Can Science Save Justice?

Volume 101, Number 2 : Summer 2017

Departments

EDITOR’S NOTEEDITOR’S NOTE

A European Perspective
by Frederic Blockx

BRIEFSBRIEFS

The ethics of fees and finesguns in court; judicial honors; conference aims to increase the number of women in MDL leadership.

THE STORIED THIRD BRANCHTHE STORIED THIRD BRANCH

Lion of Justice: Judge Damon Keith of the U.S. Court of Appeals for the Sixth Circuit.
by Bernice B. Donald

AS I SEE IT

Bringing Diversity to MDL
by John K. Rabiej

POINT-COUNTERPOINT

Predictable or Flexible? Two Approaches to Copyright
by Stan McCoy and Trevor Cook

ON E-DISCOVERY

E-Discovery expert George Socha offers a tutorial on data visualization.

Features

Can Science Save Justice?

by Adam Benforado

Psychologists and neuroscientists say cognitive forces beyond our control are negatively affecting the criminal justice system and thwarting the promise of justice for all. Incremental efforts to address these damaging biases often come up short. Is it time for bold reform? Professor Benforado explores solutions offered by emerging science and technology, and practitioners — Sol Wachtler, a former appellate judge who served time in federal prison; Sam Myers, a former prosecutor who is now a trial judge; and defense attorneys David Keenan and Terence Ward — offer perspectives on how Benforado’s proposals might, or might not, work in the real world.

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Amended Rule 37(e): What’s New and What’s Next in Spoliation?

by Thomas Y. Allman

Rule 37(e) was amended to reflect new focus on curative measures in the absence of bad faith when it comes to the spoliation of electronic evidence. Thomas Allman assesses the impact of the rule and its relationship to using inherent sanctioning authority in addressing spoliation. (The article appendices, which can be downloaded below, will be updated periodically by the author to reflect new case law.) Download the Appendices 

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Criticism of the Judiciary: The Virtue of Moderation

by Geert Corstens

Former Italian Prime Minister Silvio Berlusconi once described the judicary as the “cancer of democracy.” Belgian Underminister Theo Francken announced in public that he would disregard a judgment of the Belgian court. Former French President Nicolas Sarkozy qualified judges as “petits pois sans saveur,” or “peas without flavor.” Geert Corstens, former chief justice of the Dutch Supreme Court, argues that these types of criticisms are not only unwise, but that they undermine the stability of countries governed by the rule of law. But, he says, judges can and must act to counterbalance improper criticism and the related, and dangerous, problem of “tolerating the intolerants.”

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IP Law Post-Brexit

by Richard Arnold, Lionel Bently, Estelle Derclaye, and Graeme Dinwoodie

Four European IP experts assess the likely impact of Brexit on intellectual property rights in the UK and the EU — and what it all means for the United States.

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Into the Thicket: What’s Next in Election Litigation?

by Bradley A. Smith

With a contentious election just passed, it would seem courts might get a brief respite from election-related litigation. Not so. Over the past two decades, election-related litigation, once rare, has become a court staple. The breadth and importance that election law litigation has taken on is indicated by reciting just a few of the major U.S. Supreme Court Decisions in the field since Bush v. Gore was decided in 2000: McCutcheon v. Federal Election Commission (campaign finance); Crawford v. Marion County Election Board (voter ID laws); League of United Latin American Citizens v. Perry (gerrymandering); and, of course, Citizens United v. Federal Election Commission (corporate election speech). And there is no reason to think that election-related litigation will decline.

Cameras Belong in the Supreme Court

by Erwin Chemerinsky and Eric Segall

The United State Supreme Court is now and has been for over 200 years the most powerful and important legal tribunal in the world. Over the last ten years alone, critical decision regarding abortion, affirmative action, gun rights, Obamacare, campaign finance reform, voting rights, redistricting and numerous other fundamental issues concerning how the people of the United States govern and define themselves have been made by our highest Court. Yet it has never allowed a single oral argument or decision to be broadcast or live streamed. It is a national embarrassment and a great disservice to the rule of law and a government by and for the people.

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Departments

BOOK REVIEWBOOK REVIEW

Glenn Harlan Reynolds reviews Our Republican Constitution: Securing the Liberty and Sovereignty of We the People, by Randy Barnett.

REDLINESREDLINES

Professor Joe Kimble, our resident writing expert, offers a path to a better first paragraph.

LASTLYLASTLY

A Specialist Court Redux?
by George Christie