Bolch Judicial Institute
Bolch Judicial Institute
51 Imperfect Solutions: State and Federal Judges Consider the Role of State Constitutions in Rights Innovation

Volume 103 Number 1 : Spring 2019


From the Publisher From the Publisher

Expanding Judicature‘s readership

By David F. Levi

The Bolch Prize The Bolch Prize

Justice Kennedy to receive inaugural Bolch Prize for the Rule of Law.

By Melinda Vaughn


51 Imperfect Solutions: State and Federal Judges Consider the Role of State Constitutions in Rights Innovation

by David F. Levi, Allison Eid, Joan Larsen, Goodwin Liu, Jeffrey Sutton

Judge Jeffrey Sutton is one of the nation’s most respected and admired federal appellate judges. He has served on the Sixth Circuit, with chambers in Columbus, Ohio, since his appointment to the bench in 2003 by President George W. Bush. He clerked for Judge Thomas Meskill on the Second Circuit and for United States Supreme Court Justices Lewis F. Powell and Antonin Scalia. And he has chaired the Standing Committee on the Rules of Practice and Procedure in the United States Courts. With this background, he is certainly an expert on the federal courts. Yet it is the state constitutions that have commanded his attention for many years, stemming from his time as Solicitor of the State of Ohio from 1995–98. This interest has culminated in his recently published book — 51 Imperfect Solutions: States and the Making of American Constitutional Law. A key audience for this book is the state supreme court justices who must decide how to interpret their own constitutions and whether to deviate from the U.S. Supreme Court’s interpretations of similar provisions. For this reason, when the Bolch Judicial Institute invited Judge Sutton to speak on his book, we also welcomed three other distinguished judges with significant experience on state supreme courts. What follows is a lightly edited transcript of their lively Nov. 8, 2018, conversation at Duke Law School.

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The Emergence of the American Constitutional Law Tradition

by H. Jefferson Powell

Intellectual traditions differ in the way they cohere over time. As the great philosopher Alasdair MacIntyre said years ago, a tradition of rational inquiry does not maintain its continuity through the simple repetition of what has been thought and said in the past. What gives life to such a tradition is not so much agreement about answers as it is agreement about questions. In MacIntyre’s words, an intellectual “tradition is an argument extended through time in which [even its] fundamental agreements are defined and redefined . . . [through] conflict.” An intellectual tradition, unless it goes dead, is a continuity of conflict, and debate and disagreement are its lifeblood. The emergence of the American constitutional law tradition, then, is the story of an ongoing debate, an endless argument over, among other things, what constitutional law is about. We’re living in a time of deep constitutional division, but severe disagreement is nothing new, and raucous debate is a sign of health, not decay. But at the same time, the tradition will not maintain itself: It depends on our commitment to carry on our debates in good faith, to recognize whenever possible the good faith of those with whom we disagree, and to resist the perennial temptation to convert constitutional law into a mere tool of ideological warfare.

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The Legacy of International Shoe and the Future of Complex Litigation

by David W. Ichel

In just a few years, the Supreme Court has meaningfully altered the landscape for establishing personal jurisdiction over corporations. Its quartet of unanimous and nearly unanimous decisions in Goodyear Dunlop Tires Operations, S.A. v. Brown, Daimler AG v. Bauman, BNSF Railway Co. v. Tyrrell, and Bristol-Myers Squibb Co. v. Superior Court of California substantially recalibrated the Fourteenth Amendment due process analysis for corporate personal jurisdiction established more than 80 years ago in International Shoe Co. v. Washington. Its more divided 4-2-3 decision in J. McIntyre Machinery, Ltd. v. Nicastro during the same period has heightened concern about the realities of establishing jurisdiction over foreign companies in an increasingly global marketplace. These developments impact both state and corresponding federal district courts. This article examines these decisions’ potential impact on class actions and other complex litigation and provides specific recommendations to protect plaintiffs’ access to a reasonable forum that is also fair to the defendants.

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10 Things Judges Should Know about AI

by Jeff Ward

With recent and dramatic advances in the capacities of machine learning, we are now beginning to see artificial intelligence (AI) tools come into their own. This matters for our judiciary, not only because the courts are embedded in an increasingly AI-rich world, but also because AI tools are beginning to enter the courthouse doors, leading to important questions like: Who is liable when an AI tool leads a doctor to a wrong diagnosis? How do defamation laws apply to AI-generated speech? What ground rules should be in place as we use AI tools to assist sentencing? What do hyper-realistic fake videos mean for the rules of evidence? As AI is rapidly developed and deployed, some rough seas will stir. And, as always, the judiciary will play an essential role in guiding our ships. To that end, here are 10 basic things about AI that every judge should know.

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Can Federal Sentencing Remain Transparent?

by D. Brock Hornby

Criminal trials have virtually disappeared in many federal courtrooms. According to a recent U.S. Sentencing Commission report, “[i]n recent years, 97 percent of federal defendants convicted of a felony or Class A misdemeanor offense are adjudicated guilty based on a guilty plea rather than on a verdict at a trial.” But sentencing has seemed to remain visible. In open court, federal judges traditionally explained to victims, the defendant, and the community the sentences they imposed. Now sentencing’s openness is in jeopardy, as federal prosecutors and defense counsel seek to conceal or disguise defendants’ cooperation with prosecutors or law enforcement and how that cooperation decreases their sentences.

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Overseas Obligations: Update on Cross-Border Discovery

by Michael M. Baylson and Sandra A. Jeskie

An article published in the Winter 2016 edition of Judicature provided an overview of case law and approaches for handling cross-border discovery in litigation. Since then, there have been some notable developments in several important case decisions and legislation that United States practitioners seeking overseas discovery, and judges ruling on these issues, must keep in mind. This article addresses the recent “Vitamin C” Supreme Court decision that establishes a new standard for the application of Federal Rule of Civil Procedure 44.1; the Clarifying Lawful Overseas Use of Data (CLOUD) Act; recent case reliance on the Restatement (Third) of Foreign Relations Law; the impact of the General Data Protection Regulation (GDPR) on overseas discovery in U.S.-based litigation; and the work product of independent legal groups that provide helpful guidance.

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The Storied Third Branch The Storied Third Branch

Remembering an extraordinary exemplar

By John R. Padova and Gene E.K. Pratter

Case Note Case Note

Protecting Electronic Privacy

By Erwin Chemerinsky

Lastly Lastly

The Public Domain: Grand Reopening

By Jennifer Jenkins