Jed S. Rakoff is a United States District Judge for the Southern District of New York. (November 2016)

IN THE REVIEW

Why You Won’t Get Your Day in Court

Over the past few decades, ordinary US citizens have increasingly been denied effective access to their courts. There are many reasons for this. One is the ever greater cost of hiring a lawyer. A second factor is the increased expense, apart from legal fees, that a litigant must pay to pursue a lawsuit to conclusion. A third factor is increased unwillingness of lawyers to take a case on a contingent-fee basis when the anticipated monetary award is modest. A fourth factor is the decline of unions and other institutions that provide their members with free legal representation. A fifth factor is the imposition of mandatory arbitration. A sixth factor is judicial hostility to class action suits. A seventh factor is the increasing diversion of legal disputes to regulatory agencies. An eighth factor, in criminal cases, is the vastly increased risk of a heavy penalty in going to trial.

‘Terror’ and Everybody’s Rights

President Obama on his first visit to the Pentagon as commander in chief, January 2009. With him are, from left, Air Force Chief of Staff Norton Schwartz, Army Chief of Staff George Casey, Joint Chiefs of Staff Vice Chairman James Cartwright, and Joint Chiefs of Staff Chairman Mike Mullen.

A War Like No Other: The Constitution in a Time of Terror

by Owen Fiss, edited and with a foreword by Trevor Sutton
The so-called “war on terror” declared by President George W. Bush soon after September 11, 2001, has already lasted more than three times as long as American involvement in World War II, with no end in sight. By its shapeless and secretive nature, it tends to generate amorphous fears and shrouded responses that compromise our freedoms in ways we may only dimly recognize but that create troubling precedents for the future. And so far, the federal courts have done precious little to challenge these incursions.

Neuroscience and the Law: Don’t Rush In

‘Deer, Boy’; drawing by James Edward Deeds Jr. from an album of nearly three hundred drawings that he made during his thirty-seven years as an inmate at a psychiatric hospital in Nevada, Missouri, starting in 1936. The drawings are collected in The Electric Pencil: Drawings from Inside State Hospital No. 3, with an introduction by Richard Goodman and a foreword by Harris Diamant, just published by Princeton Architectural Press.
As you sit reading this, you probably experience an internal voice, unheard by any outsider, that verbally repeats the words you see on the page. That voice (which, in your case, speaks perfect English) is part of what we call your conscious mind. And the physical organ that causes what …

The Magna Carta Betrayed?

King John of England approving the Magna Carta in 1215; illustration by John Leech, 1875
The year 2015 marked the eight hundredth anniversary of one of the most celebrated, and least read, of the world’s legal texts: the Magna Carta. The great twentieth-century British jurist Lord Denning described the Magna Carta as “the greatest constitutional document of all times—the foundation of the freedom of the …