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Jed S. Rakoff

Jed S. Rakoff is a United States District Judge for the Southern District of New York. (November 2018)

IN THE REVIEW

Hail to the Chief

Supreme Court Chief Justice John Marshall; painting by Henry Inman, 1832

Without Precedent: John Marshall and His Times

by Joel Richard Paul
George Washington was an inspiring leader, and Thomas Jefferson could turn a phrase; but to federal judges, the greatest of the Founding Fathers was undoubtedly John Marshall, chief justice of the US Supreme Court from 1801 to 1835, who forged the rule of federal law in American life. In his …

Don’t Count on the Courts

‘Members of the Mochida family awaiting evacuation bus,’ Hayward, California, May 1942; photograph by Dorothea Lange. It is on view in the exhibition ‘Then They Came for Me: Incarceration of Japanese Americans During World War II,’ at the International Center of Photography, New York City, January 26–May 6, 2018.

It is a commonplace of American civics to view each of the three branches of our government as a check on the other two. Many Americans therefore look to the judiciary to rein in executive action when it exceeds lawful bounds. In recent months, a number of lower courts have …

The MVP of the Second Circuit

Judges Jon O. Newman and Denise Cote at the Second Circuit Judicial Conference in 1997, with Judge Newman impersonating Carnac the Magnificent, the character created by Johnny Carson on The Tonight Show

Benched: Abortion, Terrorists, Drones, Crooks, Supreme Court, Kennedy, Nixon, Demi Moore, and Other Tales from the Life of a Federal Judge

by Jon O. Newman
Judges come in many flavors. Thurgood Marshall could be salty, even spicy. In dissent, Antonin Scalia could be sour and occasionally bitter. Almost no judge qualifies as sweet. But in his autobiography, Benched, the distinguished federal appellate judge Jon O. Newman seems to embody what scientists have described as the …

Will the Death Penalty Ever Die?

Courting Death: The Supreme Court and Capital Punishment

by Carol S. Steiker and Jordan M. Steiker
When my older brother Jan David Rakoff was murdered in 1985, bolts of anger and outrage not infrequently penetrated the black cloud of my grief. Though I knew almost nothing about Jan’s confessed murderer except his name, I wished him dead. Had the prosecutor recommended the death penalty, I would have applauded. It took many years before I changed my mind.

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.