St. John's University Law Faculty Blog

Professor Anna Roberts’s article, Convictions as Guilt has just been published in the Fordham Law Review.  Meanwhile, her article “Victims, Right?,” forthcoming in the Cardozo Law Review, stands at #7 in the most recent SSRN Criminal Procedure download rankings.

Below is the abstract for Convictions as Guilt:

A curious tension exists in scholarly discourse about the criminal legal system. On the one hand, a copious body of work exposes a variety of facets of the system that jeopardize the reliability of convictions. These include factors whose influence is pervasive: the predominance of plea bargaining, for example, and the subordination of the defense. On the other hand, scholars often discuss people who have criminal convictions in a way that appears to assume crime commission. This apparent assumption obscures crucial failings of the system, muddies the role of academia, and, given the unequal distribution of criminal convictions, risks compounding race- and class-based stereotypes of criminality. From careful examination of this phenomenon and its possible explanations, reform proposals emerge.

In President Franklin D. Roosevelt’s first-term, a U.S. Supreme Court majority with rigidly restrictive notions of legislative power struck down numerous federal New Deal and progressive state laws as unconstitutional.

Following his thumping reelection in 1936, President Roosevelt thus proposed to “pack” the Supreme Court, expanding it with up to six new justices who would become part of a new, more deferential majority.  The Supreme Court promptly changed course in a number of pending, high-profile cases, announcing broader constitutional interpretations of federal and state government legislative powers and taking the wind out of the president’s proposal to enlarge it.  The Court’s change was, someone quipped in 1937, the “switch in time that saved nine.”

Who was the quipster?  This was asked even in 1937, as the “switch in time” line spread widely.  Various theories have been debated ever since.  No one, until now, found the answer.  Professor John Q. Barrett has discovered that the line came from Cal Tinney, a noted newspaper and radio humorist from Oklahoma.  Cal Tinney published his quip in the New York Post in April 1937, and it spread from there so fast that, apparently, people forgot to give him credit, and soon no one knew that he deserved it.

Cal Tinney (1908-1993)

As a tribute to Cal Tinney’s Oklahoma roots and his famous (in his time, at least) Oklahoman persona, Professor Barrett will publish his article “Attribution Time: Cal Tinney’s 1937 Quip, ‘A Switch in Time’ll Save Nine’”, this fall in the Oklahoma Law Review.

Professor Barrett’s article can be found here.  Below is the abstract:

In the history of the United States Supreme Court, 1937 was a huge year—perhaps the Court’s most important year ever.  Before 1933, the Supreme Court sometimes held that progressive policies enacted by political branches of government were unconstitutional. Such decisions became much more prevalent during President Franklin D. Roosevelt’s first term, 1933-1936. In those years, the Court struck down, often by narrow margins, both federal “New Deal” laws and state law counterparts that sought to combat the devastation of the Great Depression.

Then President Roosevelt, in early 1937, proposed to “pack”—to enlarge—the Court, so that it would become supportive of New Deal laws.

Within weeks, the Supreme Court changed course, announcing broader constitutional interpretations of federal and state government legislative powers.

The Court’s switch took the air out of the Court-packing balloon. The change was—and here is the quip that everyone knows—“the switch in time that saved nine.”

That line appeared in 1937. It was repeated by many, especially in Washington. It has been quoted ever since. Just who coined it has been debated and never established.

Until now.

Professor Anna Roberts co-organized and presented in a panel at the Law and Society Association annual conference entitled “Shortcuts in the Criminal Law.”

Other panelists were Julia Simon-Kerr (U. Conn.), Ngozi Okidegbe (Cardozo Law), Maggie Wittlin (Fordham Law), and Vida Johnson (Georgetown Law). The panel’s Discussant was Jasmine Gonzales Rose (Boston U.).  Professor Roberts presented a forthcoming piece, “Victims, Right?,” which can be found here.  Victims, Right? is forthcoming in the Cardozo Law Review.

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 in legal contexts that precede 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 our 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 with whose tenets and capacities they will inevitably clash.