PUBLISHED BY THE BOLCH JUDICIAL INSTITUTE OF DUKE LAW SCHOOL

VOLUME 102 NUMBER 2 SUMMER 2018

JUDICATURETHE SCHOLARLY JOURNAL ON JUDGING

Rights that made the world right How freed slaves extended the reach of federal courts and expanded our understanding of the 14th Amendment

Also: REENTRY COURTS ~ LOOKING TO STATE CONSTITUTIONS FOR RIGHTS INNOVATIONS ~ TAR GUIDELINES ~ NEW BEST PRACTICES FOR MDL

Published by the BOLCH JUDICIAL INSTITUTE of Duke Law School

DIRECTOR

David F. Levi Levi Family Professor of Law and Judicial Studies Duke Law School

DEPUTY DIRECTOR John K. Rabiej ASSOCIATE DIRECTOR FROM THE PUBLISHER Melinda Myers Vaughn WE RECEIVED NEWS OF ASSOCIATE JUSTICE ANTHONY M. KENNEDY’S RETIREMENT as we prepared this edition of Judicature for printing. We look forward to paying tribute to him in a later edition of this journal. JUDICATURE Justice Kennedy came to Duke Law School in 2008 to dedicate our remodeled law library and our beautiful atrium, the Star Commons. He offered his reflections VOLUME 102, NUMBER 2 about the symbolism of the moment. These buildings, he said, were edifices for “the exploration and evolution of the rule of law” — a crucial part of the maintenance of MANAGING EDITOR justice around the world. “We still must make the case for the rule of law, and we Melinda Myers Vaughn still must remember that our freedom and our security consist of the world of ideas.” He elaborated on this theme of ideas, developed through study, and then action or inter-action, developed through discussion: “[Students] go to the library and they begin Editorial Assistance to study, and we hope they encounter what Holmes called ‘the secret joy of isolated Leanna Doty, Lora Beth Farmer, thought,’” he said. “In the commons, the students discuss the ideas of the law, the Matt Eible, Dacia Green, Janse Haywood, Dagny Lu, Courtney Smith, Ann Yandian concept of justice, the meaning of freedom, with students from other disciplines, other backgrounds, from other countries. And, so it goes — from library to commons.” Our new Bolch Judicial Institute seeks to do much of what Justice Kennedy so eloquently discussed. We aim to “make the case for the rule of law.” Our Institute is ISSN 0022-5800 dedicated to preserving and advancing the rule of law, here in the United States and © 2018 Duke University School of Law. around the world. We will do this through research and scholarship — ideas — and All rights reserved. This publication, or any part thereof, may not be reproduced without written permission through discussion, debate, and on-the-ground projects — action and interaction. from Duke University. Views expressed herein do not We are working now to translate our vision into concrete plans and goals. I welcome necessarily reflect the views of Duke Law School your thoughts as we begin this important work. as an entity or of its faculty. Requests for reprints may be sent to: Bolch Judicial Institute of Duke Law School 210 Science Drive | Box 90362 Durham, NC 27708-0362 Phone: 919-613-7073 | Fax: 919-613-7158 David F. Levi Director, Bolch Judicial Institute Levi Family Professor of Law and Judicial Studies [email protected] Duke Law School judicialstudies.duke.edu @DukeJudicature JUDICATURE VOL. 102 NO. 2 IN THIS EDITION Departments 2 EDITOR’S NOTE, BRIEFS, HONORS RULEMAKING AUTHORITY

6 THE STORIED THIRD BRANCH A GIANT AMONG JUDGES AND MEN Joe L. Webster 31 11 FROM THE COURTS REMEMBERING DR. KING’S LAST LEGAL BATTLE Sarah Smith

14 POINT-COUNTERPOINT 70 A(NOTHER) NEW PLAN FOR CLERKSHIP HIRING Features Diane Wood & Aaron Nielson 76 BOOK REVIEW 14 SIX BOOKS FOR UNDERSTANDING THE RIGHTS THAT MADE THE WORLD RIGHT: FOURTHEENTH AMENDMENT FEDERAL COURTS AND THE FOURTEENTH AMENDMENT Robert N. Hunter Laura F. Edwards 80 REDLINES 26 ZAP MULTIWORD PREPOSITIONS, PLEASE CHANGE AGENTS: Joseph Kimble LOOKING TO STATE CONSTITUTIONS FOR RIGHTS INNOVATIONS Jeffrey S. Sutton Introduction by Sarah Hawkins Warren 31 REENTRY PHILOSOPHIES, APPROACHES, AND CHALLENGES Marvin L. Astrada Introduction by Timothy D. DeGiusti 42 REFLECTIONS ON A REENTRY COURT Jeffrey Alker Meyer & Carly Levenson 26 48 A MATTER OF STYLE: LEADERSHIP & GENDER ON STATE SUPREME COURTS Mikel Norris & Charlie Hollis Whittington 58 6 PROPOSED STANDARDS AND BEST PRACTICES FOR LARGE AND MASS-TORT MDLS 63 11 PROPOSED TECHNOLOGY ASSISTED REVIEW GUIDELINES 68 NOT SO FAST: A RESPONSE TO GARNER Joseph Kimble JUDICATURE VOL. 102 NO. 2

EDITOR IN CHIEF Toward a More Perfect Union BERNICE B. DONALD In 2018, as the nation commemorates the 150th Anniversary of the 14th Amendment, stake- Judge, U.S. Court of Appeals for the Sixth Circuit holders in the justice system should reflect on our successes and failures along the continuum for equal justice, equal access, equal opportunity, and full inclusion. The 14th Amendment was rati- BOARD OF EDITORS fied against the backdrop of slavery, exclusion of women and people of color, disenfranchisement, CHRIS DILLON Judge, North Carolina Court of Appeals and white supremacy. It granted citizenship to all persons born or naturalized in the United States and declared that no state could deprive any person of life, liberty, or property “without MYRON DUHART II Judge, Lucas County Court of Common Pleas, Ohio due process of law.” As author Eric Foner writes in his essay The Checkered History of the Great 14th Amendment, it is “one of the most important constitutional MEMBERS OF THE BOARD Amendments in American history.” In the short run, Foner DINAH ARCHAMBEAULT notes, the equal protection clause had little practical effect, as Judge, Twelfth Judicial Circuit Court, Illinois Southern white resistance and northern complacency resulted JENNIFER BAILEY in a “new system of racial subordination” that sought to Judge, Eleventh Judicial Circuit Court, Florida eliminate black voting, institutionalize racial segregation, CHERI BEASLEY and limit black economic progress. Foner provides important Justice, Supreme Court of North Carolina insight on the court’s evolving role in interpreting the 14th FREDERIC BLOCKX Amendment to develop the rights, powers, and relations for Judge, Commerical Court, Belgium individuals and corporations that are protected today. Now we must ask ourselves whether the courts face a crisis JOE BOATWRIGHT Judge, Seventh Judicial District, Florida of confidence in our ability to make real the 14th Amendment’s FROM THE promise of equal protection and equal opportunity. ROBERT BRUTINEL Justice, Arizona Supreme Court EDITOR IN CHIEF More than 50 years ago, the National Conference of Christians and Jews surveyed public confidence in the fair- DAVID COLLINS Justice, High Court of New Zealand ness of court outcomes and found that minorities expressed significantly less confidence than whites in the fairness of court outcomes. The National Center for State Courts’ annual Public MARK DAVIS Judge, North Carolina Court of Appeals Trust and Confidence in the Courts surveys show similar trends continue today. TIMOTHY DEGIUSTI Notwithstanding civil rights statutes, aggressive enforcement, diversity training, and Judge, U.S. District Court, increased pluralization, people of color remain skeptical that they can receive fair and impartial Western District of Oklahoma justice in America’s courts. Implicit bias research provides a sound basis for much of that skep- DAVID JONES ticism. Implicit bias is the process by which the brain uses “mental associations that are so well Chief Judge, U.S. Bankruptcy Court, Southern District of Texas established as to operate without awareness, intention, or control.” (Mental Health Project Implicit FAQ, implicit.harvard.edu.) Because the bias is unconscious, a judge’s, jury’s, prosecutor’s, or SPENCER LEVINE Judge, Fourth District Court of Appeal, Florida attorney’s decisions and actions may rely on stereotypes that can negatively or positively influence actions, resulting in disparities that undermine the justice process and fuel a lack of confidence. SARAH A.L. MERRIAM Magistrate Judge, U.S. District Court, Research shows that “(1) the magnitude of implicit bias toward members of minority and District of Connecticut disadvantaged groups is large, (2) implicit bias often conflicts with conscious attitudes, endorsed DAVID NUFFER beliefs, and intentional behavior, (3) implicit bias influences evaluations of and behavior toward Chief Judge, U.S. District Court, District of Utah those who are the subject of the bias, and (4) self, situational, or broader cultural interventions EMMANUEL ROBERTS can correct systematic and consensually shared implicit biases.” (Kang & Banaji, Fair Measures: Justice, Supreme Court of Sierra Leone A Behavioral Realist Revision of “Affirmative Action,” 94 Calif. L. Rev. 1063, 1064 (2006).) JENNIFER THURSTON I had the honor of chairing the American Bar Association project to develop a resource guide Magistrate Judge, U.S. District Court, on implicit bias, Enhancing Justice Reducing Bias, for judges and lawyers. The work reaffirms Eastern District of California for me that as judges, we must not only do justice, but we must also be seen as “doing justice.” ANN TIMMER Justice, Arizona Supreme Court Courts must embrace a larger role of working to improve the “fair administration of justice” and the perceptions of justice. Justice will be enhanced by strong reentry courts and other therapeu- TRACIE TODD Judge, Circuit Court, Alabama tic courts, civic education, judicial outreach, diversity, implicit bias training, and other innova- tive programs that foster confidence and improve the fair administration of justice. As we commemorate the sesquicentennial of the 14th Amendment, every stakeholder must recommit to working fervently to reach the promise of equal justice for every citizen!

Subscribe online at BERNICE B. DONALD judicialstudies.duke.edu/judicature , Judge, U.S. Court of Appeals for the Sixth Circuit JUDICATURE 3 BRIEFS WE WANT TO HEAR from THE NATIONAL CENTER FOR STATE COURTS FROM YOU!

ARTICLE SUBMISSIONS Judicature explores all aspects of the administration of justice and its improvement. We publish articles based on empirical research as well as articles based on fact and opinion from members of the bench, the bar, and the academy. Complete submis- sion guidelines may be found on our website: judicialstudies.duke.edu/ judicature. The back-and-forth history of rulemaking authority THIS NOVEMBER, ARKANSAS VOTERS 1810, the legislature specified by law that the WILL DECIDE ISSUE 1, a constitutional supreme court could create a suggested set LETTERS TO THE EDITOR amendment that would, among other things, of rules for the Courts of Common Pleas. By Email your letter, including your allow the state’s legislature to create rules of 1845, the legislature had granted the supreme full name and title, with Attn: Editor pleading, practice, and procedure for the state’s court power over lower “state” courts and in the subject line, to judicature@ courts and amend, annul, and repeal any rules made those rules “binding and obligatory.” law.duke.edu. adopted by the Arkansas Supreme Court. But eight years later, the legislature created For many states, including Arkansas, having its own Code of Civil Procedure, and by 1885 JUDICIAL HONORS an explicit provision that places rulemaking the supreme court was again stripped of its We print select judicial honors, space authority in the hands of the state’s court of rulemaking power over lower courts. permitting, and lists of active judges last resort is a relatively new phenomenon. For the next 50 years, rulemaking author- celebrating milestone anniversaries Since the early days of our nation, states have ity lay with Ohio’s legislature. Then, a 1935 of the date of their commission. experimented with different ways of handling statute gave the supreme court the right to Send submissions to judicature@ rules of practice and procedure. At first, most approve or amend “state” court rules of prac- law.duke.edu; high-resolution (300 states continued the British practice of allow- tice and procedure. Finally, the 1968 Modern dpi) photos are welcome. ing local courts to operate autonomously. Courts Amendment created the three-step Early efforts to shift rulemaking authority to process used today: the Ohio Supreme Court the state’s court of last resort proved challeng- prescribes rules governing practice and proce- THE STORIED THIRD ing and often temporary. dure in all courts, but the proposed rules are BRANCH Ohio offers an example of the changing to be laid before the legislature, which has the The Storied Third Branch invites trends over time. In 1803, just after Ohio won power to amend them. Once the rules go into judges to write a tribute to another statehood, the legislature granted the state’s effect, all laws in conflict with rules are of no judge who has, through example or supreme court power to create “general rules force or effect. Lower courts retain the right to mentorship, served as an inspiration of practice for the courts of common pleas.” create their own rules as long as they are “not to colleagues on and off the bench. But, likely because lower court judges were inconsistent” with the Supreme Court’s rules. See details at judicialstudies.duke. concerned about the intrusion on their auton- The Ohio example of on-again-off-again edu/judicature. omy, the statute was repealed a year later. In rulemaking authority occurred at the same 4 BRIEFS4 VOL. 102 NO. 2

time state legislatures sought to simplify to adopt uniform court rules. However, practice and procedure themselves. For THE AMERICAN each “class” of court has a separate Judicial example, the Field Code, the 1848 New JUDICATURE SOCIETY Council made up of the judges from that York Code of Civil Procedure named court, such as the Council of Superior for its lead author and proponent David PROPOSED GIVING Court Judges. The state’s supreme court Dudley Field, reformed and codified RULEMAKING may only adopt a rule “with the advice the common law practices of New York AUTHORITY TO A and consent of the council of the affected courts (many of which were retained from JUDICIAL COUNCIL class or classes of trial courts.” the time of the Revolution) and merged Third, legislatures have made change law and equity. But the reform turned CHAIRED BY THE challenging. Most constitutional amend- sour as the legislature became arguably CHIEF JUSTICE OF ments to deprive the legislature of power too involved. The Field Code adopted THE STATE AND over rules of practice or procedure had to in 1848 consisted of approximately 390 come from the legislature itself, through sections; by 1909, it had 3,000-plus MADE UP OF THE TOP constitutional conventions or by initia- sections and was decried as an example of JUDGES IN THE STATE. tive in states where such efforts are legislative revision “gone mad.” permitted. For this reason, states that In the 1900s, groups such as the have achieved some level of explicit American Bar Association and the state, similar to a proposal of the 1873 constitutional rulemaking authority in American Judicature Society began to Judicature Act but granting a Judicial their state constitution have done so believe that the authority to create rules Conference (made up of all judges in either through a constitutional conven- of practice and procedure should rest the state) the power to change Judicial tion or, if through the legislature, via within the judiciary itself, but they were Council rules by majority vote (copying an omnibus rewrite of their judiciary divided on how the power should be the 1875 Judicature Act language). The article. Examples of the latter include administered. A 1909 ABA committee legislature could adopt a “short practice Alabama (Amendment 328, adopted suggested the courts of last resort should act,” but when a statute and court rule by voters in 1973) and more recently “so far as possible” have the power, but conflicted, the rule would trump the law. Arkansas (Amendment 80, adopted by only as that was consistent with home Since then, three broad trends have voters in 2000). rule and local independence. Some crit- emerged. First, the federal Rules Enabling Today, the states can be divided into ics argued that handing the power to the Act was enacted in 1934, granting the three broad types with respect to the court of last resort would stymie reform federal Judicial Conference power to create explicit, exclusive placement of consti- because justices of the high court, who Rules of Civil Procedure (and, later, rules tutional rulemaking authority within tended to be older, had “reached an age for criminal procedure, etc.). This did the judiciary (and more specifically the in life when all change seems abhorrent.” not completely resolve tension between court of last resort). The American Judicature Society the branches, however: Congress refused Type I states, of which there are 13, was largely responsible for the solution to allow the Federal Rules of Evidence have explicit and exclusive constitu- proposed in Bulletin VII-A (1917), to go into effect in the 1970s, instead tional language granting the judiciary, which outlined a system of constitutional enacting their own version. States looked a judicial council, or the supreme court language for a “unified” court system. to the language of the Enabling Act for rulemaking power. Michigan is an It used much of the language of Great adopting their constitutional provisions, example here; its constitution provides: Britain’s Judicature Acts of 1873 and while state high courts looked at adopt- “The supreme court shall by general 1875, written in constitutional provi- ing, either partially or wholesale, the rules establish, modify, amend and sions that could avoid the tug of war federally developed civil procedure and simplify the practice and procedure in states faced with legislatures. Rather than similar rules. all courts of this state.” give the power to the court of last resort, Second, debate continued over whether Type II states have explicit language however, AJS proposed giving rulemak- a judicial council or the court of last resort in their constitution granting rulemak- ing authority to a Judicial Council would have power to promulgate rules. ing authority to the courts but allowing chaired by the chief justice of the state For example, Georgia’s 1986 constitution the legislature to intervene. These 22 and made up of the top judges in the provides its supreme court with the power states generally fall into two subtypes: JUDICATURE 5

JUDICIAL HONORS J.H. CORPENING II, the chief The city of Ocala, Florida, judge of Spartanburg County, senior judge on the circuit since district court judge for the 5th renamed a portion of one of South Carolina, received the 1994, Fay was recognized as a Judicial its streets state’s highest honor, the “legal legend” by the Eleventh District to honor Order of the Palmetto, in May. Judicial Circuit Historical of North retired He was appointed a judge of Society in 2008. Carolina, Judge the civil and criminal court of received the SANDRA Spartanburg in 1973. The court Judge David W. E. CHAMP, became the City of Spartanburg JENNIFER Soukup Judge of the Year Award recognizing her trailblazing Magistrate Court in 1979, and WALKER at the National Court Appointed role as both the first elected Paslay has served there ever ELROD of Special Advocates Conference female judge and the first since. “I’d do this another 45 the U.S. in March. The award honored African American judge in the years if I could,” he said. Court of Corpening’s efforts to establish Fifth Judicial Circuit of Florida. Appeals for the Fifth Circuit was an innovative program that Champ served from 2000 until PETER T. FAY received the named Appellate Judge of the assists drug-addicted mothers she retired in 2003. 2018 American Inns of Court Year by the Texas Association with recovery and helps them Professionalism Award for the of Civil Trial and Appellate keep and care for their babies JAMES B. PASLAY, the United States Court of Appeals Specialists. during recovery. longest-serving magistrate for the Eleventh Circuit. A

Type II-a gives the legislature the power TYPE I STATES TYPE II STATES TYPE III STATES Type III states have no explicit to alter, add, or veto any rules. The Ohio Arizona Alabama Connecticut language in their constitutions that Modern Courts Amendment discussed Arkansas Alaska Idaho mention practice or procedure. Many above is an example of this. Similarly, Delaware California Indiana of these 15 states, however, do have California’s constitution provides that Hawaii Colorado Iowa language in their constitutions grant- Illinois Florida Kansas state’s Judicial Council the authority Kentucky Georgia Maine ing their supreme court “administrative to adopt rules for court administration, Michigan Louisiana Massachusetts authority” or stating that the courts are practice, and procedure, but requires New Hampshire Maryland Minnesota under the supervision or supervisory that any such rule shall not be inconsis- North Dakota Missouri Mississippi control of the supreme court. tent with statute. The legislature’s abil- Oklahoma Montana Nevada How does this play out in Arkansas? ity to alter rules may require a simple Pennsylvania Nebraska New Mexico Prior to Amendment 80, Arkansas was West Virginia New Jersey Oregon majority or supermajority to act. Wisconsin New York Rhode Island a Type III state, with no explicit consti- Type II-b grants the judiciary explicit North Carolina Tennessee tutional language for rulemaking by and exclusive authority for rulemaking Ohio Washington the supreme court. After Amendment but leaves certain areas or rules open to South Carolina 80, the state became Type I: The state’s legislative activity. Colorado, for exam- South Dakota supreme court “shall prescribe the rules Texas ple, grants the supreme court broad Utah of pleading, practice and procedure powers but reserves for the legislature Vermont for all courts . . . .” If Issue 1 is adopted, the power to adopt simplified procedures Virginia Arkansas will become a Type II, with the in county courts for misdemeanor trials. Wyoming legislature able to create rules or amend North Carolina’s constitution divides or repeal any existing rule adopted by the the judiciary itself, giving explicit and delegated supplemental rulemaking supreme court with a three-fifths’ vote. exclusive authority for the appellate authority for the lower courts to the division (supreme court and court of supreme court but retained the ability to — WILLIAM RAFTERY blogs about state legislation appeals) to the supreme court. In 1967, alter, amend, or repeal rules — a power affecting the courts at gaveltogavel.us. the North Carolina General Assembly it has exercised several times since. 6 THE STORIED THIRD BRANCH VOL. 102 NO. 2

SAMMIE CHESS, JR. SUPERIOR COURT JUDGE, NORTH CAROLINA

SAMMIE CHESS JR. VIEWS HIS PORTRAIT, WHICH IS ON DISPLAY IN THE NORTH CAROLINA SUPERIOR COURT, HIGH POINT, N.C., AND IN THE COUNTY COURTHOUSE IN ALLENDALE, S.C. PHOTO BY LAURA GREENE, HIGH POINT ENTERPRISE, 2015. A giant among judges and men THIS TRIBUTE IS BASED ON JUDGE WEBSTER’S BOOK, THE MAKING AND MEASURE OF A JUDGE: by Joe L. Webster BIOGRAPHY OF THE HONORABLE SAMMIE CHESS, JR. (CHAPEL HILL PRESS, 2017.) ALL PAGE NUMBERS REFERENCE THE PRINTED BOOK, AND ITALICIZED SECTIONS ARE EXCERPTED FROM THE BOOK. JUDICATURE 7

[T]here can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge.”

­— The Federalist No. 78, Alexander Hamilton

ON A DIRT FLOOR OF A TENANT he took to defend and protect the con- well? He is a man of unsurpassed cour- HOUSE LOCATED AT THE EDGE stitution and viewed himself as a soldier age, grace, determination, and strength of that constitution ( ). His imprint OF A COTTON FIELD IN THE p. 67 of character that allowed him to over- was felt in numerous legal cases affect- come obstacles not experienced by most RURAL BULL POND COMMUNITY ing the lives of thousands of people in other lawyers and judges of his gen- OUTSIDE ALLENDALE, S.C., High Point and beyond. As one of the eration. Chess is guided by a moral A GIANT WAS BORN IN THE cooperating attorneys of the NAACP compass. He said, MIDST“ OF AMERICA’S GREAT- Legal Defense Fund, Chess was an attor- . . . [Y]ou must have a bearing and EST DEPRESSION. Named after his ney of record in North Carolina Teachers abiding faith in your moral direction; father, Sammie Chess the junior was Association v. the Asheboro City Board of that you can’t be a lawyer if you don’t refined by a close-knit family, faith, Education, Robinson v. Lorillard Co., and stand up straight. There will be blows and the deeply segregated south. The Addison v. High Point Memorial Hospital. against you, but you will be a man if you Hon. Sammie Chess, Jr. (“Chess”) rose He also was an attorney for the plain- take the blows. A man can do remark- to become the first African American tiffs and the public face of the lawsuit able things if you inspire others. You can superior court judge in North Carolina initiated against the High Point Board even disarm your opponent if you stand up and one of the first in the United States of Education to desegregate the public straight and practice these principles. You south of Washington, D.C. Gov. Robert schools. During the pretrial and trial can’t think about consequences, but you “Bob” Scott had the courage to appoint stages, Chess, along with the lead attor- have to think about what the constitution Chess as a special superior court judge ney (renowned civil rights attorney and requires. (pp. 66-67) in November 1971, at a time when pre- friend, Julius Chambers) and others, rep- vious governors had not had the courage resented the plaintiff in an employment In the early 1960s, Chess traveled to or desire to do so. racial discrimination case, Griggs v. Duke Gastonia, N.C., to his opposing attor- After graduating from North Power Co. On March 8, 1971, the U.S. ney’s home turf to present a civil case, Carolina Central Law School, passing Supreme Court decided for the plaintiff the only case his father ever witnessed. the North Carolina bar exam in 1958, and held that employment tests must The jury ruled in his client’s favor. After and serving his country in the army be job related. Griggs was the first racial rendering their verdict, many of the from 1958 to 1960, Chess, like other discrimination case brought under Title jurors, who were highly impressed by African American pioneer lawyers of his VII of the Civil Rights Act of 1964 to the manner in which Chess had argued generation, hung his shingle. He prac- come before the U.S. Supreme Court on his client’s case, came down out of the ticed law in High Point, N.C., and, like its merits and quickly became a land- jury box asking for Chess’s business many of his race, accepted his calling as mark decision. Griggs’s author, the late card, desiring him to be their family a “social engineer” (p. 28) to take on a Supreme Court Justice Warren Burger, attorney. However, whatever joy of vic- deeply fractured society, full of racial identified Griggs as the most important tory Chess experienced was tempered by prejudice and invidious discrimination, case handed down by the Court in his what he and his father experienced when which badly needed to be challenged first two full terms(p. 69). they were leaving the courtroom. As and corrected. It was as a civil rights What distinguishes Judge Chess Chess and his father walked some dis- lawyer that Chess first made his mark on from so many other lawyers and judges tance behind his opposing attorney out society. Chess was serious about the oath who have served our state and nation of the courtroom into the hallway lead- 4 8 VOL. 102 NO. 2

ing toward the exit, a man came toward Notwithstanding Chess’s manner of the opposing counsel. The man spoke to Chess distinguished dealing with racial prejudice, he learned opposing counsel and asked him, himself by carrying early in his career that not everyone “What in the world happened to you? You himself in a would understand his work as a civil look like you have been in a fight with a rights lawyer. He learned that some bobcat.” The opposing counsel responded, professional, would despise him. During this period a “A nigger lawyer just beat the shit out of nonconfrontational white man near Chess’s office approached me.” Without saying a word, Chess and Chess to tell him that he saw him as his father continued to walk toward the manner that being the “devil incarnate.” Later on, exit. (pp. 87-88) undoubtedly did however, after getting to know Chess, much to combat he learned that Chess was a good man. Later as a trial judge, in many of the Several years later Chess was asked to do courts where Chess presided, the various ignorance and the man’s eulogy. (p. 153) court officials such as clerks, bailiffs, and prejudice. Perhaps Lest anyone conclude that Chess was other law enforcement had never seen a a “yes man” or somehow too weak to black lawyer, let alone a black judge. unbeknownst stand up to the arduous work involved During one assignment, Chess traveled to him, Chess’s in representing clients as a civil rights to a distant court and manner garnered lawyer during the height of the civil [Chess] remembers pulling into a park- rights struggle, his strength of char- ing space which was marked with a sign respect and pro- acter was unquestionable. No one ever indicating that the space was for judges moted reconciliation accused Chess of being weak. Strength only. “This deputy came rushing up to me among persons of character includes the ability to walk saying, ‘Are you crazy, what do you think away from a fight if necessary. However, you’re doing?’ I didn’t say anything. He of different racial Chess proved he was only human on said, ‘Can’t you read?’ I said, ‘Deputy, backgrounds and one occasion as exemplified by the fol- I am the judge.’ All of a sudden, it came lowing incident that occurred at the to him that he heard there was a black from all walks of life. High Point, N.C., courthouse in the judge. I told the deputy, ‘It’s OK. This early 1960s, a rare occasion in Chess’s is something you have not been accustomed professional life where his always calm- to.’” (p. 106) and-collected demeanor was challenged. I’m going to keep talking and try to per- Chess described the incident: These are but a couple of examples suade you, and eventually you may come A number of attorneys, including myself, that prove Chess was the right person to see things the way I do.” had “shucks” (court files) in our hands to become the first African American Chess distinguished himself by waiting in line to discuss dispositions superior court judge in North Carolina. carrying himself in a professional, with the prosecutor. All of a sudden the While many others would have been nonconfrontational manner that un- prosecutor reached up from his seat and offended and ready to take measures in doubtedly did much to combat snatched the shuck from my hand. I their own hand, Chess was not willing to ignorance and prejudice. Perhaps un- immediately reached over and pulled him bring himself to the level of a Klansman. beknownst to him, Chess’s manner up from his seat, cocked my fist and looked He was well grounded and rooted in love garnered respect and promoted recon- him in the eye and told him, “If you ever and forgiveness, which was embedded in ciliation among persons of different snatch anything from me again, I’ll crack him by his parents and extended fam- racial backgrounds and from all walks your jaw.” (p. 61) ily. His grandmother gave him advice of life. To use the words contained that served him well. She said, “You are within President Abraham Lincoln’s JUDICIAL WISDOM better than nobody, but nobody is bet- second inaugural address, Chess’s life’s Chess says, “my agenda is to be open and ter than you.” Chess also said, “My way work and the manner in which he car- do justice in every case that comes before isn’t to get angry. If you disagree with ried it out did much to help “bind up me as God and conscience show me what me, I’m not going to stop talking to you. our nation’s wounds.” justice is in that matter. That’s all I JUDICATURE 9

take with me on every case.” As a private interviewed by a newspaper reporter. senting themselves in the pursuit of justice. lawyer and then judge, he advocated for In response to the reporter’s questions, Chess saw many such cases as a Superior “justice for all people, regardless of race, Chess acknowledged that many across Court judge and as an Administrative societal background, or education. I think our nation were questioning the legiti- Law judge. (p. 123) of myself as just a man and now a judge. macy and fairness of our justice system, I’m going to try to do justice in every case and whether it could be saved. His Related to the pro se litigant prob- that comes before me.” Chess saw the abso- solution, that of placing competent peo- lem facing our courts, Chess also lute need to treat all who came before him ple in all levels of our courts who have pondered a question that has vexed with respect. He said, “The court must the requisite integrity and knowledge, many judges that care about fairness always stand high in the opinion of the no doubt would go a long way toward throughout time. To what extent should populace. The governmental system must mending our justice system today. a judge seek to level the playing field, show respect for every citizen. If it can do “There is nothing wrong with the sys- and thereby promote justice, which is that, it can survive.” (pp. 105, 115) tem.” . . . What the courts need, says Judge the ultimate end of all civil disputes or Chess, is a better implementation, more criminal prosecutions? Chess resolved Judge Chess understood the great dedicated people who will inspire confi- the issue by stepping into the fray when responsibility of being a trial judge; that dence and “devotion to try to effect a good necessary to promote justice. the role of judge is, in some respects, system.” Judge Chess said, “It seems we “How does the judge try to see that a fair like that of being an umpire. However, are not meeting the great needs of the peo- and just trial takes place without tipping Chess’s judicial philosophy was much ple.” He points to what he describes as the scale to one side or the other?” Chess more than one that called upon him to “dissatisfaction among various age and believes strongly that indeed it is the job call balls and strikes. He said, racial groups.” Young people are asking of the trial judge to see that the game is Judges have a greater responsibility than questions like, “Can it endure?” “Does played fairly without having the tremen- to just sit there and rule; judges have a it meet the needs?” The judge says young dous power of “undue influence” affect the responsibility to make sure that defendants people are accusing the establishment of outcome of the case. While a judge is an make an informed decision; to make sure hypocrisy and notes that “we do not live independent arbiter, Chess also believes that it is not the time constraints of counsel up to the principles of our government.” strongly that the judge’s role includes a that are the basis of the defendant’s deci- “They’re asking questions about whether duty of making sure that there is not a sion. Defendants are at a disadvantage or not government is meeting its responsi- miscarriage of justice. The judge plays a of expressing themselves. They have had bilities” . . . “My feeling is that we have unique role. He or she is in a tenuous posi- conferences with their counsel; they don’t got to have people in the system who can tion. There is no need for a judge to enter want to anger their counsel. The defen- inspire confidence in the system from the the fray when the adversaries are equal. dants know they are at the hands of their magistrate’s level to the Supreme Court.” Equal adversaries can take care of them- counsel and that after the judge is gone (p. 104) selves. If the judge sees that an injustice is they are in the hands of their counsel. As taking place, then the judge should step in judge, I had a responsibility to take that Chess has commented on another huge and make sure that injustice doesn’t con- weight off of the defendant. [The judge] problem facing the courts today: the very tinue. As soon as the problem is corrected, says, “I’m not there to protect lawyers. I large number of pro se litigants who seek then the judge should step back and allow have a duty to see to it that the atmosphere redress in the state and federal courts. the litigants to continue. (pp. 123-24) is proper, that the conditions are appro- The United States system of justice, priate for a defendant getting a fair and whether involving criminal or civil cases, Judge Chess was not the kind of impartial trial; if the judge fails in this is an adversary system. There is no excep- judge that would never admit error. regard then he or she has engaged in a tion to this rule. Therefore, many cases are Neither was he ever offended or opposed major failing.” My concern was to pierce won or lost because of the skill or lack of if the losing party gave notice of appeal the veil and see that the conditions exist to skill of the lawyer representing the par- in open court as some other judges best insure those concerns. (p. 111) ties. Even worse are situations where one seemed to disdain. side is represented by one or more skilled He agrees that he and all judges have In December 1971, shortly after tak- lawyers, and the other side has to rely failures and, like the most respected judges ing the oath of office, Judge Chess was solely upon laymen’s knowledge in repre- in American history, commit error from 4 10 VOL. 102 NO. 2

time to time. Judge Chess, like most judges ner in and out of the courtroom, which who have tried many cases over their There is a great allowed him to stand out among lawyers career, has had the court of higher author- need for the court’s and judges of not only his time, but also ity reverse his decision. However, Chess decisions to become the generations before him and after his is confident that, with regards to all the retirement. His rise to prominence gives failures or mistakes he made as judge, he final, not in the hope to those among us who have lost tried to admit them and go about correct- sense that a ruling hope and been denied respect because ing any error in judgment immediately. of poverty, race, or other circumstances Chess says, I tried to proceed honestly and has been handed beyond our control. honorably in all of my doings. Whatever down by the court, Chess is a shining example to others of I’ve done did not vary far from who I am. but that it has been how, with hard work and perseverance, My idea was that I wanted to be accu- one can rise above his or her circum- rate and if I was in error in some way, I handed down in a stances in life. Indeed Chess is “among wanted to be corrected. I welcomed being manner that most those few men in society” who possessed corrected because in my error I might do an abundance of the “requisite skill in injustice in some way. I believe that is observers believe the law, integrity and knowledge” that why the system is tiered so you will have that the court’s Alexander Hamilton wrote about centu- many eyes. I never made a lawyer think decision is a fair ries ago as being integral to qualifying I would be offended by any appeal. Any for the station of a judge. Because of injustice done would not be intended. I and just result. this, Chess commanded the respect of tried to get for an individual the fair- all who appeared before or got to know est trial possible. I wanted any error in him. Perhaps retired Judge W. Douglas the facts or law to be brought up and cor- Albright of North Carolina’s 18th rected so that the individual would get that the court’s decision is a fair and just Judicial District Superior Court said it the fair trial to which he is entitled. I result. If there is no finality, then friction best: “We are all better off as a result of have no ego that transcends that respon- continues. This continued friction will be Sammie Chess, Jr., being among us. . . . sibility. My responsibility is to ensure an like a scab on the skin of our system of When his time comes, he will have left individual a fair and impartial trial. I justice. It will continue to fester. (p. 122) this world a better place.” (p. 158) have no personal interest in the case. I’d rejoice if someone points out something In our still deeply divided America that was contrary to a fair and impartial and world today, we can learn so much JOE L. WEBSTER trial. To do otherwise would be subverting from Judge Chess. In a time of many is a magistrate judge rather than upholding those principles. voices who are the purveyors of hate for the U.S. District (pp. 111-12) and further division in our society, Court for the Middle we need to hear more from voices of District of North Chess also has offered advice to the reason and moderation. For over a half- Carolina. He holds highest courts in the land. He spoke to century, Chess was and remains such a bachelor’s and law the division and lack of comradery that voice. Lawyers and others can learn from degrees from Howard University and affects not only our society in general, his example that you can be an advo- a Master of Judicial Studies degree but our court system as well. The divi- cate and agent for change designed to from Duke University School of Law. sion and lack of respect for those even on make this world a better place. Chess He practiced law in North Carolina for the same court is evident in the dissent- proved, like others among his contem- 25 years, serving as general counsel of ing opinions of various courts. poraries, that you can be an agitator and the Mid-Eastern Athletic Conference There is a great need for the court’s deci- go against the system in an attempt to and as a town attorney, before he was sions to become final, not in the sense that seek fairness and justice, and still gain appointed to serve as an administra- a ruling has been handed down by the the respect of others, including your tive law judge in 2006 and as a federal court, but that it has been handed down adversaries. A man of integrity, Chess magistrate judge in 2012. in a manner that most observers believe has carried himself in a dignified man- JUDICATURE 11

from THE U.S. DISTRICT COURT for the WESTERN DISTRICT OF TENNESSEE

(LEFT TO RIGHT) REV. JAMES LAWSON, ANDREW YOUNG, LUCIUS BURCH, CHARLES NEWMAN AND W.J. MICHAEL CODY ENTER THE FEDERAL COURTHOUSE IN MEMPHIS, APRIL 4, 1968. PHOTO COURTESY W.J. MICHAEL CODY. Remembering Dr. King’s last legal battle

BY SARAH SMITH of Appeals, conducted by Judge Gilbert Public Works Department walked off Merritt in 1994 and Rita F. Wallace in the job and began to strike for better 1997 and made available by the Sixth treatment.3 Every day for weeks, workers DURING THE FIRST WEEK OF APRIL OF THIS Circuit Court of Appeals Library.2 The continued to strike, carrying signs with a YEAR, THE CITY OF MEMPHIS, TENN., COM- story is further evidence of the critical powerful message: “I Am a Man.” MEMORATED THE LIFE AND LEGACY OF DR. role the federal courts played in nego- A large march in support of the MARTIN LUTHER KING, JR., ON THE 50TH tiating the legal challenges of the Civil striking workers was held on March 28, ANNIVERSARY OF THE SANITATION WORKERS’ Rights Era. 1968, organized by local leader Rev. STRIKE AND KING’S ASSASSINATION. As part James Lawson. The march turned vio- of the commemoration, the judiciary of THE RIGHT TO MARCH lent after a small number of (mostly the U.S. District Court for the Western King came to Memphis in spring 1968 young) people stripped the sticks from District of Tennessee remembered a to support and help lead a large march the signs they were carrying and began parallel court battle — a fight for the through downtown Memphis to promote to smash storefronts. Property damage right to march downtown in the face of living pay and safer working conditions and violence ensued. King and Lawson a federal injunction.1 for city sanitation workers. Just a few fled the march to safety.4 Mayor Henry This article recalls the court hearing months prior, on Feb. 1, 1968, two sani- Loeb declared martial law and called in from two perspectives, based on a 2018 tation workers — Echol Cole and Robert 4,000 National Guard troops. interview with attorney W.J. Michael Walker — were brutally killed on the King was determined to see the Cody, conducted by the author of this job when a garbage truck malfunctioned workers’ cause through, and he sought article, and a preserved oral history from and crushed them. No compensation or to return to Memphis to lead a second Judge Bailey Brown of the U.S. District benefits were available to their families. march to promote economic equality Court for the Western District of A labor dispute erupted ten days later, and social justice — in line with the Tennessee and U.S. Sixth Circuit Court when 1,300 black men from the city’s goals of his Poor People’s Campaign.5 4 12 VOL. 102 NO. 2

At the time, Cody was a young asso- Cody went upstairs to Burch, a sea- ciate at the law firm of Burch Porter soned and revered litigator, to see how & Johnson, president of the West to proceed: Tennessee Chapter of the American At that point, Burch wanted me to Civil Liberties Union, and a member get a telegram or something to get of the ACLU’s national board. Judge us formally engaged and not be vol- Brown, a former named partner at the unteering to do this. The telegram same firm where Cody worked, was the ended up coming about the time we chief judge of the U.S. District Court ended up going to court the next

for the Western District of Tennessee. PHOTO COURTESY W.J. MICHAEL CODY morning. The city of Memphis sued to enjoin The other thing was that Burch King and his colleagues at the Southern wanted to meet with Dr. King. We Christian Leadership Conference from went over to the Lorraine Motel. leading the second march through downtown Memphis. Cody, working Burch went to the Lorraine motel under trial lawyer Lucius Burch, par- with Cody and fellow young attorneys ticipated in that injunction hearing David Caywood and Charles Newman. and ruling — King’s last court battle. Memphis attorneys Louis Lucas and Because the judge assigned to the case Walter Bailey were also involved in the was out of town, Judge Brown handled matter from the Ratner, Sugarmon firm. and issued the temporary restraining Burch and Cody knew why the city order on the morning of April 3, 1968. wanted to pursue the injunction in fed- That same day, Dr. King deliv- eral court. If the march continued in ered his powerful “I’ve Been to the direct violation of a federal injunction, Mountaintop” speech, reflecting on his civil rights protections enforced by the own mortality: If the march continued federal courts might be diluted. Their Like anybody, I would like to live a strategy was clear: Burch and his asso- long life — longevity has its place. in direct violation of ciates would seek to have the injunction But I’m not concerned about that a federal injunction, lifted and, in exchange, they would now. I just want to do God’s will. civil rights protections agree to restrictions on the march. And He’s allowed me to go up to They also needed to respond to another the mountain. And I’ve looked over, enforced by the federal of the city’s concerns — “that, among and I’ve seen the Promised Land. I courts might be diluted. other [safety concerns], they had threats may not get there with you. But I against King’s life and couldn’t even want you to know tonight that we, guarantee his safety.” as a people, will get to the Promised Cody received a telephone call from a Two themes emerged in the hear- Land. And so I’m happy tonight; I’m colleague at the ACLU in New York ing: (1) The city would be safer having not worried about anything; I’m not City. The ACLU sought to have Cody nonviolent leaders leading and super- fearing any man. Mine eyes have seen represent King to have the temporary vising the march; and (2) city leaders the glory of the coming of the Lord.6 restraining order lifted, despite King’s were amenable to certain restrictions “threatening in the media that he was to guarantee safety. There was plenty A hearing to dissolve the restraining going to conduct the march anyway.” of familiarity among the lawyers, Cody order was held on April 4, 1968. Dr. “The federal injunction was the only recalls. Judge Bailey was the Brown of King was assassinated that evening on reason we were intervening. The city Burch, Porter, Johnson, and Brown, his hotel balcony in Memphis. wanted it to be in federal court,” said prior to taking the bench. The attor- Cody. “They didn’t name Jim Lawson or ney for the city, James Manire, had also TO THE FEDERAL COURTS anyone local [in order] to guarantee that worked as an attorney at Burch, Porter, On the morning of April 3, 1968, Mike it would stay in federal court.” and Johnson. The collegial nature of JUDICATURE 13

their relationships helped to make the timony and the lawyers, and he helped have made mad by what I had done. later compromise possible. them reach a resolution. But the deputy marshals spent their Burch called three witnesses to dis- So after I got that kind of understand- time watching my little boy out in cuss how the march could be conducted ing out in the courtroom, I called the sandbox, and that’s what it all safely, relying on King’s leadership them back into my chambers, and amounted to. and nonviolent principles: Andrew I said, “Do I interpret the situation Young (later Ambassador to the United right? The King people are willing The march went forward several days Nations), Lawson, and John Spence of to submit to these kind of restric- later, without King. It was peaceful, the U.S. Commission on Civil Rights. tions, and the city is of the feeling and the sanitation workers ultimately Burch was able to get city witnesses that while they won’t agree to it, they reached an understanding with the city to admit that, if the march were going will not really oppose my withdraw- of Memphis. Lawson’s testimony proved to happen, they would “rather have ing the restraining order provided true: “[T]he best defense against urban the march occur when it is under the there’s limitations set on it?” And explosion in the midst of urban injus- leadership of people who have an estab- they said yes. I said, “Okay. You all go tice is to have creative, vital, nonviolent lished conviction for nonviolence and and draw an order and bring it back, movements, which include marches, a strong self-interest in maintaining have it in here bright and early in the because, then, this helps the angers and nonviolence.”7 morning, and you can go on with the the frustrations and the fears of peo- Lawson testified: “[I]t is Dr. King’s parade under these conditions.” ple to find legitimate expression and a desire, as it is mine, that Memphis and means of changing their wrongs.”11 people everywhere learn to put into Judge Brown recalled that evening: application the high ideals that most of Of course, when I was driving home ­— SARAH SMITH is a law clerk to Judge Bernice B. us confess concerning neighborliness, that night, I heard on the radio that Donald, United States Court of Appeals for the Sixth love, justice, understanding, and not King had been killed, been shot and Circuit. She will join the law firm of Burch Porter & just, you know, on Monday, but every killed. So I mean I had deputy mar- Johnson PLLC this year as an associate. She thanks 8 day of the week.” shals around my house for the next Mike Cody (Partner, Burch, Porter & Johnson, PLLC) A compromise was reached to allow three weeks or a month. I never could and Nick Farris (Satellite Sixth Circuit librarian) for their the march to proceed with safety con- figure out who was supposed to be assistance with this article. ditions; the order lifting the injunction mad at me, who I was supposed to would be entered the following day. When asked about the most mem- 1 See Court Recalls MLK’s Last Legal Battle (Apr. 6, Memphis, April 3-4 1968, 41 U. Mem. L. Rev. orable moment of his career, Judge 2018), http://www.uscourts.gov/news/2018/ 699, 700 (2011). 04/06/court-recalls-mlks-last-legal-battle. 5 Brown later said it was “the Martin Memphis Sanitation Workers’ Strike, supra note 3. 2 Luther King case — it was really for- Interview with W.J. Michael Cody (June 6 Dr. Martin Luther King, Jr., “I’ve Been to 2, 2018); Oral History Interview by Judge tuitous, because it should have been the Mountaintop,” Address at Bishop Charles Gilbert S. Merritt and James A. Higgins, with Mason Temple (Apr. 3, 1968), https://kingin- [Judge] McRae’s case, but he was away. Senior Circuit Judge Bailey Brown (June 6, stitute.stanford.edu/king-papers/documents/ I went to all of that trouble, and I tried 1994) (on file with the Library of the United ive-been-mountaintop-address-delivered-bish- to settle the case. But by the end of the States Court of Appeals for the Sixth Circuit); op-charles-mason-temple. day after I started home, I’d heard that Second Oral History Interview by Rita F. 7 City of Memphis v. Martin Luther King, et al., he’d been shot and killed.”9 Wallace, Court Historian, with Senior Circuit No. C-68-80, 81 (W.D. Tenn. Apr. 3, 1968), Judge Bailey Brown (Oct. 16, 1997) (on file When a former law clerk of Judge https://www.tnwd.uscourts.gov/pdf/content/ with the Library of the United States Court of CityOfMemphisVKingTranscript.pdf. Brown’s later reflected on his career, he Appeals for the Sixth Circuit). 8 Id. at 135 (testimony of Reverend James Lawson). commented about the hearing: “As fre- 3 See Memphis Sanitation Workers’ Strike, The 9 quently occurred in his court, the two Oral History Interview, Oct. 16, 1997, supra Martin Luther King, Jr. Research & note 2 at 187. sides seemed to be hopelessly at odds Education Institute, https://kinginstitute. 10 Presentation of the Portrait of the Honorable stanford.edu/encyclopedia/memphis- at the beginning of the day but had, Bailey Brown, Aug. 5, 1987. On file with the sanitation-workers-strike. under Judge Brown’s firm but fair guid- Library of the United States Court of Appeals ance, reached agreement by the end of 4 See W. J. Michael Cody, King at the Mountain Top: for the Sixth Circuit. 10 The Representation of Dr. Martin Luther King, Jr., the day.” Judge Brown guided the tes- 11 City of Memphis, No. C-68-80, at 146. 14 VOL. 102 NO. 2 JUDICATURE 15 thatRights made the world right How freed slaves extended the reach of federal courts and expanded our understanding of the Fourteenth Amendment

by LAURA F. EDWARDS

In 1870, Maria Mitchell, an African American woman in Edgecombe County, North Carolina, did something that she could not have done when she was enslaved: She “talked for her rights.” Mitchell had a problem with B.D. Armstrong, a white landowner who was likely her employer. According to the testimony in the trial that followed, she expressed her anger in a form common to the 19th-century South, a highly stylized, verbal barrage designed to draw attention to the situation and to shame the intended target. Or, as her son put it, “his Mama was talking loud.” Armstrong demanded that she stop. Mitchell responded that “she was talking for her rights and would as much as she pleased and as loud as she pleased.” So Armstrong issued a threat: “if she did not hush he would make her hush.” When Mitchell con- tinued to denounce him, he struck her in the face and broke out a piece of her tooth — or so she alleged when she turned her words into action and used her rights to file charges against him.1 4 16 VOL. 102 NO. 2

The case provides a particularly compelling example of how the consti- More often than not, the tutional changes of the Reconstruction era extended rights to African Americans application of rights tended to and, as a result, opened up the legal preserve existing inequalities, system to them. The Reconstruction Amendments profoundly altered the because lawmakers concerned legal status of Maria Mitchell and other African Americans: the Thirteenth themselves with the rights that Amendment abolished slavery; the governed property ownership Fourteenth Amendment established birthright citizenship and provided fed- and economic exchange, a eral protection of civil rights, which prohibited states from discriminating body of law concerned with on the basis of race; and the Fifteenth Amendment provided federal over- the interests of those who owned sight of voting rights. Mitchell’s words, property, not those without. that “she was talking for her rights and would as much as she pleased and as loud as she pleased,” underscored the importance of those changes in a way that was hard to miss. ities of the early 19th century. Once the case before passage of the Fourteenth Her case also shows how those consti- local cases were concluded, the docu- Amendment. The implications have tutional changes dramatically affected ments were folded in thirds, tied with been both profound and enduring, sup- legal matters that most people would a ribbon, filed away, and forgotten. So, porting expansive expectations of what consider unremarkable, not constitu- too, was the legal context that produced rights can do and what federal authority tional. While Maria Mitchell’s case these documents.2 can accomplish.3 was adjudicated in the South, the legal These local courts seem far removed framework that shaped her case was from the Fourteenth Amendment and Legal Frameworks not exclusively Southern. It character- the rights it protected. But they were not. Maria Mitchell was “talking for her ized the operation of law in local courts This article explores how the Fourteenth rights.” Reading only her words, it throughout the United States, and it Amendment brought together two seems like a straightforward claim: was the one with which most Americans legal frameworks — one focused on Mitchell was demanding rights that had familiarity in the early 19th cen- the rights of legally recognized indi- other American citizens had but that tury. This part of the legal system, viduals, which was the purview of state had been denied to her by state law until focused at the local level, was charged and federal jurisdictions, and the other the federal government interceded with with maintaining the public order or, focused on maintaining the public order the Reconstruction Amendments, par- in the terminology of the time, keep- and, essentially, doing what was right, ticularly the Fourteenth Amendment. ing the peace — a body of issues that which was associated with local juris- When placed within the broader context included all but the most serious crimi- dictions — and encouraged Americans of the legal system in the 19th century, nal cases as well as a broad range of issues to see federal authority, in particular, as however, that interpretation provides involving the public health and welfare. the protector of both rights and what only a partial explanation of the import The expectation was that officials would was right. The result was a rights revo- of Maria Mitchell’s words. adjudicate conflicts in the community, lution, initiated by ordinary Americans, Current scholarship tends to focus on doing what was right, although, obvi- that transformed not just the meaning law and legal institutions at the state ously, not everyone agreed on what was of rights, but also the reach of federal and federal levels. But those jurisdic- right and not everyone’s opinion carried authority, stretching both to cover a tions did not have a monopoly on legal equal weight, given the rigid inequal- much wider array of issues than had been authority or the governing practices that JUDICATURE 17

initiated new laws and enforced exist- closer to the people. Much of the daily rable from individual rights; property ing ones in the first half of the century. business of governance was done in local requirements for suffrage had only Instead, legal authority was widely dis- legal venues such as the circuit courts recently been eliminated for white men persed and resided in institutions that and even more localized proceedings, by the time of the Civil War. Even then, were relatively private, such as house- such as magistrates’ hearings and trials. suffrage for white men was not quite holds, churches, and communities, as These locations made the law part of the universal: Elections for some offices in well as those that were relatively public, fabric of people’s lives. They convened some states were still restricted on the such as local, state, and federal govern- wherever there was sufficient space — in basis of property. And most civil rights ments in their judicial, legislative, and a house, a barn, a mill, or a yard. That involved the ownership, accumulation, administrative forms — although the was true even for circuit courts in the and exchange of property or access to lines between the categories of private first decades of the 19th century, when those jurisdictions with authority over and public forms of governance often many counties lacked the formal court- that body of law.7 blurred. Together, these various juris- houses that would later house circuit Even though 19th-century politi- dictions constituted a governing system courts. Local courts were the legal juris- cal leaders invoked rights in expansive that captured and contained the contra- dictions that would have been the most terms, often in connection to liberty, dictory impulses of American life: They familiar to most Americans, given the freedom, and equality, with the impli- maintained existing inequalities while wide range of issues handled in these cation that they could accomplish those also adjudicating conflicts generated by venues and the wide variety of people ends, rights had different implications those inequalities.4 who were involved in the process of within the legal system. To be sure, Americans had more experience with adjudicating them.6 rights were necessary for individuals to some legal jurisdictions than with oth- State and federal jurisdictions dealt function independently in American ers. The federal government figured with the protection of individual rights, society. Without them, it was impossi- prominently in the territories, which although states handled a much wider ble to claim legal ownership of property, lacked the institutional apparatus of variety of such cases. In the 19th cen- enter into contracts, or defend one’s state government. But it was a distant tury, the term “individual rights” — or interests in state or federal courts. But, entity for most Americans, who encoun- “rights” for short — referred to those in the legal system, rights did not do tered it in only a few ways: through the rights that were thought to be con- the kind of work that the political rhet- military, the campaigns of aspirants to ferred by government, namely civil oric of the time implied. They resolved federal office, the postal service, and in rights and, increasingly, political rights, competing claims among individu- the context of federal cases, of which which were available to those people als by identifying winners and losers, a there were few, particularly in the first recognized as legal individuals (namely situation that undercut the connection few decades of the 19th century.5 People free white men, particularly those with between rights and equality posited in were more likely to encounter the legal property). Secondarily, the term referred political rhetoric. State courts, moreover, authority of states, which had jurisdic- to natural rights, which belonged to were committed to the preservation of tion over most of the work of governance, everyone and could not be abridged by rights as such, not to the concerns of the through their responsibilities to protect government, at least in theory. In prac- individuals who brought their problems the rights of individuals and to main- tice, what constituted a natural right for adjudication. tain the public order. But states then was contested and ultimately dependent As a result, the legal framework of delegated significant power to counties on government recognition and enforce- rights produced outcomes of question- and municipalities in matters involving ment. Natural rights — even life and able justice, according to the standards the public order, making local areas, not liberty — were also connected to civil of many Americans: a conviction over- the states, the jurisdictions most closely and political rights, in the sense that turned because of an improperly framed associated with those duties. That situ- those who could claim civil and politi- indictment, for instance, or the seizure ation dates from the Revolution, when cal rights (free white men) had stronger of property because of a faulty bill of lawmakers turned their colonies into claims to natural rights than those sale. More often than not, the appli- states and then decentralized the most who did not (such as married women, cation of rights tended to preserve important functions of state govern- the enslaved, and even the working existing inequalities, because law- ment, all in the name of bringing law poor). Property ownership was insepa- makers concerned themselves with the 4 18 VOL. 102 NO. 2

rights that governed property owner- While this localized system did not ters, the interested parties collected ship and economic exchange, a body recognize the rights of free women, chil- evidence, gathered witnesses, and rep- of law concerned with the interests of dren, enslaved people, or free blacks, it resented themselves. Local courts did those who owned property, not those still incorporated them into its basic follow state laws regarding rights in without. That situation explains the workings, because they were part of the procedural respects, particularly in popular stereotype of lawyers as para- social order that the legal process was determining who could prosecute cases sites who exploited arcane rules to profit charged with overseeing. The system in their own names. But determinations from the misfortune of others.8 maintained their subordination and reg- about the merits of the claims — right- ulated their behavior. But it also relied ing the wrongs in question — relied on Upholding the Social Order on information they supplied about common law in its traditional sense as a The fact that states also had broad pow- community disorder. Take, for example, flexible collection of principles rooted in ers to regulate in the name of the public two cases in North Carolina initiated by local custom, but that also included an health and welfare also limited people’s slaves: one slave complained to a mag- array of texts and principles, in addition rights. State constitutions did have bills istrate that a free black man had been to statutes and state appellate law, as of rights, but the rights they enumerated playing cards with other slaves on a potential sources for authoritative legal were not absolute. In fact, state and local Sunday; another complained that the principles. The information provided by governments exercised wide latitude same free black man assaulted one of those with an interest in the case also in limiting or suspending the rights of those slaves after the card game. (One mattered, because the expectation was individuals in the name of the public suspects that another complaint could that outcomes should preserve the social good. That legal logic sanctioned not have been filed about the consumption order, as it existed in particular locali- just slavery, but also the range of restric- of “spirituous liquors,” a common mor- ties. Preservation of the social order was tions placed on free blacks, all women, als charge.) Technically, these slaves gave also why court officials took evidence and many white men without property. “information,” because laws prohibited and even prosecuted cases on behalf of A right was a right only as long as the all slaves from filing a complaint; the individuals without the legal right to state decided not to take it away.9 States magistrate then proceeded with the case testify or prosecute — enslaved peo- delegated considerable authority over based on that information.11 ple, married women, and minors. This matters regarding the public welfare These two enslaved men had their area of law existed in the lived context to local courts. In adjudicating most of own reasons for what they did, reasons of people’s lives and existing social rela- these issues, local courts aimed to keep distinct from the magistrate’s likely con- tionships — what the scholarship tends the peace — to do what was right, not to cerns about disorder among slaves and to identify as elements of social history, uphold the rights of individuals. free blacks. As such, the cases illustrate distinct from the law.13 “The peace” was a well-established central elements of this part of the legal This legal framework allowed for the concept in Anglo-American law that system. Different people pursued dif- handling of situations that might not expressed the ideal order of the met- ferent ends within it, sometimes at the have had legal standing in either state aphorical public body, subordinating same time. Masters filed charges against or federal jurisdictions. Magistrates reg- everyone (in varying ways) within a slaves they could not control. Families ularly prosecuted husbands, fathers, and hierarchical system. The peace was regularly brought their feuds to court even masters for violence against their inclusive, but only in the sense that for resolution, with wives, husbands, wives, children, and slaves, because the it forced everyone into its patriarchal parents, children, siblings, aunts, uncles, authority granted heads of household embrace, raising its collective inter- and cousins all lining up to air their was not absolute but was contingent ests over those of any given individual. dirty laundry. Even enslaved people tried on the maintenance of the social order. Keeping the peace meant keeping to mobilize local courts to address their The court was concerned with keep- everyone — from the lowest to the concerns. That was possible, because the ing flagrant abuses of power in check highest — in their appropriate places, system depended on the participation of so that households did not fall apart, as defined by rigid inequalities of the everyone in the local community.12 not attending to the individual rights early 19th century. Maintaining the The “law” in this part of the sys- of either household heads or depen- peace was never a peaceful proposition; tem was capacious and uncontrolled by dents. Magistrates also recognized that it was about coercion.10 legal professionals. In most legal mat- wives and slaves controlled property, JUDICATURE 19

else. To the contrary, local communities Local courts meted out justice in the slave South inflicted horrific pun- ishments on those, particularly enslaved on a case-by-case basis to African Americans, who did not fulfill right wrongs, not to maintain their subordinate roles. Those outcomes seemed just plain wrong to those who individual rights or even to did not have the status to receive favor- able treatment.16 produce precedents that others Still, the legal culture of local courts could claim. One person’s was deeply engrained within American society and carried considerable power experience did not transfer at the time of the Civil War. It framed expectations about what the law was to another person of similar supposed to be and do, even for those on the margins of the local legal system: status or predict any other The law should actively uphold what case’s outcome. was right.17 African Americans’ Rights During Reconstruction even though they could not own it in acknowledged that situation and pro- African Americans, like Maria Mitchell, other areas of law. The point was to keep vided a means for arriving at an outcome brought those expectations to the courts the property where it belonged, not to that would allow people to put conflicts during Reconstruction. When Mitchell uphold property rights.14 behind them and move on. Consensus, filed assault charges against B.D. however, was more apparent than real. In Armstrong in 1870, she was using her Particular, Not Universal the slave South, it rested on a social order new civil rights, which allowed her to The effects of legal decisions then that subordinated the vast majority of access the legal system. But those rights remained with the particular people the population — all African Americans, were not the ones she had been talking involved, because the system was so per- free white women, and property-less about; those rights — the ones that sonalized. Local courts meted out justice white men. All these groups experi- were unspecified, but loudly asserted — on a case-by-case basis to right wrongs, enced different levels of subordination, were about what was right. The charges not to maintain individual rights or with enslaved African Americans endur- underscore the point: She charged B.D. even to produce precedents that others ing the most extreme forms. But none Armstrong with assault, which was an could claim. One person’s experience did of these people could redefine the struc- offense against the peace of the commu- not transfer to another person of similar tural dynamics of the social order, even nity, a disruption of the public order, not status or predict any other case’s out- though they participated in the system a violation of Maria Mitchell’s rights. come. Each jurisdiction thus produced and occasionally bent it to their inter- People pursued such cases because inconsistent rulings, aimed at resolving ests. To the extent they had credibility, they wanted public condemnation of particular matters, rather than produc- it was because of the social ties that also behavior at odds with their view of ing a uniform, comprehensive body of defined their subordination. They were the public order. In the first half of the law. Many saw that situation as natu- insiders, not outsiders: enslaved people 19th century, such claims about what ral and just: It made no sense to impose who had the support of their masters and was right stayed at the local level. But arbitrary rules developed elsewhere other whites; married women who were the Reconstruction Amendments, par- rather than to pay attention to the par- known as good wives and neighbors; ticularly the Fourteenth Amendment, ticular dynamics of local communities.15 poor white men known for their work changed all that. Those amendments Of course, people in local commu- ethic and amiability. Positive outcomes did not just affirm the rights of African nities regularly disagreed on what was of cases involving those insiders did not Americans. They also made it possible right. The legal process at the local level result in favorable treatment for anyone for claims about what was right to travel 4 20 VOL. 102 NO. 2

elsewhere in the system, altering the courts and that had been handled within agencies, that authority was never fully meaning of rights and changing people’s the framework of doing what was right: utilized in the late 19th century.20 relationship to the federal government. interpersonal conflicts, often involv- That negative power was nonetheless What was right acquired a closer rela- ing violence and including domestic profound, particularly in the states of tionship to rights. issues, as well as matters involving the former Confederacy. The Fourteenth Claims about what was right first broader questions of social justice, such Amendment forced states to extend traveled into federal jurisdictions as the treatment of refugees, payment of rights to African Americans, which through the claims of enslaved African wages, and reunification of families. In made it possible for Maria Mitchell Americans during the Civil War. Maria those cases, they expected federal venues to turn B. D. Armstrong’s assault into Mitchell’s efforts to use the legal sys- to do what was right, not just to uphold a legal matter. If she had still been tem are characteristic of the actions rights. The various courts under federal enslaved, Maria Mitchell could not have of many formerly enslaved people. jurisdiction, which lacked an established prosecuted a case of assault; like the Although contemporary observers and body of law to handle this diverse array two slaves mentioned earlier, she could later historians have taken such actions of claims, struggled to keep up. Most of only have given information. Mitchell for granted, it is remarkable that peo- the issues were not of the kind that had and other African Americans could file ple who had been enslaved would look previously fallen within federal purview. charges because of their civil rights, for redress in the very legal system that But African Americans persisted, push- which were enabled by the Fourteenth had maintained their enslavement. But ing past jurisdictional boundaries in the Amendment, enshrined in state consti- they did. Historians usually attribute pursuit of justice.19 tutions, and protected by the threat of such faith in the law to the promise of The exercise of federal authority federal intervention.21 rights. But formerly enslaved African in cases of this kind might have been What happened in those local courts Americans also were acting on other, temporary if not for the passage of the then altered federal authority. The deeply rooted expectations about the Reconstruction Amendments, partic- Fourteenth Amendment opened up paths law — that it should do what was right ularly the Fourteenth Amendment, for ordinary Americans’ conceptions and maintain a just public order. The which gave the federal government about “what was right” to migrate out promise of the moment gave them hope authority over the states’ handling of local venues through the framework that they could access legal authority to of rights — something that the fed- of “rights.” (The Fifteenth Amendment elaborate their vision of what was right eral government did not have before. did the same for voting rights.) Before — of what constituted a just society.18 To be sure, those powers were limited those constitutional changes, Americans’ Those expectations explain why and largely negative. The Fourteenth claims about what was right remained enslaved African Americans began Amendment placed restrictions on in the local courts. Once a wrong was bringing their complaints to legal ven- states, prohibiting them from mak- righted, order was restored. There were ues during the Civil War, when their ing or enforcing “any law which shall no further consequences for the law. claims to freedom, let alone to rights, abridge the privileges or immuni- Such cases would never have made it to a were still tenuous. Once behind federal ties of citizens of the United States” federal jurisdiction.22 lines, African Americans sought out or depriving any person “of life, lib- military officials and military courts to erty, or property, without due process Beyond Local Jurisdiction adjudicate their conflicts. They contin- of law.” It also prohibited the denial The framework of rights allowed one ued to do so after Confederate surrender “to any person within its jurisdiction person’s claims about what was right to but before passage of the Fourteenth the equal protection of the laws.” The acquire the power of a universal claim, Amendment — a time when the states federal government could regulate the enforceable by federal authority. They of the former Confederacy limited the administration of rights, as defined by could even acquire the status of con- rights of all African Americans through the states, but it could not create or dis- stitutionally protected rights. One of the notorious Black Codes. African tribute rights. Later Civil Rights Acts the most dramatic examples is access Americans came to these venues with extended federal authority in ways that to public venues and services, such as rights claims. But they also expected brought it into state law more actively. streetcars, railroads, restaurants, hotels, federal officials to address the kinds of But, given political opposition and the and even government jobs and educa- issues that would have fallen to local limited resources of federal enforcement tion. In the early 19th century, claims to JUDICATURE 21

were always difficult to separate from their During and after the Civil War, conceptions of what was right, because of the structural racism in 19th-century African Americans framed claims society. Structural racism often took form to new spaces in terms of rights in violence. White supremacists used violence widely and indiscriminately to that the state should extend to keep African Americans from using their civil and political rights — to keep them them and that the federal from going to court or voting. But white government should protect. supremacists also used violence widely and indiscriminately to keep African Who, they asked, had a right to Americans from pursuing their vision of what was right — to keep them from access public space and public using public space, advancing economi- cally, gathering together, and even going accommodations if not the public? to school.25 Local courts routinely adju- Was it not the government’s duty dicated cases involving violence that did not involve violations of civil or politi- to ensure access? cal rights — like that of Maria Mitchell. Many more acts of violence never reached the courts for adjudication at all. What distinguished the conflicts that remained access involved the maintenance of the access public space and public accommo- at the local level from the ones that public order, not the rights of individu- dations if not the public? Was it not the migrated to federal jurisdictions was the als. To the extent that questions of access government’s duty to ensure access?23 link to civil and political rights: If the involved rights, they were part of the neb- Such claims were not that far removed violence in question resulted in a rights ulous category of social rights (privileges from those of Maria Mitchell, who was violation, then it could move up and that were established in context and thus claiming the right to use space in ways out of the local courts. But the emphasis varied from one community to another that her employer clearly rejected: She on those cases involving rights obscures and that were not protected by state or could speak her mind where she wanted underlying commonalities in all cases federal law). Vendors of such services to and how she wanted to. To be sure, of violence: When African Americans were required to serve the public and such views also had the support of challenged violence in court, they were were subject to state and local regulation key Congressional leaders. But it was challenging a social order marred by as a result. But such expectations never ordinary people who pushed popular structural racism. They were substitut- guaranteed equal access. To the contrary, conceptions of access to public spaces ing their own vision of what was right, access to public areas and public services as a “right” into legal arenas. The Civil by using their rights. had always been restricted, particularly Rights Act of 1875 explicitly acknowl- United States v. Cruikshank, one of the for African Americans but also for all edged such claims as rights. Those most famous cases of the period to reach women. The result was a patchwork of provisions were subsequently declared the U.S. Supreme Court, provides a par- local ordinances and longstanding cus- unconstitutional, but cases involv- ticularly dramatic example. The case tomary practices, which constrained ing access to public space continued to resulted from the federal government’s where African Americans could go and cast the issues in terms of civil rights, involvement in sorting out voting rights how they could act. During and after the a characterization that was ultimately violations in Louisiana’s 1872 election. Civil War, African Americans framed accepted and institutionalized.24 A year later, there was no clear out- claims to new spaces in terms of rights come and some local areas were still in a that the state should extend to them and Violence state of upheaval. In the town of Colfax, that the federal government should pro- African Americans’ claims to those rights uncertainty exploded into violence, tect. Who, they asked, had a right to already recognized in state and federal law when a white mob, aligned with the 4 22 VOL. 102 NO. 2

Democratic Party, attacked local African Supreme Court in 1873, the very year of the Democratic Party, who saw the reg- Americans, aligned with the Republican Colfax massacre. ulation as overreach on the part of the Party. There is still no clear reckoning of Myra Bradwell — the Bradwell in Republican Party, which was then in the death toll, but it is estimated that Bradwell v. United States — played an control of the city. With the backing the white mob killed between 60 and influential role in Illinois legal circles of their party’s leadership, they reached 150 African Americans. Federal prose- as editor of the Chicago Legal News, the for the laws of their political opponents cutors did what they could to identify, publication on which many lawyers in and used the Fourteenth Amendment to charge, and convict the members of the state depended to keep current on protect what they saw as their right to the white mob. The defendants then the law. It was, then, deeply ironic when pursue a livelihood as others could. Like promptly turned around and appealed, the Illinois state legislature — filled Bradwell, the butchers framed access to claiming that the federal government with lawyers who read her publication economic opportunities as a right pro- had overstepped its authority. As in so — refused to consider her application tected by the Fourteenth Amendment. many other cases from this period, it to the bar. Bradwell challenged the The court rejected the butchers’ claims, was difficult to distill questions about decision, making creative use of the upholding the states’ rights to regulate rights from broader questions about Fourteenth Amendment. She admitted for the public good, and tried to limit what was right: There were the voting that the opportunity to apply to the bar the meaning of rights in the Fourteenth rights of African Americans and the was not, in itself, a right. Even so, it Amendment, insisting that it was rights claimed by the white mob’s con- was centrally connected to her right to designed to protect the civil and politi- cerns over the public order. Ultimately, pursue her livelihood and her property cal rights of African Americans — that the justices who decided the case did interests — issues of central importance is, their claims to those rights already so through the framework operative in to women, who lost such rights under recognized in state law. In both the that jurisdiction — which clearly frus- coverture. When the legislature refused Slaughter-House and Bradwell cases, the trated some of the justices, who could to consider her application, they had judges sought to contain the multipli- find no good way uphold rights and to denied rights to her that were granted cation of rights.28 achieve justice. The decision affirmed as a matter of course to other (male) cit- In which direction do these cases the claims of the aggrieved members izens. The Supreme Court rejected the move? It is possible to read them of the white mob, limiting federal first part of the argument, which focused as an affirmation of the Fourteenth authority and, with it, the federal gov- on what qualified as a protected right in Amendment’s protection of African ernment’s ability to intervene on behalf the Fourteenth Amendment, thereby Americans’ civil and political rights, of African Americans who claimed evading the second part, which dealt because they limited other rights claims. rights violations.26 with the amendment’s application to It is also possible to read them as a har- women. Still, her use of the Fourteenth binger of arguments that connected the Myra Bradwell and Women’s Rights Amendment illustrates the broader Fourteenth Amendment to economic The implications of the era’s consti- transformation underway.27 claims and, ultimately, a broader array tutional changes did not end with The New Orleans butchers in The of rights, often at the expense of pro- African Americans. The Reconstruction Slaughter-House Cases were challenging tecting the civil and political equality of Amendments, particularly the Fourteenth an ordinance that regulated the slaugh- African Americans. Scholars have made Amendment, altered the relationship of tering of meat and, among other things, both arguments, and the scholarship has all Americans to rights and the federal required licensing and designated a stalled out there, unable to resolve the government: They positioned the fed- central location for slaughterhouses conflict. Yet the conflict was — and is eral government as an arbiter between downstream from the city. State and — the point. These cases are examples all Americans and their states, while also local governments had traditionally of the efforts of Americans — all kinds elevating the importance of rights as the regulated the slaughterhouses where of Americans — to make their view of means by which Americans could access butchers worked because of the pub- what was right into a right. federal power. It did not take them lic health risks. But the butchers in long to do so, as evidenced in Bradwell New Orleans had a particular beef (so Conclusion v. United States and The Slaughter-House to speak) with their government: They The cases of formerly enslaved peo- Cases, both of which were heard by the were white men, mostly supporters of ple like Maria Mitchell and the African JUDICATURE 23

Americans who lived in Colfax, La., had and still does. As the frustration of justices LAURA F. a lot in common with those of Myra in Cruikshank suggests, individual rights, EDWARDS is the Bradwell and the New Orleans butchers. even in their most expansive form, had Peabody Family They all made rights claims, appealing definite limits when it came to achieving Professor of History to federal authority either indirectly or social justice. Nor was the preservation at Duke University. directly. And they were not alone. The of an individual’s rights always synon- This article is derived th key cases of the late 19 century feature ymous with the public good. Still, the from a lecture she a diverse array of characters — a grain policy changes of the Reconstruction era gave in the Supreme Court as part of elevator operator in Illinois, German allowed the aspirations of diverse groups the Supreme Court Historical Society’s brewers in Kansas, bakers in New York, of Americans to move into the realm of 2015 Silverman Lecture Series on to name a few — all with expansive federal law and, once there, to acquire the Reconstruction, and the article based views of federal power and what it could status of universal legal principles. The on that lecture, The Reconstruction of accomplish. Those views were firmly results remade the relationship between Rights: The Fourteenth Amendment and embedded in the constitutional changes Americans and the nation state, raising Popular Conceptions of Governance, 42 J. of the Reconstruction era that dealt with expectations about the federal govern- Sup. Ct. Hist. 310 (2016). Edwards rights but did so in a way that tied rights ment’s role in maintaining a just social thanks Jennifer Lowe, Clare Cushman, to expectations that legal venues would order. Those expectations could only and the Supreme Court Historical right wrongs — that rights made the result in conflict, as there was no consen- Society, as well as Melinda Vaughn, who world right. If anything, the connection sus among the American people about helped revise the piece for Judicature. between rights and what was right was what was right — about what consti- Edwards also thanks Greg Downs and even stronger in popular conceptions tuted a just society. At the same time, Kate Masur, who read initial drafts, of the legal order, which increasingly though, the conflicts were and are nec- and Jacquelyn Hall, Nancy MacLean, identified rights as a means — even the essary: They are about our aspirations for and Lisa Levenstein, who read multi- primary means — to achieve justice. what the nation can be and our faith in ple versions of the lecture and provided That link carried its own problems — the law to realize those aspirations. invaluable insights.

1 State v. Armstrong (1870), Criminal Action Ambiguities of Law: Infanticide in the Nineteenth- tive is common in scholarship that focuses Papers, Edgecombe County, State Archives Century U.S. South, 4 J. Civ. War Era 350 on the colonial period. See Lauren Benton, of North Carolina, Raleigh, North Carolina. (2014); Kimberly Welch, Black Litigiousness A Search for Sovereignty: Law and This case is from the County Court, and is in and White Accountability: Free Blacks and the Geography in European Empires, its original, manuscript form with the other Rhetoric of Reputation in the Antebellum Natchez 1400-1900 (2011); Philip J. Stern, The cases from this court in the State Archives. District, 5 J. Civ. War Era 372 (2015). Company-State: Corporate Sovereignty 2 Laura F. Edwards, The People and 3 In addition to The People and Their Peace, and the Early Modern Foundation Their Peace: Legal Culture and the this Article draws on three other publica- of the British Empire in India (2011); Transformation of Inequality in the tions by Edwards: Laura F. Edwards, A The Many Legalities of Early America Post-Revolutionary South (2009). The Legal History of the Civil War and (Christopher L. Tomlins & Bruce H. Mann discussion of local courts draws extensively Reconstruction: A Nation of Rights eds. 2001). But the idea of “many legalities” on the analysis in this book, which was based (2015) [hereinafter A Legal History of the and overlapping legal arenas tends to drop out on local court records in North Carolina and Civil War and Reconstruction]; Laura of the scholarship focused on the 19th cen- South Carolina. The local courts in parts of F. Edwards, Reconstruction and the History of tury, where the presumption is that the new the country worked similarly, as my own Governance, in The World the Civil War nation secured a monopoly on legal authority research and that of others suggests. See, e.g., Made 30 (Gregory P. Downs & Kate Masur with its founding. Recent work, however, sug- Laura F. Edwards, Textiles: Popular Culture eds. 2015) [hereinafter Reconstruction gests otherwise. See, e.g., William J. Novak, The and the Law, Buff. L. Rev. 64, 193–214 and the History of Governance]; Laura Legal Transformation of Citizenship in Nineteenth- (2016); see also Martha Jones, Birthright F. Edwards, Status Without Rights: African Century America, in The Democratic Citizens: A History of Race and Rights Americans and the Tangled History of Law and Experiment: New Directions in American in Antebellum America (2018); Kelly Governance in the Nineteenth-Century U.S. South, Political History 85 (Meg Jacobs, William Kennington, In the Shadow of Dred 112 Am. Hist. Rev. 365 (2007) [hereinafter J. Novak & Julian Zelizer eds. 2003); The Scott: St. Louis Freedom Suits and the Status Without Rights]. Long Nineteenth Century (1789-1920) Legal Culture of Slavery in Antebellum 4 Reconstruction and the History of (Christopher Tomlins & Michael Grossberg eds. America (2017); Felicity Turner, Rights and the Governance, supra note 3. Such a perspec- 2008); Barbara Young Welke, Law and 4 24 VOL. 102 NO. 2

the Borders of Belonging in the Long such works do not link those sources or the vices. The Reconstruction era constitutions of Nineteenth Century United States resulting cases to broader changes in law and many states in the former Confederacy included (2010); William J. Novak, The American Law legal institutions. The work associated with access to public education as something akin of Association: The Legal-Political Construction the Freedmen and Southern Society Project, to a right. See Emily Zackin, Looking for of Civil Society, 15 Stud. Am. Pol. Dev. 163 which pioneered the use of federal records Rights in All the Wrong Places: Why (2001). that had been largely overlooked, provided State Constitutions Contain America’s 5 See, e.g., Richard R. John, Spreading the the framework for subsequent scholarship. See, Positive Rights 67–105 (2014). As Zackin News: The American Postal Service e.g., The Black Military Experience (Ira argues, states recognized an array of posi- from Franklin to Morse (1995). Some Berlin et al. eds. 1982); The Destruction of tive rights in the late 19th century, often at Americans were more likely to be involved Slavery (Ira Berlin et al. eds. 1985); Ira Berlin the behest of citizens who actively sought out in federal courts than others. As the work of et al., Afro-American Families in the Transition government protection. The claims of African Martha S. Jones shows, free blacks actively from Slavery to Freedom, 42 Radical Hist. Americans to schooling are well documented. defended their rights in local, state, and fed- Rev. 89 (1988). For other work on the period See Masur, supra note 19; see also Hugh eral jurisdictions precisely because their legal that makes extensive use of legal sources, see Davis, “We Will Be Satisfied with status — and their ability to live within the Laura F. Edwards, Gendered Strife and Nothing Less”: The African American United States — was so tenuous. See, e.g., Confusion: The Political Culture of Struggle for Equal Rights in the Jones, supra note 2. Reconstruction (1997); Mary Farmer- North during Reconstruction (2011); 6 Edwards, supra note 2, at 26–53, 256–85. Kaiser, Freedwomen and the Freedmen’s Davison M. Douglas, Jim Crow Moves 7 A Legal History of the Civil War and Bureau: Race, Gender, and Public North: The Battle over Northern Reconstruction, supra note 3, at 90–119. Policy in the Age of Emancipation School Segregation, 1865–1954 (2005); 8 Edwards, supra note 2, at 205–98. For a (2010); Crystal N. Feimster, “What If I Am a Heather Williams, Self-Taught: African particularly compelling account of the lim- Woman”: Black Women’s Campaigns for Sexual American Education in Slavery and its of rights in the early 19th century, see Justice and Citizenship, in The World the Freedom (2005). 24 Christopher L. Tomlins, Law, Labor, Civil War Made, supra note 3; Barbara J. Civil Rights Act of 1875, 18 Stat. 335; and Ideology in the Early American Fields, Slavery and Freedom on the Civil Rights Cases, 109 U.S. 3 (1883); A Republic (1993). Middle Ground: Maryland During Legal History of the Civil War and the Nineteenth Century (1985); Kate 9 The best statement on states’ regulatory Reconstruction, supra note 3, at 163-64; see Masur, An Example for All the Land: power is William J. Novak, The People’s also Masur, supra note 19; Amy Dru Stanley, Emancipation and the Struggle Over Welfare: Law and Regulation in Slave Emancipation and the Revolutionizing of Equality in Washington, D.C. (2010); Nineteenth-Century America (1996). Human Rights, in The World the Civil War Susan E. O’Donovan, Becoming Free Made, supra note 3. 10 Edwards, supra note 2, at 64–99. in the Cotton South (2007); John C. 25 The extent of violence is strikingly evident 11 State v. Chavis, 1851, Criminal Actions Rodrigue, Reconstruction in the Cane in most of the literature on Reconstruction, Concerning Slaves and Free Persons of Color, Fields: From Slavery to Free Labor and has become the focus of recent work. See Granville County, State Archives of North in Louisiana’s Sugar Parishes, 1862– Downs, supra note 19; Hannah D. Rosen, Carolina, Raleigh, North Carolina. Edwards, 1880 (2001); Julie Saville, The Work of Terror in the Heart of Freedom: supra note 2, at 64–132. Reconstruction: From Slave to Wage Citizenship, Sexual Violence, and 12 Edwards, supra note 2, at 64–132. Laborer in South Carolina, 1860–1870 the Meaning of Citizenship in the 13 Id. at 64–132. (1994); Leslie Schwalm, A Hard Fight for Postemancipation South (2009); Kidada 14 Id. at 100–201. We: Women’s Transition from Slavery E. Williams, They Left Great Marks on 15 Id. at 64–99. to Freedom in South Carolina (1997). Me: African American Testimonies of 16 Id. at 169–201. 20 A Legal History of the Civil War and Racial Violence from Emancipation to 17 Status Without Rights, supra note 3. Reconstruction, supra note 3, at 90–119. World War I (2012). Examples of violence 18 Id. 21 Id. pervade the literature, and some of the most 19 Id. Gregory P. Downs, After Appomattox: 22 Reconstruction and the History of horrific examples were documented in federal Military Occupation and the Ends of Governance, supra note 3. hearings. See, e.g., [reverse chronological order] War (2015) emphasizes the pervasiveness and 23 For a particularly compelling account of 39th Cong. 1st sess., House Report 101, importance of federal legal venues, which often African Americans’ efforts to access pub- Select Committee on the Memphis Riots; took over for local courts in the years follow- lic spaces, see Masur, supra note 19. For a 40th Cong., 3rd sess., House Miscellaneous ing Confederate surrender. Recent scholarship fascinating discussion of the regulation of Document 52, Condition of the Affairs in on African Americans’ experiences during public carriers and people’s access to them, Georgia; 42nd Cong., 2nd sess., House Report the Civil War and Reconstruction often uses see Barbara Young Welke, Recasting 22, Testimony Taken by the Joint Committee government documents, particularly legal American Liberty: Gender, Race, Law, to Enquire into the Condition of Affairs in records, and underscores the fact that African and the Railroad Revolution, 1865– the Late Insurrectionary States (Ku Klux Americans made every effort to use various 1920 (2001). Education is also an example of Klan Hearings); 43rd Cong., 2nd sess., House levels of the legal system. Generally, however, African Americans’ efforts to access public ser- Report 261, Condition of Affairs in the South JUDICATURE 25

(Louisiana); 43rd Cong., 2nd sess., House The Day Freedom Died: The Colfax one at odds with the aspirations of many Report 262, Affairs in Alabama; 43rd Cong., Massacre, the Supreme Court, and the Americans. While it upheld federal enforce- 2nd sess., House Report 265, Vicksburg Betrayal of Reconstruction (2008). ment, the Court’s decisions did nothing to Troubles; 44th Cong., 1st sess., Senate Report Conventional historiographical wisdom has make an already difficult job any easier. 527, Mississippi in 1875 44th Con., 2nd sess., laid much of the blame for Reconstruction’s 27 Bradwell v. Illinois, 83 U.S. 130 (1873); A House Miscellaneous Document 31, Recent failure at the feet of the U.S. Supreme Court, Legal History of the Civil War and Election in South Carolina; 44th Cong., 2nd arguing that the Court’s decisions represented Reconstruction, supra note 3, at 146–72; sess., Senate Miscellaneous Document 45, nothing less than the conscious abandon- Joan Hoff, Law, Gender, and Injustice: Mississippi; 44th Cong., 2nd sess., Senate ment of African Americans to conservative A Legal History of U.S. Women 151–91 Miscellaneous Document 48, South Carolina whites intent on stripping them of their newly (1991). Myra Bradwell’s case, however, also in 1876. The literature on voting rights cases acquired civil and political rights. Recent suggests countervailing political currents, giv- suggests how violence made its way into fed- scholarship, however, has moderated those ing women the same rights as men without eral courts through these kinds of cases. See, conclusions, arguing that the Court was not acknowledging the particularities of structural in particular, the work cited in note 6 above. as hostile to African Americans’ rights as pre- inequalities that they faced as women; Illinois 26 United States v. Cruikshank, 92 U.S. 542 vious scholarship suggests, particularly in the allowed women admission to the bar within a (1876); see also United States v. Reese, 92 U.S. area of voting rights, where it left significant year of the U.S. Supreme Court’s decision. 214 (1876); A Legal History of the Civil protections in place. See Pamela Brandwein, 28 Slaughter-House Cases, 83 U.S. 36 (1873); A War and Reconstruction, supra note 3, Rethinking the Judicial Settlement of Legal History of the Civil War and at 146–72. For information on the Colfax Reconstruction (2011); G. Edward White, Reconstruction, supra note 3, at 146– massacre, see Leanna Keith, The Colfax The Origins of Civil Rights in America, 64 Case 72; see also Michael A. Ross, Justice Miller’s Massacre: The Untold Story of Black W. Res. L. Rev. 755 (2014). Throughout the Reconstruction: The Slaughter House Cases, Health Power, White Terror, and the Death of late 19th century, however, the Court upheld Codes, and Civil Rights in New Orleans, 1861– Reconstruction (2008); Charles Lane, a narrow, individualized view of civil rights, 1873, 64 J. Southern Hist. 649 (1998).

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WHEN MOST PEOPLE — AND EVEN MOST LAWYERS — THINK ABOUT “CONSTITUTIONAL LAW,” THEY THINK ONLY OF THE UNITED STATES CONSTITUTION. That is not entirely sur- prising, given that the federal constitution is usually the focus of civics lessons and law school courses alike. But any study of American constitutional law that ignores state constitutions — many of which initially pre- dated ratification of the U.S. Constitution — casts aside a critical aspect of our country’s dual-sovereign system and fails to recognize that “virtually all of the foun- dational liberties that protect Americans originated in the state constitutions and to this day remain independently protected by them.” The shortcomings of this approach to constitutional law are the subject of Judge Jeffrey Sutton’s new book, 51 Imperfect Solutions: States and the Making of American Constitutional Law. Although Judge Sutton currently serves on the U.S. Court of Appeals for the Sixth Circuit, he is uniquely situated to opine on state law because of his prior service as Ohio State Solicitor — a state-level position modeled closely after that of the U.S. Solicitor General — when he represented Ohio in cases involving claims under both the U.S. and Ohio constitutions. It was this set of experiences, which included representing his state before the Ohio Supreme Court and the U.S. Supreme Court, that “recalibrated” his “views about the role of the States in our federalist system of government.” Judge Sutton persuasively argues that state constitutions are underappreciated and, in many cases, unexplored. Practically speaking, this phenomenon — which persists more than two decades after he began observing this trend during his service as Ohio Solicitor — may be attributable to many causes, including litigants and jurists who reflexively treat state and federal constitutional provisions as coextensive when a state constitution is similar to the federal one. His broader point is that state constitutions, and the potential differences between rights provided by state constitutions and the federal constitution, are not always top-of-mind for many of the people who play an integral role in the legal system: academics, advocates, and even jurists. The “central conviction” of 51 Imperfect Solutions is grounded in the notion that states can set “positive examples that hold the potential to be . . . influential in the development of American con- stitutional law,” and that the “underappreciation of state constitutional law has hurt state and federal law and has undermined the appropriate balance between state and federal courts in protecting indi- vidual liberty.” This is especially true when, for example, a “National Court declines to enforce a right, [and] the state courts become the only forum . . . for enforcing the right under their own constitutions, making it imperative to see whether and, if so, how the States fill gaps left by the U.S. Supreme Court.” Judge Sutton’s examination of these issues is particularly relevant in light of his suggestion that we look to state constitutions to help “handle our country’s difference of opinion.” Federalism, he argues, “could be a solution, or at least a partial answer, to some of the deep divides that persist in today’s chapter of American history” and “a useful process for ameliorating and eventually resolving them.” And although “state courts at times have played a critical role in advancing some constitutional rights,” the current question — at least according to Judge Sutton — “is whether there is room for them to play a greater role in the future.” If lawyers, academics, and jurists heed Judge Sutton’s call to take our “state constitutions more seri- ously,” we may soon have an answer to that question. — SARAH HAWKINS WARREN is Solicitor General of Georgia. She previously clerked for Judge J.L. Edmondson, U.S. Court of Appeals for the Eleventh Circuit, and Judge Richard J. Leon, U.S. District Court for the District of Columbia, and was a litigation partner at Kirkland & Ellis LLP. JUDICATURE 27 change agents Looking to state constitutions for rights innovations BY JEFFREY S. SUTTON

……… The following is an Franklin, Robert Livingston, James excerpt from 51 A few features of American consti- Madison, and George Mason. tutional law confirm the similarities The upshot is that American con- Imperfect Solutions: between the two situations. In this stitutional law creates two potential States and the country, state and local laws face two opportunities, not one, to invalidate a Making of American sets of constitutional constraints: those state or local law. Individuals who wish Constitutional Law under the U.S. Constitution and those to challenge the validity of a state or (© 2018 by Jeffrey under the relevant state constitution. local law thus usually have two opportu- Sutton, published The Framers of the U.S. Constitution nities to strike the law — one premised by Oxford University Press. All rights modeled all individual rights guaran- on the first-in-time state constitutional reserved.) The book is available for tees after guarantees that originated in guarantee and one premised on a coun- purchase from all major booksellers. a state constitution — usually one of terpart found in the U.S. Constitution. the state constitutions ratified between Yet most lawyers take one shot rather 1776 (after, in most cases, the colonies than two, and usually raise the federal declared independence from England) claim rather than the state one. In the EXCERPT FROM CHAPTER 2: AMERICAN CONSTITUTIONALISM: A and 1789 (when the people ratified the course of serving on the U.S. Court of SECOND SOURCE OF POWER COMES WITH U.S. Constitution). Take some of our Appeals for the Sixth Circuit for fifteen DUAL CONSTRAINTS ON THAT POWER most celebrated rights: free speech; free years, I have seen many constitutional exercise of religion; separation of church challenges to state or local laws he point of this chapter is twofold: (1) and state; jury trial; right to bear arms; within the States of my cir- to explain how we got here — how prohibitions on unreasonable searches cuit: Kentucky, Michigan, theT bench and bar became so one-sided in and seizures; due process; prohibition Ohio, and Tennessee. Yet their understanding of American consti- on governmental taking of property; no I recall just one instance tutional law and diminished the States’ cruel and unusual punishment; equal in which the claimant constitutions in the process, and (2) to protection. All of them, and all of the meaningfully challenged the consider reasons for changing course — other individual rights guarantees as validity of a law on federal why American lawyers and judges (and well, originated in the state constitu- and state constitutional citizens) would benefit from taking our tions and were authored by a set of not grounds. One might be state constitutions more seriously than inconsequential political leaders in the tempted to think that they currently do. States, such as John Adams, Benjamin federal judges hear 4 28 VOL. 102 NO. 2

lawsuits only under federal law. Don’t law seriously. The first is a function of counterweight to received wisdom. They be. We hear many state common law time. Because it took until the 1960s show the risk of relying too heavily on the and state statutory claims. That’s for the U.S. Supreme Court to com- U.S. Supreme Court as the sole guardian because our power to hear federal stat- plete the individual rights revolution by of our liberties as well as the farsighted utory and constitutional claims comes incorporating most of the Bill of Rights role the state courts have played before in with authority to hear related claims into the Fourteenth Amendment, it dealing with threats to liberty. Even the that arise under state law. And our was not until then that American law- most acclaimed individual rights deci- power to hear disputes between citizens yers, law schools, and state courts had sion in American history, Brown v. Board of one State against citizens of another any reason to think about using state of Education, is more complicated than it permits claims under state or federal law and federal court systems, and state and might at first appear when it comes to — or both. federal constitutions, to vindicate civil the role of the States and national gov- ……… rights. We thus are not talking about ernment in rights protection. It’s worth What we have today is not an inev- a set of litigation opportunities, a liti- remembering the other half of that story. itable feature of the Framers’ vision. gation strategy, that existed for most The companion case to Brown was Bolling It is in reality quite remote from any- of American history. It’s been roughly v. Sharpe, in which the Court demanded thing the Framers could have imagined. fifty years since the U.S. Supreme Court the end of segregation in the public The original constitutional plan cre- completed much of this transformation. schools of the District of Columbia, an ated largely exclusive federal and state That’s not a long time, less than a fourth enclave controlled by the federal gov- spheres of power as opposed to largely of American legal history. And that’s ernment, not a State. Those who place overlapping spheres of power. Which even less time if we consider the most complete faith in just one branch of makes sense: Why would a libertarian recently incorporated right: the Second American government to protect their group of Framers, skeptical of govern- Amendment in 2010. rights will eventually be disappointed. mental power and intent on dividing it The second reason emerges from a ……… in all manner of ways, have doubled the central explanation for the success of All of this prompts an essential ques- governmental bodies that could regu- the federal rights revolution: the States’ tion, one of the most crucial underlying late the lives of Americans? And tripled relative underprotection of individ- this book. What is it about the issues and quadrupled them if one accounts for ual rights. Who could blame lawyers in San Antonio Independent School District cities and counties? A system of largely and their clients for being reluctant to v. Rodriguez, Mapp v. Ohio, United States separate dual sovereignty (federal or develop a strategy built in part on state v. Leon, Buck v. Bell, or Minersville School state power in most areas) has become a constitutional rights? The U.S. Supreme District v. Gobitis (or for that matter, system of largely overlapping dual sov- Court recognized many of the rights it Kelo v. City of New London or Employment ereignty (federal and state power in most did between the 1940s and the 1960s Division v. Smith or Baker v. Nelson) that areas). Good or bad, textually justified because many state courts (and state leg- prevented Supreme Court defeats from or not, this feature of American gov- islatures and state governors) resisted becoming the death knell of the claim- ernment is not going away. American protecting individual rights, most nota- ants’ objectives and instead spurred constitutional law today thus permits at bly in the South but hardly there alone. equally promising, if not more promis- least two sets of regulations in every cor- One can forgive lawyers from this era ing, state and local initiatives? Why in ner of the country and what comes with for hesitating to add state constitutional these areas? Why not others? it: the potential for dual challenges to claims to their newly minted federal A common thread in many of these the validity of most state or local laws. claims. Why seek relief from institu- examples — and others in which the That has been true since the end of the tions that created the individual rights States have been leaders rather than Warren Court for most liberty guar- vacuum in the first place? followers — is the complexity of the antees, and it is difficult to envision a ……… problem at hand. While national scenario in which that reality disappears. interest groups will invariably favor EXCERPT FROM CHAPTER 9: This history, much abridged for sure, winner-take-all approaches, complexity EPILOGUE suggests two explanations for the seem- often stands in the way. The more dif- ing reluctance of lawyers and courts to hen told in full, [the stories told ficult it is to find a single answer to a take one part of American constitutional W in the book] provide a healthy problem, the more likely state-by-state JUDICATURE 29

variation is an appropriate way to han- site is true. Electoral practicalities often dle the issue and the more likely a state As written, should liberate, not confine, state court court will pay attention to an advocate’s judges in following their own interpre- argument that a single State ought to the state tive approaches. try a different approach from the one constitutions ……… adopted by the National Court. Just as An objective of this book is to urge the intricacy of a problem might prompt were change a few modest steps toward closing the different, even competing, answers, it incubators, gap between one feature of the original might prompt state courts (and legisla- design of American government and tures) to pace change at different speeds. governing current practice by returning the States In many areas of law affected by chang- to the front lines of rights protection and ing social norms, the most important smaller, rights innovation. As written, the U.S. question is not whether but when, not often more Constitution was not designed to facili- whether but by whom. tate rights innovation, whether through A second consideration prompted by congenial Congress or the courts. The document these stories is accountability. When the populations contains one blocking mechanism after U.S. Supreme Court shifts the spotlight another, all quite appropriate given the from the national to the local stage, it with shared potential breadth of power exercised by clarifies the lines of authority. world views. the federal branches. As written, the ……… state constitutions were change incu- A third consideration relates to the bators, governing smaller, often more selection method for most state court elections and constitutional guarantees congenial populations with shared judges: elections. Dissonant though may not always hold true. world views. And the state constitu- it may sound, judicial elections some- Even the crudest electoral practicali- tions were, and remain, easy to amend. times are the friend of innovative ties do not invariably warrant distrust in Unlike the Federal Constitution, the individual rights litigation, not its the capacity of state court judges to con- state constitutions are readily amenable enemy. Some supposedly counterma- strue their constitutions independently. to adaptation, as most of them can be joritarian constitutional issues are not Truth be told, there are many settings amended through popular majoritarian countermajoritarian at all when pre- in which judicial elections should lead votes, and all of them can be amended sented effectively to elected state court to more state court independence from more easily than the federal charter. The judges. Just as there may be politically the U.S. Supreme Court, not less. Aren’t design of each charter signals that the functional and politically dysfunctional there many federal constitutional rul- States were meant to be the breakwa- issues in legislation, the same may be ings that increase the scope of a protected ter in rights protection and the national true in litigation. And the two do not right and with which elected judges in government the shoreline defense. always overlap. That reality may explain some States disagree? And with which Increasing the salience of the state why these education, criminal proce- a majority of the electorate in those courts and state constitutional law hon- dure, property-rights, free exercise, States disagree? Aren’t there many fed- ors some worthy traits of the original and eventually marriage issues reso- eral constitutional rulings that decrease federal constitutional framework, most nated with some state-elected judges the scope of a protected right and with notably its conspicuous horizontal and but not life tenured federal judges. In which elected judges in some States dis- vertical separations of powers. If there’s the Ohio school-funding litigation, in agree? And with which a majority of the one feature of American government which I represented the State, I thought electorate in those States disagree? The worth preserving over every other, it’s it helped the plaintiffs — the advocates answer of course will depend on the issue that differentiated lines of constitutional of change — that the justices of the and the State. Think about it another structure — honored and undiluted — Ohio Supreme Court were elected. I say way. Surely there are originalist justices preserve liberty. Only by retaining a this not to plug one method of appoint- on the state courts who disagree with balance of authority among the branches ment over another but to show that living constitutionalist U.S. Supreme do we keep the most malignant risks to traditional assumptions about judicial Court decisions. And surely the oppo- liberty at bay. 4 30 VOL. 102 NO. 2

……… ……… A revival of independent state con- Whatever the prospects for change stitutionalism not only might return us through state constitutions and state to something approximating the orig- courts may have been in the 1950s and inal design, but it also might ease the 1960s, I have a hard time understanding pressure on the U.S. Supreme Court to why they remain inappropriate vehicles be the key rights innovator in modern for rights innovation in the twenty-first America. Why not put the state constitu- century — and why they should not be tions, state courts, and state legislatures the lead change agents going forward. on the front lines (or more precisely When Justice Brandeis launched the return them to the front lines) when it laboratory metaphor for policy inno- comes to rights innovation? Even if one vation, he used the plural, not the accepts that many of the Warren Court singular, signaling an interest in hear- decisions were for the good as a matter ing how the States in the first instance of policy, and even if one assumes that would respond to new challenges. A the States brought this diminishment single laboratory of experimentation for of authority upon themselves, that does fifty-one jurisdictions and 320 million not tell us what to do next. All essen- people poses serious risks. A ground-up tial constitutional questions ultimately approach to developing constitutional come down to structure. And structure doctrine allows the Court to learn from concerns who, not what — who should the States — useful to pragmatic jus- be the leading change agents in society tices interested in how ideas work on going forward, not looking backward. the ground, useful to originalist justices One point of telling these stories is to interested in what words first found in make the case that it’s time to shift the state constitutions mean. It gives both balance back to the state courts. sides to a debate time to make their ……… case. And it places less pressure on the While nearly all interest groups and U.S. Supreme Court. The Court may most Americans seem to remain com- wait for, and national- fortable with using the U.S. Supreme ize, a dominant majority Court (as opposed to the state courts) position, lowering the as their preferred change agent, it’s stakes of its decision in easy to wonder how long this can last the process. Or it may and to worry how it will end. So long treat occasionally inde- as we insist on casting the Court in this terminate language role, two things are inevitable: The peo- in the way it should ple will care deeply about who is on be treated, as allowing the Court, and the people will criticize for fifty-one imperfect the Court, as opposed to the elected solutions rather than one branches, when five justices do not do imperfect solution. their bidding. The confirmation process — picking justices to resolve structural JEFFREY S. SUTTON and individual rights debates known is a judge on the and unknown for the next twenty-five United States Court to thirty years — is not well-equipped of Appeals for the to handle the first development, and Sixth Circuit. the Court as an institution is not well- equipped to respond to the second. JUDICATURE 31

he following two articles focus on reentry courts — a type of problem-solving court that addresses the challenges former offenders face when reintegrating into the com- munityT after a period of incarceration. Each article in its own way attempts to grasp the slippery subject of how to measure success regarding such programs, and whether they are worth their costs in time, money, and resources. Marvin L. Astrada analytically reviews reentry courts and lays out competing met- rics for measuring success, discussing their relative pros and cons. Conversely, Judge Jeffrey Alker Meyer and Carly Levenson take a different tack, describing the reentry court in the U.S. District Court for the District of Connecticut from a front-lines perspective, allowing for measurement of its effectiveness by its impact on the lives of participants. The debate about whether problem-solving courts work and are cost-effective is a lively one. Perhaps more so in the federal sys- tem, doubts have recently been cast on whether such special court dockets are worth the consider- Reentry able time, money, and resources they require to operate. Cold cal- culations regarding impact on recidivism — the quantitative courts approach to evaluating success — Are they worth render a mixed bag of results, with a recent federal study sponsored the cost? by the Federal Judicial Center find- ing little positive impact on recidivism. The two articles in this issue of Judicature suggest that perhaps a qualitative approach has a place in the evaluative process — an approach that takes into account the impact of such programs on the lives of partici- pants, and looks to other metrics such as employment, sobriety, stable housing, improved mental health, and more positive per- ceptions of the legal system as measures of success. To that I say Amen, and read on.

— Judge Timothy D. DeGiusti of the United States District Court for the Western District of Oklahoma is a 2018 graduate of the Duke Master of Judicial Studies program. He studied reentry programs for his master’s thesis, “Innovative Justice: Federal Reentry Drug Courts – How Should We Measure Success?”

4 32 VOL. 102 NO. 2

Reentry philosophies, approaches, and challenges

BY MARVIN L. ASTRADA JUDICATURE 33

Competing notions of crime and THE PROBLEM continue, ‘approximately 6.6 percent punishment have shaped the Statistics from the Bureau of Justice of all persons born in the United States administration of criminal jus- (BJS) indicate that, in 2012, the over- in 2001 [could] serve time in state or all prison population in the U.S. was federal prison during their lifetimes.’”7 tice in the United States ever approximately 1,570,400.1 Although The growing rate of offenders tran- since the Quakers established the overall nationwide prison population sitioning into the community; high the Walnut Street Prison in 1773 rate has declined and the rate of release prospects of re-arrest, re-conviction, and in Philadelphia, creating the first continues to increase, data from 2005 to re-incarceration; offenders’ limited or ill penitentiary in the country. Since 2010 show that recidivism is a tremen- preparedness to reenter the community; 2 then, the form and substance of dous challenge. In 2005, 67.8 percent and communities’ inability or lack of of 404,638 state prisoners released in 30 capacity to provide support during the criminal punishment have evolved states were arrested within three years of transition exacerbate the profound chal- from penitence, to rehabilitation, release, and 76.6 percent were arrested lenges communities face in attempting to retribution. From the mid-1970s within five years.3 In the 23 of those 30 to curb recidivsm. onward, public policy has empha- states with available data on inmates The recidivism rate has remained sized punishment and retribution. who returned to prison, 49.7 percent of virtually unchanged for the last decade The result today is a burgeon- inmates had either a parole or probation or more.8 Of the two-thirds of former violation or an arrest for a new offense ing prison population, massive inmates who are re-arrested within three within three years, and 55.1 percent years of release, more than half will even- state and federal expenditures on had a parole or probation violation or an tually be re-incarcerated. Additionally, the prison system, and a growing arrest within five years.4 more parolees are returning to prison realization that releasing offend- The BJS has estimated that nearly than ever before: about one-third of all ers without support mechanisms three-quarters of all released prisoners will prison admissions nationwide are parole creates a revolving-prison-door be rearrested within five years of their release violators returned to prison for new 9 phenomenon. — and about six in ten will be re- crimes or technical violations. By some convicted.5 Furthermore, people of color estimates, ex-offenders account for about In recent years, reentry programs are overwhelmingly encumbered with 15 to 20 percent of all arrests among have emerged as a way to address the the profoundly negative consequences of adults, although this varies considerably challenges of reintegrating ex-offenders having been incarcerated, because they by state and type of criminal behavior.10 into society and, increasingly, as a tool disproportionately constitute the major- The costs to communities are high. for combatting mass incarceration and ity of the incarcerated population.6 The sheer volume of offenders being reducing persistent recidivism rates. In 2014, “1,561,500 people were released and unsuccessfully reintegrated Reentry programs are managed by the under the control of state or federal cor- into the community negatively affects court and designed to provide broad, rectional authorities. . . . This represents the structural integrity and stability comprehensive support to ex-offenders in almost a one percent decline from the of host communities, straining public building a productive life outside prison. previous year, yet it still remains [the health, public housing, homelessness, This article provides an overview of case] that almost one in every 100 mental health services, community and reentry philosophy and approaches, and Americans remains in prison. The Equal family relationships, and civic participa- discusses some of the challenges of mea- Employment Opportunity Commission tion. Furthermore, the costs associated suring the success of reentry programs. . . . suggests that if the current trends with incarcerating and re-incarcerating 4 34 VOL. 102 NO. 2

offenders are putting immense pressure as a quantifiable measure of correctional reducing the prison population — and on already overextended state budgets.11 programs’ success and effectiveness, with the realization that recidivism The struggle to successfully transi- many analysts found that a large percent- rates have not been optimally reduced tion from prison to society is not a novel age of offenders were returning to prison. — courts began to consider and imple- problem. The increasing scale of the This phenomenon prompted, in part, ment reentry programs as a way to help problem, however, has presented new further research into post-incarceration reduce recidivism and stem the tide of and serious challenges.12 Over the last and the effects of a purely retributive mass incarceration.19 two decades the U.S. “has commenced ethos. Some advocates claim that reentry The concept of reentry encompasses the largest multi-year discharge of pris- programs offer a much-needed alterna- all activities and programming geared oners from state and federal custody in tive tool “other than imprisonment” to toward better preparing ex-offenders to history.”13 This exploding population address these challenges and more effec- permanently return to the communi- of ex-offenders makes reducing rates tively administer justice.18 ty. 20 Reentry programs “may be broadly of re-offending and recidivism more defined as the processes and experiences difficult.14 Lack of oversight, poor transi- associated with offenders’ incarceration tional preparation, and a lack of access to The logic of a and release from prison, jail, or some substantive social, financial, and educa- reentry program form of secure confinement.”21 The tional resources and opportunities such is relatively logic of a reentry program is relatively as affordable housing, gainful employ- straightforward: Keeping ex-offenders ment, physical and mental health care, straightforward: out of prison helps stem the growth of and treatment programs for substance Keeping ex- the prison population.22 abuse are serious problems that ex- offenders out In the reentry context, the court is offenders face.15 Over “650,000 peo- part of a team-based approach to offender ple are released from prison each year,” of prison helps processing, release, and reintegration.23 and often they return to the “high- stem the growth Judges, defense lawyers, prosecutors, and crime, poverty-stricken communities of the prison probation officers work together, from which they came, still battling . . . bringing their diverse professional intractable poverty, educational and job population.In expertise collectively to bear on training deficits, [and] drug addictions the reentry solving the problems on which the or mental illnesses that contributed to context, the program is focused. As a team, the their criminality in the first instance.”16 court is part of stakeholders have better access to There is growing realization that institutional resources and infor- releasing offenders without providing a team-based mation and consequently can better support mechanisms creates a revolving- approach to shepherd participants through the prison-door phenomenon. Academics and offender process- bureaucratic obstacles [that] often professionals have begun to explore alter- stymie successful reintegration. Joint natives to focusing strictly on retribution, ing, release, and problem solving and resource sharing with a particular focus on offenders’ reintegration. among stakeholders in the criminal release and subsequent (failure of) rein- justice system is a marked departure tegration into the community. Although REENTRY, THE COURTS, AND THE from the courts’ normal way of doing the goal of the modern criminal justice ADMINISTRATION OF JUSTICE business.24 system, broadly speaking, has been “to Since the early 2000s, the courts have control crime with justice,” some argue begun to reevaluate the role of the Reentry programs thus reflect local that “prosecutors must look beyond judge and other major criminal jus- conditions and the local criminal justice simple ‘control’ to recognize that public tice players, including prosecutors and ethos, and are thoroughly affected by safety may be achieved with tools other defenders, in the administration of jus- local circumstances. Reentry programs than imprisonment.”17 Looking beyond tice. In light of the crucial role that may be adapted, refined, reconfigured, “control” led to a focus on post- successful offender release and integra- and repurposed by various courts to incarceration. Employing recidivism rates tion into the community assumes in reflect unique local circumstances. JUDICATURE 35

Although local circumstances, such tive life, and to improve the well-being ing on the endpoint of the correctional as legal culture and philosophy, play a of the overall community. The commu- process, reentry advocates contend, con- substantial role in how reentry is concep- nity benefits when ex-offenders become structively addresses the problem of mass tualized and implemented by the courts, contributing members of society who incarceration by shrinking the number of reentry programs are rooted in a com- do not commit new crimes. For this rea- ex-offenders who return to the courts and mon philosophical-legal approach that son, some advocates contend that reentry the prison system.33 Given the present informs how success is perceived and programs are an important tool for rates of incarceration, release, and recidi- measured. Generally speaking, reentry is courts and communities to employ when vism, it seems to be in the best interests premised on the notion that a formal and addressing the pressing challenges posed of the judiciary and the broader commu- comprehensive transition process after by the mass release of ex-offenders into nity to create and support effective and release from prison is necessary to address the community.28 efficient reentry processes. an ex-offender’s basic survival needs, such The recent shift from decades of as safe housing, gainful employment, and retributive criminal justice to more HOW A REENTRY PROGRAM WORKS healthcare, as well as skills-based need “non-brick-and-mortar social control — ISSUES & CHALLENGES such as treatment, literacy, and job train- options”29 means that some courts are The state and the federal courts have ing, to prevent a revolving-prison-door more willing to view reentry as a viable implemented reentry programs that syndrome.25 Reentry is a “therapeutically means to address the collateral conse- reflect local contexts and community oriented judicial approach to providing quences of being an ex-offender. Collateral issues and are specifically designed court supervision and appropriate treat- consequences entail legal “sanctions and to comprehensively address the chal- ment to offenders”26 to effectuate this restrictions that limit or prohibit peo- lenges ex-offenders face during post- transition process. ple with criminal records from accessing conviction.34 Attempts to clearly define, Some criminal justice scholars view employment, occupational licensing, operationalize, and measure the efficacy reentry programs as reconfiguringhousing, voting, education, and other of a reentry program highlight its com- the notion of rehabilitation. That is, opportunities.”30 Recently highlighted plex nature and the important role that rehabilitation, according to some com- by the U.S. Supreme Court in Padilla the courts assume in the process. If reen- mentators, “with an eye to reentry, has v. Kentucky — “holding that defendants try is more than simply programmatic been repackaged, not as a way to improve have a Sixth Amendment right to be in nature, and encompasses a com- the individual offender for his or her own informed of a collateral consequence (in prehensive process, does it possess an sake, but rather as a way to improve pub- Padilla, deportation) attaching to a guilty empirically sound basis for establishing lic safety for all of society.”27 This aspect plea”31 — these collateral consequences programs geared toward reintegration? of reentry programs, some advocates make it very difficult for ex-offenders to Are reentry programs overly broad to contend, begins to address some of the productively move on with their lives the point where such programs are not failures of a purely retributive paradigm, post-incarceration. monetarily feasible? which focuses mainly on punishment The criminal justice system devotes Some courts view reentry holistically of the individual offender. While pun- considerable resources to investigating rather than as a single ad-hoc program.35 ishment plays a fundamental role in and punishing crime.32 Reentry pro- In a holistic approach, the courts and the administration of justice, reentry grams seek to prevent ex-offenders from criminal justice professionals actively programs focus on the challenges ex- reoffending and returning to prison. participate in reentry efforts, which may offenders face during post-incarceration, Sustaining the present trajectory of the better serve the goal of “the effective taking into account the well-being of the exponentially growing prison population integration of former federal [and state] offender and of the community that he — a revolving-prison-door phenomenon prisoners into our communities and the or she will return to. Reentry programs wherein offenders are serving longer sen- reduction of recidivism.”36 Here, reen- thus attempt to provide therapeutic tences and often returning to prison, and try is not based solely or mainly on rehabilitative programs to enhance an governments are devoting substantial objective quantitative measures and ex-offender’s prospects of permanent economic resources to manage revolv- methodology. Indeed, some commen- reintegration into the community after ing-door-prison populations — is not tators qualitatively characterize reentry punishment, to concomitantly help the an economically viable nor desirable as a movement, an approach, or a con- ex-offender build a sustainable, produc- option. Reducing recidivism and focus- tinuing process that begins at the point 4 36 VOL. 102 NO. 2

of release and continues afterwards. assume a different role in the administra- court thus assumes an active and com- Assessing the strength or weakness of tion of justice. Under a reentry approach, prehensive role rather than a passive reentry programs, and whether they judges can set and monitor an offender’s presence in an ex-offender’s attempt to “work,” will depend in part on whether post-conviction agenda and can impose reintegrate into the community. one views reentry programs from a qual- explicit conditions on an offender’s Like other problem-solving courts, itative or quantitive perspective. behavior with directives such as “do not reentry courts include problem-solving The reentry paradigm “builds on the use drugs,” “get regular drug testing,” or and therapeutic components in supporting notion that the transition from prison to “go to treatment.”42 an ex-offender’s planned transition into the community does not happen auto- In this way, the court employs a the community. The court tailors a reen- matically and without preparation. mix of graduated sanctions and incen- try plan to fit an offender’s unique risks Reentry strategies encourage the estab- tives to influence and redirect offenders’ and needs and attempts to address the lishment of broad linkages that support behavior and to reinforce success if such specific issues and challenges an offender offender transitions and community will face upon release from prison, such partnerships and penetrate through and as employment and substance abuse beyond prison walls.”37 Reentry thus When evaluating treatment, to maximize successful rein- focuses on the socioeconomic environ- reentry programs, tegration.45 To help accomplish this, the ment that offenders will be released court must be able to draw upon a range into, and what the courts can do to help it is important to of supportive and supervision resources offenders successfully reintegrate.38 note that how to implement the plan and must exer- Reentry programs generally take a recidivism is cise the authority and discretion needed holistic rehabilitative approach that rec- conceptualized to efficiently and effectively impose sanc- ognizes and addresses the complex factors tions and incentives.46 that directly impact successful reintegra- and defined will tion — such as socioeconomic status, directly affect DOES REENTRY WORK? education, age, mental health, substance evaluation Defining and measuring success are abuse, and sustained employment — major points of contention in the reentry with the expectation that programs results. [And] debate among advocates and critics — on designed to address these challenges will there are . . . and off the bench. Some reentry program improve the ex-offender’s chances for competing views advocates subscribe to or emphasize a successful reintegration. Reentry pro- qualitative approach, stressing the value grams take into account the fact that about what of intangible and humanistic benefits ex-offenders likely “are less educated, recidivism means that accrue from reentry; a qualitative less likely to be gainfully employed, and or should mean. argument is based on the idea that suc- more likely to have a history of men- cess cannot be measured solely or mainly tal illness or substance abuse — all of changes are effectuated.43 Sanctions may in quantitative terms. Some critics, on which have been shown to be risk fac- include community service, increased the other hand, approach reentry from tors for recidivism.”39 supervision levels, ordering drug test- a quantitative perspective; successful Some scholars contend that reen- ing or treatment, or short periods of outcomes are objectively measured via try programs help reduce recidivism re-incarceration. Incentives may include empirically data-driven, cost-benefit because the courts assume such a proac- various rewards, such as a reduction of analysis, and evidence-based practices tive role in the post-conviction period.40 length of stay in prison in return for rooted in statistical analysis. Traditionally, “the role of the judge in a satisfactory progress in various educa- The literature on reentry programs is criminal case is to oversee courtroom pro- tional, vocational, and drug treatment scattered in criminological, sociological, ceedings relating to a defendant’s guilt programs and work assignments, and for and psychological publications, although or innocence and the appropriate dispo- good behavior.44 These incentives and much of it can be found in state and fed- sition of the case.”41 In problem-solving sanctions may help ex-offenders better eral agency and government reports.47 and reentry courts, the judge is an active navigate the complex challenges associ- Generally speaking, the literature has a participant, allowing the courts to ated with release and reintegration. The pronounced sociological, rather than a JUDICATURE 37

psychological, bent. Methodologically, nisms. Another view is that recidivism is usually not operationalized and mea- this has resulted in focusing less on the the direct result of debilitating structural sured in traditional recidivism-only individual offender, treatment provider, socioeconomic conditions conducive to outcome evaluations.58 and program characteristics when mea- criminal conduct.54 Some commentators To empirically measure reentry pro- suring outcomes and instead assessing contend that these different definitions grams’ relative success or failure, some programs using recidivism outcome of recidivism and the resulting variation reentry advocates suggest narrowing studies. A program is generally classi- in rates make recidivism an insufficient the scope and focus of such programs by fied as one thatworks , does not work, or measure of the effectiveness of reentry, defining them as programs that either is promising; the “what works” literature since reentry programs aim for perma- specifically focus on the transition from tends to be program-based, as opposed to nent reintegration, which is more than prison to community or initiate treat- principles-based.48 The largest and most merely remaining arrest-free for a spec- ment in a prison setting and link up influential “what works” study in the ified time period. with a community program to provide U.S., Crime Prevention: What Works, What Another problem with using recid- continuity of care.59 Within this broad Doesn’t, and What’s Promising, was con- ivism rates as a measure for reentry is definition, only programs that have an ducted by the University of Maryland and that of sample size: Programs are local- outcome evaluation are included. A funded by the U.S. Justice Department in ized, and therefore often quite small. narrow definition, however, discounts 1997.49 The report attempted to identify They do not provide sufficient sam- programs that have not been formally effective reentry programs by creating ple sizes to generate generalizable evaluated, do not specifically focus on scientific scoring systems to evaluate conclusions. Some studies have focused the transition process, or do not begin programs based on whether they can be on assessing the effectiveness of a stand- in the community.60 proven to have an empirical impact in alone program, while others have taken As noted earlier, reentry programs are reducing recidivism.50 a comprehensive approach by evalu- inherently local. There is no universal When evaluating reentry programs, ating the effectiveness of a program reentry approach or singular program it is important to note that how recid- statewide or nationwide. Some studies model; the structure of a program var- ivism is conceptualized and defined have demonstrated successful outcomes, ies depending on local needs, resources, will directly affect evaluation results. others have found no discernible effects, and statutory frameworks. Programs Recidivism is “often defined as the and others have found a mix of positive vary significantly by type, number of re-arrest, reconviction, or re-incarcer- and negative findings.55 phases, treatment modality employed, ation of an ex-offender within a given Some advocates of reentry programs duration of treatment, location of treat- time frame.”51 Recidivism, when viewed contend that to accurately measure suc- ment, presence of aftercare, risk level of critically, provokes debates about the cessful reintegration, researchers need offender, and type of treatment provid- overarching social, economic, and polit- to build into their evaluations “mea- er.61 This makes quantitative assessment ical conditions associated with crime. sures of attachment to a variety of social of reentry very difficult. Furthermore, There are two general competing institutions. Research shows that these because the authority for post-prison views about what recidivism means or factors are related to long-term crimi- supervision is often not vested within should mean: 1) recidivism is viewed nal desistance,” such as whether or not the judicial branch, reentry courts oper- broadly as constituting any new contact programs address underlying issues of ate based on a variety of approaches, with the criminal justice system, and 2) substance abuse, sobriety, and atten- each consistent with local statutory recidivism is more narrowly construed as dance at treatment program.56 To better frameworks. For instance, in New York commission of a particular type of new gauge the effectiveness and success of City, an administrative law judge — crime, such as a felony, resulting in a reentry, it has also been suggested that with authority from the parole board new sentence.52 What one includes in the researchers keep track of whether or — has managed reentry participants definition of recidivism has a substan- not programs help offenders become within a community court setting. In tial impact on the rate of recidivism.53 involved in community activities, in a Fort Wayne, Ind., the Indiana Parole Recidivism also can be viewed in terms of church, or in offender support groups or Commission has authorized judges to the individual criminal; for instance, one victim sensitivity sessions.57 There are supervise returning prisoners on the could conclude that a particular offender many outcomes that reentry programs commission’s behalf.62 In each model, is resistant to crime-preventing mecha- strive to improve upon, and these are the court and the offender work coop- 4 38 VOL. 102 NO. 2

eratively to address the risks associated also has its critics. For example, some single program participant who does not with release from prison and to improve commentators contend that EBP has reoffend after completing a reentry pro- successful reintegration. been simplified to a “this worked for gram. Whether the benefit of having a The debate over the effectiveness of most, so it should work for you” model single program participant successfully rehabilitation efforts reaches back for that erroneously expects all offenders avoid re-incarceration merits the finan- decades. After Robert Martinson pub- to respond to the same mode of ser- cial costs of a reentry program is likely to lished his influential article in 1974 vice delivery.69 This approach ignores remain a serious point of contention and asserting that rehabilitative programs an offender’s unique characteristics, cir- debate. Recidivism is thus a “compli- were not producing results,63 some cumstances, and priorities for successful cated criminological and social concept critics attempted to refute the allega- reintegration. While it is the case that . . . measuring the recidivism-reducing tion and demonstrate that treatment many offenders have similar risk factors effect of any program is challenged by efforts could be effective. A key element — such as drug addiction — it is also the complexity of interdependent vari- of such attempts was the notion that ables that affect the measure.”71 empirical data should guide the correc- tional enterprise, as opposed to common Whether the CONCLUSION sense or politics.64 The focus on sci- benefit of having Whether viewed expansively or nar- entific data to inform risk assessment rowly, reentry programs reflect a ushered in the present practice of eval- a single program significant departure from how the uating rehabilitative programs using an participant suc- courts have traditionally administered Evidence-Based Practice approach (EBP). cessfully avoid justice.72 Within the realm of criminal Although recently embraced by the law, the courts have traditionally lim- criminal justice system, EBP has its ori- re-incarceration ited involvement to fact finding and gins in 19th-century medical practice. merits the application of the law from a detached, More than a century later, the medical financial costs procedural standpoint. Reentry courts definition of EBP — “the conscientious, are essentially problem-solving courts explicit, and judicious use of current best of a reentry that require court involvement through- evidence in making decisions . . . inte- program is likely out the offender’s experience with the grating individual clinical expertise with to remain a criminal justice system. Such courts the best available external clinical evi- serious point of attempt to actively, effectively, and effi- dence from systematic research”65 — is ciently use limited resources to address very much in line with the therapeutic, contention and particular problems that offenders face problem-solving, and comprehensive debate. when attempting to reintegrate into reentry approach. EBP “has shifted the the community. The development of focus of supervision and services to the the case that each offender’s specific cir- reentry courts builds upon the claimed factors that are most likely to impact . . . cumstances require different treatment success of problem-solving courts in involvement in criminal behavior . . . tar- responses based on unique characteris- reducing the recidivism rates for the geting antisocial thought patterns, peer tics, including race, ethnicity, age, sex, various at-risk clients they target: drug associations, and other dynamic risk fac- gender, and mental health.70 addicts, the mentally ill, the homeless, tors using approaches research has shown The debate over the success of reen- and juveniles, among others.73 generally reduce the likelihood of future try programs probably will not cease At a time when most communities criminal behavior.”66 even when more and better empirical are hard-pressed to fund equally import- Many states, relying upon EBP, have data becomes available. Instead, the dis- ant societal needs, such as education, initiated program reforms aimed at cussion is likely to focus on the extent infrastructure, and health care, the allo- reducing recidivism.67 At the center of and cost of success. A reentry program’s cation of funds for reentry programs will EBP is a commitment to understand- success, for example, from a qualita- most likely be subject to contentious ing the individual and using a strategy tive perspective, could be defined as any debate concerning cost-benefit analy- that provides the best option for achiev- observable reduction in recidivism. An ses, as well as differing views as to how ing the desired result.68 EBP, however, observable reduction can constitute a ex-offenders should be supported during JUDICATURE 39

post-conviction. But the costs to soci- recidivism. Regardless of the controversy Examining State Spending Trends, 2010- ety of mass incarceration and recidivism surrounding reentry programs, as pres- 2015 (2017), https://storage.googleapis.com/ are also very real and escalating. More ently conceptualized and applied, they vera-web-assets/downloads/Publications/ price-of-prisons-2015-state-spending-trends/ empirical study must be conducted to may provide judges and other key crim- legacy_downloads/the-price-of-prisons-2015- provide better guidance to local commu- inal justice actors with additional tools state-spending-trends.pdf; see also U.S. Dep’t nities struggling with these challenges, to play a more proactive, positive, and of Educ., State and Local Expenditures with the caveat that there be a degree of expansive role. on Corrections and Education (2016), flexibility in determining how to evalu- https://www2.ed.gov/rschstat/eval/other/ MARVIN L. expenditures-corrections-education/brief.pdf. ate successful reentry programs. 12 ASTRADA holds See generally Doulas A. Berman, Reorienting For now, judges, working in tan- Progressive Perspectives for Twenty-First Century dem with support staff and key actors master’s and doc- Punishment Realities, 3 Harv. L. & Pol’y Rev. in the criminal justice system, espe- toral degrees in Online (2008). cially prosecutors and defenders, may politics and interna- 13 Anthony C. Thompson, Navigating the Hidden have a unique opportunity to enhance tional relations from Obstacles to Ex-Offender Reentry, 45 B.C.L. Rev. an ex-offender’s prospects of permanent Florida International 255, 256 (2004). University (FIU) and a J.D. from 14 Id. at 257. reintegration into the community by 15 Rutgers University. He teaches in See Marta Nelson et al., Vera Inst. of actively participating in programs that Justice, The First Month Out: Post- “go beyond” punishment. Reentry the Politics & History Department at Incarceration Experiences in New York programs of all types can thus be viewed New York University in Washington, City (1999); see Stephen Metraux & Dennis P. as experimental legal laboratories D.C. He has served as a research sci- Culhane, Homeless Shelter Use & Re-Incarceration attempting to mollify the pernicious entist with the Applied Research Following Prison Release: Assessing the Risk, 3 Criminology & Pub. Pol’y 139 (2004). effects of mass incarceration and Center at FIU. 16 Jessica S. Henry, The Second Chance Act of 2007, 45 Crim. L. Bull. art. 3, at 4 (2009), avail- 1 E. Ann Carson & Daniela Golinelli, 5 See Nathan James, Offender Reentry: able at https://papers.ssrn.com/sol3/papers. U.S. Dep’t of Justice, Prisoners in 2012: Correctional Statistics, Reintegration cfm?abstract_id=2344739. Trends in Admissions and Releases into the Community, and Recidivism 1–4 17 Charles J. Hynes, Prosecution Backs Alternative to 1991–2012, at 1–3 (2013). (2015), available at https://fas.org/sgp/crs/ Prison for Drug Addicts, 19 Crim. Just. 28 (2004). 2 Leslie Helmus et al., Absolute Recidivism Rates misc/RL34287.pdf. 18 See Reginald A. Wilkinson, et al., Prison Reform Predicted by Static-99R and Static-2002R Sex 6 William Hubbard, Remarks on Collateral Through Offender Reentry: A Partnership Between Offender Risk Assessment Tools Vary across Samples: Consequences of Mass Incarceration, 2 Crim. L. Courts and Corrections, 24 Pace L. Rev. 609, A Meta-Analysis, 39 Crim. Just. & Behavior Prac. 10 (2014). 612 (2004). 1148 (2012); see also U.S. Sentencing Comm’n, 7 Lisa A. Rich, A Federal Certificate of Rehabilitation 19 See, e.g., Keith O’Brien & Sarah Lawrence, Recidivism Among Federal Offenders: A Program: Providing Federal Ex-Offenders More Implementing a Reentry Program Comprehensive Overview 5 (2016) (finding Opportunity for Successful Reentry, 7 Ala. C.R. & According to Best Practices, Mass. that federal offenders recidivate at an alarming C.L.L. Rev. 249, 251 (2016). Exec. Office of Pub. Safety (2007), avail- pace: 49.3 percent were rearrested within eight 8 Durose et al., supra note 3; see also John Larivee, able at http://www.mass.gov/eopss/docs/eops/ years of their release from prison). Prisoner Reentry: A Public Safety Opportunity, publications/implementing-a-reentry-pro- 3 Matthew R. Durose, Alexia D. Cooper, 37 Prosecutor 43 (2003); Jason Clark, gram-according-to-best-practices-march-2007. & Howard N. Snyder, Recidivism of Incarceration, Recidivism, and Rehabilitation: pdf; Timothy Hughes & Doris James Prisoners Released in 30 States in 2005: Reducing Risk and Recidivism, 75 Tex. Bar. J. Wilson, U.S. Dep’t of Justice, Bureau Patterns from 2005 to 2010 (2014), p. 1. 612 (2012). of Justice Statistics, Reentry Trends See also Joel M. Caplan, Parole System Anomie: 9 The Oxford Handbook of Sentencing in the United States (2002), available at Conflicting Models of Casework and Surveillance, and Corrections 685 (Joan Petersilia & http://www.bjs.gov/content/pub/pdf/reentry. 70 Fed. Probation 32 (Dec. 2006); Matthew Kevin R. Reitz eds., 2015). pdf; Stephen E. Vance, Federal Reentry Court Programs: A Summary of Recent Evaluations, 75 G. Rowland, Assessing the Case for Formal 10 Doris Layton Mackenzie, Sentencing Fed. Prob. 64, 65, 72 (2011). Recognition and Expansion of Federal Problem- and Corrections in the 21st Century: 20 Solving Courts, 80 Fed. Prob. 3, 12 (2016) Setting the Stage for the Future (2001), See Rich, supra note 7, at 249. 21 (finding recidivism in the state system has available at https://www.ncjrs.gov/pdffiles1/ Edward E. Rhine & Anthony C. Thompson, been reported to be as much as 68 percent nij/189106-2.pdf. The Reentry Movement in Corrections: Resiliency, within three years of release from prison). 11 Chris Mai & Ram Subramanian, Vera Fragility and Prospects, 47 Crim. L. Bull. art. 4 Id. Inst. of Justice, The Price of Prisons: 1, 2 ( 2011). 4 40 VOL. 102 NO. 2

22 See Melissa A. Knopp, Breaking the Cycle: staffs, court clerks, stenographers and marshals the Evidence, 68 Fed. Prob. 4 (2004); Gordon Ohio Reentry Courts, 41 Ohio N.U. L. Rev. and other court security personnel; pretrial Bazemore & Jeanne Stinchcomb, Prisoner 747 (2015) (“With the latest criminal justice and probation officers; addiction counselors; Reentry — A Civic Engagement Model of Reentry: reform efforts focused on reducing ballooning and the enormous state and federal prison sys- Involving Community Through Service and state corrections budgets and the number of tem.” Id; see also Laura Knollenberg & Valerie Restorative Justice, 68 Fed. Prob. 14 (2004). inmates in state prisons, policy makers have A. Martin, Community Reentry Following Prison: 39 See James, supra note 5. been more willing to reassess the past punitive A Process Evaluation of the Accelerated Community 40 See Shadd Maruna & Thomas P. LeBel, Welcome approaches that heavily relied on imprison- Entry Program, 72 Fed. Prob. 54 (2008). Home? Examining the Reentry Court Concept from a ment as the principal crime control strategy.”). 33 See Jeremy Travis and Christy Visher, Strengths-Based Perspective, 4 W. Criminology 23 See, e.g., Michael C. Dorf & Jeffrey A. Fagan, eds., Prisoner Reentry and Crime in Rev. 91 (2003). Problem-Solving Courts: From Innovation to America (2005). 41 A.B.A., Reentry Courts, 17 Crim. Just. 15 Institutionalization, 40 Am. Crim. L. Rev. 1501 34 For examples of federal courts that have imple- (2002). (2003). mented reentry programs, such as the District 42 See Martha Neil, 2 Federal Judges Work with 24 Gottschall & Armour, infra note 32, at 38–40; of Oregon, the District of Massachusetts, the Ex-Cons in Chicago Re-Entry Program, A.B.A. see Seiter & Kadela, infra note 50, at 368; Western District of Michigan, the Southern J. (Aug. 16, 2012), http://www.abajournal. see also Hamilton, infra note 55, and D.J. District of Ohio, the Middle District of Florida, com/news/article/federal_judges_work_with_ Farole, The Harlem Parole Reentry and the Eastern District of Pennsylvania, see ex-cons_in_chicago_re-entry_program/news/ Court Evaluation: Implementation and Hon. Michael J. Newman & Matthew C. article/judges_and_the_administrative_ Preliminary Impacts (2003). Note that BJS Moschella, The Benefits and Operations of Federal state/?icn=sidebar&ici=bottom. data from 2000-2013 indicate that the major- Reentry Courts, Fed. Law. 26, 26–35 (2017), 43 A.B.A, supra note 41. ity of offenders on community supervision are available at http://www.fedbar.org/Resources_1/ 44 Ga. Dep’t of Corr., Performance on probation (on average 84 percent between Federal-Lawyer-Magazine/2017/December/ Incentive Credit (2017), available at http:// 2000-2013). The-Benefits-and-Operations-of-Federal- dcor.state.ga.us/sites/all/themes/gdc/pdf/PIC_ 25 See Faye S. Taxman, The Offender & Reentry: Reentry-Courts.aspx; Stephen E. Vance, Federal v032017.pdf Reentry Court Programs: A Summary of Recent Supporting Active Participation in Reintegration, 45 See Alaska Prisoner Reentry Task Force, Evaluations, 75 Fed. Prob. 64 (2011), avail- 68 Fed. Prob. 31 (2004). Five-Year Prisoner Reentry Strategic 26 able at http://www.uscourts.gov/sites/default/ Knopp, supra note 22. Plan, 2011-2016, available at http://www. 27 files/75_2_11_0.pdf. For a listing of vari- See Henry, supra note 16, at 2; see also James correct.state.ak.us/TskForce/documents/ ous state reentry court programs, see State by M. Byrne & Don Hummer, Prisoner Reentry five-year-prisoner-reentry-plan.pdf. — Examining the Role of the Police in Reentry State Listing of Re-Entry Programs for Prisoners, 46 Keith O’Brien & Sarah Lawrence, Partnership Initiatives, 68 Fed. Prob. 62 (2004). Lionheart Found., http://lionheart.org/prison/ Implementing a Reentry Program According 28 See, e.g., Berman, supra note 12; Vivian Nixon state-by-state-listing-of-re-entry-programs-for- to Best Practices (2007), available at http:// et al., Life Capacity Beyond Reentry: A Critical prisoners/ (last visited June 14, 2018). 35 www.mass.gov/eopss/docs/eops/publications/ Examination of Racism and Prisoner Reentry See, e.g., Re-Entry Court, U.S. Prob. Off.: Eastern District of PA., available at http:// implementing-a-reentry-program-accord- Reform in the U.S., 2 Race/Ethnicity: ing-to-best-practices-march-2007.pdf. Multidisciplinary Global Contexts 21 www.paep.uscourts.gov/re-entry-court (listing 47 Two distinct literatures that have emerged (2008), available at https://muse.jhu.edu/arti- the description and materials pertaining to the using distinct disciplinary traditions and cle/252430/pdf; Thompson, supra note 13, at Supervision to Aid Reentry (STAR) Program methodologies for assessing reentry and “what 256–57. in Philadelphia, PA, overseen by the Third works.” These differences have evolved over the 29 Wayne A. Logan, Informal Collateral Circuit Court of Appeals). 36 See Gottschall & Armour, supra note 32. last two to three decades due to disciplinary Consequences, 88 Wash. L. Rev. 1103, 1104 training (mainly psychology versus crimi- 37 Rhine & Thompson, supra note 21, at 18. See (2013). nology) and the methods each discipline has 30 also Patrick J. Carr, The New Parochialism: The The Council of State Governments Justice adopted. Each literature, while finding some Implications of the Beltway Case for Arguments Center, National Inventory of Collateral support for the efficacy of a reentry approach Concerning Informal Social Control, 108 Am. Consequences of Conviction (2012, 2017), to criminal justice, nonetheless have produced J. Soc. 1249 (2003); April Pattavina, et al., available at https://niccc.csgjusticecenter.org/ different conclusions based on different foci of An Examination of Citizen Involvement in Crime 31 Logan, supra note 29, at 1103–05. analysis. Petersilia, supra note 38, at 4–5. Prevention in High-Risk Versus Low to Moderate 32 Joan Gottschall & Molly Armour, Second 48 Risk Neighborhoods, 52 Crime & Delinq. 203 Id. at 6. Chance: Establishing a Reentry Program in the 49 (2006); and Robert J. Sampson & Stephen Lawrence W. Sherman, et al., Preventing Northern District of Illinois, 5 DePaul J. for W. Raudenbush, Seeing Disorder: Neighborhood Crime: What Works, What Doesn’t, Soc. Just. 31, 67 (2011). Examples include: Stigma and the Social Construction of “Broken What’s Promising 6–12 (1997), available at funding “police and other investigative agen- Windows,” 67 Soc. Psych. Q. 319 (2004). https://www.ncjrs.gov/works/. cies; public prosecutors; taxpayer-funded 50 38 See Richard P. Seiter & Karen R. Kadela, defender services (which represent the vast Rhine & Thompson, supra note 21, at 8. See also Joan Petersilia, Prisoner Reentry — What Works Prisoner Reentry: What Works, What Does Not, majority of defendants accused of crime); the and What Is Promising, 49 Crime & Delinq., judicial system, including judges and their in Prisoner Reentry? Reviewing and Questioning JUDICATURE 41

360, 370–72 (2003). The researchers devel- 55 For examples of varying studies and results, see Person Isn’t A Data Point: Making Evidence- oped the following criteria to determine Z. K. Hamilton, Adapting to Bad News: Lessons Based Practice Work, 6 Fed. Prob. 11, 12–15 whether a crime prevention program was effec- from the Harlem Parole Reentry Court, 50 J. of (Dec. 2012). tive or ineffective: Offender Rehabilitation, 385–410 (2011); 65 Id. What Works: “For a program to be considered J. A. Wilson & R. Davis, Good Intentions Meet 66 Id. ‘working,’ there must be at least two Level Hard Realities: An Evaluation of the Project Green- 67 See, e.g., Or. Rev. Stat. § 182.525, 2003; 3 evaluations with significance tests indicat- light Reentry Program, 5 Criminology & Pub. Ark. Code § 16-93-104; S. C. Code Ann. ing that the intervention was effective, and Pol’y, 303–38 (2006); J.A. Bouffard & L.E. § 24-21-10; Ky. Rev. Stat. Ann. § 532.007; the preponderance of the remaining evidence Bergeron, Reentry Works, 44 J. of Offender 730 Ill. Comp. Stat. Ann. § 190/10; and must support that conclusion.” Id. at 372. Rehabilitation 1–29 (2006); P.K. Lattimore, Tex. Bus. & Com. Code Ann. § 501.092 . What Does Not Work: “For a program to be D.M. Steffey & C.A. Visher, Prisoner Reentry in 68 See Lowenkamp, et al., supra note 64, at 12–15. the First Decade of the Twenty-First Century, 5 coded as ‘not working,’ there must be at least 69 For an in-depth discussion of the merits and Victims & Offenders 253–67 (2010); J.A. two Level 3 evaluations with statistical sig- pitfalls of EBP, see Laura K. Abel, Evidence- Inciardi, et al., An Effective Model of Prison-Based nificance indicating the ineffectiveness of Based Access to Justice, 13 U. Pa. J.L. & Soc. Treatment for Drug-Involved Offenders, 27 J. of the program, and the preponderance of the Change 295 (2009); Douglas B. Marlowe, Drug Issues, 261 (1997). remaining evidence must support the same Evidence-Based Policies and Practices for Drug- 56 conclusion.” Id. at 372. Petersilia, supra note 38, at 7. Involved Offenders, 91 Prison J. 27S (2011); 57 Promising: “These are programs for which the See Jamie Yoon & Jessica Nickel, Reentry Gerald P. Lopez, How Mainstream Reformers level of certainty from available evidence is Partnerships: A Guide for States & Faith- Design Ambitious Reentry Programs Doomed to too low to support generalizable conclusions. Based & Community Organizations, Fail and Destined to Reinforce Targeted Mass However, there is some empirical basis for pre- Council of State Gov’ts Justice Ctr., Incarceration and Social Control, 11 Hastings dicting that further research could support N.Y., N.Y. (2008), https://www.bja.gov/ Race & Poverty L.J. 1 (2014) . such conclusions, such as programs are found Publications/CSG_Reentry_Partnership.pdf. 70 See Gottschall & Armour, supra note 32, at 58 effective in at least one Level 3 evaluation, and Petersilia, supra note 38, at 7; see also Henry, 53–55; see also Douglas B. Marlowe, et al., the preponderance of the remaining evidence supra note 16, at 8; Arthur J. Lurigio et al., Matching Judicial Supervision to Clients’ Risk supports that conclusion.” Id. at 372–73. The Effects of Serious Mental Illness on Offender Status in Drug Court, 52 Crime & Delinq. 52, Unknown: “Any program not classified in one Reentry, 68 Fed. Prob. 45 (2004); James E. 54 (2006). of the three previous categories is defined as Robertson, Civil Disabilities and Citizenship: 71 Weisberg, supra note 51 at 799–800. The New Color Line, 21 Correctional L. Rep., having unknown effects.” Id. at 373. 72 Kristin Brown Parker, The Missing Pieces In 51 57, 63 (2010); Wendy S. Still, San Francisco James, supra note 5, at 5; see also Robert Federal Reentry Courts: A Model For Success, 8 Realignment: Raising The Bar for Criminal Justice Weisberg, Meanings & Measures of Recidivism, Drexel L. Rev. 397 (2016). Available at http:// in California, 25 Fed. Sent’g Rep. (2013). 87 S. Cal. L. Rev. 785, 786–87 (2014). As drexel.edu/law/lawreview/issues/Archives/ 59 noted by Weisberg, stepping outside the Anna Crayton et al., Urban Inst., v8-2/brown/. Partnering with Jails to Improve parameters of recidivism so defined, one can, 73 Eric J. Miller, The Therapeutic Effects of Reentry: A Guidebook for Community- for example, limit the definition of a recidivist Managerial Reentry Courts, 20 Fed. Sent’g Based Organizations (2010), available act to a new criminal act, a new prison-eligi- Rep., 127, 127 (2007). ble felony, or to a technical violation of parole. at https://www.urban.org/sites/default/files/ Id. at 786. One can also lengthen or shorten a publication/29146/412211-Partnering- given time frame; thus, the definition of recidi- with-Jails-to-Improve-Reentry-A-Guide- vism is “a matter of [being a] legal concept and book-for-Community-Based-Organizations.PDF. [having] criminological significance.”Id. One 60 Petersilia, supra note 38, at 4–5 (citing Seiter can also question a case wherein “a technical & Kadela), supra note 50, at 368; see also Chuck Join us! violation was charged to see if the act was actu- Colson, Thirty-Sixth Annual Review of Criminal NATIONAL TOWNHALL MEETING ally a new crime that the prosecutor just chose Procedure — Justice That Restores: A Paradigm- to treat as an administrative violation, for ease Shift in Criminal Justice Practices, 36 Geo. L.J. DEVELOPING SOLUTIONS TO of proof and procedure. That approach would Ann. Rev. Crim. Proc., at iii (2007). ALCOHOL ABUSE, DRUG ADDICTION, have raised difficult fact-finding issues, so the 61 Mirlinda Ndrecka, The Impact of Reentry AND ANXIETY/DEPRESSION AMONG definition of recidivism remains[s] contingent Programs on Recidivism: A Meta-Analysis (2014), BENCH, BAR, AND RELATED on empirical uncertainty.” Id. at 786-87. (unpublished Ph.D. dissertation, University of PROFESSIONALS 52 See James, supra note 5, at 5-6. Cincinnati) at iii. 53 Id. 62 A.B.A., supra note 41, at 15. FEB. 28–MARCH 1, 2019 54 63 See Stephanie Slifer, Once a Criminal, Always Robert Martinson, What Works Questions and MIAMI, FL a Criminal?, CBS News (Apr. 23, 2014, Answers About Prison Reform, 35 Pub. Int. 22 7:35 AM), https://www.cbsnews.com/news/ (1974). details available soon! once-a-criminal-always-a-criminal/. 64 Christopher T. Lowenkamp et al., When A judicialstudies.duke.edu/conferences 42 VOL. 102 NO. 2

Reflectionson a Reentry Court

By JEFFREY ALKER MEYER and CARLY LEVENSON JUDICATURE 43

evin hesitates in the doorway leaps in technology since 1991. One of a federal Reentry Court program that before entering Courtroom 3. year after his release, he is still learn- began in the District of Connecticut in When Kevin was 26, he was tried ing how to use the features on his cell August 2016. One of us is the judge Kand sentenced in this courtroom. The phone. who presides over this Reentry Court, judge who presided over his trial and When he came home, Kevin noticed and the other is a law clerk who spent sentencing has since retired, but a mas- that, despite the many changes in his a year closely working with the Reentry sive portrait of her hangs high on the community and in the world, “some Court and now works as a public back wall, as if she is watching all below. people were still in the streets doing defender. We don’t write this as an aca- Being in this room, with the por- the same thing they were doing when demic analysis of prisoner reentry, nor as trait looming, “brings back memories I left.” He was determined to begin a an empirical evaluation of reentry courts of something I don’t really want to in general or our program in particular. remember,” Kevin said. Our goals are more modest: to explain In 1991, a jury convicted Kevin of “I knew I didn’t how our Reentry Court works; to share conspiring with several co-defendants want to be a part the stories and perspectives of some of to distribute narcotics. He was sen- our members (based on their consent to tenced to serve more than 24 years, in of that no more. be interviewed); and to reflect on some part because his prior felony convictions I’m not the type of the values of a reentry court program rendered him a “career offender” under of person where that may not be readily susceptible to the Sentencing Guidelines. With a state mathematical tracking or measurement. sentence he received around the same I’m just going to time, Kevin was facing a total 26 years be stuck in one THE MEMBERS OF OUR REENTRY in prison. His impending term of incar- spot for the rest COURT are men who have very recently ceration, he noted, was the same length of my life.” completed lengthy sentences in federal as his entire life up to that point. prison and are serving terms of supervised Kevin survived more than a quarter- release in the District of Connecticut. century of incarceration in nine different new chapter. “I knew I didn’t want to Anyone on supervised release must federal prisons by “staying focused” and be a part of that no more,” he said. “I’m communicate regularly with a proba- “reading a lot of books.” Last year, he not the type of person where I’m just tion officer, submit to drug tests and emerged at age 52 and returned home going to be stuck in one spot for the rest home visits, and comply with a litany of to New Haven, Conn. He was welcomed of my life.” When his probation officer other conditions. Those who voluntarily by five generations of his family, from suggested that he visit the Reentry choose to participate in Reentry Court his 95-year-old grandmother all the way Court, Kevin agreed, despite some ini- agree to take on additional obligations down to his grandchildren, who were tial skepticism. and more intensive supervision for the born while he was locked up. Returning Now a regular and outspoken mem- one-year period of the program. Most to a city felt strange after being incar- ber of the program, Kevin considers importantly, they agree to report to cerated in rural areas for so many years. Reentry Court a “blessing” — though court every other Wednesday to partic- “When you’re in the mountains you he still sometimes wishes it took place ipate in Reentry Court sessions, which don’t see people, you don’t see cars driv- in a different courtroom. last about an hour and a half. In addi- ing by . . . you just see a lot of snow.” In this essay, we reflect on our expe- tion, they attend a cognitive-thinking Even more jarring were the enormous rience with Kevin and other members group known as Moral Reconation 4 44 VOL. 102 NO. 2

Therapy (MRT), which is led by proba- they plan to respond, and I invite all take about a year. Every member must tion officers, meets weekly, and usually the others gathered around to weigh in reach specific milestones in each phase takes a few months to complete. about how to troubleshoot the problem. before progressing to the next. If some- A Reentry Court session bears little Oftentimes, the best idea or inspiration one slips up — for example, if he fails resemblance to a typical court proceed- comes from another member who has a drug test, or misses a session without ing. Before the session begins, all the faced a similar challenge. giving notice — he loses time credit, chairs in the courtroom are plucked Even if one of our members has a which means it will take him longer to from their usual places and arranged serious setback, such as a positive drug progress to the next phase. In the end, in a community circle around the two test, we try to engage with him to reflect those who graduate are celebrated with wooden counsel tables. The ten or so about what led to the choice he made a joyous graduation ceremony and then members arrive at 4:30 p.m. The first 15 and what consequences it can have. have their term of supervised release minutes of the session are unstructured Naming and shaming don’t have seats shortened by one year. This reduction to encourage social conversation among at our table. The common goal through- in supervised release is no doubt a “car- the members and with the various mem- out is to affirm, encourage, and inspire. rot” that prompts many of the members bers of the Reentry Court “team.” The We believe that building self-confidence to join in the first place. But the bene- team includes the judge, several proba- and preserving dignity and self-esteem fits that members receive in the form of tion officers, and representatives from are vital to the success of every member, support and resources while in Reentry both the U.S. Attorney’s Office and the as they are for each of us in our personal Court likely offer an even bigger return. Office of the Federal Public Defender. lives and careers. As the judge who presides over the We challenge each of the members LEROY HAS BEEN IN AND OUT OF Reentry Court, I do not wear a robe, to articulate their short- and long-term PRISON SINCE he was a teenager. After bang a gavel, or “take the bench” for goals, and the whole team works to iden- serving an almost five-year federal sen- any part of the Reentry Court sessions. tify concrete steps to be taken before tence for illegal gun possession, he was A critical part of the Reentry Court is the next court session. Between court released to a halfway house; within its informality, which allows all of us sessions, the probation officers and the weeks, he was rearrested for violating to step outside of our traditional roles U.S. Attorney’s Office reentry coordi- his probation and sentenced to serve two and interact more naturally with one nator frequently talk or meet with each and a half more years. another. My own goals for each session member to help with following through When he was released again in are to be waiting by the courtroom door on goals (reaching out to employers, December 2016, he joined Reentry to greet every member as he arrives and signing up for testing programs, etc.). Court and quickly found work as a to establish a person-to-person connec- Almost every dialogue with each mem- driver for a service that transports peo- tion from the beginning. ber ends with, “What else can we do to ple to dental and medical appointments. After about 15 minutes of informal help you?” and then, “Does anyone else Leroy believes that “it’s a miscon- conversations, we all take seats around have other thoughts for Kevin?” ception that you can’t get a job” with a the circle. I go one-by-one to talk with These individual dialogues last for criminal record. “Does the record have an each member about how things have about 45 minutes. The balance of each effect on it? A little bit. But there are a gone for him since the last court ses- session is devoted to a different guest lot of places that will give you an oppor- sion. Members share with all of us their speaker each week. We have hosted a tunity — you just have to sell yourself.” successes — a job offer, praise from an wide variety of speakers over the life During his first weeks in Reentry Court, employer, the birth of a grandchild of our Reentry Court, from prospec- Leroy brought in flyers with his employ- — as well as their setbacks and disap- tive employers to a bank representative er’s contact information, encouraging pointments — a failed driver’s license to a nutritionist. Frequently, our guest jobless members to apply. test, a break-up with a significant other, speakers are people who have served Despite his optimism, Leroy an eviction notice. If there is a success to time themselves and can offer firsthand acknowledges that the process of apply- report, I congratulate them and ensure wisdom about the challenges they have ing for jobs can be intimidating. “I get that they are publicly recognized, as overcome. nervous at interviews, because I’m not they should be for their effort. If there Reentry Court consists of four phases, used to being questioned like that. My has been a setback, I ask them how with the entire program designed to experience with interviews has mostly JUDICATURE 45

been getting interviewed by the police.” Leroy brought the situation to Reentry Steve is soft-spoken and quick to In job interviews, “I don’t want to say Court. The team connected him with a smile. He jumped at the opportunity to something wrong, or look stupid, or volunteer lawyer who handled his vis- join Reentry Court after his release. “For be judged. I already feel like I have an itation case in family court pro bono, me, accepting help was a no-brainer,” intimidating look because of my size, and Leroy was ultimately able to secure he says, particularly because he had no and then they see all these tattoos,” he visitation rights. Though he considers legitimate work history. “Reentry” is in says, motioning to his face and neck. himself a private person, Leroy became some contexts a misnomer, since a lot of “And then they see I got a record and it’s more comfortable talking about the people coming out of prison are making like, ‘Aw, man, I’m not going to get it.’ their first entry into the legal workforce. But you keep trying. You know, you’ve Holly, the U.S. Attorney’s Office reentry got to keep going. There is a place that Even if one of coordinator, helped Steve put together a will hire you.” our members resume and apply to jobs. He was hired Leroy’s hours as a driver with the as a “Downtown Ambassador” in New transport service have fluctuated. At has a serious Haven, a role that is a combination of times, work has “slowed down to the setback, such street cleaner, tour guide, and patrolman. point where I almost didn’t have a job,” as a positive His employer was so pleased with Steve’s he says. It’s gotten slow again recently, drug test, we try work performance that he asked Holly for so he has been looking for a second job; referrals for other potential employees. nothing has panned out yet. His long- to engage with At the team’s pre-meetings, the pro- term goal is to start his own business, him to reflect bation officers always update the team but he knows there are a lot of smaller about what led on what is happening with each mem- goals he has to achieve first. For exam- ber. Patrick, Steve’s probation officer, ple, he needs to build up his credit, to the choice he almost always began Steve’s update the which was non-existent after a lifetime made and what same way: “Steady as he goes.” spent either in prison or using only cash. consequences Steve deflects praise for his achieve- “I’d been trying to stop carrying cash ments, attributing credit to the people all the time and start using a card, to it can have. he refers to as his “supporting cast” — build a little credit. I had a card for a Naming and that is, his adult daughter and three while, but I never used it, because I shaming don’t young grandchildren, with whom he didn’t know how. I was too embarrassed lives. “A lot of people aren’t fortunate to say that I didn’t know how to use it, have seats at enough to have a supporting cast. My and I didn’t want to look stupid try- our table. daughter opened her home to me, sup- ing to use it, so I never used it. I just ported me, was basically taking care of didn’t want to get up there and look issue with his son in Reentry Court me before I got a job.” And his grand- like I didn’t know what I was doing,” after hearing other members talk about children? “They think they’re my he laughs. When he eventually relented navigating similar situations with their parents. They love to boss me.” and asked someone, he was surprised to own kids. “Going to Reentry Court,” Although his relationships with fam- learn how simple it was. he says, “I’ve seen that almost all of us ily have remained strong, navigating For Leroy, one of the hardest things had these issues.” relationships with friends has been one about reentry has been having to of his biggest challenges since coming ask for help. “I’m the kind of person LIKE LEROY, STEVE HAS BEEN IN AND home. Many of his friends “are not on where I like to take care of my own OUT OF PRISON for most of his life. He the page that I’m on,” and although everything. So having to rely on peo- came home two years ago at age 45, after Steve feels strongly that it is “their pre- ple for a ride, or a place to stay . . . it’s serving 12 and a half years. In reflecting rogative to live life the way they choose,” tough.” But Reentry Court has given on his two-year “anniversary,” he men- he also believes he needs to keep his dis- him a forum for seeking and accepting tions that, before now, he hadn’t been tance in order to avoid falling back into help. When his son’s mother refused out in the world for more than two years old habits. Distancing himself from to let Leroy spend time with his son, at a time since he was 14. these lifelong friends — relationships 4 46 VOL. 102 NO. 2

“built from the sandbox” — has been three months in Reentry Court, [get- Yale-New Haven Hospital are highly emotionally taxing and sad. ting the year off my supervised release] coveted. This speaker talked about the Last fall, Steve became the first grad- was all I cared about.” But after a few hospital’s commitment to hiring peo- uate of Reentry Court. His daughter months in the program, it wasn’t just ple with criminal records and offered and grandkids attended the ceremony about getting the year off anymore. He advice to those interested in applying. and gave speeches, as did his employer says he changed his thinking, which During his presentation, he told a story and even the judge who had sentenced he attributes to discussions at Reentry about himself as a teenager, when a Steve so many years ago. Court sessions and especially to the football teammate placed a gun in his hand during an emotionally charged THOUGH MEMBERS ARE SOMETIMES moment. Though his reflex at the time ISOLATED FROM THEIR FRIENDSHIPS The members was to hand the gun back, the speaker for the reasons Steve describes, they pro- are not the admitted he could have just as easily vide moral support and inspiration to only ones whose made a “bad decision” in that moment one another through Reentry Court and that would have prevented him from the Moral Reconation Therapy groups. relationships getting to where he is today. The story In particular, older members like Kevin, and views of stuck with Anthony, who decided it Leroy, and Steve serve as role models “the system” needed tweaking. “He said if he’d made for younger ones. Anthony, one of the are changed by that bad decision, he wouldn’t be here youngest participants at 24, observes, today. But I think he could have made “Kevin, that guy that did a lot of years? this experience. that bad decision and still been here. I He wants it, and you can see that. And Reentry Court took what he said and turned it, because that’s how I want to be, too. If I hear [of gives judges, I feel like, maybe he still could have,” an opportunity] that’s going to be bene- Anthony insists, pointing to the success ficial to me, I want to jump on it.” prosecutors, of his fellow Reentry Court participants, Anthony came home about a year defense as well as the stories of many of our past ago, after serving two and a half years attorneys, and guest speakers, who rebuilt their lives for his role in a string of armed robber- and went on to successful careers after ies when he was 20. He was sentenced probation committing crimes at a young age. to time served in federal court and officers the expected to be transferred to state cus- opportunity to STEVE SAYS THAT REENTRY COURT tody because of an outstanding bond HAS HAD A “HUMONGOUS IMPACT” in state court. To his surprise, he was step outside of on the way he thinks about courts and released that day. “It was an insane feel- our usual roles. the criminal justice system, and other ing. I almost passed out when I heard I participants have echoed this senti- was going home.” Moral Reconation Therapy program. ment. As Steve explains it, “you get to Once he got over the initial shock, “In MRT, you learn to really put every- see a different side of people in Reentry his transition home was not as much of thing behind you, but to also accept Court. I was able to converse with pros- a jolt to Anthony’s system compared to what happened to you. I wouldn’t be ecutors. You don’t get to know someone some of the other men who served lon- here if I didn’t commit a crime. And until you converse with them, see where ger sentences. “I got on my feet very I also wouldn’t have learned half the their head is at. These are regular peo- quick,” he remembers, and “my fingers things I learned.” ple. A lot of times we lose focus of the were on fire” typing up job applications. Anthony recalls one of the Reentry fact that [prosecutors and judges] are He first got a job delivering pizzas, and Court’s recent guest speakers, who is the doing a job. I got to meet a good group later, with a small moving company, senior vice president of human resources of people from many walks of the judi- where he now works full time. at Yale-New Haven Hospital –– one of cial system. It showed me that they’re He originally signed up for Reentry the largest employers in Connecticut. human beings; they have a heart.” Court because he wanted to get the year In New Haven and the surrounding Leroy had a similar experience. The off his supervised release. “For the first area, jobs at Yale University and the prosecutor who filed Leroy’s case is one of JUDICATURE 47

the team members who regularly attends example, makes a passionate case against arrest for a serious violent crime. One Reentry Court. “During my time going lengthy sentences for selling drugs and of our members tragically passed away back and forth to court, I hated the guy,” believes the criminal justice system is from an overdose, despite having had no Leroy recalls. “I used to sit there in court infected with racial bias. At the same prior positive drug test results during and wonder, ‘Why does this prosecu- time, he believes that Reentry Court his participation in the program. tor, who doesn’t even know me, want “shows another side” of the system, and We think the results of our program so badly to take me away from my fam- shows that “people [in the system] do are encouraging, and we are encouraged ily?’” When their paths crossed again in have a heart; people do care.” as well by the unanticipated benefits. By Reentry Court years later, Leroy’s feel- changing the somewhat calcified way ings about the prosecutor had shifted. MUCH OF THE EXISTING LITERATURE that members and their families view “When I saw him in there, I didn’t have ABOUT REENTRY COURTS attempts and relate to judges, lawyers, and proba- no animosity — and that has a lot to do to evaluate whether such programs tion officers, the Reentry Court increases with the program and my growth.” The reduce recidivism, often by measuring public confidence and trust in the judi- two shook hands, and even talked a lit- new arrests or convictions. Whether our cial system. And by changing the way tle about Leroy’s case. Though Leroy still Reentry Court ultimately reduces recid- judges, lawyers, and probation offi- harbors some frustration about the way ivism is not a question we can answer cers view and relate to people who have his case played out, he no longer holds at this point. We have had too few been convicted of crimes, Reentry Court on to any anger towards the prosecutor. participants to yield meaningful statis- challenges us to rethink how we do our “Whether I agree with everything he did tical results; moreover, our participants jobs and how we understand and relate or not, he was doing his job. He said it are not randomly selected because our to the people who are most impacted by was nothing personal, it’s just that he has program is voluntary. These features, our criminal justice system. things to uphold. And I respected that, combined with the fact that the program and that was it.” is still in its infancy, prevent us from JEFFREY ALKER The members are not the only ones reaching any empirical conclusions. MEYER has served whose relationships and views of “the Anecdotally, we can say that the as a United States system” are changed by this experience. large majority of our 21 members to District Judge Reentry Court gives judges, prosecu- date have been successful. Most have for the District of tors, defense attorneys, and probation found and retained jobs and housing, Connecticut since officers the opportunity to step outside reunited with family, and avoided new 2014. He is a grad- of our usual roles, to work collabora- criminal charges. A few of our members uate of Yale College tively toward a shared goal, and to relate have occasionally failed drugs tests or and Yale Law School differently to each other and our mem- been arrested on new, relatively minor where he presently bers in a way that is not possible in our charges. Four of our members have teaches as a Visiting day-to-day work. dropped out of the program, two by Lecturer in Law. Of course, Reentry Court is far from their own choice and two at our sugges- CARLY LEVENSON is a magical cure-all. Many of the partic- tion when it became apparent that they a public defender in ipants remain deeply frustrated about were was not able to commit to mem- New Haven, Connecticut, and a for- aspects of their own cases and about bership in the program. A single one of mer law clerk to Judge Jeffrey Alker structural injustice as well. Kevin, for the members had to leave because of his Meyer in the District of Connecticut.

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A matter of style

Perceptions of chief justice leadership on state supreme courts with an eye toward gendered differences

BY MIKEL NORRIS & CHARLIE HOLLIS WHITTINGTON JUDICATURE 49

ALTHOUGH MOST RESEARCH ON run, rather than focusing only on the ration, participation, consensus, and COURT LEADERSHIP STILL FOCUSES politics that take place in those insti- empowerment. A traditionally mascu- ON THE CHIEF JUSTICE OF THE tutions.3 We are particularly interested line leadership style, on the other hand, UNITED STATES SUPREME COURT, here in discerning if there are differences is characterized by autocracy, and the RESEARCHERS ARE INCREASINGLY in leadership style preferences between seeking out of opportunities to exert INTERESTED IN STATE SUPREME men and women on state high courts. authority over others.5 Past studies have COURTS, AND WITH GOOD REASON. Many bemoan the dearth of women in shown that this form of leadership is State supreme courts provide a more leadership in American politics; how- prevalent in hierarchical organizations diverse institutional setting for under- ever, women have been incredibly that have performance-based cultures, standing court leadership than the U.S. successful in obtaining the position whereas feminine leadership styles are Supreme Court.1 Different states have of state chief justice. Over half of the generally perceived to be more effec- different norms and rules. Some state state chief justiceships were held by tive in flatter organizational structures court systems are consolidated while women as recently as 2014. This fact that emphasize transformation and others are not. Some states give opin- alone should interest scholars and pun- empowerment.6 ion-assignment power to their chief dits who study gender and leadership. Based on our understanding of mas- justices. Some do not. States differ in In this article, we attempt to shed light culine and feminine leadership styles, it how they choose their chief justices and on two specific questions pertaining to would be sound to assess how justices the length of terms they serve. Finally, court leadership. First, what types of themselves regard gender differences in different states choose their panels of leadership styles do state supreme court leadership on state high courts. State justices in different ways. Some state justices themselves think are responsible supreme courts are “flat” organizations courts hear every case en banc, whereas for effective or ineffective court leader- with every justice exercising equal others assign cases to smaller panels of ship? Second, are there any differences authority. While state chief justices justices. These differences and more between male and female state supreme govern their courts, they are consid- make understanding how the justices on court justices regarding what they think ered leaders among peers rather than these courts — and chief justices in par- constitutes effective or ineffective court leaders of subordinates.7 State supreme ticular — believe their courts should be leadership by their chief justices? court judges also have stated in surveys managed interesting and relevant, both Courts — and state courts in partic- presented in previous research that a for scholars and judicial leaders.2 ular — provide an excellent forum for primary task of chief justices is to build The purpose of this analysis is to examining these questions. Research consensus in making their rulings.8 The examine and analyze leadership styles, on gender and leadership has long rec- ability to build consensus is commonly skills, and attributes on state supreme ognized differences in the leadership referred to as a feminine leadership courts. This area of research is grow- styles of men and women across an array trait.9 Without adequate consensus, ing in academic study, as more scholars of academic disciplines. A traditionally courts can fail to maintain themselves — particularly in political science and feminine leadership style is generally as institutions, which could result in public administration — are examin- characterized by interaction.4 It is more conflict with, and retaliation from, the ing how our political institutions are democratic and emphasizes collabo- other branches of government or the 4 Over half of the state chief justiceships were held by women as recently as 2014. 50 VOL. 102 NO. 2

public.10 Too much dissensus among vey, a 9.7 percent response rate. Justices justices can sow discord, weaken prec- What types of from 31 different states responded to the edent, confuse the interpretation of the leadership styles survey. A list of states from which the law, and lead to more appeals.11 Since do state supreme surveys were returned, as well as other justices already know this, it is inter- descriptive information about the sur- esting to consider whether male and court justices think vey respondents, are presented in Table female justices on state high courts seek are responsible 1. Forty of the respondents were male, to adopt feminine leadership styles in for effective or and 18 of the respondents were female. their chief justices more generally, and Twenty-three of the justices were either consensus-building skills in particu- ineffective court currently serving or previously served lar. To be sure, no uniform method of leadership? as chief justice of their court, for a total leadership ensures the interests of a state Are there any of 117 years of service as chief justice supreme court or a state court system are differences between among the respondents. protected. However, fostering inter- and Although the survey asked questions intra-court cooperation and consensus male and female on a variety of subjects, the questions appears to be key to effectively promot- state supreme court specifically addressed in the analysis are ing and protecting the interests of the justices regarding the following: courts in state politics. Consensus helps courts achieve their interests.12 what they think A: In your opinion, what are the three This study aims to broaden our constitutes effective most important duties/responsibilities of understanding of whether state supreme or ineffective court being your court’s chief justice? courts are more amenable to a mas- B: In your opinion, what are the three culine or feminine leadership style by leadership by their most important skills necessary to be an examining what the justices themselves chief justices? effective leader as a chief justice? perceive the leadership qualities of their C: In your opinion, what leadership chief justices to be. Next, we attempt to characteristics have you observed that answer whether masculine or feminine have led to your chief justice being an inef- leadership styles in state chief justices justice’s gender, we constructed a survey fective leader? are desirable by examining what the questionnaire that was mailed to a total D: In your opinion, are chief justices justices themselves think are the most of 587 current and former state supreme important duties and responsibilities of court justices in all 50 states. We fol- their chief justices and what these jus- lowed up with telephone calls to each Table 1: STATES PARTICIPATING IN THE SURVEY tices think are the most important skills court approximately two weeks after Arizona New Hampshire necessary for a chief justice to possess in the surveys were received. Justices were Arkansas New York order to achieve these goals. assured complete confidentiality and California North Dakota anonymity in their responses and were Florida Ohio Georgia Oregon THE STUDY instructed to not answer any question Hawaii Pennsylvania In order to study state supreme court they thought would breach confidential- Idaho Rhode Island justices’ perceptions of the types of ity. Those justices who were interviewed Indiana South Carolina organization their chief justices lead, via telephone were asked questions from Iowa Tennessee whether leadership styles convention- the survey instrument and given the Kentucky Texas ally attributed to women or men may opportunity to answer follow-up, open- Maine Utah Maryland Vermont be more successful on state supreme ended questions related to the questions Michigan Washington courts, whether state supreme court jus- in the survey. Phone conversations aver- Minnesota West Virginia tices themselves value the leadership aged between 35 minutes to an hour Mississippi Wyoming Missouri qualities that the literature attributes in length. Conversations were tran- to them, and whether there are differ- scribed after each interview. Fifty-eight Note: Number of participants from each state and judicial ences in preferences depending on the responses were gathered from the sur- status not reported to maintain confidentiality JUDICATURE 51

in a better position than other justices to chief justice presides over a unified or THE DUTIES OF THE CHIEF JUSTICE foster consensus on their court? non-unified court system. Chief justices Figure 1 provides a graphical inter- Because we know so little about in unified court systems are responsible pretation of what the justices in the leadership styles and their effectiveness for the central administration of their survey volunteered as the most import- on state supreme courts — let alone state’s entire court system, whereas chief ant duties and responsibilities of state whether gendered leadership styles are justices in non-unified systems do not supreme court chief justices. The jus- more or less effective on state supreme have to handle the central administra- tices in this survey overwhelmingly courts — this study is mostly explor- tion of state courts. This distinction is agreed that the most important duty of atory. Although literature on gendered important because unified court systems their chief justices was to administer the leadership posits that different genders are hierarchical in form. State supreme business of their courts. Nearly one third exhibit different leadership styles, we courts in non-unified courts are not.14 — 31.5 percent — of the answers to are content to simply explore what the Chief justices who sit atop a judicial hier- the question about the most important justices themselves have to say about archy in unified court systems should, duties and responsibilities of the chief how their courts are led. While it may be according to the extant literature, be justice pertain to effective court admin- possible to statistically model the effects more amenable to a masculine leadership istration. This holds true regardless of of masculine and feminine leadership style. Other important powers — such whether the chief justice is responsible styles on state supreme courts, this type as the ability to assign opinions, for for administering just the state supreme of analysis would not tell us whether example — could possibly affect what court or the entire state court system. the justices think — either explicitly leadership skills different justices think a In describing the duty of the chief jus- 4 or implicitly — that certain leader- chief justice should have.15 We choose to ship qualities are more or less desirable look at differences between unified and in their chief justices. We believe that non-unified courts specifically because Table 2. DIFFERENCE BETWEEN MALE & the best way to discern what the justices one is hierarchical and one is not, and FEMALE STATE SUPREME COURT JUSTICES: themselves think of leadership on state therefore each could be assumed to DUTIES OF THE STATE CHIEF JUSTICE 13 16 supreme courts is to ask them. align with a different leadership style. Proportion Proportion Since the duties and responsibilities Thirty-six of our respondents work or Male Female of state chief justices vary widely from have worked on unified courts. Twenty- ALL JUSTICES state to state, we have decided to perform two of our respondents work or have Vision .014 .116 our analyses by accounting for whether a worked on non-unified courts. Consensus .112 .021 Promptly Deciding Cases .063 0 FIGURE 1: MOST IMPORTANT CHIEF JUSTICE DUTIES AS IDENTIFIED BY CURRENT Budget .056 .128 AND FORMER STATE SUPREME COURT JUSTICES SOURCE: AUTHORS’ DATA UNIFIED COURTS ONLY 50 47 Consensus .158 .023 45 Vision .026 .116 39 total 40 Budget .039 .140 male 35 Promptly 30 28 female Deciding Cases .066 0 26 25 20 20 NON-UNIFIED COURTS ONLY 20 18 19 16 17 Collegiality .045 .25 15 14 15 12 13 11 12 10 8 8 8 8 8 9 9 6 7 Notes: 1. Values represent the number of responses per gen- 5 5 4 5 5 3 2 2 der category divided by total responses. For example, 16 of 0 0 143 responses by male justices indicated consensus build- ing as an important duty (16/143 = .112). 2. Variables listed in order of greatest to least statistical difference between genders using difference of proportions tests. 3. Only vari- vision budget ables with statistically significant differences are shown.

leadership consensus supervision collegiality Source: Authors' Data court admin SOP relations deciding cases public relations

state court admin 52 VOL. 102 NO. 2

tice to manage either the supreme court opinions about which types of duties cess as being a more important duty of or the state court system, respondents and responsibilities are most important chief justices than did their male coun- commonly used words such as “set the for a chief justice to accomplish. Table 2 terparts (z = -1.64, p ≤ .05). tone” and “preside.” Several justices said lists the duties specified by the justices The duties and responsibilities to a chief justice should preside over several in the survey, in order of the greatest which male and female justices assign aspects of the judicial process, including differences between male and female similar levels of importance tended to deliberation, oral argument, and judicial respondents. When the justices’ answers be those that were inherent to the job conferences; opinion assignment and are pooled, the duty of “providing the of chief justice and aligned well with writing; and interacting with the pub- court with a vision” exhibits the great- the literature on task management and lic and other branches of government. est difference between male and female social leadership: public relations, court Chief justices were also expected to justices (z = -2.97, p ≤ .01), with female administration, system administration, effectively administer the operations of justices ranking vision as a more import- and fostering collegiality. An interest- the lower states courts. Related respon- ant leadership quality than male justices ing change occurred, however, when we sibilities included staffing, budgets did. The next two important differences divided the survey responses based on and finance, organization, and public concern creating consensus (z = 1.89, p whether or not the respondent operated relations with other branches of govern- ≤ .05) and efficiently deciding cases (z = in a unified court system. Whereas male ment, the state bar association, and the 1.77, p ≤ .05), respectively. More male justices on unified courts viewed colle- public. These responses provide strong justices than female justices ranked giality to be more important (though evidence to support the contention that consensus-building as an important not statistically more so), female justices being an effective state chief justice — responsibility of chief justices. Based on on non-unified courts viewed the need just like being an effective Chief Justice literature about gendered leadership, we for chief justices to foster collegiality on of the United States Supreme Court — might have expected consensus-build- their courts to be much more important requires effective task management and ing to be considered more important by than did their male counterparts. social leadership. female justices.17 Along with forming a A final comparison of the perceived Next, we examined whether male vision for their courts, female justices importance of a chief justice’s duties was and female respondents had different ranked managing the budgetary pro- made by consolidating the several duties and responsibilities men- tioned by the justices into Figure 2: MOST IMPORTANT SKILLS OF CHIEF JUSTICE AS IDENTIFIED BY CURRENT AND FORMER two categories. One cat- STATE SUPREME COURT JUSTICES SOURCE: AUTHORS’ DATA egory represents duties involving the internal 20 19 19 operation of the courts, 18 total and the second variable 16 15 15 male represents duties chief 14 13 12 12 female justices perform outside 12 11 10 10 10 the court. Comparing 10 9 9 8 8 the differences between 8 7 7 7 7 7 7 6 6 6 male and female respon- 6 5 5 5 5 5 4 4 4 4 dents’ answers on these 4 3 3 3 3 two variables produced 2 2 2 2 2 2 2 1 1 1 1 1 interesting and consis- 0 tent results. Male justices were much more likely to will prioritize the importance fairness respect patience hard work of internal court oper- collegiality consensus leadership intelligence

listening skills ations than were their planning/vision delegation skills female counterparts, interpersonal skills organizational skill administrative ability communication skills regardless of whether JUDICATURE 53

they were in a unified or non-unified Finally, when the duties and respon- to be an important leadership skill and court system (z = 1.94, p ≤ .05). Female sibilities were categorized as either not just a duty the chief justice needs justices, on the other hand, particularly internal or external duties and responsi- to perform. Consensus-building was not those in unified court systems, consis- bilities, other obvious differences arose. only considered an end for chief justices, tently emphasized the importance of a Male justices quite clearly believed that but also a means to an end. chief justice’s duties and responsibilities focusing on the internal operations of the Table 3 lists the skills justices outside the court (z = -2.03, p ≤ .05). court was a more important responsibil- thought a chief justice should have, in This means that, while male and female ity, while female justices clearly believed order of the greatest differences between justices may similarly prioritize some of that the most important work for state male and female respondents. Again, we the chief justice’s duties, female justices chief justices was to focus on maintaining have pooled all answers and separated appear to place much more importance relations with external actors. them based on whether the respondent on what a chief justice does outside the served in a unified or non-unified court court — particularly in regard to rela- THE SKILLS OF THE CHIEF JUSTICE system. Per the pooled responses in tionships the chief justice develops with Figure 2 provides a graphical interpre- Table 3, organizational skills, the ability external political or legal actors. tation of what the justices in the survey to make good decisions, decisiveness, Several conclusions can be reached thought were the most important skills and consistency were the leadership based on this analysis. First, it is appar- a state chief justice needed in order to skills with the greatest variation among ent that both male and female justices be a successful leader. The skills speci- male and female justices’ responses. agreed on the importance of several fied by the justices are more numerous Female justices thought leadership was of the chief justice’s leadership tasks. than the duties identified as important a more important skill than did their 4 Among them were court administration, for the chief justice to perform. Still, public relations, and fostering collegi- there are some notable patterns in the ality. Administering courts — whether skills male and female justices thought Table 3. DIFFERENCES BETWEEN MALE & FEMALE NECESSARY unified or non-unified — was the most were important for a state chief justice STATE SUPREME COURT JUSTICES: SKILLS TO BE EFFECTIVE CHIEF JUSTICE cited duty of the chief justice, and there to have. Proportion Proportion were no substantial differences of opin- Despite the diversity of opinions Male Female ion between the male and female justices expressed in the survey, leadership capa- ALL JUSTICES on the importance of this duty. Public bility, consensus-building, interpersonal Organizational Skills .014 .06 relations also fit into this category of skills, and administrative ability were Hard Work .049 0 responsibilities. Both male and female perceived as being the most important Collegiality .049 0 respondents recognized it as an import- skills of an effective chief justice, with Leadership .077 .14 ant component of a chief justice’s job. 11.6 percent of the respondents recog- Interpersonal Skills .063 .12 Second, male and female justices nizing “leadership ability” as the most diverged on the importance of some important skill to have. The responses UNIFIED COURTS ONLY duties and tasks. For example, male jus- showed many ways to interpret leader- Leadership .05 .154 tices thought chief justices should build ship as a requisite skill. Although the Hard Work .063 0 Preparation & Planning .038 .103 consensus and “properly” decide cas- term “leadership ability” was mentioned 18 Respect .025 .077 es. Female justices thought providing by some justices, other descriptions of a vision for the court and concentrat- leadership ability included: “leading by NON-UNIFIED COURTS ONLY ing on the court’s budget were more inspiring others”; “leadership is know- Organizational Skills 0 .182 important duties. These findings are ing when to fight, when not to fight, and unique. While deciding cases could be not being afraid to fight. Upholding the 1. Values represent the number of responses per gender linked to a masculine leadership style, dignity of the office by not backing away category divided by total responses. For example, 7 of and providing a vision to a feminine from confrontation”; “political skills to 143 responses by male justices indicated hard work as an important skill (7/143 = .049). 2. Variables listed in order leadership style, it is interesting that deal with the other branches, and with of greatest to least statistical difference between genders consensus-building was preferred by administration”; and “leading by not using difference of proportions tests. 3. Only variables with male justices. This difference warrants using a heavy hand.” Interestingly, con- statistically significant differences are shown. further consideration. sensus-building was considered by many Source: Authors' Data 54 VOL. 102 NO. 2

male counterparts (z = -1.77, p ≤ .05), tion, empathy, humility, ethics, time were ethics, preparation, and respect. It while male justices thought collegial- management, respect, and interpersonal is notable that these skills reflect per- ity, hard work, patience, and the ability skills were more favored by female jus- sonal character traits. It could be that to delegate were more important (z = tices than male justices. These skills are although these chief justices are charged 1.60, p ≤ .10 for both collegiality and very commonly associated with a fem- with administering these court systems, hard work). These skills are an inter- inine leadership style. Skills such as they are also symbolic representatives esting mix and do not fit neatly with intelligence, will, and energy are regu- of these courts. Therefore, the justices expectations of masculine and feminine larly attributed to masculine leadership hoped that their chief justices embody leadership styles. It could be that jus- styles, but were not among the most the best personal traits that judges and tices are suggesting that these skills are noted skills by the justices — male or staff themselves aspire to have. necessary for chief justices because they female — in the survey. It could be that An examination of responses from do not have them themselves; however, the results of this survey would be more justices in non-unified courts shows that there is no evidence of this in this sur- robust and significant if the sample size more female than male justices valued vey, and that theory would need to be were larger. organizational and time-management explored in future research. Differences between male and female skills, decisiveness, and humility in a It is interesting to note the skills justices changed when examining only chief justice. No skills stood out among where there was little difference between justices in unified court systems. In this the male justices’ responses as being male and female respondents in the analysis, leadership traits associated with more or less important when compared pooled analysis. For example, there was a masculine leadership style — nota- to female justices’ responses. little disagreement about the impor- bly hard work and delegation — rose tance of the ability to plan, the need for in importance for male justices. Female WHAT MAKES FOR AN intelligence, willpower, communica- leadership traits, too, became important INEFFECTUAL CHIEF JUSTICE? tion skills, and the value of humility in to female justices in unified court sys- Figure 3 provides a graphical inter- order for a chief justice to be a successful tems. Some notable skills important to pretation of the justices’ perceptions leader. But skills such as communica- female justices in unified court systems of the personal characteristics that

Figure 3: PERSONAL CHARACTERISTICS DETRIMENTAL TO PERFORMANCE AS CHIEF JUSTICE Table 4: DIFFERENCES BETWEEN MALE AND AS IDENTIFIED BY CURRENT AND FORMER STATE SUPREME COURT CHIEF JUSTICES FEMALE STATE SUPREME COURT JUSTICES: SOURCE: AUTHORS’ DATA DETRIMENTAL LEADERSHIP CHARACTERISTICS

total Proportion Proportion 12 Male Female 10 10 10 male ALL JUSTICES 10 9 9 9 8 8 8 8 8 female Thin Skin .030 .111 8 7 7 No Enthusiasm .119 .028 6 6 6 6 6 6 5 5 5 Heavy Handed .060 .139 4 4 44 44 4 4 4 4 3 3 UNIFIED COURTS ONLY 2 2 2 2 2 2 1 1 Can't Build 0 Consensus .108 .032 No Vision .108 .032

ego

no vision 1. Values represent the number of responses per gender category divided by total responses. For example, 2 of 67 poor listener thin-skinned lacks empathy/ responses by male justices indicated thin skin as detrimen- heavy-handed lacks enthusiasm lacks decisiveness poor delegation/ respect for others tal to leadership (2/67 = .030). 2. Variables listed in order micro-management administrative skills of greatest to least statistical difference between genders lacks organizational/ can’t build consensus using difference of proportions tests. 3. Only variables lacks communication skills with statistically significant differences are shown. Source:

ignorant of job responsibilities Authors' Data JUDICATURE 55

make chief justices ineffectual lead- “fight” for their own courts in order to ers. The characteristics that stood out be effective leaders, and that they had There was little were typically associated with ineffec- to be able to remain strong in the face disagreement tual leadership in other organizational of harsh opinions and criticisms. It is about the importance contexts: no enthusiasm, poor delega- possible that justices believed that if a tion skills, micromanagement, lack of chief justice had a “thin skin,” he or she of the ability to respect for his or her colleagues, a big would not be willing or able to success- plan, the need for ego, heavy-handedness, and a lack of fully fight for the courts they represent intelligence, communication skills. A lack of enthu- in a political arena: willpower, siasm was the most-cited characteristic Justice 23: [The chief justice] needs to of an ineffectual chief justice (12 percent have competent political skills — almost communication of responses). adversarial. skills, and the A comparison of male and female Justice 34: [The chief justice] must be value of humility justices’ responses about ineffectual courageous. leadership reveals similar views toward Justice 36: They have to be an effective in order for a chief these characteristics. T-tests of all types advocate for the state court system — par- justice to be a of ineffectual leadership show that there ticularly in budget negotiations. successful leader. is very little difference between male Justice 55: Courage is necessary. Ego, and female justices’ conclusions that political favoritism and fear, poor insight poor delegation skills and microman- and self-promotion, arrogance and an agement, ego, lack of organizational or inability to entertain others’ points of and female justices agreed that a lack of administrative ability, and lack of com- view. [These] characteristics lead to enthusiasm was detrimental to chief jus- munication skills result in ineffectual failure. tice leadership. Second, female justices leadership among chief justices. noted that a lack of respect for others, Table 4 lists the characteristics of The characteristics and skills that from others, and for the court system as ineffectual leadership in order of the the male justices identified as contrib- a whole was detrimental to leadership of greatest differences between male uting to ineffective leadership are also the state court system. In the words of and female respondents. These char- interesting. First, consensus-building one female justice, “[N]ot exhibiting a acteristics are also broken down for emerged again as a skill that male jus- greater level of self-sacrifice is detrimen- unified and non-unified court systems. tices thought was essential to effective tal [to leadership]. Respect and belief in Having a thin skin, lack of enthusiasm, chief justice leadership. The results are the institution are key.” In the words of heavy-handedness, an inability to gener- telling. These justices also thought it another justice: ate consensus, and a lack of vision were was detrimental to leadership if consen- “Having served under three chiefs, considered ineffectual leadership char- sus cannot be achieved. This contrasts the commonalities and differences are acteristics. Female justices were more with responses about vision. Female jus- striking. When faced with import- likely than male justices to think that tices said vision was a very important ant issues (e.g., legislative relations), heavy-handedness and a thin skin were leadership trait for chief justices; male two would come to the court and say detrimental to effective leadership. justices said it is detrimental to court ‘“We have a problem and I’d like to Heavy-handedness in leadership clearly leadership if chief justices do not have hear your ideas about how to address conflicts with a female leadership style. vision. it.”’ The other would say ‘“We have At first glance, it is interesting that Again, several characteristics emerge a problem and I’m going to tell you there would be a difference between the when we look only at unified courts. Male what to do about it.”’ The dictator views of male and female justices with justices still considered the inability to took all the credit for everything that regard to how much having a thin skin foster consensus and formulate a vision went well and blamed others if things affects a chief justice’s ability to lead. to be detrimental. Female justices still didn’t go well. The other two were However, many female justices made thought heavy-handedness and having good listeners, thoughtful and diplo- statements throughout their surveys a thin skin were detrimental. However, matic, gaining our respect no matter indicating that chief justices needed to two new factors emerged. First, male how the situation turned out.” 4 56 VOL. 102 NO. 2

Differences among male and female court systems. Here, the results align justices’ responses about enthusiasm Whereas male more closely with expectations in the also emerge in non-unified courts. justices believed literature pertaining to how differ- Female justices also saw the lack of that chief justices ent leadership styles fit within certain communication and listening skills as types of organizations. Although lead- more detrimental to the success of a were ineffective ership and organizational abilities were chief justice than did their male col- when they could viewed by most justices as essential leagues. These skills closely align with a not generate skills, female justices highlighted emo- female leadership style. Female justices consensus and tional skills such as empathy, humility, also thought that having a big ego was and respect, while male justices focused more detrimental to chief justice lead- provide a vision on more concrete leadership skills such ership than did the male respondents. for their courts, as hard work and decisiveness. Future Often, these leadership weaknesses female justices research on court leadership needs to were thought to be interconnected. For pay close attention to differences in example, when talking about detri- believed that leading unified versus non-unified mental leadership qualities, one female heavy-handedness court systems. Dividing courts in this justice on a non-unified court stated, and a lack of respect way is not a paramount consideration “[T]he weaker ones tend to be overbear- for this paper; however, the differences ing, overconfident, and poor listeners.” for others on in results that occurred because of this the court led to consideration should be explored more CONCLUSION AND DISCUSSION ineffective leadership. thoroughly. What duties and responsibilities do Finally, both male and female justices state supreme court justices think are agreed about the attributes of ineffec- necessary for a state chief justice to tive chief justices. Both male and female accomplish in order to be an effective deal with a court’s internal operations, justices agreed that a lack of enthusi- leader? What leadership skills should while female justices emphasized vision asm, poor organizational and leadership a chief justice exhibit or not exhibit and a belief that a chief justice should skills, and a lack of delegation skills in order to be an effective leader of his focus on relationships with exter- and communication skills were detri- or her court? Do male and female jus- nal actors who may influence a court’s mental to leadership. Still, there were tices differ in what they think are the environment. This last difference is differences between the genders here, necessary responsibilities and skills of intriguing and warrants further research. too. Whereas male justices believed successful state supreme court leaders? Another interesting result is the degree that chief justices were ineffective when This paper provides insight into these to which male justices emphasized con- they could not generate consensus and questions by examining the answers sensus and collegiality when compared provide a vision for their courts, female to an original survey given by state to female justices. More research should justices believed that heavy-handedness supreme court justices themselves. be devoted to understanding whether and a lack of respect for others on the Based on the answers to the survey, or not male chief justices actually fos- court led to ineffective leadership. it is reasonable to conclude that many ter greater consensus than their female These results reveal both similarities duties and tasks are thought to be inher- counterparts. and differences of opinion as to what ent in the position of chief justice. For There are similarities between makes chief justices effective leaders of example, all justices surveyed believed male and female justices regarding their courts. While a main goal of this proper court administration to be their perceptions of the skills neces- paper is to analyze gendered differences among a chief justice’s foremost respon- sary to effectively lead as a chief justice in leadership style preferences, we hope sibilities. However, differences among — especially when the results were that this analysis provides insight for all male and female respondents emerged pooled. However, interesting differences as to what constitutes effective leader- with regard to how that administration emerged when the answers were bro- ship on state supreme courts. should take place. Male justices empha- ken down based on whether the justices sized the need to foster consensus and operated within unified or non-unified JUDICATURE 57

1 See Peverill Squire, Measuring the Res. & Theory 185, 185 – 96 (2016). Male and Female Leaders in 27 Countries, 40 J. Professionalization of U.S. State Courts of Last 4 We recognize that these are general classi- Int. Bus. Stud. 1396, 1396 – 1405 (2009). Resort, 8 St. Pol. & Pol’y Q. 223, 223 – 38 fications, and that male leaders can and do 10 See Brett E. Boyea & Victoria Farrar-Myers, (2008); David Hughes, Teena Wilhelm & exhibit female leadership styles, and vice versa. Leadership and Election Litigation in State Supreme Richard Vining, Jr., Deliberation Rules and However, the literature on gender and leader- Courts, 43 St. & Loc. Gov. Rev. 17, 17 – 31 Opinion Assignment Procedures in State Supreme ship style shows that these types of leadership (2011); Amanda Ross Edwards & Elisha Carol Courts: A Replication, 36 J. Sys. J. 395, 395 – characteristics are typical of leadership style Savchak, Why are State Judges Among Us? Public 410 (2015). differences between the genders. Service and Self-Presentation, 100 Judicature 2 See Mikel A. Norris & Holley J. Tankersley, 5 See Alice H. Eagly & Blair T. Johnson, Gender 21, 21 – 29 (2016). Women Rule: Gendered Leadership and State and Leadership Style: A Meta-Analysis, 108 11 See Charles H. Sheldon, The Incidence and Supreme Court Chief Justice Selection, 39 J. Psych. Bull. 233, 233 – 56 (1990); Alice H. Structure of Dissensus on State Supreme Courts, in Women, Pol. & Pol’y. 104, 104 – 25 (2018). Eagly, Mona G. Makhijani & Bruce Klonsky, Supreme Court Decision Making: New 3 See Joseph Daniel Ura & Carla M. Flink, Gender and the Evaluation of Leaders: A Meta- Institutionalist Approaches 115, 115– Managing the Supreme Court: The Chief Justice, Analysis, 111 Psych. Bull. 3, 3 – 22 (1992); 34 (Cornell Clayton & Howard Gilman, eds., Management, and Consensus, 26 J. Pub. Admin Sarah Burke & Karen M. Collins, Gender 1999). Differences in Leadership Styles and Management 12 See Boyea & Farrar-Myers, supra note 10; Laura MIKEL NORRIS is Skills, 16 Women Mgmt. Rev. 244, 244 – 56 Langer, Jody McMullen, Nicholas Ray & (2001); Christina L. Boyd, She’ll Settle It?, 1 J. Daniel Stratton, Recruitment of Chief Justices on assistant professor L. & Cts. 193, 193 – 219 (2013). of politics at Coastal States Supreme Courts: A Choice between Institutional 6 See Paul C. Nutt, Strategic Decisions Made by and Personal Goals, 65 J. Pol. 656, 656 – 75 Carolina University. Top Executives and Middle Managers with Data (2003); Laura Langer & Teena Wilhelm, The His research inter- and Process Dominant Styles, 27 J. Mgmt Stud. Ideology of State Supreme Court Chief Justices, 89 ests include state 173, 173 – 94 (1990); Janice Yoder, Making Judicature 78, 78 – 86 (2005). and federal judicial Leadership Work More Effectively for Women, 57 J. 13 See Swanson, supra note 8. Soc. Issues 815, 815 – 28 (2001). selection, and the effect of gender 14 See Sally Holewa, Court Reform: The North 7 on judicial selection, judicial deci- See Christina L. Boyd, She’ll Settle It?, 1 J. L. & Dakota Experience, 30 J. Sys J. 91, 91 – 110 sion making, and judicial leadership. Cts. 193, 193 – 219 (2013). (2009); William Raftery, Unification and 8 See Rick A. Swanson, Judicial Perceptions of “Bragency:” A Century of Court Organization CHARLIE HOLLIS Consensual Norms on State Supreme Courts, 91 and Reorganization, 96 Judicature 6, 6 – 12 WHITTINGTON Judicature 186, 186 – 96 (2008). Several (2013). is a graduate stu- reviewers noted that the term “consensus” can 15 See Hughes, Wilhelm & Vining, supra note 1 dent at Georgetown have different meanings in different judicial (2015). contexts. It was also noted that consensus con- 16 See Victor E. Flango, Court Unification and the University’s ceptualized as unanimous decision making can Quality of State Supreme Courts, 16 J. Sys. J. 33, McCourt School of have adverse consequences (for example, when 33 – 55 (1994); Victor E. Flango & David B. Public Policy. His a court unanimously makes a decision that is Rottman, Measuring Trial Court Consolidation, out of step with the law). In these instances, research focuses on social identity 14 J. Sys. J. 65, 65 – 74 (1992). and public leadership, and gender dissent can be meritorious and valuable. The 17 See Eagly, Johannesen-Schmidt & van Engen, and sexual minority policy issues. authors readily agree with this sentiment. However, it needs to be noted that we asked supra note 9 (2003); Paris, Howell, Dorfman & Charlie is the Director of Research the justices in this survey to conceptualize Hanges, supra note 9 (2009). and Publications for the McCourt consensus as unanimous decision making. 18 “Properly” deciding cases was not a pre-de- School’s LGBTQ Policy Initiative. Although some justices noted that unanimous fined selection for the justices in the survey. An earlier version of this paper decision making is not always desirable, and Those who stated cases should be decided was presented at the 2016 Annual that their courts do not discourage dissenting properly were typically referring to the chief opinions. Almost all respondents stated that Meeting of the American Political justice making sure that the court was not judicial consensus is still believed by the mem- decided cases on improper grounds, or answer- Science Association, Philadelphia, bers of their court to be an aspirational goal. ing questions that were not asked of the court. Pa. Funding for this project was made 9 See Alice H. Eagly, Mary C. Johannesen-Schmidt Many also stated that proper decision making available through the Professional & Marloes L. van Engen, Transformational, included making sure all internal court proce- Enhancement Grant program spon- Transactional, and Laissez-Faire Leadership Styles: dures for case decision making were followed. sored by the Office of the Provost, A Meta-Analysis Comparing Women and Men, Coastal Carolina University. 129 Psych. Bull. 569, 569 – 91 (2003); Lori D. Paris, Jon P. Howell, Peter W. Dorfman & Paul J. Hanges, Preferred Leadership Prototypes of 58 VOL. 102 NO. 2

from THE BOLCH JUDICIAL INSTITUTE of DUKE LAW

New Guidance for MDLs

The Judicial Panel on Multidistrict The proposals add: (1) new sections to present enormous challenges to trans- Litigation issued an order on Dec. 12, Chapter 1 on the information individual feree judges assigned to manage them. 2017, centralizing 46 pending actions plaintiffs should submit when filing a There is little official guidance, and no alleging improper marketing of and claim; (2) a new Chapter 3 on lead counsel rules explicitly govern the management inappropriate distribution of various duties, including guidance on the extent of mass-tort MDLs, often requiring the prescription opiate medications into of fiduciary duties owed by the plaintiff transferee judge to develop procedures cities, states, and towns across the coun- steering committee and lead counsel to out of whole cloth. try in Nat’l Prescription Opiate Litig. all plaintiffs; (3) a new Chapter 4 on the The revised document is available (MDL No. 2804). As of May 1, 2018, role of nonleadership counsel; and (4) a for public comment from May 14 to the number of cases ballooned to 600. new Chapter 6 on settlement review and July 2, 2018. Then, the drafting teams It will most assuredly rise in the future. claims-processing administration. will make appropriate revisions, incor- Litigation of this type is increasingly Judges and practitioners are encour- porating additions and revisions into commenced and can explode quickly, aged to review and submit comments, the 2014 Standards and Best Practices witness the 2,800 actions initially cen- adverse or positive, on the propos- for Large and Mass-Tort MDLs. A final, tralized in Xarelto Prod. Liab. Litig. als. Following is a streamlined version consolidated document will be posted (MDL No. 2592) in December 2015 of the document, containing only the on the Bolch Institute’s website, made rising to 21,709 individual actions in black-letter standards and best practices. available to the bench and bar, and for- 2018. For comparison purposes, as late warded to every transferee judge of a as 2004, the number of pending non-as- The 2018 revisions to the 2014 MDL large or mass-tort MDL. bestos cases centralized in all MDLs Standards and Best Practices were prepared The team leaders responsible for hovered consistently at 10,000 actions. by four teams consisting of 30 volunteer drafting the document were James In May, the Bolch Judicial Institute practitioners, equally balanced between Bilsborrow (Weitz & Luxenberg); published for public comment proposed plaintiff and defense lawyers, and seven Mark Chalos (Lieff Cabraser Heimann updates and revisions adding new sec- judges. The proposals arise from a series & Bernstein); Brenda Fulmer (Searcy tions to the 2014 Duke Law Standards of bench-bar MDL conferences held by Denney Scarola Barnhart & Shipley); and Best Practices for Large and Mass-Tort the former Duke Law Judicial Studies Michelle Mangrum (Shook Hardy & MDLs. The original and revised docu- Center (now Bolch Judicial Institute) in Bacon); Steven Marshall (Venable); ments, as well as information about the 2013, 2014, 2015, and 2016. The con- Ellen Relkin (Weitz & Luxenberg); public comment period, are available on ferences documented the marked increase Kaspar Stoffelmayr (Bartlitt Beck the Bolch Judicial Institute website (see in the number of cases centralized in a few Herman Palenchar & Scott); and Sean http://bit.ly/Bolch-MDLcomment). mass-tort MDLs. These mass-tort MDLs Wajert (Shook Hardy & Bacon). JUDICATURE 59

PROPOSED STANDARDS AND BEST PRACTICES FOR LARGE AND MASS-TORT MDLS Bolch Judicial Institute – May 2018

(Updating and Revising 2014 MDL Standards and Best Practices)

CHAPTER 1: MANAGEMENT OF Best Practice 1C(iv): At an early juncture, TRANSFERRED CASES individual claimants should be required to produce information about their claims. ….[Material omitted from 2014 MDL Best Practice 1C(v): In large mass-tort Standards and Best Practices.] MDLs, a court should, on the parties’ request, consider issuing a case management order MDL STANDARD 1: The transferee court, in approving plaintiff and defendant fact sheets, consultation with the parties, should articu- which can provide information useful for case late clear objectives for the MDL proceeding management, relevant to selecting bellwether and a plan for pursuing them. The objectives trials, and valuable for conducting settlement of an MDL proceeding should usually include: negotiations. Fact sheets also help to uncover (1) eliminating duplicative discovery; (2) avoid- cases that should not have been centralized in ing conflicting rulings and schedules among the first instance. courts; (3) reducing litigation costs; (4) saving Best Practice 1C(vi): When plaintiff fact the time and effort of the parties, attorneys, sheets are used, defendant fact sheets may witnesses, and courts; (5) streamlining key serve a similarly important purpose. issues; and (6) moving cases toward resolu- Best Practice 1C(vii): In large mass-tort tion (by trial, motion practice, or settlement). MDLs, particularly those involving competing brands or versions of a similar pharmaceutical ….[Material omitted from 2014 MDL drug, the court should consider issuing a case Standards and Best Practices.] management order requiring a product identi- fication disclosure sheet that quickly identifies Best Practice 1C: At an early juncture, the cases that should not have been centralized in parties and the transferee judge should collab- the first instance. oratively develop a discovery plan. Best Practice 1C(viii): Standardized inter- rogatories may serve as an alternative to fact ….[Material omitted from 2014 MDL sheets. Standards and Best Practices.] Best Practice 1C(ix): The court should enforce reasonable deadlines for submitting fact sheets, excusing late submissions only on an appropriate showing. 4 60 VOL. 102 NO. 2

Best Practice 1C(x): The transferee judge ….[Material omitted from 2014 MDL should consider, in addition to deadlines for Standards and Best Practices.] the completion of fact sheets, a case manage- ment order detailing the process for handling CHAPTER 3: LEAD COUNSEL DUTIES late or incomplete fact sheets. Best Practice 1C(xi): Once it is demon- MDL STANDARD 5: Plaintiffs’ lead counsel in strated that individual fact sheets have been an MDL does not have a fiduciary relationship filed with material, inaccurate information, with all plaintiffs in the case, notwithstand- the court should consider requiring that ing a perception sometimes expressed to the answers be supported with some minimal contrary. amount of additional evidence supporting the claim or defense at issue. MDL STANDARD 6: Lead counsel owes an Best Practice 1D: Class actions may require obligation to the court to comply with all a different approach to discovery because of directions set out in the court’s appoint- the need to resolve class-certification issues as ment order and must resolve any conflicts early as practicable. with obligations owed to counsel’s retained clients that might otherwise interfere with ….[Material omitted from 2014 MDL lead counsel’s ability to carry out the court’s Standards and Best Practices.] directions.

Best Practice 1E: The transferee judge Best Practice 6A: The court should should confer with the parties to determine delineate in its appointment order the respon- whether holding bellwether trials would sibilities of lead counsel in sufficient detail for advance the litigation. counsel to advise individually-retained cli- Best Practice 1E(i): The transferee court ents of the duty owed to the court, which is should adopt a strategy for facilitating the superior to any duty owed to the individual- availability of the broadest possible pool of ly-retained client. candidates from which to select bellwether Best Practice 6B: Lead counsel has a duty cases. to perform functions affecting all plaintiffs in Best Practice 1E(ii): One strategy for facil- an MDL in a fair, honest, competent, reason- itating the broadest pool of candidates from able, and responsible way. which to select bellwether cases is to consider remanding select cases back to the transferor MDL STANDARD 7: Lead counsel should not districts for trial. disclose information provided under a condi- Best Practice 1E(iii): The transferee judge tion of confidentiality, including settlement and the parties should establish a process that discussions subject to confidentiality condi- requires collaborative selection of bellwether tions, to plaintiffs or their retained counsel. trial cases. Best Practice 1E(iv): The transferee judge MDL STANDARD 8: Absent a compelling should adopt rules that will minimize the risk reason, lead counsel should not disclose con- that parties will attempt to “game” the bell- fidential information, including confidential wether trial-selection process to result in test settlement discussions, to their own individ- trials of cases that are not representative of the ually-retained clients. entire case pool. Best Practice 1E(v): The transferee judge MDL STANDARD 9: Lead counsel must dis- should consider using bellwether alternatives, close to individually-retained clients their including mini-trials and mediation. role as lead counsel. JUDICATURE 61

Best Practice 9A: As soon as possible after Best Practice 10B: Where the court is appointment, lead counsel should advise indi- advised of issues that create potential conflicts vidually-retained clients how the appointment among counsel, it should institute measures may implicate the clients’ interests, includ- that permit non-leadership counsel to provide ing participation in decision-making dealing input. with selection of bellwether trials, allocation of common-benefit funds, litigation manage- MDL STANDARD 11: The court and lead ment strategy, and settlement negotiations. counsel should develop practices to identify Best Practice 9B: When considering an potential conflicts and disagreements early inventory or global settlement, lead counsel on between non-leadership counsel and lead should fully inform individually-retained cli- counsel. ents of the implications of the lead counsel appointment. Best Practice 11A: The court should issue Best Practice 9C: Lead counsel must case-management order delineating the roles remain faithful to their obligations to the and obligations of lead counsel, any liaison court as delineated in the appointment order counsel, and plaintiffs’ counsel in individual when engaging in confidential settlement dis- cases. cussions for individually-retained clients. Best Practice 11B: A transferee judge should Best Practice 9D: Should the court ever be alert throughout the MDL proceedings for have a concern that a settlement negotiated on potential and emerging disagreements and behalf of lead counsel’s individually-retained conflicts between lead and non-lead counsel. clients might violate the terms of the court’s Best Practice 11C: The court should con- order appointing lead counsel, the court sider a reappointment process for lead counsel should order lead counsel to disclose the set- as a means of discovering serious conflicts, if tlement terms in camera to a Special Master any, between lead and non-leadership counsel. appointed for this purpose or, if desired, to the Best Practice 11D: As part of the reappoint- court itself. ment process, the court should require lead Best Practice 9E: Lead counsel should counsel to report on their exercise of MDL maximize the common and collective inter- obligations, including communication with ests of all plaintiffs in negotiating a global non-leadership lawyers. settlement consistent with appointment. Best Practice 9F: Consistent with existing CHAPTER 5: ESTABLISHMENT AND USE attorney-client relationships, the court should OF COMMON FUNDS consider entering an order authorizing confi- dential settlement negotiations. ….[Material omitted from 2014 MDL Standards and Best Practices.] CHAPTER 4: ROLE OF NON-LEADERSHIP COUNSEL CHAPTER 6: SETTLEMENT REVIEW AND CLAIMS-PROCESSING ADMINISTRATION MDL STANDARD 10: Lead counsel should establish processes that build consensus MDL STANDARD 13: If the parties indicate among non-leadership counsel as to key deci- a willingness to negotiate settlement, the sions that lead to settlement. MDL judge should facilitate negotiations, but judges should not impose settlement negoti- Best Practice 10A: Lead counsel should ations on unwilling parties. provide equal opportunity to all willing and able counsel to participate in discovery and Best Practice 13A: If the parties have other MDL tasks. indicated a willingness to begin settlement 4 62 VOL. 102 NO. 2

negotiations, a settlement master can play a Best Practice 16B: The parties should file a valuable role at the appropriate stage. joint or unopposed motion or stipulation ask- Best Practice 13B: The parties should con- ing the court to establish a QSF and appoint a sider appointment of a settlement master as QSF Administrator to manage funds, handle soon as they are willing to begin settlement ongoing claims resolution, and work with the negotiations. plaintiffs and their counsel to determine the QSF’s payout structure. MDL STANDARD 14: The parties must advise the MDL court upon reaching a set- MDL STANDARD 17: The transferee judge and tlement agreement and must provide the parties should collaborate in addressing lien court with information concerning the settle- resolution (including Medicare and Medicaid) ment, which information will differ based on and instituting methods to minimize delays whether the settlement is a global or inven- caused by such resolution, especially health tory settlement. care liens.

MDL STANDARD 15: For global settlements, Best Practice 17A: The transferee judge which will resolve an entire MDL, the court overseeing a global settlement should des- should ensure the integrity and transpar- ignate representatives from both sides to ency of the process that led to the settlement create a healthcare lien resolution process. agreement, including the claims process. The responsibilities and respective duties of these representatives (and subcommittees, as Best Practice 15A: Upon reaching a global needed) should be specified at the outset and settlement, the parties should provide the assigned at the earliest possible time. transferee judge with information concern- Best Practice 17B: The transferee judge ing the allocation model specified by the should assist the parties in the healthcare lien settlement (including eligibility criteria), process by issuing orders, as needed, requiring distribution system, minimum participation periodic reporting. rate, and provisions accounting for any distri- butions for extraordinary circumstances. ….[Material omitted from 2014 MDL Best Practice 15B: The parties should Standards and Best Practices.] advise the transferee judge of any minimum percentage or number of cases disposed of by CHAPTER 7: FEDERAL/STATE a global settlement. COORDINATION Best Practice 15C: The parties should advise the transferee judge of any reserve allocated in ….[Material omitted from 2014 MDL the settlement to pay for extraordinary injuries. Standards and Best Practices.]

MDL STANDARD 16: The transferee judge should review the claims process to help Download the revised facilitate claims processing and settlement Standards and Best Practices at distribution. http://bit.ly/Bolch-MDLcomment Best Practice 16A: In a large MDL involv- ing many claimants, a Qualified Settlement Download the original Fund (“QSF”) provides significant administra- Standards and Best Practices at tive convenience for the court and parties and http://bit.ly/Bolch-MDL2014 offers favorable tax advantages to the parties. JUDICATURE 63

from EDRM at DUKE LAW

Unlocking the e-discovery TAR blackbox

EDRM at Duke Law has published a increase the efficiency and effectiveness generally perform as well as a human proposed set of e-discovery guidelines of the practice of law. To date, the legal review, provided that there is a reason- that explain technology assisted review profession has been a reluctant suitor of able and defensible workflow. Similar to (TAR), also known as predictive cod- technological assistance in e-discovery. a fully human-managed review where ing and computer assisted review, and Machine-learning processes like subject-matter attorneys train a human is now seeking public comments on TAR have been used to automate deci- review team to make relevancy deci- the guidelines from judges and prac- sion-making in industries since at least sions, the TAR process involves human titioners. An editable version of the the 1960s, leading to efficiencies and reviewers training a computer so that guidelines is available for download on cost savings in healthcare, finance, mar- the computer’s decisions are just as accu- the EDRM website (see EDRM.net or keting, and other industries. But it is rate and reliable as those of the trainers. http://bit.ly/EDRM-TARcomment). only now that segments of the legal com- The potential for significant savings More than 50 volunteer judges, munity have begun to accept machine in time and cost — without sacrific- practitioners, and e-discovery experts learning, via TAR, to automate the clas- ing quality — is what makes TAR have been working on the project since sification of large volumes of documents most useful. According to a 2012 Rand December 2016. A companion set of in discovery. These guidelines provide Corp. report, 73 percent of the cost “best practices” is being developed by guidance on the key principles of the associated with discovery is spent on 20 other judges and practitioners to TAR process. Although the guidelines review. Document-review teams can provide protocols on whether and under focus specifically on TAR, they are writ- work more efficiently because TAR can what conditions TAR should be used. ten with the intent that, as technology identify relevant documents faster than Together, the guidelines and best prac- continues to change, the general princi- human review and can reduce or elimi- tices will provide a record and roadmap ples will also apply to future iterations nate time wasted reviewing nonrelevant for the bench and bar, which legitimize of AI beyond the TAR process. documents. TAR promotes Rule 1 of and support the use of TAR in appropri- TAR is similar conceptually to a the Federal Rules of Civil Procedure, ate cases. fully human-based document review — which calls on courts and litigants “to TAR is a machine-learning process but the computer replaces the human secure the just, speedy, and inexpen- and an early iteration of artificial intel- reviewer in conducting the document sive determination of every action and ligence (AI) for the legal profession. AI review. As a practical matter, the com- proceeding.” is quickly revolutionizing the practice puter is faster, more consistent, and Traditional linear or manual review, of law and will continue to generate a more cost effective than human review in which teams of lawyers — billing steady stream of new tools designed to teams. Moreover, a TAR review can clients — review boxes of paper or count- 4 64 VOL. 102 NO. 2

less online documents, is an imperfect Importantly, no reported court deci- a logical framework for the bench and method. Problems with fatigue, human sion has found the use of TAR invalid. bar to accept future technological break- error, disparate attorney views regarding Scores of decisions have permitted TAR, throughs without interminable delay. document substance, and even games- and a handful have even encouraged The leaders of the teams that drafted manship are all associated with manual its use. The most prominent law firms the guidelines are Matt Poplawski document review. Multiple studies have in the world, on both the plaintiff and (Winston & Strawn); Mike Quartararo shown significant discrepancy rates in the defense sides of the bar, are using (eDPM Advisory Services); and Adam the determinations of reviewers charged TAR. Several large government agen- Strayer (Paul, Weiss, Rifkind, Wharton with identifying relevant documents by cies, including the DOJ, SEC, and IRS, & Garrison) with Tim Opsitnick linear review — as much as 50 percent have recognized the utility and value of (TCDi). James Francis, retired United or more. TAR is similarly imperfect, TAR when dealing with large document States magistrate judge, provided gen- but studies show that TAR is at least collections. eral editorial assistance. Following is equally accurate, if not more accurate, In order for TAR to be more widely the first chapter of the proposed 40-page than humans performing document-by- used in discovery, however, the bench TAR guidelines, which provides a good document review. Such review meets the and bar must become more familiar executive summary. overarching legal standard in discov- with it. These guidelines and the soon- ery, which requires reasonableness, not to-be-issued best practices demystify the perfection. process and, more importantly, establish

Proposed Technology Assisted Review Guidelines EDRM at Duke Law – May 2018

CHAPTER ONE: Defining Technology Assisted Review

A. INTRODUCTION Although there are different TAR software, Technology assisted review (referred to as all allow for iterative and interactive review. “TAR,” and also called predictive coding, A human reviewer2 reviews and codes (or tags) computer assisted review, or machine learn- documents as “relevant” or “nonrelevant” and ing) is a review process in which humans feeds this information to the software, which work with software (“computer”) to teach it takes that human input and uses it to draw to identify relevant documents.1 The process inferences about unreviewed documents. The consists of several steps, including collec- software categorizes each document in the tion and analysis of documents, training the collection as relevant or nonrelevant, or ranks computer using software, quality control and them in order of likely relevance. In either testing, and validation. It is an alternative case, the number of documents reviewed man- to the manual review of all documents in a ually by humans can be substantially limited collection. to those likely to be relevant, depending on the circumstances. JUDICATURE 65

B. THE TAR PROCESS analysis to form a conceptual representation of The phrase “technology assisted review” can the content of each document, which allows imply a broader meaning that theoretically the software to compare documents to one could encompass a variety of nonpredictive another. coding techniques and methods, including clustering and other “unsupervised”3 machine 3. “TRAINING” THE COMPUTER USING SOFT- learning techniques. And, in fact, this broader WARE TO PREDICT RELEVANCY use of the TAR term has been made in indus- The next step is for human reviewers with try literature, which has added confusion knowledge of the issues, facts, and circum- about the function of TAR, defined as a pro- stances of the case to code or tag documents as cess. In addition, the variety of software, each relevant or nonrelevant. The first documents with unique terminology and techniques, has to be coded may be selected from the over- added to the confusion by the bench and bar all collection of documents through searches, in how each of these software works. Parties, thorough client interviews, by creating one the court, and the vendor community have or more “synthetic documents” based on lan- been talking past each other on this topic guage contained, for example, in document because there has been no common starting requests or the pleadings, or the documents point to have the discussion. might be randomly selected from the overall These guidelines are that starting point. As collection. In addition, after the initial-train- these guidelines make clear, all TAR software ing-documents are analyzed, the TAR share the same essential workflow compo- software itself may begin selecting documents nents; it is just that there are variations in the that it identifies as most helpful to refine its software processes that need to be understood. classifications based on the human reviewer’s What follows is a general description of the feedback. fundamental steps involved in TAR.4 From the human reviewer’s relevancy choices, the computer learns the reviewer’s 1. ASSEMBLING THE TAR TEAM preferences. Specifically, the software learns A team should be selected to finalize and which terms or other features tend to occur engage in TAR. Members of this team may in relevant documents and which tend to include: service provider; software vendor; occur in nonrelevant documents. The software workflow expert; case manager; lead attorney; develops a model that it uses to predict and and human reviewer. Chapter Two contains apply relevance determinations to unreviewed details on the roles and responsibilities of documents in the overall collection. these members. 4. QUALITY CONTROL AND TESTING 2. COLLECTION AND ANALYSIS Quality control and testing are essential parts TAR starts with the team identifying the uni- of TAR, which ensure accuracy of decisions verse of electronic documents to be reviewed. made by a human reviewer and by the soft- The case manager inputs the documents into ware. TAR teams have relied on different the software to build an analytical index. methods to provide quality control and test- During the indexing process, the software’s ing. The most popular method is to identify algorithms5 analyze each document’s text. a significant number of relevant documents Although various algorithms work slightly from the outset and then test the results of the differently, most analyze the relationship software against those documents. Other soft- between words, phrases, and characters, the ware test the effectiveness of the computer’s frequency and pattern of terms, or other fea- categorization and ranking by measuring how tures and characteristics in a document. The many individual documents have had their software uses this features-and-characteristics computer-coded categories “overturned” by 4 66 VOL. 102 NO. 2

a human reviewer, by how many documents entire TAR set, typically at the beginning of have moved up and down in their rankings, or training, and can be seen as representative by measuring and tracking the known relevant of the entire review set. The control set is documents until the algorithm suggests that reviewed for relevancy by a human reviewer few if any relevant documents remain in the and, as training progresses, the computer’s collection. Yet other methods involve labeling classifications of relevance of the control set random samples from the set of unreviewed documents are compared against the human documents to determine how many relevant reviewer’s classifications. When training no documents remain. Methods for quality con- longer substantially improves the comput- trol and testing continue to emerge and are er’s classifications, this is seen as a point of discussed more fully in Chapter Two. reaching training stability. At that point, the predictive model’s relevancy decisions are 5. TRAINING COMPLETION AND VALIDATION applied to the unreviewed documents. No matter what software is used, the goal of Under software commonly marketed as TAR is to effectively categorize or rank docu- TAR 2.0, the human review and software ments both quickly and efficiently, i.e., to find training process is melded together. The soft- the maximum number of relevant documents ware from the outset continuously searches possible while keeping the number of nonrel- the entire document collection and identifies evant documents to be reviewed by a human the most likely relevant documents for review as low as possible. The heart of any TAR pro- by a human. After each training document’s cess is to categorize or rank documents from human coding is submitted to software, the most to least likely to be relevant. Training software re-categorizes the entire set of unre- completion is the point at which the team viewed documents, and then presents back to has maximized its ability to find a reasonable the human only those documents that it pre- amount of relevant documents proportional to dicts as relevant. This process continues until the needs of the case. the number of relevant documents identified How the team determines that training is by the software after human feedback becomes complete varies depending upon the software. small. At this point, the TAR team deter- Under the training process in software com- mines whether stabilization has been reached monly marketed as TAR 1.0,6 the software is or whether additional re-categorization (i.e., trained based upon a review and coding of a more training) is reasonable or proportional to subset of the document collection that is reflec- the needs of the case. tive of the entire collection (representative of Before the advent of TAR, parties did not both the relevant and nonrelevant documents provide statistical evidence evaluating the in the population), with a resulting predic- results of their discovery. Only on a showing tive model that is applied to all nonreviewed that the discovery response was inadequate documents. The predictive model is updated did the receiving party have an opportunity after each round of training until the model to question whether the producing party ful- is reasonably accurate in identifying relevant filled its discovery obligations to conduct a and nonrelevant documents, i.e., reached a reasonable inquiry. stabilization point, to be applied to the unre- But when TAR was first introduced to the viewed population. This stability point is legal community, parties provided statistical often measured through the use of a control evidence supporting the TAR results, primar- set, which is a random sample taken from the ily to give the bench and bar comfort that the use of the new technology was reasonable as compared to human-based reviews. As the Download the full guidelines at bench and bar have become more familiar http://bit.ly/EDRM-TARcomment with TAR and the science behind it, the need JUDICATURE 67

to substantiate TAR’s legitimacy in every case of the relevant information that may be found has diminished.7 by further review versus the additional review Nonetheless, because the current state of effort required to find that information? TAR protocols and the case law on the topic There is no standard definition of what is limited, statistical estimates to validate level of accuracy is sufficient to validate the review continue to be discussed. Accordingly, results of TAR (or any other review process). it is important to understand the commonly One common measure is “recall,” which cited statistical metrics and related terminol- measures the proportion of truly relevant doc- ogy. At a high level, statistical estimates are uments that have been identified by TAR. generated to help the bench and bar answer However, while recall is a typical validation the following questions: measure, it is not without limitations and • How many documents are in the TAR depends on several factors, including consis- set? tency in coding and the prevalence of relevant • What percentage of documents in the documents. “Precision” measures the percent- TAR set are estimated to be relevant, and age of actual relevant documents contained in how many are estimated to be nonrele- the set of documents identified by the com- vant, and how confident is the TAR team puter as relevant. in those estimates? The training completeness and validation • As a result of the workflow, how many topic will be covered in more detail later in estimated relevant documents did the these guidelines. team identify, and how confident is the ABOUT EDRM team in that estimate? EDRM is a Duke Law-based community of e- • How did the team know the computer’s discovery and legal professionals who create training was complete? practical resources to improve e-discovery and information governance. As technology TAR typically ends with validation to radically transforms litigation and the legal determine its effectiveness. Ultimately, the profession, EDRM members collaboratively validation of TAR is based on reasonableness develop frameworks, standards, educational and on proportionality considerations: How tools, and other resources to guide the adop- much could the result be improved by fur- tion and use of e-discovery technologies. Learn ther review? To that end, what is the value more or get involved at EDRM.net.

1 In fact, the computer classification can be broader are created by the software makers. TAR teams gen- than “relevancy,” and can include discovery respon- erally cannot and do not modify the feature extraction siveness, privilege, and other designated issues. For algorithms. convenience purposes, “relevant” as used in this paper 6 It is important to note that the terms TAR 1.0 and refers to documents that are of interest and pertinent 2.0 can be seen as a marketing terms with various to an information or search need. meanings. They may not truly reflect the particular 2 A human reviewer is part of a TAR Team. A human processes used by the software, and many software use reviewer can be an attorney or a non-attorney working different processes. Rather than relying on the term at the direction of attorneys. They review documents to understand a particular TAR process, it is more that are used to teach the software. We use the term useful and efficient to understand the underlying pro- to help keep distinct the review humans conduct ver- cesses, and in particular, how training documents are sus that of the TAR software. selected, and how training completion is determined. There are a limited number of ways to select training 3 Unsupervised means that the computer does not use documents, and a limited number of ways to deter- human coding or instructions to categorize the docu- mine training completion. ments as relevant or nonrelevant. 7 The Federal Rules of Civil Procedure do not specif- 4 Chapter Two describes each step in greater detail. ically require parties to use statistical estimates to 5 All TAR software has algorithms. These algorithms satisfy any discovery obligations. 68 VOL. 102 NO. 2

A RESPONSE TO THE GARNER RESPONSE Not So Fast: TO MY ARTICLE ON LOCKHART

BY JOSEPH KIMBLE lift to carry the modifier across them (without any empirical evidence) is that all.”5 She followed with a hypothetical trailing modifiers can be somewhat IN THE SPRING 2018 EDITION OF example from baseball: “imagine you dicier than leading modifiers to begin JUDICATURE, BRYAN GARNER, are the general manager of the Yankees with. A series with internal modifiers an old friend, responded to my article in and . . . tell your scouts to find a defen- can be dicier still: consider adults and the previous issue,1 an article that took sive catcher, a quick-footed shortstop, young children who are healthy or versatile the form of a mock opinion by Kimble, or a pitcher from last year’s World infielders and durable catchers who can hit. J., in Lockhart v. United States.2 He wrote Champion Kansas City Royals.”6 The At any rate, the majority in Lockhart his own mock opinion, with an intro- natural reading, she said, would limit rejected the series-qualifier canon in duction criticizing mine.3 the trailing modifier’s reach to the final favor of the last-antecedent canon, Simply put, Garner and I disagree on item, pitcher. which Garner asserts is less applica- whether canons can dispose of cases such Justice Kagan, dissenting along with ble because the construction at issue as Lockhart with clarity and concision. In Justice Breyer, countered with these two “doesn’t involve a ‘pronoun, relative my view, they cannot — as the conflict- examples: an actor, director, or producer pronoun, or demonstrative adjective’ ing opinions in Lockhart demonstrated. involved with the new Star Wars movie and — in short, no word has a grammati- The case rested on a syntactic ambi- a house, condo, or apartment in New York.7 cal antecedent.”11 He knows, though, guity caused by a modifier following Here, she insisted, the modifiers apply to that “last antecedent” has become the a three-part series. In his own opin- all the previous items as a matter of ordi- catchall name that courts use and apply ion, Garner relies on the series-qualifier nary English, which the series-qualifier even when the trailing modifier doesn’t canon — which favors Lockhart — as canon reflects. But in contrast to Justice technically involve an antecedent. And “more directly applicable” than the last- Sotomayor’s example, none of the nouns because I think the canon still gets more antecedent canon because the ambiguous in Justice Kagan’s series had modifiers in credence than it deserves in resolving language involves a “straightforward, addition to the ambiguous trailing one. ambiguity, I revisited the Court’s pre- parallel construction that involves all Justice Kagan discounted the baseball vious use of it, after having said in my nouns . . . in a series.”4 But he begs the example above as “not parallel” because introduction that “readers will notice question when he calls the construction pitcher does not have a modifier of its own, [in my opinion] an uncommon candor “straightforward” and “parallel.” (I real- as the other two items do.8 In response, and willingness to consider scholarly ize that a judge writing an opinion can Justice Sotomayor offered the example opinion . . . .”12 state conclusions as declarations.) of a friend’s asking you to get tart lemons, Neither syntactic canon was the clear In fact, much of the debate between sour lemons, or sour fruit from Mexico, and winner in Lockhart. If you were merely the majority and dissenting opinions said you “would be forgiven” for think- choosing between them, you might well in Lockhart was, in a sense, over how ing you could bring back lemons from side with Justice Kagan (and Garner). straightforward and parallel the items California.9 Justice Kagan, disagreeing, But either way, you ought to acknowl- in the series are. The series, without the said there would be “no doubt” that edge and address plausible contrary trailing modifier:aggravated sexual abuse, “[y]our friend wants some produce from arguments. What’s more, you ought to sexual abuse, or abusive sexual conduct. Yes, Mexico.”10 Thus, the justices were of dif- recognize that picking between those you have three nouns, but the first and ferent minds on a parallel series with a canons was not all there was to the dis- third have two modifiers in front, and single preceding modifier. position. That was the target of my the second has one. And the justices dis- Now, perhaps, you’ll see why in mock opinion: decision by canon alone. agreed on whether the trailing modifier my opinion I provided several base- To repeat: Garner (or anybody else) — involving a minor or ward — applied ball examples, taking off from Justice can write a short opinion declaring to all three items or only the last one. Sotomayor’s baseball example, to show that the canons, as he and Justice Scalia Justice Sotomayor, for the majority, how intuition, common knowledge, and describe them in their book Reading invoked the rule of the last antecedent. slight variations can affect the possible Law, resolve the case. But his opinion She said that “it takes more than a little meaning. Figuring out when to apply exudes a confidence and certainty that is mental energy to process the individ- the series-qualifier canon is not always unjustified. The same goes for textual- ual entries in the list, making it a heavy as simple as you might think. My sense ism in general.13 JUDICATURE 69

DECISION-MAKING GENERALLY DEMANDS MORE THAN AN EXERCISE IN PARSING.

As for the rule of lenity in criminal Except for dismissing the last-antecedent rhetorical and jurisprudential purposes: cases, he is of course right that it’s one of the canon in one sentence, the opinion does to register the importance of consider- canons included in Reading Law. When I not touch on any of the arguments that ations that are not strictly textual; to said in my subtitle that “Canons Are Not actually led to the government’s win- call attention to the inherent dangers the Key,” I meant the syntactic canons ning, including intuitive arguments.18 of modifiers with a series; to cast doubt at the heart of the case. Commentators A last point about the case, for any- on the strength of the last-antecedent had, after all, billed Lockhart as a contest one who still thinks that Lockhart and surplusage canons; to trace the his- between dueling canons.14 should have won easily on linguistic tory and highlight the subtleties of the Beyond that, Reading Law’s criterion grounds alone. Of the five circuits that series-qualifier canon; and to address for invoking lenity is this: “whether, after had explicitly addressed the issue, none courts’ differing definitions of ambi- all the legitimate tools of interpretation applied the trailing modifier to the guity, as well as the Supreme Court’s have been applied, a reasonable doubt entire series; they came to the same con- own less-than-consistent standards for persists.”15 I consider legislative history clusion — for a similar mix of reasons invoking lenity. I wasn’t just deciding; a legitimate tool of interpretation,16 and — as the Supreme Court majority.19 I was trying to face these issues head-on, so did the justices in Lockhart.17 I con- Garner criticizes my opinion as even while expressing points of view. sider a statute’s framework — its place in “dictum-filled” and “bloated with In the introduction to my opinion, I the scheme of related statutes — a legit- hand-wringing dicta that only obscure called it “a flight of fancy.”22 However imate tool of interpretation, and so did the law.”20 He points out that his is unlikely its style or even its content the justices in Lockhart. Garner’s opinion “some 88 percent shorter.” Shorter, yes, may have been, I believe this: decision- ignores all this. It says: “If an ambigu- mainly because it pronounces one canon making generally demands more than ity in a criminal statute is genuinely as controlling and (as I just mentioned) an exercise in parsing. debatable, the defendant wins.” But his says nothing at all about contrary argu- 21 opinion (favoring Lockhart) does not go ments. Decision by fiat, you might say. — JOSEPH KIMBLE writes Judicature’s “Redlines” to the trouble of exploring the ambiguity. Underlying my opinion were obvious column; see it and more about him on page 80.

1 Joseph Kimble, How Lockhart Should Have appellate cases in which the text alone yields fore see no reason to interpret § 2252(b)(2) so Been Decided (Canons Are Not the Key), 101 a singular or self-evident meaning. They fig- that ‘[s]exual abuse’ that occurs in the Second Judicature 40 (Winter 2017). ure that if they study hard enough all the Circuit courthouse triggers the sentence enhance- 2 136 S. Ct. 958 (2016). various and often conflicting textual clues, ment but ‘sexual abuse’ that occurs next door in 3 Bryan A. Garner, How Lockhart Really Should they will discover the intended meaning. And the Manhattan municipal building does not.”). Have Been Decided: Canons of Construction Are they largely discount the value of intuition, 19 United States v. Mateen, 764 F.3d 627, 631–32 Key, 102 Judicature 56 (Spring 2018). common sense, legislative history, real-world (6th Cir. 2014); United States v. Lockhart, 749 4 Id. at 57 (quoting Antonin Scalia & Bryan consequences, and sensible policy in deciding F.3d 148, 151–56 (2d Cir. 2014); United States A. Garner, Reading Law: The Interpre- cases.” (citation omitted)). v. Spence, 661 F.3d 194, 197 (4th Cir. 2011); tation of Legal Texts 147 (2012)). 14 See, e.g., Neal Goldfarb, Coming to SCOTUS: United States v. Hubbard, 480 F.3d 341, 350 5 Lockhart, 136 S. Ct. at 963. Battle of the Dueling Interpretive Canons, (5th Cir. 2007); United States v. Rezin, 322 F.3d 6 Id. LAWnLinguistics.com (Oct. 27, 2015) (URL 443, 447–48 (7th Cir. 2003); cf. United States omitted). v. Hunter, 505 F.3d 829, 831 (8th Cir. 2007) 7 Id. at 969; see also id. at 972 n.2, setting out 15 (assuming the contrary without discussion); five more examples, from cases, of similarly Reading Law at 299 (citation omitted). 16 United States v. McCutchen, 419 F.3d 1122, uncomplicated series. See Joseph Kimble, The Doctrine of the Last 1125 (10th Cir. 2005) (same). 8 Id. at 970 n.1. Antecedent, the Example in Barnhart, Why Both Are Weak, and How Textualism Postures, 16 20 Garner, 102 Judicature at 57. 9 Id. at 966. Scribes J. Legal Writing 5, 37–41 (2014– 21 See Bryan A. Garner, Interview with Justice 10 Id. at 972. 2015) (listing 12 arguments for considering Elena Kagan (Part 4) (video) (URL omitted) 11 Garner, 102 Judicature at 57 (quoting legislative history). (so describing an opinion that, among other Reading Law at 144). 17 But see Digital Realty Trust, Inc. v. Somers, 138 things, does not “respond[] to the arguments 12 Kimble, 101 Judicature at 41. S. Ct. 767, 783–84 (2018) (Thomas, J., with that you think are losers” and thus disregards 13 See Joseph Kimble, What the Michigan Supreme Alito & Gorsuch, JJ., concurring in part and the Court’s responsibility to “tak[e] all the par- Court Wrought in the Name of Textualism and concurring in the judgment) (rejecting the ties seriously,” as well as “to show the American Plain Meaning: A Study of Cases Overruled, majority’s use of legislative history). public . . . how we reason about cases”). 2000–2015, 62 Wayne L. Rev. 347, 376 18 See, e.g., Lockhart, 136 S. Ct. at 964 (“We there- 22 Kimble, 101 Judicature at 41. (2017) (“Textualists exaggerate the number of 70 POINT–COUNTERPOINT VOL. 102 NO. 2

point { { counterpoint

A(nother) new plan for clerkship hiring

n February 28, 2018, an unofficial ad-hoc judges. The application date for the entering class of committee of federal judges announced 2018 is June 15, 2020. a new version of a law clerk hiring plan, The plan responds in part to a September 2017 O a revision of an earlier system that was letter signed by 111 law school deans who said they tried but discontinued in 2014. Under the new plan, “strongly support a proposal under which judges students who entered law school in 2017 or later would not accept clerkship applications until after the will not begin the application and hiring process for completion of students’ second year.” The letter noted federal clerkships until after the completion of their that waiting until the second year will provide judges second year of law school. In its announcement of the with more information about students and give stu- plan, the ad-hoc committee calls it “a two-year pilot dents more time to focus on their studies before plan that participating judges will reconsider after turning to the often-stressful clerkship hiring process. June 2020.” Similar federal clerkship hiring plans have been To support the plan, the OSCAR Working Group adopted in the past. All eventually fell apart. To pro- — a group of judges and law school administrators vide perspective on the new plan and its chances for — voted to adjust the date on which clerkship appli- success, we posed questions to the HONORABLE cations are made available to judges. (OSCAR is the DIANE WOOD, chief judge of the U.S. Court of Online System for Clerkship Application and Review Appeals for the Seventh Circuit, a senior lecturer operated by the Administrative Office of the Courts at the University of Chicago, and a member of the to facilitate the hiring process for federal clerkships ad-hoc committee that developed the plan; and and staff attorney positions.) According to the OSCAR to PROFESSOR AARON NIELSON, who teaches website, “Judges will not seek or accept formal or administrative law at Brigham Young University, has informal clerkship applications, seek or accept for- written about clerkship hiring, and is a former clerk mal or informal recommendations, conduct formal or to Supreme Court Justice Samuel A. Alito, Jr., Judge informal interviews, or make formal or informal offers Janice Rogers Brown of the U.S. Court of Appeals for before June 17, 2019” — the date that the OSCAR sys- the D.C. Circuit, and Judge Jerry E. Smith of the U.S. tem will make clerkship applications available to Court of Appeals for the Fifth Circuit. JUDICATURE 71

Do federal courts need a coordinated This means that both the judge and the We could, for instance, imprison law hiring plan for clerks? Why, or why not? student are making plans for two years students who apply early; in the cartel or more into the future. That, too, can context, the prospect of prison presum- WOOD: The federal courts have a great be risky, even though it normally works ably discourages some coordination. But deal of experience, both with coordi- out. Worse, the student is relegated to jail obviously would be disproportionate nated hiring plans and without such discussing a semester (or quarter) or so in the clerkship context. The courts could plans. During the periods when the in law school, undergraduate experi- also try to set up a “medical match” sys- plans have been in effect and have been ence, and any relevant work experience. tem that controls all hiring. But that is followed by a substantial majority of the Neither party is well served with such expensive and, alas, isn’t foolproof either. judges, the hiring process has operated limitations. That timetable creates Or Congress could pass a law ordering better both for clerkship applicants and terrible pressure for the first-year stu- judges not to hire early. But that could for judges. Particularly for applicants dents who are just feeling their way. not possibly be the best use of Congress’s who are still in law school and who hope It has a particularly deleterious effect time. Stigma also may sometimes serve to obtain a clerkship immediately upon on students who do not come from a as an informal enforcement mechanism. graduation, the plans have assured that background where graduate work, or Yet as far as I can tell, there is no stigma. the student is able to develop a full aca- law school, was the norm, including In fact, some judges who think it is vir- demic record, get to know professors minority students and those from disad- tuous to hire outside the plan say they and other recommenders well enough vantaged backgrounds. do so because they believe the plan is for a personal and helpful letter of rec- unfair to students. ommendation, and come to an informed NIELSON: This may sound pedantic, And so we come to the crux of the opinion about whether a clerkship fits but no, federal courts don’t need a hir- dispute: What is better — a plan that into the student’s career plans. Hiring ing plan. The courts didn’t fall apart doesn’t work or no plan at all? My law students who have barely completed between 2013 and 2017 when there was sense is the latter. I applied for clerk- their first year is unambiguously bad for no plan. The better question is whether ships while the old plan was collapsing. all concerned. In contrast, if a judge federal courts should want a hiring plan. It was unfair. Some students at schools has two full years of grades, she gets But to answer that question, we need to with less robust clerkship cultures pre- a much better picture of the student’s answer two other questions. What is the sumably trusted the plan because it ability. Suppose, for example, that the benefit of a hiring plan? And how much looked authoritative; they missed out. first-semester grades are average, but does it cost? Many better-informed students knew the second half of the first year and A hiring plan could provide real ben- that some judges hired early but did the full second year are excellent. The efits — if it worked. Judges could hire not know who those judges were, and judge would make a mistake in over- with more information (a good thing); students in the know weren’t always looking that candidate, if she or he were students could get a better feel for the keen on sharing that information. That limited to first-year grades only; that law before applying (also a good thing); also wasn’t fair. Likewise, some but not mistake would be avoided under the and hiring might be more orderly (argu- all professors were willing to send let- plan. The opposite could also happen: ably a good thing). ters before the deadline, which in effect A student might start out with a fine Unfortunately, a plan that works treated similarly-situated students dis- performance but slack off as time goes would be very costly. Coordination is similarly. And some judges may have on and the competition becomes more difficult when breaking from the group penalized students for applying early intense. Letters of recommendation are provides a benefit, there are many play- by discounting their applications, even also much more helpful when the writer ers, there isn’t much transparency, and though students were simply trying actually knows the person and can speak there is no meaningful enforcement to navigate a difficult situation with specifically to the judge’s hiring criteria. mechanism — all of which describes imperfect information. Finally, when a Experience shows that during the clerkship hiring pretty well. To create a plan is formally in place but is widely periods when no plan has been effect, working plan, the federal courts would ignored, folks learn that only gullible competition among the judges has need a powerful enforcement mechanism people trust rules. That’s a very bad les- pushed the dates of interviews back into to prevent “early” hiring. But would that son to teach law students. 4 the end of the first year of law school. be cost-justified? Almost certainly not. 72 VOL. 102 NO. 2

Will a coordinated plan affect all judges at least at the margins, rationally pre- ing. In theory, the justices could act as equally? For example, will it advantage fer to interview where lots of judges are enforcement mechanisms — if a circuit reachable quickly and cheaply. The same judge hires early, her clerks won’t be or disadvantage judges on certain math presumably applies for students considered for a Supreme Court clerk- courts or in certain geographic areas? in California, to the Ninth Circuit’s ship. And because students know this, Should Supreme Court justices adhere benefit. they know not to apply early. In prac- to the plan? This isn’t just my opinion. I reached tice, however, I’m not so sure. First,

out to a number of circuit judges. This is non-“feeder” judges hire early, too. That WOOD: The new plan is as evenhanded what one of them said: “The plan hurts presumably will not change much no among judges as it is possible to be: It judges in ‘fly-over country.’ The top stu- matter what the Supreme Court does. uses only one date (in the first year, June dents will be tempted to go only to New Second, although a number of the jus- 17, 2019) for the time when tices have suggested that they applications can be trans- { will take into account the mitted to judges, whether plan, others haven’t even gone electronically using the that far, and, I believe, no jus- OSCAR system or in any other HIRING LAW STUDENTS WHO HAVE tice has said that he or she will way accepted by the judge in BARELY COMPLETED THEIR FIRST categorically reject applicants question. From that point, it on this ground. This matters is up to the judge to decide YEAR IS UNAMBIGUOUSLY BAD because, objectively, no one how to proceed. In order to FOR ALL CONCERNED. has a good shot at clerking at address geographic issues and the Supreme Court; there is to be sensitive to student bud- a lot of luck involved. So if a gets, some judges have started student’s odds of being hired to use video interviews; other at First Street drop from, say, judges prefer in-person interviews. York and D.C. to interview because 2 percent to 1 percent, is that really Several justices on the Supreme they can do those cities quickly and enough to dissuade an early applica- Court have publicly expressed their compactly and they are the places with tion to a circuit judge? And third, how support for the plan, including Justice more potential feeder judges.” Another will the justices police such a rule? A Elena Kagan and Justice Ruth Bader made the same point: “Any plan hugely circuit judge may say something like, Ginsburg. Justice Kagan indicated that advantages judges in the I-95 corridor “Obviously, I can’t hire now, but I sure she would take compliance with the from Boston to Richmond.” hope you are available when I can; I’ll plan into account when she conducts At the same time, the plan creates keep my eyes out for your application.” her own hiring. But the Supreme Court incentives for “exploding” offers, which The effect can be essentially the same as justices do not hire people directly out are disgraceful. When hiring is com- an offer. of law school, so certain features of the pressed, the opportunity cost of delay plan do not apply to them. increases. The current iteration of the How does the requirement that stu- plan purports to prohibit exploding NIELSON: Many students are on the offers by giving students 48 hours to dents have grades for two years of East Coast, and it is easier and cheaper travel. But will that solve the problem? law school before applying benefit or for those students to interview with Again, quoting a circuit judge: “The adversely impact individual law stu- judges who are near them than to fly 48-hour period for exploding offers is dents, including post-graduates and to, say, San Antonio, St. Paul, or Salt a joke. It’s not realistic that an appli- current students? Lake City. Proximity isn’t as significant cant can schedule numerous interviews, in a world without a plan because hir- receive offer(s), consult with advisors WOOD: The requirement benefits cur- ing isn’t as compressed; there is more and family, and come to a reasonable rent students and is irrelevant to anyone time for students to travel and tick- conclusion in that short period.” who has already completed more than ets can be purchased more cheaply. In I agree with Chief Judge Wood that two years of law school at the time of his a world with a plan, however, students, Supreme Court involvement is interest- or her application. Nothing in this plan JUDICATURE 73

addresses applications from post-grad- And we should also expect students who find a job, then leave that job and move uates. For judges who prefer hiring need more time to adjust to law school someplace else for a clerkship, and then lawyers with some experience, the plan to do better. As someone who teaches at probably move again. Such upheaval does not require any change in their BYU, that doesn’t bother me! often isn’t realistic. practice. For other judges who prefer Unfortunately, I don’t think the hiring directly from law school, how- plan will work. In a world with a bro- Should the judiciary as an institution ever, the plan will allow the student to ken plan, students at the most selective have any concerns about potential put his or her best foot forward in the schools who did best as 1Ls should be ways described above. It is our expe- expected to do better because they have administrative challenges law schools rience, and our expectation, that the greater access to secret information. may face in implementing any hiring professed fear that graduates will crowd Today, no one knows the full universe plan? out current law students is not realistic. of judges who aren’t following the plan. Judges who prefer hiring directly from Yet by next year, the students on the WOOD: The law schools have over- law school will simply do so with a bet- Yale Law Journal will have a pretty good whelmingly supported the Federal Law ter information base. idea, even though almost all other stu- Clerk Hiring Plan of March 2018. They dents still won’t. have not communicated any concerns NIELSON: My position is the mid- Similarly, we should expect about administrative challenges that dle one — I would be sympathetic to post-graduate applicants to do better in cannot be addressed. The small number a plan if I thought it would work at a a world with a plan because they aren’t of schools on the quarter system wanted reasonable cost and without unintended regulated. Hiring during a compressed to ensure that the starting date was consequences. Students at schools like period can be stressful. Some judges pre- late enough to accommodate their cal- BYU, where I teach, pre- endars, which is why the plan sumably do worse in a world uses June 17, 2019, and June without a working plan; the TODAY, NO ONE KNOWS THE 15, 2020, for the next year. same is true for students at In addition, even if a quarter- all schools who, for what- FULL UNIVERSE OF JUDGES WHO system student were missing ever reason, need a bit more AREN’T FOLLOWING THE PLAN. one or two grades by June 17 of time to adjust to law school. YET BY NEXT YEAR, THE STUDENTS the 2L year, that student would When judges make decisions still have one more set of grades with less information, they ON THE YALE LAW JOURNAL WILL than any semester-system stu- have to rely more heavily HAVE A PRETTY GOOD IDEA . . . dent. Importantly, the plan is on proxies for legal ability. { flexible: In the event that there For instance, a circuit judge are unexpected administrative told me that all else being equal, if all fer to hire a clerk or two outside of that challenges for law schools, students, or the information that he has is the law process just to deescalate things. Hiring judges, it will be revised to accommo- school, hiring a clerk from Stanford is post-graduates is not always a prob- date those challenges. That flexibility is generally safer than hiring a clerk from lem; some judges like having real-world reflected in the fact that this is a two- BYU because students who attend experience in chambers. But it is a prob- year pilot plan, not something that has Stanford, on average, have higher enter- lem if a judge feels compelled to hire a been etched in stone. ing credentials. But after students have post-graduate, not because he or she is had time to demonstrate their ability, the best candidate, but because of the NIELSON: If by “administrative chal- Stanford’s initial advantage often dis- plan’s incentives. Likewise, as one of my lenges” we mean, “preventing faculty appears. Thus, at least at the margins, colleagues stresses, to the extent that the members from sending recommendation if there is a working plan, we should plan encourages hiring post-graduates, letters too soon,” then yes, the judi- expect students at schools like BYU to it makes it more difficult for less “tra- ciary should be concerned. Otherwise, I do better than they would in a world ditional” students to clerk, especially agree with Chief Judge Wood that the without a plan, while students at the students who are married or who have administrative challenges should not be most selective schools should do worse. young children. After all, they have to significant. 4 74 VOL. 102 NO. 2

At bottom, law schools are not WOOD: No plan lasts forever, as all of follow the plan. Another circuit judge designed to prevent judges from hir- the judges who worked to develop this reports that on a recent trip to Boston, ing their students. No doubt many plan know well. But this plan has a bet- she told students that the plan is a mis- law schools see the advantage of a plan ter chance than many, because it has take and that “they should apply early and want it to succeed. But what hap- been built on the experience we have to judges in [her] circuit.” A third judge pens when a specific judge wants letters gained over the years. Critically, it is a told me in no uncertain terms that he of recommendation sent early? A law very simple plan centered on one piv- is not going to follow the plan. In fact, school may decide that it will not send otal date. No one needs to monitor the I’ve heard whispers that perhaps the letters before the deadline, no matter date when an application was sent, the majority of judges in at least one circuit what. But that school has to worry that date when it was received, the date of will not do so. Even the Ninth Circuit, other schools will not be so unyield- first interview, the date of offer, and the which issued a statement in favor of the ing. This is not an imaginary concern. date of acceptance. There is no “start- plan, admits that not all of its judges are In 2012, Georgetown Law circulated ing gun” for interviews that applicants on board. The same is true for the First a memo to its students, letting them must observe. The plan leaves as much Circuit which acknowledges that only know that “some of our peer schools are as possible to individual circumstances, a “majority” of its judges are on board; submitting students’ applications for including, importantly, the fact that the Third Circuit’s announcement is judicial clerkships in advance of dead- interviews can take place over the sum- ambiguous. lines established by the federal law clerk mer before the third year, when the Put all of this together and it is hiring plan.” Predictably, Georgetown applicant may well be working in a pretty obvious that a lot of clerkship also started sending letters. city near the judge to whom he or she hiring is going to happen outside of the

All the while, a similar dynamic is has applied. This timing means that plan. So what are other judges going to playing out with faculty members. We interviews need not come at the cost of do in response? Perhaps a critical mass know that some judges hire before the missing class. will decide to abide by the plan, even if deadline and that some profes- { it means missing out on many sors send letters to those judges. good clerks. But is that criti- So what should a professor do cal mass likely to hold together when a talented student asks THIS PLAN HAS A over the long run? I fear we for a recommendation? Some BETTER CHANCE THAN MANY, will be in for a repeat of the may stand firm and say, “No demise the old plan. At first a way, no how.” But is that fair to BECAUSE IT HAS BEEN BUILT handful of judges will refuse to the student? Around the same ON THE EXPERIENCE WE HAVE comply, some openly and some time as the Georgetown memo, GAINED OVER THE YEARS. not. And then a few more. And Harvard similarly announced then a lot more. And then the that “[f] aculty approached by plan will collapse. That said, I students who are applying on agree with Chief Judge Wood their own to non-complying judges may NIELSON: Answering this question is that this plan is better than the old plan; exercise discretion in deciding how to difficult because there is a “Heisenberg it is simpler and the summer is a better support such students.” That is a sen- problem” — if those of us who worry time for hiring. sible compromise — but it also largely about the plan state publicly that it gives up the game. Recommendation probably won’t work because judges Concluding thoughts? letters will be sent. aren’t following it, it may lead to even more judges not following it. Even so, WOOD: Through the adoption of this Previous plans did not last because the truth is that some judges are not fol- plan, participating judges around the many judges did not abide by the lowing the plan. And students deserve country will improve the clerkship guidelines, for a variety of reasons. Do that information. hiring experience both for their appli- you believe this plan is more likely to For instance, Judge Jerry Smith (for cants and for themselves. While it is not succeed? Why? whom I clerked a decade ago) sent a essential that every judge in the country letter to law schools to say he will not follow the plan, for the plan to succeed, JUDICATURE 75

we are hopeful that most difficult to plug those leaks. judges will find it in every- At the same time, a plan cre- one’s best interest to adopt ates problems of its own. And it. Suggestions for improve- THE TRUTH IS THAT SOME JUDGES if a plan doesn’t work (which ment are also welcome. ARE NOT FOLLOWING THE PLAN. is likely), the process becomes They may be addressed AND STUDENTS DESERVE THAT really unfair. Likewise, the ills to any member of the Ad of a world without a plan should Hoc Committee that for- INFORMATION. not be overstated; it may not be mulated the plan: Chief ideal to hire clerks with just one Judge Merrick Garland { year of grades, but some judges (D.C. Circuit); Chief Judge are good at it, and if they aren’t, Robert Katzmann (2d Circuit); Chief ment is about means, not ends. If there then there is an opportunity for other Judge Sidney Thomas (9th Circuit); or was a cost-effective way to push hiring judges to wait for passed-over superstars. Chief Judge Diane Wood (7th Circuit). back that would work, not encourage So if a plan isn’t realistic, what’s the exploding offers, not make the process best option? Transparency. Everyone NIELSON: I understand why a plan is more expensive for students, and not should know and play by the same attractive and I appreciate the efforts benefit some judges more than others, rules. No one should have to care about of Chief Judge Wood and the Ad Hoc I’d support it. rumors. And no one should be an Committee to try to build a system that But I just don’t see it. The new plan “insider.” Unfortunately, although it’s works best for everyone. Our disagree- is already leaky — and it would be very imperfect, I fear that means no plan. 76 BOOK REVIEW VOL. 102 NO. 2

Six books for understanding the Fourteenth Amendment

BY ROBERT N. HUNTER, JR.

uring the 150th anniver- the military rule of Southern states (Duke University Press, 1986) sets sary of the ratification of the during Reconstruction; and the con- the standard. Writing in part to rebut Fourteenth Amendment, tinuing struggle of the defeated South then-Attorney General Edward Meese’s the judicial scholar with an to deny newly freed slaves the privileges contention that the incorporation doc- Dinquiring mind will find much to read, and immunities of citizenship through trine applying the Bill of Rights to and much historical and constitutional the passage of “black codes” and sup- criminal defendants was not histori- wisdom to be gained, in new and not- pression of political freedom for white cally based, Curtis methodically builds so-new books about the Civil War and and black Republicans. Racial and his case. Starting with the antebellum Reconstruction. political violence throughout the South state law controversies regarding free The story of the Fourteenth and a deadly riot in Memphis sparked speech and slavery, the text describes the Amendment is inseparable from the the Joint Congressional Committee on legal and political context in which the times in which it was created. The Civil Reconstruction into action. Fourteenth Amendment was proposed War Amendments, part of the “Second What follows, in no particular order, and ratified. Curtis’s thesis focuses on the Constitutional Convention,” occurred are books I have read that may pique your views of John Bingham, the Ohio con- when “radical” Republicans controlled curiosity in considering how the found- gressman who drafted the language of Congress between 1865 and 1870. ing fathers of the Second Constitutional Section 1 of the Amendment. Bingham, All the Civil War Amendments were Convention created and used the a skilled lawyer, sought to overturn any enacted to overturn Barron v. Baltimore, Fourteenth Amendment to balance the lingering effects of the Dred Scott and 32 U.S. 243 (1833), and the legal results equites, address the challenges of their Barron decisions and give constitutional of the worst judicial opinion in Supreme times, and create a coherent democ- authority to legislative efforts to prevent Court history, the Dred Scott decision. racy. They also shed light on issues that Southern violence against newly freed There is prolouge to examine, remain relevant and volatile today. blacks and Republicans in the South. including: the passage of the Thirteenth Many Republicans of the 1866 Amendment outlawing slavery; the Michael Kent Curtis’s excellent No Congress believed the passage of the debate over readmission of the rebelling State Shall Abridge, The Fourteenth Thirteenth Amendment granted for- states back into the federal government; Amendment and the Bill of Rights mer slaves citizenship, and, therefore, JUDICATURE 77

the protections of the Due Process effect of the Fourteenth Amendment Clause of the Fifth Amendment and through the lives of three key fig- the Privileges and Immunities Clause ures in American history. The first of Article IV, which protected all cit- is American Founding Son, John izens’ fundamental liberties against Bingham and the Invention of the federal or state action, applied equally Fourteenth Amendment, by Gerard to freed slaves. But John Bingham N. Magliocca (New York University saw that more was needed. President Press, 2013). John Bingham, an Andrew Johnson’s veto of the Civil Ohio lawyer, served in the House Rights Act of 1866 disabused the of Representatives from 1855 until Republicans of their belief that statutes 1873, with the exception of two alone could protect newly freed slaves years from 1864 until 1865. He was and unionists in the post-war South. an abolitionist who fought against As chief drafter of the amendment, admitting Kansas and Oregon to the Bingham’s job was to “constitutional- Union unless they assured the equal ize” the protections of the federal Bill rights of all citizens, regardless of of Rights in order to quell state efforts race. During the Civil War, Lincoln to abridge those rights. appointed Bingham to serve as Judge While Bingham’s language seems Advocate with the rank of Major in clear now, in a series of cases begin- the Union Army. Following Lincoln’s ning with the Slaughter-House Cases, death, Bingham served as a military 83 U.S. 36 (1873), the Supreme prosecutor in the trials of Dr. Samuel Court interpreted the amendment Mudd and John and Mary Sarratt, as applying to a small set of rights who were accused of conspiring with of citizenship (e.g., the right to use John Wilkes Booth to assassinate navigable rivers). Bingham’s broader President Lincoln. Bingham also later view would not become law until the served as one of the House prosecutors Warren Court of the 1960s. Curtis’s in the impeachment trial of President book gives an interpretative his- Johnson. Bingham’s final service to tory of the Fourteenth Amendment the United States was as Ambassador in court from its inception, to its to Japan under four presidents. demise, and finally to its resurrection The book examines in depth in the Warren Court. Bingham’s efforts to secure explicit to the partisan battles between Congress Constitutional authorization for Another entertaining volume of his- and President Johnson. This is less a federally protected privileges and tory of the Fourteenth Amendment is book about legal theory than an Allen immunities, and equal protection for all Democracy Reborn, The Fourteenth Drury thriller concerning the ability U.S. citizens. As battles with President Amendment and the Fight for Equal of Congress to pass legislation over the Johnson over Reconstruction made clear, Rights in Post-Civil War America by objections of a recalcitrant president any Congressional legislation extend- Garrett Epps (Henry Holt & Company, and minority Democratic Party. Epps ing federal rights to the states would 2006). This volume contains a digest- offers a thorough overview of the peri- be left to the impermanence of future ible chronology of events and their od’s historical context leading up to the Congressional action or judicial inter- significance in the passage of the Civil passage of the Fourteenth Amendment pretation. Knowing the Southern states War Amendments. Epps examines in and until its ratification. would eventually be reconstructed and detail the politics of Reconstruction readmitted to the Union, Bingham and from Abraham Lincoln’s death in 1865 Epps’s volume sets the historical stage for other anti-slavery Republicans seized to Republican Senator Charles Sumner’s three biographies of recent vintage, which the opportunity to enact additional death in 1874, particularly with regard provide in-depth examinations of the amendments. Bingham’s pivotal role in 4 78 VOL. 102 NO. 2

these efforts, particularly in the creation turned a victory into a long-simmering give testimony, and bring civil actions of the Fourteenth Amendment, is worth guerilla war. against their former masters. Imagine this deeper look. Grant’s efforts to use military troops serving as a trial judge, riding your cir- to enforce the federal Civil War amend- cuit with a horse and buggy, carrying The second biography is Grant by ments were problematic. As victors have a sidearm to prevent your own assas- Ron Chernow (Penguin Press, 2017). learned in occupying defeated countries, sination, and having to dismiss cases In his latest best-seller, the Pulitzer it is difficult to militarily occupy rebel because all witnesses had been killed or Prize-winning author of Hamilton and territory and attempt reconciliation at were too frightened to testify. Tourgee’s Washington seeks to rehabilitate the rep- the same time. Republican governors fiction is a thinly disguisedroman à clef utation of the eighteenth president of the in the South pled with Grant to sup- for his life. United States. Thanks to his wartime port their battles against the Klan and Tourgee went on to be a newspa- experience and his close confidential rela- other Southern resistance. For a time he per writer who never lost the radical tionship with President Lincoln, Grant did just that. Grant was also the first Republican views he held in his youth. well understood the racial problems that president to confront a Congress with His penultimate act was to plot with arose after emancipation. Southern delegates at full strength. citizens in New Orleans to bring a chal- Beginning with the amnesty Although Grant’s presidency was lenge to railroad segregation in the proclaimed in Lee’s surrender at troubled by corruption and graft, his South in Plessy vs. Ferguson. 163 U.S. 537 Appomattox and during his post-war efforts to secure equality for all citizens (1896). His arguments were grounded service as Commander of the Armies of remained constant. This biography is in the Fourteenth Amendment, and Occupation under President Johnson, a fascinating narrative of an imperfect in his brief to the Supreme Court he Grant sought to assure that newly man who served honorably as president. coined the phrase “color-blind justice.” freed slaves were treated as citizens. His story further emphasizes the diffi- He was the first president to employ The final biography essential to under- culties faced by the victors in trying to the Fourteenth Amendment and its standing the story of the Fourteenth “reconstruct” a hostile, defeated people enforcement legislation to protect black Amendment is Color Blind Justice, to accept new ideas. Cases like Plessy and people from the white supremacists in Albion Tourgee and the Fight for Racial United States v. Cruikshank, 92 U.S. 542 the South following the War. At best, Equality from the Civil War to Plessy (1876), largely ended practical enforce- the results were mixed. Still, his biog- v. Ferguson, by Mark Elliot (Oxford ment of the Fourteenth and Fifteenth raphy offers a fascinating study of the University Press, 2006). Albion Tourgee, Amendments for six decades thereafter. life and times of the United States from a native of the Western Reserve of Ohio, the Mexican War through the end of was a Union officer who settled in North The final volume I recommend is Reconstruction. Grant, a West Point Carolina following the Civil War. Active The Republic for which it Stands: graduate, served as a young officer in in local politics, he was elected as a cir- The United States During Recon- the Mexican War. From a blue-collar cuit court judge and served from 1869 struction and the Gilded Age, family of hide tanners in the Midwest to to 1873, was a leading delegate to the 1865-1896, by Richard White marriage into a slave-owning plantation 1868 Constitutional Convention, and (Oxford University Press, 2018), the family in Missouri, Grant’s personal served as a Code Commissioner in the latest volume in the multi-volume set, history illustrates the Civil War’s dra- writing of North Carolina’s civil code. The Oxford History of the United States. For matic impact on American families. The Following the end of his elected career, those who have read the other Pulitzer book also chronicles the development he became a best-selling author of fic- Prize-winning volumes in this series, of Grant’s friendship with Lincoln, rat- tion, recounting stories gleaned from his its tradition of excellence in historical ified by a string of battle successes in years on the bench in Reconstruction- storytelling continues here. While The the War along the Mississippi and cul- era North Carolina. Republic for which it Stands adequately minating in Vicksburg, and his final Two of Tourgee’s books, A Fool’s recounts the events of the time, the victory at Petersburg and Appomattox. Errand and The Invisible Empire, describe author does more than simply tell the Following surrender, Grant’s generous the challenges trial court judges faced story of the United States during this terms to Southern veterans sought to as they enforced the newly won rights time period. He gives fresh meaning to prevent recriminations that could have of African Americans to serve as jurors, these events through the broad lens of JUDICATURE 79

the governing philosophy of the time. a coalition with the Democrats to sup- legal arguments. The energy that under- For example, he points out that at the port Horace Greely for president against pinned the Fourteenth Amendment may end of the Civil War, the United States Grant in the election of 1872, presag- have failed to hold in its time, but after was three different countries: the victori- ing the abandonment of the blacks in lying dormant for years it was resurrected ous and controlling North, the stillborn the South in the compromise of 1877. by the Warren Court in the 1950s and South, and the Wild West. He points Despite their best efforts, Radical 1960s. And it still occupies our attention out that during this period the North’s Republicans, ascendant until 1872, today, in new form. The past is prologue; dominating ethic permeated public pol- failed to effectuate the legal revolution study the past. icy. Its tenets favored a free-labor and their efforts envisioned. Nevertheless, the contract-rights economy tempered by ideals that dominated this period helped ROBERT N. “BOB” the growth of private organizations, shape the American dream of home, pub- HUNTER, JR., is a such as fraternal orders and protestant lic concepts of morality, and the role of judge on the North Christianity. This dominating ethic government in homogenizing the coun- Carolina Court of dictated the philosophy that not only try. This is a good read, as are the other Appeals. He previ- formed the Southern Reconstruction but books in this series, and a must-read for ously practiced law also the development of the West, which, students of American history. for 35 years with he contends, was the subject of a Greater the firm of Hunter, Higgins, Miles, Reconstruction. A useful insight. History and law are studies of energy. Elam and Benjamin, PLLC, as man- The shifting political coalitions that At various times in the history of our aging partner. He is past president helped achieve victory in the Civil War country, concern for the poor is para- of BarCares, Inc., which delivers had very different ideas about reconcilia- mount, then populism is ascendant, and, programs and counseling services to tion with the South and settlement of the at other times, business oligarchies rule. meet the psychological health needs West. For example, “liberal republicans” Nevertheless, the energies that take polit- of the bench and bar, and he is a 2014 who believed in laissez-faire economics ical hold and become law remain with us graduate of the Duke Law Master of and a weak central government formed for generations, only to reappear as new Judicial Studies program. 80 REDLINES VOL. 102 NO. 2

Zap multiword prepositions, please Probably the worst small-scale fault in legal writing is unnecessary prepositional phrases, a fault that this column will keep going after. A noxious variant is the multiword preposition — a phrase that can routinely be reduced to a single, simple preposition. Examples: with regard to (= on, about); for the purpose of (= to, for); during the course of (= during); prior to (= before); subsequent to (= after). Take aim at these gremlins. Original Better On September 14, 2012, the Plaintiff filed her First Amended [By this time in the opinion, the names are familiar: Winston is Complaint. It contained no reference to the Probation Memo. a defendant, Sorkin is a former counsel of his who now represents On that same date, Winston’s counsel, Judd Burstein, Esq., the plaintiff, and Friedman is also a former counsel for Winston. was contacted by Friedman, who informed him that Sorkin Complicated, but it doesn’t matter for this exercise.] had contacted her with regard to the Probation Memo. On September 14, 2012, three events occurred. Burstein then filed a letter, also on September 14, 2012, in (1) Plaintiff filed her first amended complaint. It didn’t order to notify the Court that he believed that Sorkin used mention the probation memo. (2) Winston’s counsel, Judd privileged material. He requested a conference with respect Burstein, was contacted by Friedman, who told him that to this issue. Thereafter, Burstein and Sorkin exchanged a Sorkin had contacted her about the memo. (3) Burstein then series of emails concerning whether the Probation Memo was filed a letter to notify the Court that he believed that Sorkin a privileged document and how Sorkin came to obtain it. On had used privileged material. He requested a conference on October 3, 2012, the Court granted Winston’s request for a this issue. conference scheduled for October 5, 2012. After these events, Burstein and Sorkin exchanged a series of emails about whether the memo was privileged and how Sorkin came to obtain it. Then in October, the Court granted Winston’s request for a conference.

three events occurred. Redlined (1) On September 14, 2012, the Plaintiff filed her First Amended 1. Why not an occasional contraction for a relaxed, > didn’t> mention 1 Complaint. It contained no reference to the Probation Memo. conversational style? (2) 2 2. Are we going to start referring to every lawyer as On that same date, Winston’s counsel, Judd Burstein, Esq., Esq.? > told was contacted by Friedman, who informed him that Sorkin 3. Multiword preposition. about 3 had contacted her with regard to the Probation Memo. 4. Multiword preposition. (3) Burstein then filed a letter, also on September 14, 2012, in 5. Multiword preposition. > 4 had order to notify the Court that he believed that Sorkin used 6. Almost always, about beats concerning. Listen to on > 5 how you talk. privileged material. He requested a conference with respect After these events, 7. This date might not be necessary, but the shortened to this issue. Thereafter, Burstein and Sorkin exchanged a form helps to make a transition. > > about 6 series of emails concerning whether the Probation Memo was 8. Surely this date is unnecessary. a privileged document and how Sorkin came to obtain it. On Then in 7 October 3, 2012, the Court granted Winston’s request for a > 8 conference scheduled for October 5, 2012.

JOSEPH KIMBLE is an emeritus professor at WMU–Cooley Law School. He is senior editor of The Scribes Journal of Legal Writing, the editor of the Plain Language column in the Michigan Bar Journal, and the author of three books and many articles on legal writing. He served as drafting consultant on the projects to restyle the Federal Rules of Civil Procedure and Federal Rules of Evidence. Follow him on Twitter @ProfJoeKimble. 4 The Center for Judicial Studies is now the

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NOV. 8–11 IN ATLANTA

The Appellate Judges Education Institute offers practical, 4-day immersion in cutting-edge, continuing legal education for federal and [ appellate court issues ] state appellate judges, appellate court staff attorneys, and plenary sessions and [ breakouts with CLE ] practitioners from across the country. This year we join the Eleventh Circuit Appellate Practice Institute (ECAPI) networking and [ social activities ] to present a joint AJEI and ECAPI Summit. Join us Nov. 8–11 in Atlanta for the nation’s Early-bird registration ends Sept. 30! Register now at premier appellate education program! judicialstudies.duke.edu/AJEI

Details at JUDICIALSTUDIES.DUKE.EDU/AJEI