Judicature: A Decade at Duke
by Amelia Ashton Thorn and Jake McAuliffe
Vol. 109 No. 1 (2025) | Celebrating a Decade at Duke | Download PDF Version of Article
A 10-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.
Over the course of our next three editions — Summer 2025, Fall/Winter 2025, and Spring 2026 — we celebrate Judicature’s first “decade at Duke” by looking back at some of our favorite articles from the past 10 years. Following are summaries and excerpts from 11 selections.
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. Visit judicature.duke.edu/dive.
– AMELIA ASHTON THORN is articles editor of Judicature; JAKE MCAULIFFE is a Duke Law student editor.
How Federal Judges Contribute to Mass Incarceration and What They Can Do About It
by Lynn S. Adelman & Jon Dietrich; from Vol. 99 No. 3 (2015)
As Pirates of the Caribbean quips about the pirate’s code: “Guidelines” aren’t actual rules. Judge Lynn Adelman, U.S. District Court for the Eastern District of Wisconsin, and Professor Jon Deitrich argue that the same applies in judicial sentencing. In “How Federal Judges Contribute to Mass Incarceration,” they argue that judges aren’t legally required to follow prison-heavy federal sentencing guidelines. What judges are required to follow is parsimony: the duty to impose the least restrictive reasonable sentence. Drawing from Adelman’s bench experience, the authors deliver a clear challenge to the status quo of increasing incarceration — that sentencing guidelines are often irrelevant to a just sentence.
For the full article, visit https://duke.is/massincarceration.
Excerpt
The guidelines certainly made sentencing much easier. Perhaps it should not have come as too much of a surprise, then, that after the Supreme Court changed the status of the guidelines from mandatory to advisory in 2005, judges continued to follow them largely as they had before. While rates of guideline “compliance” decreased after the Supreme Court confirmed in 2007 that the guidelines really are advisory, average sentence length has remained stubbornly consistent. . . .
It is psychologically inevitable that the guidelines will have a powerful influence on sentences, even if they are purely advisory, because they put a number on a question that is otherwise quite subjective. . . . Another possible explanation for why district court judges stick so closely to the guidelines is that they are aware that sentences within or close to the guideline range are almost always affirmed. . . . Whatever the explanation, the fact is that notwithstanding their advisory status, the guidelines remain hugely influential in federal sentencing. Even when judges vary from the guidelines, they will begin with the guideline range and then adjust upward or downward. . . . We suggest a different approach.
[D]istrict judges must adhere to Supreme Court and circuit precedent regarding sentencing procedure. They must begin by correctly calculating the guideline range, as they did before Booker. Then, after giving both parties an opportunity to argue, judges must consider all the factors in § 3553(a) in order to determine an appropriate sentence. It is at this second step that we suggest a break from guideline-think and advocate an approach that places § 3553(a)’s parsimony provision at the fore. . . .
The approach to sentencing that we advocate here is not new. For much of this country’s history, sentencing judges started with the “in/out” question and imposed sentences of imprisonment only if they were convinced that no less restrictive alternative sufficed to satisfy the purposes of sentencing. . . . [N]oncustodial sentences are not reserved for the exceptional defendant but may be appropriate for many mine-run offenders. Moreover, it is unlikely that we will make much progress in reducing the federal prison population unless federal judges begin paying more attention to the parsimony provision in § 3553(a) and less to the “prison-for-almost-everyone” approach that remains the philosophy of the guidelines.
Legal Standards By the Numbers
by Heidi L. Hansberry, Russell F. Canan, Molly Cannon & Richard Seltzer; from Vol. 100 No. 1 (2016)
How much does “a preponderance of the evidence” weigh? What percentage of certainty defines “beyond a reasonable doubt”? Although legal standards are formally expressed in words, not numbers, Heidi L. Hansberry, Russell F. Canan, Molly Cannon, and Richard Seltzer investigate how judges quantify burdens of proof in “Legal Standards by the Numbers.” Their findings show remarkable consistency across chambers for some standards — hinting that some vague legal terms may carry stable, internalized meanings — but troubling levels of inconsistency for others. The study raises critical questions about transparency, uniformity, and the hidden mechanics of decision-making. It also invites reflection on whether such quantification is desirable in the first place.
For the full article, visit https://duke.is/legalstandards.
Excerpt
The American legal system depends on standards regarding the burden of proof to facilitate outcomes that accurately balance society’s interests with an assessment of risk. Judges and juries use these standards to make decisions such as granting bail, assessing the validity of stops or arrests by the police, issuing arrest and search warrants, determining guilt in criminal trials and liability in civil trials, adjudicating child custody disputes, and terminating parental rights. These standards are uniformly expressed verbally rather than numerically. Since an important underlying goal of the legal system is uniform application of the law by decision-makers, both judges and juries, these standards should mean the same thing to different people across time, type of case, and courtroom. Testing the meaning — and the consistency of meaning — of the standards is difficult due to the fact that they are expressed verbally. Translating legal standards into a numerical scale offers an opportunity to test the meaning of the verbally expressed standards in a quantifiable and reproducible manner. . . .
In this study, participating state and federal court trial judges throughout the country translated six legal standards into numerical responses on a 0-to-100 percent scale. The study has four main conclusions, each of which is summarized below.
[1)]: [T]he results for beyond a reasonable doubt align very closely with the judges’ perceptions from . . . studies from the late 1960s and early 1970s, which may indicate stability over time.
[2)]: [T]here was no significant relationship between a judge’s quantification and factors such as whether the judge was elected or appointed, sat on a criminal or civil docket, or length of tenure.
[3)]: [T]here was a wide variety in the quantification of standards for probable cause, substantial probability, and reasonable articulable suspicion.
[4)]: [J]udges’ quantification of probable cause and preponderance of the evidence was nearly identical, a result with significant legal implications given the standards’ differing legal definitions.
Although there is debate in the legal academy and the courts as to the utility and place of quantification, cases such as [In re As.H., 851 A.2d 456 (D.C. 2004)] demonstrate that quantification has real-world relevance, and, at the very least, quantification is a vehicle for judges to evaluate their judicial decision-making processes.
Why We Read the Scalia Opinion First
by Paul D. Clement; from Vol. 101 No. 1 (2017)
Great writers come and go, but their influence on rhetoric remains. In the year following Justice Antonin Scalia’s death, Paul D. Clement — distinguished appellate attorney, former solicitor general of the United States, and former law clerk to the Justice — describes the makeup of a “distinctly Scaliaesque” opinion: one that blends evocative, now-iconic imagery — for example, when he asserted that Congress would never “hide elephants in mouseholes” and compared disfavored tests as “ghouls in a late-night horror movie” — with exacting language to guide lower courts to a correct application of law. In light of Scalia’s unique and powerful writing style, lawyers and law students would do well to read this Judicature article first.
For the full article, visit https://duke.is/scaliaopinion
Excerpt
Justice Scalia, ever the law professor, had a great feel for that audience. In my own teaching, I have had countless students confess that they always read the Scalia opinion first — even students who almost always disagreed with the Justice. And who could blame them? Not only would the Scalia opinion lay the issue bare and articulate one side of the legal debate clearly and cogently, it would be a fun read. What law student would rather read about some dry, three-pronged doctrinal test, than about 60,000 naked Hoosiers or even just nine people selected at random from the Kansas City phone book[?] As always, that colorful prose was not gratuitous, but flowed from his jurisprudential beliefs and captured vividly the substantive point he was trying to make. The Justice believed that longstanding prohibitions against public nudity were not justified exclusively by the protection of nonconsenting third parties, and so he evoked the image of a stadium full of half-naked Hoosiers without “an offended innocent in the crowd”; he believed the Constitution gave the nine justices no special role in deciding right-to-die issues, and thus they had no more authority or expertise than nine people selected at random from the city phone book.
The Justice did not seek to pronounce the law, but to persuade the reader to side with him in a great legal debate. And he believed his separate opinions would be remembered only if they were well written and meticulously reasoned. In this regard, the Justice was plainly playing a long game. While others might be willing to trim their rhetorical sails or fuzz up a bright-line rule to pick up a fifth vote, Justice Scalia believed that “[a]n opinion that gets the reasons wrong gets everything wrong,” and preferred opinions that both got the reasons right and commended themselves “to later generations.” My guess is that all law students will be reading and enjoying his opinions, and some will find themselves persuaded, for generations to come.
Conversations of a Lifetime: The Power of the Sentencing Colloquy and How to Make It Matter
by Robin L. Rosenberg; from Vol. 103 No. 2 (2019)
Judges may preside over hundreds of sentencing hearings, but for criminal defendants and victims, the sentencing exchange is often a singular, life-altering moment. In “Conversations of a Lifetime,” Judge Robin L. Rosenberg, U.S. District Court for the Southern District of Florida, argues that this final exchange should never become routine. Through a carefully selected collection of real sentencing colloquies — the last words of a case shared between defendants, victims, and the court — she illustrates how these moments carry weight not only in determining a sentence, but also in affirming the humanity of all involved. Judge Rosenberg urges her colleagues to reflect on their sentencing practices and review their own transcripts, treating these conversations as important opportunities for justice and connection.
For the full article, visit https://duke.is/sentencingcolloquy
Excerpt
In recent years, there has been increased attention on sentencing, and particularly sentencing disparities. The thrust and focus of this attention have been on the statistics of sentencing and reforms, with the aim of making sentencing fairer and more consistent. Surely, this is a worthy discussion, but the focus on the quantitative aspects of sentencing can overshadow the individual stories behind the numbers. Those personal stories are often revealed at the sentencing hearing. At nearly every sentencing, the defendant’s own words act as a critically important humanizing reference for the judge. Yet we spend too little time considering why that is and how to better acknowledge the importance of these statements.
That’s unfortunate. Sentencing is a profound moment in a criminal case and in a defendant’s life. The exchange between a judge and defendant is central to the court’s role as adjudicator and as one human being sitting in judgment of another. While other aspects of the criminal justice system may at times seem mechanical, sentencing hearings are, at their core, deeply personal interactions. They present an opportunity to inject humanity into the process. Scripted or not, the sentencing colloquy almost always is the emotional focal point of a case. And, importantly, defendants’ allocutions may have a real impact on the sentence imposed. Although the defense lawyer makes the formal argument to the court on a defendant’s behalf, “the most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.”
Moreover, sentencing has a lasting effect — obviously for the defendant, who must live with the sentence and carry with him the last words he has heard from the judge — but also for the victims of the crime, who may be present in the courtroom; for the defendants’ loved ones, who are left behind; and even for the judge, who, in my experience, carries with her the weight of hundreds or even thousands of allocutions. For all parties, this truly is the conversation of a lifetime. So why not make it count? . . . It is important for judges to reflect, if even for a moment, upon not only the sentences that they impose but also upon the sentencing hearing itself.
A Blinding, an Awakening, and a Journey Through Civil Rights History
by Amelia Ashton Thorn & Richard Gergel; from Vol. 103 No. 2 (2019)
Justice Sonia Sotomayor once said that reading was like “lighting candles, each book a flame that lit up the world around me.” In “A Blinding, an Awakening, and a Journey Through Civil Rights History,” Amelia Ashton Thorn interviews Judge Richard Gergel, U.S. District Court for the District of South Carolina, about how reading sparked a similar illumination in one of his predecessors. Judge Gergel uncovers the little-known story of how the late Chief Judge Julius
Waties Waring, U.S. District Court for the former Eastern District of South Carolina, came to see the truth of racial disenfranchisement in the Jim Crow South. His story is a reminder that judges aren’t cloistered legal technicians — they’re humans, and the right story can change how they see the world.
For the full article, visit https://duke.is/civilrightshistory
Excerpt
THORN: What kind of story did you set out to tell when you first started writing the book?
GERGEL: I had accessed information on [Judge Waring’s] docket and I saw this very unusual case involving [a] blinded African American sergeant, Isaac Woodard, and [a] police chief that was prosecuted. . . . I asked myself, “How did this case even get brought?” Because a prosecution of a white officer involving a black victim in 1946 was very rare. That then led me to another discovery: that Harry Truman ordered it. It was from Harry Truman, himself! . . . Now I had two stories: Truman and Waring. And it would be untrue of me if I said I had a plan. I literally followed the stream where it took me and that’s where I ended up. I mean, I kept thinking, “This is an unbelievable story; nobody’s going to believe this.”
THORN: Judge Waring likely witnessed in his everyday life the kinds of racial inequalities that ultimately gave rise to these cases. Why do you think seeing it in a courtroom . . . changed his mind?
GERGEL: . . . You’re absolutely right, he lived in the South, in Charleston, which was probably among the most segregated cities in America. He never questioned it. But then he observed this manifest injustice in the Woodard case. He started doubting and questioning this world he lived in. He began reading. He has publicly recognized and referenced the books he had read. I read every one of them. And I can see that, if you’re reading this stuff as you are having an awakening, it would be powerful. Once you recognize this whole system of disenfranchisement, and once you start questioning it, there’s no backstop. You just sort of say, “This whole thing is wrong.” That’s really where he ended up. There was no way to split the difference.
THORN: A large portion of our readers are judges. What can they take away from Judge Waring’s experience?
GERGEL: . . . In some ways, Judge Waring asks all of us for our better angels, right? That we would show “unexampled courage,” which is the term he used to refer to some of his civil rights plaintiffs. When the time and the person meet and the times demand you to do something that is against your personal interest but for a higher good — that you would step up. All of us hope we would do that. We don’t ever really know until that moment arrives.
A Bridge Too Far? An Expert Panel Examines the Promise and Peril of Third-Party Litigation Financing
by Christopher A. Seeger, Ernest J. Getto, Samuel Issacharoff, Amy St. Eve, David W. Ichel & John H. Beisner; from Vol. 103 No. 3 (2019)
Third-party litigation funding is like the pineapple-on-pizza of the legal profession: widely used and hotly debated. In “A Bridge Too Far?,” David W. Ichel brings together an Avengers-caliber team — Judge Amy St. Eve of the U.S. Court of Appeals for the Seventh Circuit, top litigators John Beisner and Christopher Seeger, leading law scholar Samuel Issacharoff, and Ernest Getto, managing director of Buford Capital, the world’s largest litigation funder — to unpack the good, the bad, and the uncertain in this rapidly evolving space. As third-party funding becomes more common, the panel’s sharp disagreements on practical, ethical, and administrative questions make it clear that this is a conversation the bench and bar cannot ignore.
For the full article, visit https://duke.is/tplf
Excerpt
ICHEL: What are the potential upsides to modern third-party business litigation finance?
GETTO: Well, there are several. I’d say the first is leveling the playing field for claimants, which in turn aids the societal role of litigation to deter wrongful conduct. It also provides businesses with a way to finance or monetize litigation assets — meaning potential claims — that might otherwise go unutilized. And it provides opportunities for a more diverse group of lawyers to lead major litigation. Law firms have essentially no other way of raising capital due to the ethics rules about nonlawyer ownership of law firms, and litigation finance provides that vehicle. Finally, for investors, it provides an investment that may escape correlation with some of the usual [stock and bond] investment avenues or criteria.
ICHEL: What kinds of concerns are raised by third-party litigation finance?
BEISNER: [T]here’s a need to shed a brighter light on the use of third-party funding — there needs to be more transparency about what’s going on in this arena. Without seeing the funding agreement or knowing who the funder is, we don’t know who this anonymous third party is or how they might be controlling the claim.
I’ve heard Ernie [Getto] and other funders say that they are not controlling litigation, and that may well be true of the contracts that their respective firms are entering into. But the problem is we rarely see the actual agreements to be able to really test that representation, and there are many players here besides Burford. These representations that funder participation is passive are suspect because frankly, all of the TPLF [“third party litigation finance”] agreements that have become public do have strong indicia of control in them. . . .
SEEGER: I don’t want to give my friend John Beisner a hard time here, but the concept of encouraging meritless litigation is the argument that seems to always come up, and I’m not sure exactly what people are talking about when they say that. The concept that a funder would invest in a plaintiff’s grouping of cases is not new. A complainant’s law firm has a number of cases, some hit, some don’t. Well, welcome to the plaintiff’s practice. That’s what a plaintiff’s practice is
all about. . . .
She Lifted Her Voice: Constance Baker Motley (1921–2005) U.S. District Court, Southern District of New York
by Ann Claire Williams; from Vol. 103 No. 3 (2019)
In “She Lifted Her Voice,” one trailblazer powerfully writes in tribute to another. The late Judge Constance Baker Motley of the U.S. District Court for the Southern District of New York — Connie, to the author — was the first African American woman to argue before the Supreme Court and the first woman judge of color on the federal bench. She was also a childhood idol to Ann Claire Williams, now a retired judge of the U.S. Court of Appeals for the Seventh Circuit. Rather than merely recounting Motley’s inspiring judicial firsts, Williams offers a window into Motley’s life — highlighting how, despite constant affronts, she raised her voice in spaces where none like hers had been heard. Because she “lifted her voice and sang” to advance equality under the law, countless others have since gained the opportunity to be heard as well.
For the full article, visit https://duke.is/constancebakermotley
Excerpt
When I met Judge Motley for the first time at a judicial conference 30 years ago, I had only been on the district court a few years. . . . I could barely speak. I was in awe. I had never imagined that I would be face to face with this legal giant. . . . Judge Motley asked me a question, and I managed a short answer. Sensing that I was a little intimidated, she asked me about my parents and my family, and I began to feel more at ease. Despite her insistence, it still took me several years before I could call her “Connie.” . . .
While we may have faced challenges on the bench, when Connie lifted her voice, her life was on the line. Yet time and time again, she lifted her voice higher and higher, arguing cases in hostile towns, against hostile lawyers, and before hostile judges in the pursuit of equal justice.
In 1966, Connie became the first woman judge of color to serve on the federal bench, one of many times in her career that she was a trailblazing “first.” She was a brilliant, fair jurist whose commitment to equal justice never faltered. She was also the first woman of color to become chief judge of a federal district court. And Connie led the district court with the most judges in the country, the Southern District of New York. . . .
In response to the many indignities she endured, Connie believed that one of the most critical lessons she learned from Thurgood Marshall was to laugh off most affronts. Her voice, in laughter and in humor, permeated her personality, and I learned from her example.
She similarly rebuffed those who actively discouraged her from studying law. As she said, “[It] never deterred me. . . . [T]he effect was just the opposite. I was the kind of person who would not be put down. I rejected the notion that my race or sex would bar my success in life.”
“The kind of person who would not be put down.” Those words have sustained me and many others who have walked through the federal courthouse doors she opened. Fifty-seven African American women judges, 212 African American judges, and 433 women judges have been confirmed since Connie took the bench in 1966. Following her lead, we have tried not to let any “ism” keep us from pursuing our dreams or from taking on leadership positions in the judiciary or in our communities. Justice Sonia Sotomayor has said that she made a list of pros and cons when her name was mentioned as a potential Supreme Court justice. Although the list of cons was longer, she recalled the words of Connie, her former colleague: “When you have a chance to open the door for others, you don’t have a right to say no.”
Preparing Courts for a Pandemic
by William Raftery; from Vol. 104 No. 1 (2020)
In a prescient and pragmatic bulletin from the dawn of the COVID-19 pandemic, William Raftery of the National Center for State Courts tasks courts with learning lessons from prior public health emergencies. Even after years of hindsight, Raftery’s sensible precautions ring true. No person had yet challenged a quarantine order at the time of Raftery’s writing, yet he warned of the legal challenges sure to come. And his warnings remain relevant: Courts, as central and multifunctional spaces, would do well to heed Raftery’s advice and continually update their benchbooks for future emergencies.
For the full article, visit https://duke.is/pandemicprep
Excerpt
As the coronavirus emerged around the globe early this year, it quickly began to affect every facet of society and government, including state courts. Unlike in prior instances of mass illness — such as the Spanish flu in 1918, which forced state courts to close for weeks on end — courts can rely on lessons learned as they develop and implement emergency plans. . . .
[Many relevant state public health] statutes date back to a time when tuberculosis and similar ailments were the primary concern of large-scale public health. Because these laws tend to be older and, thankfully, rarely used, judges with decades of experience on the bench may not even be aware of their existence. For that reason, it’s highly recommended that each state develop and maintain its own benchbook, including state-specific statutes and caselaw, and distribute it to all state courts.
With the U.S. outbreak of the coronavirus in early 2020, many states moved quickly to inform their bench. When the Preparing for a Pandemic report was developed in 2016, several states had already created public health or pandemic benchbooks, and several more developed books after the report was published. That meant that many state-level judicial leaders were able to quickly update and distribute existing benchbooks to address the emerging coronavirus crisis.
At the time of this writing, there have been no legal challenges associated with a quarantine order by an executive branch entity, but state courts have been confronted with staff ailments and a correlated impact on operations. Because courts are a central location where large numbers of people congregate on a regular basis — and most courthouses are multi-purpose and include other government offices and operations — many courts have been addressing questions of self-quarantine, the ability to close court proceedings or clear a courtroom after coughing in the gallery, and concerns from prospective jurors or others.
Headings, Please. The More, the Better.
by Joseph Kimble; from Vol. 104 No. 2 (2020)
Every lawyer knows the pain of searching through a dense thicket of a legal opinion to find the small part that they’re interested in. This is because — as legal scholar Joseph Kimble demonstrates in “Headings, Please” — many judicial opinions employ bare, unhelpful headings that would receive a losing grade in a first-year legal writing course. Rather than forcing lawyers to sift through hundreds of irrelevant pages, Kimble demonstrates how opinion writers can use informative headings as navigational aids for readers. Like a mandatory “wash your hands” sign by the sink, perhaps judges should prominently display Kimble’s handy chart in their chambers.
For the full article, visit https://duke.is/headingsplease
Excerpt
If there’s a good reason why many judicial opinions don’t use informative headings, I haven’t heard it. For readers, headings are a boon to navigating through the opinion. And that’s true not only as readers move forward through the opinion but also as they search back to find and review the parts that they’re especially interested in. It’s even possible that as writers prepare headings, they will think a little more carefully about how the opinion is organized. All opinion writers should make it a point to write useful, informative headings for their readers.
[The standard version is] more accurately, “part indicators.” . . . How helpful are they?
[The better version is] topic headings, which I’ve simply added to the Court’s breakdown. They are fairly easy to write and would be well worth the time needed to compose them. Ideally, you would use some design scheme to distinguish the different levels.
1. Background
A. Statutes at Issue.
B. Facts and Procedure.
2. Jurisdiction
3. Respondents’ Arguments
A. Analysis of the Text.
B. Ninth Circuit’s Conclusion.
(1) Structure of § 1226.
(2) Interpreting Time Limits.
4. Respondents’ Further Arguments
A. Surplusage.
B. Incongruous Results.
C. Constitutional Avoidance.
[The best] version tweaks the original organizational scheme by giving a heading to the Court’s opening summary, which is typically undesignated. It also adds some subheadings. Finally, it combines first-level topic headings with some point (propositional) subheadings, which are far more helpful than topic headings. . . . I realize, though, that point headings are harder to write concisely and that they may be a step too far for some judges, who might see them as rather too assertive. If so, then settle for topic headings alone, and more of them, and your readers will thank you even for that.
Leaving Afghanistan
by David F. Levi, Zohal Noori Rahiq, Susan Glazebrook, Tayeba Parsa, David Rivkin, Mark Ellis, Helena Kennedy, Allyson K. Duncan & Patricia Whalen; from Vol. 105 No. 3 (2021)
Three months after the Taliban seized control of Kabul, David F. Levi, then the director of the Bolch Judicial Institute, which publishes Judicature, brought together two women judges who had fled Afghanistan — Tayeba Parsa and Zohal Noori Rahiq — with international civil society members who were leading efforts to help women judges escape, including Justice Susan Glazebrook, Supreme Court of New Zealand and president of the International Association of Women Judges; Baroness Helena Kennedy, director of the International Bar Association Human Rights Institute; and Patricia Whalen, former Vermont family court judge and founding member of the Afghan Judicial Education program. No introduction can truly capture their conversation: the fight to establish the rule of law in a resistant society; the swift collapse of that progress; the potential death sentence of being a judge, especially as a woman, under Taliban rule; harrowing escapes from Afghanistan; the heartbreak of leaving it all behind; and, somehow, hope for the future. “Leaving Afghanistan” is a powerful reminder that the rule of law is not a guarantee; it’s a fragile achievement that demands vigilance, sacrifice, and global solidarity.
For the full article, visit https://duke.is/leavingafghanistan
Excerpt
LEVI: Judge Noori, what happened to you on that day, when Kabul fell to the Taliban?
NOORI: I was aware that most of the provinces were captured by the Taliban. . . . I was not aware that Kabul was also captured. I went to the court because that last week I had made a decision, and I wanted to finalize [it]. When I went to the court [the head of my department] asked me, “Why did you come to the court, Judge Zohal?” I said, “Because of my cases, because of this judgment, because I want to finalize this. . . .” My department head said, “No, please go home, because the situation is very bad. Women will face such problems. Go back home.” . . .
I went to the court to collect some of my documents, legal documents, and law books, but I was really crying, and it was very difficult. And after a few minutes, my colleagues came and entered the room, and they were crying. We said goodbye to each other and collected our equipment and went back home. . . . I was thinking that I die now because everything was finished — all of our effort, all of our struggle — that in 20 years we were struggling, and we were trying our best to become a judge. Everything was zero. Nothing was left. It was so difficult.
LEVI: [C]an you talk about your hopes for the future — for yourselves and for Afghanistan?
PARSA: I believe no one can endure the cruelty of the Taliban, and lack of democracy, and rule of law. One day, Afghans will take back their country, and again, democracy will govern. And I want to get prepared for that day by learning and studying to build our society. I believe all the adversities in Afghanistan come from lack of knowledge.
I love to work in law. It is my profession. We have many years of judicial experiences and worked on serious cases. We do not want to lose our career. We hope to get a scholarship and be able to study and work in legal areas and use other countries’ experiences for rebuilding our country.
Losing Faith: Why Public Trust in the Judiciary Matters
by David F. Levi, Raymond J. Lohier Jr., Diane P. Wood & Jeffrey S. Sutton; from Vol. 106 No. 2 (2022)
In “Losing Faith,” David F. Levi, then the Bolch Judicial Institute’s director, brings together three federal appellate judges — Judge Raymond J. Lohier Jr., U.S. Court of Appeals for the Second Circuit; Chief Judge Jeffrey S. Sutton, U.S. Court of Appeals for the Sixth Circuit; and Judge Diane P. Wood, U.S. Court of Appeals for the Seventh Circuit — to confront a hard truth: declining faith in the judiciary. Their candid conversation digs into the roots of public mistrust and delivers urgent, timely lessons on how civic education and judicial engagement might help restore confidence before further erosion occurs.
For the full article, visit https://duke.is/losingfaith
Excerpt
LOHIER: One reason that I think we should all worry about a loss of confidence and support in the courts, or even a reported loss in confidence and support, is that — this is almost cliché — but we really have nothing other than public confidence to protect the branch. . . .
What’s important in my view is that there has to be at least the perception of some connection . . . between what the public expects, broadly speaking, and how the Supreme Court and courts of appeals and the district courts rule, and how we justify or explain our rulings. Any loss in confidence in what we do, or what the Supreme Court does, makes the rule of law somewhat more vulnerable and detracts from the legitimacy of what we do.
WOOD: I think any of us, if given a pool of 6,000 cases and told, “pick out the 60 hardest cases, the most consequential that you can find, and give those your attention,” we would end up with the tough ones. They will be the cases that have political overtones, that turn on policy, that have all sorts of dimensions. . . .
My only suggestion, or my wish, I suppose, would be that when opinions are being written, judges take great care with their audience. Shorten them, make it clear what principles are being used. Don’t stoop to name calling, probably don’t even go into 20-page digressions into history. I’m not sure that’s helping that much. I think clear rules of interpretation — where a judge can plausibly say, “This is the way I understand the law. This is how I got to where I need to be” — might be of some help in pulling back from the little “p” politics view. . . .
SUTTON: If we were blue-robed and red-robed judges, why would we agree in 90 percent to 97 percent of our cases? I can personalize the point in this way: In my two biggest cases, I ruled opposite my policy preferences, proving either that someone gave me the wrong-colored robe or that robes correctly come in neutral black after all.
I would add that increasing respect for law and courts is not our job alone. It’s also the job of lawyers. . . . Lawyers are in a great position to explain how the system works and what are legitimate points of debate about a decision and what are not.
