the U.S. Kenneth Winston June 2003 RWP03-027 The views expressed in the KSG Faculty Research Working Paper Series are those of the author(s) and do not necessarily reflect those of the John F. Kennedy School of Government or Harvard University. All works posted here are owned and copyrighted by the author(s). Papers may be downloaded for personal use only. ON THE ETHICS OF EXPORTING ETHICS: The Right to Silence in Japan and the U.S. Kenneth Winston Kennedy School of Government In The Question of Hu, Jonathan Spence tells the story of a French missionary in China in the eighteenth century, who set out to prove that certain ancient Chinese documents confirmed his idiosyncratic Christian theory of world history.1 It is the story of a foreigner’s shabby and insensitive treatment of the Chinese people encountered in his spiritual quest, and equally of a European unable to reflect on the limitations of his own intellectual cocoon. The missionary failed to exercise two types of reflection—what I shall refer to as double reflection. He failed to discern what something could mean to the Chinese, especially when at variance with his own understanding, and he was unable to contemplate the contestability of his own worldview. These are difficult abilities to cultivate, and most of us fail to some degree. Yet they are indispensable in a world of increasing communication and interdependence across cultures.
  • 400 When Hemi Is Understood in This Light, Justice

    400 When Hemi Is Understood in This Light, Justice

    400 HARVARD LAW REVIEW [Vol. 124:179 When Hemi is understood in this light, Justice Ginsburg’s concur- rence emerges as the most laudable of the three opinions issued by the Court. Refusing to engage in the exercise of defining proximate causa- tion, Justice Ginsburg expressly stated her reasons for dismissing the City’s claim: she was reluctant to allow the City — an entity that, as a first matter, could not constitutionally impose a tax on out-of-state sel- lers like Hemi — to recover damages for a violation of an Act in which Congress declined to include a private right of action.75 In so doing, she provided a measure of transparency. One might argue, of course, that allowing the judiciary to make policy judgments in lieu of strict legal analysis undermines the rule of law and has antidemocratic im- plications.76 But while the Court might attempt to define proximate causation and the state-city relationship in a way that provides less in- terpretive flexibility, such definitions have proven elusive for genera- tions of jurists. Some legal questions may always be indeterminate. In such cases, courts can and should rely on policy considerations. When they do so, however, they need not mask their thought process, but should, as Justice Ginsburg did in Hemi, lay bare their reasons for holding as they do.77 Such transparency increases the legitimacy of judicial decisions made in areas “not amenable to bright-line rules.”78 G. Sherman Act Quick Look Rule of Reason. — Section 1 of the Sherman Antitrust Act famously makes illegal any “contract, combination .