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 THE STORIED THIRD BRANCH 6 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.