Archive for April, 2020

April 28, 2020

Barrett Publishes Justice Jackson’s “The Faith of My Fathers” in the University of Pennsylvania Law Review

Professor John Q. Barrett has published, as the lead article in volume 168 of the University of Pennsylvania Law Review, a previously unknown essay by the late U.S. Supreme Court Justice Robert H. Jackson on religion, with Barrett’s introduction, footnotes, and afterword.  The article is attracting wide readership, media coverage (e.g., this National Law Journal article), and discussion.

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Here is the abstract:

When Justice Robert H. Jackson died, he left thirteen handwritten pages—this Essay—among his papers. It has been unknown for sixty-five years, until this publication.

The essay addresses two topics: (1) Jackson’s own religious beliefs and practices and those of his ancestors, who were 19th and early 20th century American farmers; and (2) some history of Spiritualist movements in their western Pennsylvania and western New York State region. Jackson and his people were shaped by religious currents and diversities. They believed that the proper way to live is to give people space and to tolerate what they are and what they choose to believe and to practice in their own spaces, so long as they do not intrude unduly on others’.

Justice Jackson’s essay is significant because it comes from him, a renowned writer and one of the most interesting, thoughtful, and significant United States Supreme Court justices ever—it is a late-life, deeply personal piece of Jackson. The essay also has significance because it is Jackson on religion, a topic of great import in life, constitutional law, public debates, and legal cases.

As a Supreme Court justice, Jackson wrote many notable opinions addressing how the U.S. Constitution limits and empowers government in the realm of religion. In West Virginia State Board of Education v. Barnette (1943), for example, he wrote the Court’s opinion holding that the Constitution prohibits public officials from compelling Jehovah’s Witness schoolchildren to salute and pledge allegiance to the American flag. For Jackson, that limit on government power to compel professions of faith was of a piece with his view that government constitutionally may prohibit religious proselytizers from harassing others, especially in their homes—under the Constitution as he understood it, government may regulate religious actors when, but only when, their conduct imposes upon the freedom and peace of others. Jackson also believed that the Constitution bars government from ranking religion itself or any particular religion as more or less correct, or from evaluating the sincerity of professed adherents. In his view, to believe and practice any religion or none at all is, short of the point where it imposes on another, for the individual to determine, separate from government involvement.

This Jackson essay reveals that his personal views on religion and his own religious practices very much fit with his judicial interpretations of the Constitution. Jackson did not really believe in God or practice religion, but he was tolerant of others who did and how they chose to do so. He respected and deferred to the sincerity of people whose belief systems were not his. In both his living and his constitutional judging, Jackson gave religion its private space. He objected, however, and he read the Constitution as the legal basis on which to object, when government sought to bring religion into public spaces, because they belong equally to people whose beliefs range from religious belief to non-belief.

April 16, 2020

Evans’ Essay to be Published in the Federal Sentencing Reporter

Professor Sheldon Evans’s essay, In the Shadow of Shular: Conduct Can Unify the Disjointed Categorical Approaches, will be published in an upcoming issue of the Federal Sentencing Reporter.


An abstract of the essay appears below:

The categorical approach, which is the method federal courts use to ‘categorize’ which state law criminal convictions can trigger an enhanced sentence under the Armed Career Criminal Act (ACCA), is one of the most confusing doctrines in criminal sentencing. For thousands of criminal offenders every year, the categorical approach determines whether a previous state law conviction—as defined by the legal elements of the crime—sufficiently matches the elements of the federal crime counterpart that justifies imposing the ACCA’s harsh fifteen-year mandatory minimum sentence. But this elements-based categorical approach has unwittingly undermined one of the most important principles in our determinative sentencing system; by basing federal punishment on state-law criminal definitions, similar defendants are often treated differently based on what state they may have committed past crimes.

But the Supreme Court’s recent decision in Shular v. United States offers a different approach. In analyzing a slightly different section of the ACCA, the Court determined that a conduct-based categorical approach was appropriate. In these narrow sections of the ACCA, federal punishment would be based on analyzing the previous conduct of the defendant’s past crimes, as opposed to the state-law criminal elements. This Article argues that the Court’s approach in Shular can and should be expanded to all sections of the ACCA to fix the existing problems of state-to-state nonuniformity. By excising reliance on state law, and by accounting for the morally relevant sentencing factor of how a defendant may have committed past crimes (as opposed to where they committed them), a conduct-based categorical approach can remedy much of the existing confusion surrounding ACCA sentencing and achieve the uniformity that the Court always intended.

April 15, 2020

Barrett Moderates Panel on Independent Judiciary, Lectures at Conference Celebrating Charles Reich, & Interviews Justice Kagan

Professor John Q. Barrett’s late Fall and Winter activities included:

· On November 15, 2019, he moderated a panel discussion on “An Independent Judiciary: The Shield of a Free Society,” with Judges Anna Blackburne-Rigsby (Chief Judge, District of Columbia Court of Appeals), Albert Diaz (United States Court of Appeals for the Fourth Circuit), & Mark D. Martin (former Chief Justice, Supreme Court of North Carolina), at the American Bar Association/Duke Law School/Appellate Judges Education Institute (AJEI) Summit in Washington, D.C.


L-R:  Chief Justice Martin, Chief Judge Blackburne-Rigsby, Judge Diaz, & Professor Barrett

· On January 30, 2020, Professor Barrett delivered a lecture, “Charles Reich’s New Deal,” at the conference “Charles A. Reich: A Commemoration of His Life & Legacy,” at Touro Law Center in Central Islip, NY.

· Also on January 30, Professor Barrett interviewed U.S. Supreme Court Justice Elena Kagan at the New York State Bar Association’s gala dinner, held at the Museum of Natural History in New York City.  Click here for video of this event.

April 14, 2020

Roberts Presents at Online Evidence Forum

Professor Anna Roberts discussed her research into Federal Rule of Evidence (“F.R.E.”) 609, and prior conviction impeachment more broadly, as a guest presenter in an online evidence forum, The Unavailability Workshop, organized by Vanderbilt Law’s Ed Cheng.


Upcoming sessions will feature U.C. Davis’s Edward Imwinkelried on privileges (April 16th) and Fordham’s Dan Capra on F.R.E. 615 (April 23rd).

April 13, 2020

Allen Elected to Serve on Legal Writing Institute Board

Professor Renee Allen has been elected to serve on the Legal Writing Institute board.  The Legal Writing Institute (LWI) is a nonprofit organization dedicated to improving legal communication by supporting the development of teaching and scholarly resources and establishing forums to discuss the study, teaching, and practice of professional legal writing. 2019_renee_allen_0

The LWI Board of Directors establishes LWI’s policies and priorities, and Board members contribute to the planning and operation of LWI’s publications, projects, events, conferences, and workshops. The Board works closely with more than 20 committees made up of volunteer LWI members to carry out these initiatives. Board members serve four-year terms, with about half the members elected every two years.

Professor Allen’s term will start at the LWI biennal conference in DC this summer. She will serve for four years.

April 9, 2020

Roberts’ Article to be Published in the Cardozo Law Review

Professor Anna Roberts‘ article, Victims, Right?, has been accepted for publication in the Cardozo Law Review.  The article focuses on the widespread pre-adjudication use of the word “victim” in criminal legal contexts, a topic made more salient by the current spread of “Marsy’s Law” provisions, which establish victims’ rights both pre- and post-adjudication.


Here is the abstract:

In criminal contexts, a “victim” is typically defined as someone who has been harmed by a crime. Yet the word commonly appears before the adjudication of whether a crime has occurred. Each U.S. state guarantees “victims’ rights,” including many that apply pre-adjudication; ongoing “Marsy’s Law” efforts seek to expand and constitutionalize them nationwide. At trial, advocates, judges, and jury instructions employ this word even though the existence or not of crime (and thus of a crime victim) is the very thing to be decided. This usage matters in part because of its possible consequences: it risks obscuring and weakening the defense side of our two-sided system. It matters also because of the underlying impulses that it reveals, and that surface in analogous usages such as the widespread pre-adjudication use of “offender.” When channeled into a criminal system these impulses will recur as pre-judgments of crime, in ways that threaten defendants’ constitutional protections. But we can frame and channel them in a more hopeful way. This Article posits that we turn prematurely to the word “victim” in part because of impulses, upon hearing of harm, rapidly to acknowledge and decry it; and that we rush to “offender” because of a concomitant desire for accountability and answers. Abolitionist work provides a model for honoring those impulses through structures other than a criminal system, and criminal language, with which they will inevitably clash.

April 7, 2020

Greenberg’s Article to be Published in the Journal of Criminal Law and Criminology

Professor Elayne Greenberg‘s article, Unshackling Plea Bargaining from Racial Bias, has been accepted for publication in Northwestern’s Journal of Criminal Law and Criminology.  The article is a cross-disciplinary piece about the etiology and remediation of racial bias in plea bargaining.
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Here is the abstract:
This article traces the origin of racial bias in plea bargaining by chronicling the historical relationship among three societal developments: the continuation of slavery, the development of our criminal justice system and the evolution of plea bargaining. The article then explains how the structure of plea bargaining as it is practiced today makes it more likely for historical racial biases to fester and manifest themselves. Culling from the research of cognitive psychologists, dispute system design scholars and anti-racism educators, this article prescribes organizational and procedural reforms to unshackle plea bargaining from racial bias.
April 6, 2020

Sovern Co-authors Op-ed, Participates in Conference

Professor Jeff Sovern co-authored an essay in The American Prospect, Placing Consumers at the Forefront of Relief Efforts, with Hofstra Law School professor Norman I. Silber.


Jeff Sovern

As the piece explains:

For the next stimulus package, rather than sending tens of millions of checks to consumers, Congress would do better to strike at the economic crisis by using the existing lending mechanism, right in front of us, that more than three-quarters of us already possess: credit cards. We think that Congress should pass legislation which allow banks on a monthly basis to bill the government for, say, 70 percent of the interest charges on those cards, while requiring banks to defer monthly credit card payments for all consumer cardholders for the length of the coronavirus catastrophe, perhaps as long as six months. We suggest that the benefit be capped at something like $10,000 per consumer as those charges accrue.

Sovern also served as a commenter at the Berkeley Center for Consumer Law & Economic Justice’s Second Annual Consumer Law Scholars Conference on March 5-6. In addition, one of his blog posts was quoted by in a January 28 article while another was discussed in an industry publication with the headline, “Law Professor Makes Clever Suggestion To Help CFPB Understand Time-Barred Debt Disclosures.”

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