Decade at Duke, Part III of III: Standout Articles from Judicature’s Past 10 Years

A Ten-Year Look Back at Some of Our Favorite Articles

In 2015, Duke Law School took over publication of Judicature from the American Judicature Society, recentering the journal on issues of particular interest to judges: judicial administration, courts, and the rule of law. To celebrate Judicature’s first “decade at Duke,” we have included excerpts from some of our favorite articles since 2015 in each edition of this volume. This collection of 12 articles marks the third and final installment of our retrospective. Thank you, as always, for your continued support.

If you’re curious about the journal’s earlier history, don’t miss our “Dive into the Archive” virtual exhibit — also on our website — which plumbs the depths for intriguing pieces dating back to the journal’s 1917 founding.

— Amelia Ashton Thorn is articles editor of Judicature; Jake McAuliffe is a Duke Law student editor.

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The Nuts and Bolts of the 2015 Discovery Amendments

David F. Levi, Chilton Varner, Derek P. Pullan, John G. Koeltl & David G. Campbell
Vol. 99 No. 3 (2015)

In 2010, hundreds of lawyers, judges, and law professors convened at Duke Law to ask: How effective are the Federal Rules of Civil Procedure? One area drew broad consensus — discovery must be more efficient and less expensive. In “The Nuts and Bolts of the 2015 Discovery Amendments,” former dean of Duke Law School and founding director of the Bolch Judicial Institute David F. Levi looks back on the 2010 conference and examines the 2015 amendments with current and past members of the Advisory Committee on Civil Rules — Judges David G. Campbell, John G. Koeltl, and Derek P. Pullan, and trial lawyer Chilton Varner — to unpack the changes inspired by the meeting. Their conversation is like a time capsule, capturing fresh reactions while inviting the reader to reflect on discovery’s evolution.

For the full article, visit https://duke.is/nutsandbolts.

LEVI: Here we are, you’ve done this marvelous, big piece of work. What’s left to be done? If you could drive a further reform, what would it be? Or have we achieved perfection?

CAMPBELL: I don’t think any of us assumes we achieved perfection. . . . These amendments will need to be adjusted as we learn more from their application. . . . The thought is that if we can get district courts to experiment with changes, we’ll have more information with which to make a proposal, in addition to the very valuable experience that comes out of the states, like Utah. The committee is very much interested in continuing to look for improvements.

KOELTL: The most important thing to me is the implementation of these rule amendments. They’re certainly not the end of the process. Proportionality has been in the rules since 1983, but hasn’t been followed. One of the purposes behind putting all of these rule amendments together was to let judges and lawyers know that something important has happened, and they really should attempt to understand what these changes are. So there’s a process of judicial education and legal education for the bar to have people understand the way in which all of these amendments work and what they’re intended to accomplish. The amendments will only be as good as the implementation. If I had my way, a lot of effort would be placed on education for judges and continuing legal education for the bar.

PULLAN: In the same way that this movement toward proportionality requires a cultural change in the way members of the bar litigate civil cases, a cultural change within the judiciary is also afoot. We must persuade judges that early and active case management is an infinitely more efficient way to process their civil litigation calendars. Changing entrenched practices takes time and consistent effort. But I see that happening in Utah. Pilot projects focused on case management can provide persuasive evidence for reluctant state jurists.

VARNER: I think the committee has bitten off about as much as we can chew for now. I agree that the implementation process is going to be critical and deserves the support and engagement of the bar. The committee has done terrific work on a complex project. I say congratulations, and we’ll look forward to the culture shift that Judge Pullan talks about.

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Access to Affordable Justice: A Challenge to the Bench, Bar, and Academy

Neil M. Gorsuch
Vol. 100 No. 3 (2016)

Before joining the U.S. Supreme Court, then-Tenth Circuit Court of Appeals Judge Neil M. Gorsuch confronted the professional legal structures that make justice contingent on clients’ pocketbooks. In “Access to Affordable Justice: A Challenge to the Bench, Bar, and Academy,” he calls for reform in three areas within lawyers’ control: practice rules, civil procedure, and legal education. His essay unsettles the comfort of a self-regulated profession and delivers an implicit warning: If attorneys cannot adapt, others might do it for them.

For the full article, visit https://duke.is/accesstoaffordablejustice.

The skyrocketing costs of legal education are no secret. Since the 1980s, private law school tuition in the United States has increased by 155.8% and public law school tuition by 428.2% (yes, in real, inflation-adjusted terms). Today, many students pay over $200,000 for a legal education — that on top of an equally swollen sum for an undergraduate degree. And with rising tuition costs come other costs, too. Increased debt loads reduce students’ incentives and ability to take on lower-paying public service or “main street” legal jobs. No doubt, as well, some of these increased costs are ultimately borne by consumers, as lawyers pass along as much of their “overhead” expenses (student loans) as they can. Which raises the question: Why is a legal education so expensive? . . .

Consider first and perhaps most ambitiously the mandate that most everyone must attend three years of law school after the completion of a college degree. We’ve come a long way from Abraham Lincoln’s insistence that “[i]f you wish to be a lawyer, attach no consequence to the place you are in, or the person you are with; but get books, sit down anywhere, and go to reading for yourself. That will make a lawyer of you quicker than any other way.” For much of our nation’s history, President Lincoln’s advice held true: The only requirement to become a lawyer in most states was to pass the bar exam. Even some of the law’s luminaries as late as the mid-20th century didn’t attend three years of law school, greats like Justices Robert Jackson and Benjamin Cardozo and Harvard Law School Dean Roscoe Pound.

Where did the idea of three years of graduate education come from? It appears most states adopted the requirement at the behest of the American Bar Association (ABA). In pushing states to adopt this requirement, the ABA emphasized that legal education must develop in students a mind attuned to the common law — an argument arguably not specific to three years as opposed, say, to two or four. . . .

Recently, the ABA acknowledged the need for greater heterogeneity in legal education. And one starting place might be to permit students to sit for the bar after only two years of study, allowing students and employers alike to determine the value of an optional third year of law school. . . . First steps, maybe, but steps in the right direction.

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Book Review: Madison’s Music

Melissa Hart
Vol. 100 No. 3 (2016)

Judicature book reviews provide readers both expert guidance through important legal works and sharp, critical takes on their arguments. Professor Melissa Hart of the University of Colorado Law School provides both in her review of Madison’s Music by Burt Neuborne, founder of New York University’s Brennan Center for Justice. Neuborne argues that the Bill of Rights has a deliberate “logic — a music — to its order.” Hart tests Neuborne’s democracy-centered reading of the First Amendment, questioning whether his bold harmony will strike a chord with readers.

For the full article, visit https://duke.is/madisonsmusic.

One of the most interesting points in Madison’s Music comes before Neuborne turns to the First Amendment core of his argument. The first ten amendments, he argues, are not randomly ordered. Instead, there is a logic — a music — to their order that should inform how they are interpreted. Beginning with the First Amendment, which he describes as a “narrative of democracy,” Neuborne says the amendment is structured on a “disciplined inside-to-outside axis, beginning in the two religion clauses with freedom of thought, progressing through three ascending levels of individual interaction with the community — free expression of an idea by an individual, mass dissemination of the idea by a free press, and collective action in support of the idea by the people — and culminating in the petition clause with the introduction of the idea into the formal process of democratic lawmaking” (pages 17–18). His description of the First Amendment’s inside-out order is a compelling and original one, and he returns to this idea throughout the book. . . .

Having elaborated on the structure of the First Amendment and its neighbors, and the importance of that structure for interpreting these provisions, Neuborne turns to the Supreme Court’s current jurisprudence. The Court’s decisions on a host of election and campaign-related questions, he contends, would have reached fundamentally different answers under a democracy-focused reading of the First Amendment. The Supreme Court, Neuborne argues, has tolerated anti-democratic practices and surrendered politics to the wealthy, and it has done so through readings of the Constitution that were neither inevitable nor attractive. . . .

In the second part of Madison’s Music, Neuborne makes a number of very interesting observations about how we currently understand the First Amendment. One of his central critiques is that the Supreme Court has over-privileged “speakers” in its interpretation of the First Amendment and has therefore failed to adequately appreciate the rights of “hearers” as well as the full meaning of the other First Amendment clauses. Neuborne describes the First Amendment as a “neighborhood” that includes “speakers, hearers, conduits (whose principal function is to transmit the speech of others to larger audiences), speech targets (persons discussed or described in the speech), and government speech regulators. . . . ” (pages 98–99). The Court, he argues, “has anointed speakers as the neighborhood aristocrats” (page 99). In focusing so entirely on the rights of the speaker, the Court has too frequently failed to consider the rights of others in the First Amendment neighborhood.

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One for All: Are Nationwide Injunctions Legal?

Amanda Frost & Samuel Bray
Vol. 102 No. 3 (2018)

Seven years before the rest of the nation grappled with the fate of nationwide injunctions, Judicature readers learned about it. In “One for All: Are Nationwide Injunctions Legal?” scholars Samuel Bray and Amanda Frost predicted that injunctions blocking federal policies nationwide were “aberrational” and unlikely “to last.” Their foresight proved accurate, which is unsurprising given that both are cited extensively in the U.S. Supreme Court’s Trump v. CASA decision limiting the practice. For a timely take on the pros and cons of the “one court to rule them all” approach, there are no better guides.

For the full article, visit https://duke.is/p/wvud.

JUDICATURE: What do you foresee as the future for nationwide injunctions? Do you expect the courts or Congress to address the legality of these orders anytime soon?

BRAY: Because the national injunction is aberrational, I do not expect it to last. What I do not know, however, is the likely endgame. The courts of appeals could end the national injunction, but so far, they have not. The Supreme Court could end the national injunction, and Justice Clarence Thomas has signaled his concern on the subject. But the Court has so far passed on its opportunities to decide the question directly, even while its standing cases have continued to emphasize that remedies should be focused on the parties themselves (e.g., Gill v. Whitford). Another possibility is that Congress could end national injunctions, and a bill to that effect was recently reported out of the House Judiciary Committee (the Injunctive Authority Clarification Act of 2018). In short, I am unsure of exactly how the story will end, but I would be very surprised if we continue for long to allow a single court to issue an injunction controlling the behavior of the United States toward everyone in the country.

FROST: Over the past few years, members of Congress have introduced bills that would limit or prohibit nationwide injunctions. . . . But the issue has yet to gain much political traction. Nationwide injunctions are attractive to whatever political party does not control the presidency, and so both Democrats and Republicans may hesitate to eliminate them entirely.

In his concurrence in Trump v. Hawaii, Justice Clarence Thomas criticized nationwide injunctions and declared that “[i]f their popularity continues, this Court must address their legality.” But federal courts are now more educated about the costs of nationwide injunctions and approach such injunctions more thoughtfully than in the past. . . . Going forward, it seems likely that courts will be more cautious in issuing these injunctions, which in turn may take away the incentive for Congress or the Supreme Court to address the issue. But of course, it is always difficult to predict what the future will hold.

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To Pay or Not To Pay?

Jay Bilas
Vol. 103 No. 3 (2019)

In “To Pay or Not to Pay?,” written just before the NCAA authorized name, image, and likeness (NIL) contracts, Judicature‘s articles editor Amelia Ashton Thorn passes the ball to Jay Bilas — ESPN analyst and Duke legend in law and basketball — to break down the legality of paying college athletes. A longtime critic of the NCAA’s “amateurism model,” Bilas dunks on the argument that player compensation would wreck college sports. He clearly saw the play developing long before tip-off: Teams are adapting to the NIL era, and fans never left the arenas.

For the full article, visit https://duke.is/topayornottopay.

THORN: If the NCAA does allow its players to be paid, how should it work? Who should pay, who should get paid, and how much would it cost?

BILAS: In my view, it is simple. Each school can decide whether to pay its athletes, which athletes to pay, and how much to pay. Each school is clearly capable of deciding which athletes to recruit and which athletes to put into the game when they need to win. They know exactly whom to pay and how much. I played at Duke, which has over 30,000 employees. Duke does not wring its hands, wondering whether to pay the landscape professionals the same as the chief of surgery or the chair of the English Department. Duke does not find it too complicated to pay the basketball coach and the volleyball coach, or to price tickets to basketball games relative to lacrosse games. It is ridiculous to think that such decisions can be made in the conduct of this multibillion-dollar industry but is only complicated when it comes to athletes.

THORN: What would change for viewers and fans if NCAA athletes were paid?

BILAS: The NCAA would tell you that the enterprise would collapse under its own weight, and fans would turn away. Of course, that is ridiculous and without basis. No fans have turned away as coaches’ salaries have skyrocketed and universities signed apparel contracts that use athletes as unpaid billboards. The thought that fans would turn away from the product is absurd, especially since fans have not turned away from an industry awash in money. . . . Years ago, the NCAA claimed that schools would not be able to afford the cost of a college attendance stipend and that, as a result, sports would be cut. Yet, this practice has been accepted, and no fan bristles at this fundamental change in amateurism rules. Amateurism is, literally, whatever the NCAA says it is at any given time. It is past time to allow athletes the same economic rights as every other student and every other person in college sports. Fairness is not complicated. Unfairness is.

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10 Things Judges Should Know About AI

Jeff Ward
Vol. 103 No. 1 (2019)

The year is 2019. A public ChatGPT is but a twinkle in OpenAI’s eye, and few companies have explored more-than-niche uses of machine learning. Yet in “10 Things Judges Should Know About AI,” Duke Law Professor Jeff Ward warns prophetically that soon “some rough seas will stir.” Fast forward to 2026. AI has far surpassed narrow-use cases and now has a role in predictions of recidivism, sentencing efforts, and evidence authentication. Judges and other professionals steering this tech tempest would do well to revisit these past lessons, lest AI capsize their courtroom coherence.

For the full article, visit https://duke.is/10thingsaboutAI.

Generative AI tools — those that create synthetic data and media — offer significant promise for a wide range of consumer and research applications. In addition to the challenges wrought by machines that inform decisions, the potential promise and peril of AI also grow with advanced machines that make fake digital media. Digital artifacts — fake photos, videos, and voices — made by emerging AI models can fool even the savviest critics. Such fakes are often made from “generative adversarial networks” that pit two AI models against one another: The “generator” model generates digital artifacts intended to fool the “discriminator” model into thinking the generated object is a real example. The outputs of these sophisticated tools may reshape our perceptions of reality and our abilities to trust. The implications of these hyper-realistic creations are significant both in and out of the courtroom.

On the consumer end, these tools may generate content for immersive video games or enhance the resolution of a favorite family photo. Perhaps more profoundly, generative AI is poised to enhance medical research: For example, in settings where very limited real data is available, generative AI might be used to create additional, realistic examples to augment data sets that, in turn, train the tools that will bring us more accurate and more accessible diagnostics. Generative AI is already empowering astronomers and other scientists by reconstructing data originally transmitted at low resolutions, building rich and usable data for scientific study. This is only the beginning. . . .

The judiciary — among many other stakeholders — must play a key role in ensuring that AI tools do not undermine our core cultural values. To be sure, AI promises both to improve our lives and to challenge our most fundamental conceptions of fairness, due process, and even truth. And, perhaps ironically, technology itself will play a role in helping us to combat these technological dangers — technology, for example, may be able to audit the algorithms used in sentencing or to help us spot fake digital creations. But with so much at stake, we cannot rely on technology alone, and the judiciary — among many other stakeholders — will be called upon to play a key role in ensuring that AI tools do not undermine our core cultural values. There is cause for optimism: The common law is a system built for evolution, and the judiciary has proven adept at learning new worlds and helping to guide our ships through uncharted seas.

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The Negotiation Class

Elizabeth Burch, William Rubenstein & Francis McGovern
Vol. 104 No. 1 (2020)

Growing dockets may be the “mother of judicial invention,” but late Duke Law Professor Francis McGovern was its father. Shortly before his death, he added to his legacy with a creative approach to class certification in a sprawling opioid multidistrict litigation (MDL) suit. In “The Negotiation Class,” legal scholar Elizabeth Burch interviews McGovern and his colleague, Professor William Rubenstein, about their proposal to certify a class for negotiation purposes. Although courts have questioned its legality, the negotiation class stands as an inspiring model for future lawyers following McGovern’s tradition: The more complex the litigation, the more opportunity for ingenuity.

For the full article, visit https://duke.is/thenegotiationclass.

BURCH: How did you come up with this idea for the negotiation class, and how does it work?

MCGOVERN: The genesis was a phone call from some lawyers in the opioid MDL who were wondering how they could participate in some type of overall settlement, even though they were not part of the Plaintiffs Executive Committee. There are roughly 30,000 cities and counties that would potentially be involved in settlement, so the question was, “How do you put together a group of folks who could facilitate their bargaining power and still provide defendants the kind of closure they are looking for in the settlement of a case?” . . .

RUBENSTEIN: What’s new about this “negotiation class” idea is that it works like an amalgam of [the conventional trial class action and the settlement class action]. As in the trial class action, we certify the class upfront, but as in the settlement class action, we only do so for the purposes of negotiating a settlement. What [McGovern] came up with is: “We can’t tell you exactly how much you’re going to get. But we can tell you what percentage of the settlement you’ll get. And we can safeguard your rights by making sure when a settlement is finally achieved, every class member will get to vote on the settlement.” It really is a kind of ingenious idea that puts together a lot of pieces that both enable settlements in certain types of situations and simultaneously protect the rights of absent class members.

BURCH: What sort of guardrails, limits, or barriers would you impose . . .?

RUBENSTEIN: We think the class certification requirements still have to be met for negotiation class certification. . . . Second, upfront consideration of whether the allocation of the settlement is equitable is another guardrail. . . . Third, the negotiation class requires judicial approval of who is negotiating on behalf of this class. . . . As a final guardrail, the class itself gets to vote on the outcome — which is an attribute we don’t currently have in any form, other than the negative form of an opt-out. . . .

MCGOVERN: It’s a topic that deserves a lot of additional scrutiny. Like most of my ideas, it comes out of a concrete case. Sometimes the ideas work in one context and not in another. And sometimes they don’t work at all. So it gives me some pleasure to even think that others are discussing this in various places around the country.

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An Immigrant Judge’s Ode to Naturalization Ceremonies

Nancy Joseph
Vol. 105 No. 1 (2021)

Among the many disruptions of the COVID-19 pandemic, one of the most poignant was the loss of ceremony — no graduates crossing stages, few weddings, and, for new citizens, no naturalization events. In her “Ode to Naturalization Ceremonies,” Magistrate Judge Nancy Joseph of the U.S. District Court for the Eastern District of Wisconsin recalls the mid-pandemic absence of “joy and excitement” in the “monastic federal courthouse.” Her personal reflection reminds us of the human touches we often take for granted in court — cheers, songs, and “sparkles of hope” in every new citizen’s eyes.

For the full article, visit https://duke.is/naturalizationceremonies.

I miss the privilege of witnessing and playing a small part in the participants’ journey to citizenship. I miss the collective audible gasp from the new citizens when I reveal my own journey to citizenship, which began with my parents’ arrival to this country from Haiti with nothing but their hopes and dreams of building a better life in the United States for themselves and their children. I share how my parents made the journey; first my father, and later my mother, each traveling alone, leaving behind eight children in Haiti. I was 10 months old when my father left and 17 months old when my mother left. I did not join them in the United States until I was 8 years old. . . .

I miss the knowing nods as I describe my own experience as a college student filling out the multitude of government forms, studying for the civics exam, nervously attending the interview with the immigration official, and, finally, standing before a federal judge to take the oath. Too, I miss what I read in the new citizens’ eyes as sparkles of hope for their own children as I recount my journey to the federal bench, a journey that has led me to administer their oath that day. I miss sharing how I look forward to reading the next chapter in our American story that they and their children will surely write. Will their daughter be a judge, a teacher, or perhaps a lifesaving epidemiologist?

I miss the cheers when I tell them that I had the privilege of administering the oath of citizenship to my 92-year-old adoptive mother, who raised me in Haiti before I joined my parents in the States. But most of all, I miss the important ritual at the core of the naturalization ceremony — a remembrance of our immigrant past, present, and future and a celebration of our aspirations as a multicultural democracy.

I look forward to naturalization ceremonies returning to our courthouse. I will return to them with renewed appreciation for the special place that they occupy in my heart, our courts, and our country.

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Last Living Nuremberg Trial Prosecutor Recalls His Work on the Einsatzgruppen Trial

Benjamin Ferencz & Michael P. Scharf
Vol. 105 No. 3 (2021)

Benjamin Ferencz may have been the most interesting lawyer in the world. Born in Transylvania and raised in poverty in Hell’s Kitchen, he ultimately became a Harvard Law scholar and spent what should have been his 3L year fighting across war-torn Europe. And we haven’t even gotten to the most interesting part: his service as a Nuremberg prosecutor, the work that led him to be the first prosecutor to use the term “genocide” in court. In 2021 — the 75th anniversary of the Nuremberg trials and two years before his death — Ferencz received the Lemkin Rule of Law Medal from the Bolch Judicial Institute. He was interviewed by former Case Western Law Dean Michael P. Scharf about his experiences in “Last Living Nuremberg Trial Prosecutor Recalls His Work on the Einsatzgruppen Trial.” No summary can do justice to his words.

For the full article, visit https://duke.is/nurembergprosecutor.

SCHARF: Ben, how old were you at [the] time [of the Nuremberg trials]?

FERENCZ: I was 27 years old. I’d never been in a courtroom. Never tried a case.

SCHARF: During the trial, you quoted Raphael Lemkin, whose medal you are given today. [He] coined the term “genocide” and you were the first prosecutor in history to use the term in a court.

FERENCZ: That’s correct. I did that because he had a really sad story to tell. We remained friends for many years after that. But, I thought, in tribute to him, I’m going to call it what it is: genocide. And I did so in the second or third paragraph of my opening statement, which began: “It is with sorrow and with hope that we here disclose a deliberate slaughter of more than a million innocent and defenseless men, women, and children.” The sorrow was for the victims. The hope was for the future. . . .

SCHARF: It was the biggest murder trial in history. And you convicted everybody.

FERENCZ: . . . The Einsatzgruppen consisted of four different segments of about 3,000 men. I had 24 defendants because I was limited to the number of people who could be tried by the international military tribunal. In other words, if you didn’t have a seat in the courtroom, you were free. It was the most ridiculous thing. But I was limited.

I said, “Now, how am I going to bring justice?” We’ve got 24 defendants and a million people murdered. You cannot balance the scales of justice with these, no matter if you chopped them up into a million pieces and fed them to the dogs. So I said, “Well, if I could have this trial mean something, it would have to be more than just executing these select few.” They had murdered the people because they didn’t share the race or the religion or the ideology of their executioners. If I could lead the trials to saying, “Well, what happened here was a crime against humanity — it was genocide.” If we were to have meaning to this trial, it must be to ensure the right of all human beings to live in peace and dignity, regardless of their race, or creed, or religion, or color. That’s what I asked for. The case represented a plea of humanity to law. My emphasis was on that, and I got that judgment.

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Trauma-Informed Judicial Practice From the Judges’ Perspective

Eva McKinsey, Samantha A. Zottola, Luke Ellmaker, Alexis Mitchell & Mark Heinen
Vol. 106 No. 2 (2022)

In an era of strained public confidence in courts, trauma-informed judging is not merely idealistic but also pragmatic. Trauma takes many forms and may lead to changes in the brain that in turn can increase the likelihood of criminal involvement. To respond effectively, judges must take up new tactics. In “Trauma-Informed Judicial Practice From the Judges’ Perspective,” Eva McKinsey and Samantha Zottola, along with student co-authors Alexis Mitchell, Mark Heinen, and Luke Ellmaker, describe findings from interviews with judges following their participation in a pilot trauma education course administered by the Bolch Judicial Institute. The article provides a rare behind-the-curtain look at judges’ perspectives on trauma education, trauma-informed courtrooms, and barriers to implementing trauma-informed judicial practice.

For the full article, visit https://duke.is/traumainformed.

In this article, we share results from an investigation into judges’ perspectives on trauma education programs and on trauma-informed courtrooms more broadly. Judges shared important recommendations for the structure and content of trainings and insights into the barriers to implementing trauma-informed practices in their courtrooms. We conclude by highlighting a few recommendations that came out of this research and that we believe are important considerations as the work of creating a trauma-informed criminal legal system continues. . . .

First, future trainings should include the voices of people who have experienced trauma and have been justice-involved. While many trauma education programs increasingly involve various system actors and academic experts, the inclusion of people who have been justice-involved themselves is not common practice, nor is it commonly recommended in the literature. Yet judges recognized the unique insight this population could bring to the movement toward trauma-informed courts and expressed that inclusion of such voices would have enhanced the training.

Second, future research should focus on understanding perceptions of accountability in the context of trauma-informed court practices. The concept of accountability is complex, and the judges acknowledged this complexity by grappling with the question of how to achieve accountability and implement trauma-informed practices simultaneously. Tension between these concepts was salient when judges described consideration of victims’ wishes. Some judges expressed concern that an increased focus on treatment may reduce their ability to hold a person accountable, suggesting there may be conflation between the concepts of punishment and accountability. Yet research suggests that, for some victims at least, accountability and punishment are not synonymous, highlighting a misalignment between victims’ views of accountability and judges’ perceptions of those views. Future research must explore perceptions of the relationship between accountability, punishment, and trauma-informed practices for all parties to help alleviate accountability concerns as a barrier to adoption of these practices.

Third, greater attention must be paid to diversity, equity, and inclusion (DEI) — a critical aspect of trauma-informed courts. As Shawn Marsh, former chief program officer for Juvenile Law at the National Council of Juvenile and Family Court Judges and expert on trauma-responsive justice, said, “Diversity, equity, and inclusion is a priority [for the future of trauma-responsive justice]. . . . It comes down to DEI being a trauma-informed practice.”

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Plea Bargains: Efficient or Unjust?

Carissa Byrne Hessick, Jeffrey Bellin, Elana Fogel, Anjelica Hendricks, Erin Blondel & John Flynn
Vol. 107 No. 1 (2023)

Are plea bargains necessities or merely efficiencies? Reasonable defaults or judicial deprivations? And if plea bargaining shapes the culture of criminal law, how might it change without risking more false confessions? In “Plea Bargains: Efficient or Unjust?,” an all-star roster tackles these questions. Professors Jeffrey Bellin (William & Mary Law) and Carissa Byrne Hessick (University of North Carolina Law) bring deep scholarship on the incarceration system, while associate research scholar at Columbia Law School (and former assistant U.S. attorney) Erin Blondel, prosecutor John Flynn (National District Attorneys Association), research fellow (and former public defender) Anjelica Hendricks (Penn Carey Law), and clinic director Elana Fogel (Duke Law) furnish firsthand insight.

For the full article, visit https://duke.is/discussingpleabargains.

JUDICATURE: Plea bargains are often cited as a reason for the decrease in criminal jury trials. . . . Should we be concerned about how this may impact public confidence in the justice system?

FLYNN: [A]bsolutely we should. If there’s no trust in the system, then that’s a problem not just for the criminal justice community but for all of us in society.

HENDRICKS: Instead of “confidence,” I would use “legitimacy.” Is there legitimacy in this system? I don’t think we can have this conversation without addressing some of our abolitionist scholars, disparities throughout the system, and mass incarceration and its disproportionate impact on Black, Brown, and Indigenous populations. What we have here is just mass arrests and mass overcharging, and then once it gets to the plea-bargaining process, there’s also disproportionate impact. We need to be able to respond to the criticism of legitimacy, if we are reliant upon this plea-bargaining process to sustain it. . . .

HESSICK: Legitimacy is definitely the right word. Jurors are factfinders, but a lot of our laws require them to exercise judgment as well. If you think about a disorderly conduct charge, words like “reasonableness” or “material” show up in an awful lot of laws, and what those laws are saying is that someone has to exercise judgment to decide whether this should be criminal or not.

FOGEL: [I] think the decrease in trials allows for diminishing quality in the investigation of cases, or at the very least, delayed investigation that results in missing, lost, or destroyed evidence. The quality of law enforcement investigation in a case is informed by the reality that the evidence they gather is unlikely to ever be tested at trial. . . .

BLONDEL: [T]hough I strongly agree that trials promote legitimacy, there would also be a legitimacy problem if we reached a point in which we were only able to handle a fraction of the criminal offenses that occurred. . . . People do want to see their justice system doing something, and they get frustrated when they don’t see that.

What you want is to hit that sweet spot where the system functions, but functions in a way that is open, transparent, and includes this vital function that the jury provides of bringing in our fellow citizens and having them hold the government to its evidence and having them actually perform that judgment function.

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2020 Election Litigation: The Courts Held

David F. Levi, Amelia Ashton Thorn & John Macy
Vol. 105 No. 1 (2021)

In the wake of the 2020 presidential election, U.S. courts faced an extraordinary “stress test” with over 60 lawsuits challenging the results. In “2020 Election Litigation: The Courts Held,” Bolch Judicial Institute members David F. Levi, Amelia Ashton Thorn, and John Macy examine eight of these cases to show how, under intense political pressure, the courts came through “with flying colors.” One takeaway is clear, and worth remembering for any future such tests — in a moment of national strain, the courts held by doing what they do best: quietly and methodically applying the law.

For the full article, visit https://duke.is/thecourtsheld.

We had an extraordinary election in November 2020. More Americans voted than in any other election, even though an infectious virus still stalked the nation. Immediately following election day, we then experienced an unprecedented series of challenges to the outcome, launched by a sitting president. Like so many of our institutions, our state and local election systems were not designed for a broad-based “stress test” such as President Donald Trump put into place. It was unclear if these systems would withstand the pressure. But our courts and judges, over our long history, have been repeatedly tested, and, once again, they came through this challenge with flying colors — inspiring confidence, demonstrating their impartiality, and doing their job in transparent, orderly, and dignified fashion. They deserve our thanks.

Numerous cases were filed in state and federal courts by the Trump campaign, challenging the results of the election in different states and on a variety of grounds. Some of the cases alleged fraud, while others asserted that votes were cast or counted in violation of state-specific election rules. The cases came before judges of all types — elected and appointed, Democrat and Republican, rural and urban, state and federal, Northern and Southern, Eastern and Western. The federal judges who heard these cases were appointed by recent presidents of both parties — Barack Obama and Donald Trump, Jimmy Carter and Ronald Reagan, Bill Clinton and George H.W. Bush and George W. Bush.

Despite their different backgrounds, judges came to the same conclusions and rejected the Trump campaign’s allegations. Across more than 60 cases in 12 states, judges found that the challenges to the election outcome came up short. . . .

The resoluteness of the judiciary in this time of turmoil provided inspiration and calm to the country. While the guardrails of democracy generally may need our attention and shoring up, the judiciary rose to the occasion without missing a step. In celebration and remembrance of this great service, we have here collected a sample of some of the cases and decisions following the election. May they remind us that the laws are not self-executing, and that it is only through the efforts of wise, impartial, and dedicated judges that the promise of democracy may be fulfilled.

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