ABA Journal: Modern Law Library

In his new book, The Supermajority: How the Supreme Court Divided America, Michael Waldman identifies three times the U.S. Supreme Court caused a public backlash against itself—and warns the court may be well along the path to a fourth massive public backlash.In this episode of the Modern Law Library, Waldman walks the ABA Journal’s Lee Rawles through the prior episodes of backlash, starting with the fallout from the Dred Scott decision in 1857. He explains the “switch in time that saved nine,” when in 1937 the court narrowly avoided President Franklin D. Roosevelt’s plan to change the makeup of the court by unexpectedly upholding the constitutionality of New Deal legislation. And he posits that much of the contentious legal wrangling of the past half-century can be seen as a backlash to the Warren Court’s decisions like Brown v. Board of Education.Waldman, a constitutional lawyer who is the president and CEO of the Brennan Center for Justice at the New York University School of Law and a former speechwriter for President Bill Clinton, says that over the period of three days in June 2022, “the Supreme Court changed America.” With decisions overturning Roe v. Wade, loosening gun restrictions and reducing the authority of the Environmental Protection Agency, Waldman argues that the court’s six conservative justices signaled a sea change for the court. He warns that the change from a 5-4 ideological balance to what he terms a “supermajority” of conservative justices will mean a more turbulent relationship between the public and the Supreme Court.In this episode, Waldman shares his thoughts on the position of Chief Justice Roberts in the new balance, his advice on how the public can respond when the Supreme Court acts in opposition to the public will, and a counter-intuitive theory on why having more former politicians on the Supreme Court might have made the court less politically divisive.

Law professor Stephen Vladeck discusses 'The Shadow Docket', revealing how the Supreme Court issues unsigned majority emergency orders to establish precedents without legal reasoning. Topics include impacts on Roe v. Wade, power dynamics, same-sex marriage cases, Chief Justice John Roberts' views, and challenges of lack of transparency.

As chunks of the Berlin Wall were being torn down by jubilant crowds on November 9, 1989, James Silkenat was serving his term as chair of the ABA International Law Section. But he is the first to admit he did not immediately anticipate what that event would mean for the Cold War, or that monumental changes that soon be taking place across Europe and Central Asia. It was that event, however, that spurred discussions within the section about the need to help support countries working to establish a new rule of law. And those discussions would lead to a global volunteer effort spanning more than 100 countries over the next three decades.In Building the Rule of Law: Firsthand Accounts from a Thirty-Year Global Campaign, dozens of those volunteers share their experiences from what began as the ABA Central European and Eurasian Law Initiative (known as CEELI) in the 1990s to the expansion into the ABA Rule of Law Initiative (known as ROLI), which now operates with five divisions covering Africa; Asia and the Pacific; Europe and Eurasia; Middle East and North Africa; and Latin America and the Caribbean. From fighting gender-based violence in Jordan to advising on judicial ethics in Kazakhstan to advocating for the rights of journalists in Indonesia, ROLI is involved in a myriad of efforts that have been supported by hundreds of volunteers as well as staff.The first-person narratives in Building the Rule of Law range from heart-rending accounts of helping to catalog war crimes to slapstick misunderstandings in foreign taxi cabs, and were compiled by editors Silkenat and Gerald W. Libby, who is also a past chair of the International Law Section. In this episode of the Modern Law Library, Silkenat speaks about the project of compiling these histories and personal photographs, but also about how he has been changed by his work with ROLI. Silkenat, who served as ABA president from 2013-2014, is still heavily involved in ROLI, and returned from a volunteer trip to Zambia the day before the recording. As for why so many lawyers, judges, and even U.S. Supreme Court justices wanted to volunteer their time for ROLI initiatives, Silkenat says there were a number of motivations. "Many saw a chance to help shape legal systems of countries that would later become leading players on the global stage," he told the ABA Journal's Lee Rawles. "Many were motivated, in part, by the interest in public service that originally caused them to go to law school. Other volunteers wanted the chance to experience life abroad with a specific professional goal to accomplish, and finally, many were encouraged to participate by the very persuasive views of CEELI/ROLI's early leaders. If Justice [Sandra Day] O'Connor and Secretary of State [Madeleine] Albright thought this was a good activity, then maybe it was something to be pursued seriously."In this episode, Silkenat and Rawles also discuss concerns about the strength of the rule of law in the United States, the World Justice Project's tracking of the rule of law around the world (the United States was ranked 26th out of 140 in the group's last report), and opportunities for other legal professionals to become involved in ROLI or other rule of law projects.

Heather Terrell, who writes under the pen name Marie Benedict, has written about novelist Agatha Christie in The Mystery of Mrs. Christie, and in Lady Clementine, she looked back on the life of Winston Churchill’s wife, Clementine Churchill. Now, in her historical novel The Mitford Affair, she has turned her attention to three English sisters—Unity, Nancy and Diana Mitford—with the rise of Nazi Germany as a backdrop.

Bruce Jackson grew up shuttling between Brooklyn and Manhattan public housing projects. His journey led him to Hofstra University, then Georgetown Law. He ditched a white-shoe firm job to launch a career in entertainment law, and represented some of the hottest hip-hop and rap artists in the 1990s. When Napster changed the music industry, Jackson left for Seattle and Microsoft, where he traded in his sharp suits for polos and khakis, and sick beats for mosh pits–briefly. As he tells the ABA Journal’s Lee Rawles in this episode of the Modern Law Library, one exposure to a Seattle grunge concert had him packing his bags to return to New York City.But Jackson didn’t leave Microsoft—where he now serves as an associate general counsel—and a major focus of his career at the company has been to increase the tech giant’s diversity, equity and inclusion efforts. In Never Far From Home: My Journey from Brooklyn to Hip Hop, Microsoft, and the Law, Jackson reflects on the people and programs that made his own career possible, and is unflinching about the dangers he faced, the racism he encountered, and the mistakes he made in his personal life as he pursued professional success. Jackson tells Rawles that before demanding others share their stories with us, it important to tell our truths as well.In this episode of the podcast, Jackson shares how his childhood love of musical theater dovetailed with his skill at accountancy and tax law while representing his clients in the hip-hop music scene. He discusses his top tips for improving the diversity pipeline within organizations, and reflects on finding commonality with people from entirely different backgrounds to his own.

The 1964 decision in New York Times v. Sullivan protected the civil rights movement, established the “actual malice” standard, and is the basis for modern American libel law. But in recent years, criticism of the case has grown among conservatives, with U.S. Supreme Court Justice Clarence Thomas calling it “policy-driven decisions masquerading as constitutional law” and suggesting that the decision should be reconsidered.In her new book Actual Malice: Freedom of the Press and Civil Rights in New York Times v. Sullivan, law professor Samantha Barbas uses archival documents to shine light on the history behind the case, and introduces readers to the pivotal figures involved. She outlines the path libel law jurisprudence had taken prior to 1964, and explains why the New York Times v. Sullivan case was such a departure.In this episode of the Modern Law Library, Barbas tells the ABA Journal’s Lee Rawles about the curious journalistic spat that led to the litigation, as well as the legal tactics used by the pro-segregationists who brought the suit. Barbas also gives listeners a glimpse at the complex and sometimes counterintuitive characters involved in New York Times v. Sullivan, explains the stakes the case holds for the 21st century, and shares the story of perhaps the only lawyer who’s ever had to argue before the Supreme Court without wearing any socks.

When Lauren Stiller Rikleen was approached in 2020 by the ABA Judicial Division to help compile autobiographical stories from women judges in America, a powerful motivating factor for her was to capture stories of the barriers the judges overcame in their own words.Rikleen, a former law firm partner and consultant who writes and speaks about the importance of cross-generational communication, tells the ABA Journal’s Lee Rawles that she hopes millennial and Gen Z readers will benefit from the reflections of women judges from the Silent Generation, baby boomers and Gen X. Some of the challenges they faced will not similarly impede younger generations, but other obstacles are familiar, formidable and still present.“[E]ven as gains are made, biases are deep and systemic, requiring the vigilance of every generation to continue the difficult work of achieving full equity for all,” Rikleen writes in her introduction to Her Honor: Stories of Challenge and Triumph from Women Judges.Bookended by essays about the former Justice Sandra Day O’Connor and the late Justice Ruth Bader Ginsburg, Her Honor compiles reflections by the living jurists or essays about the lives of judges who have passed on. The 25 women jurists are all honorees of the Margaret Brent Women Lawyers of Achievement Awards, selected by the Commission on Women in the Profession. Rikleen herself has received a Margaret Brent award, and says it was a fair-handed way to narrow down participants. Past Margaret Brent honorees who also contributed to Her Honor include previous guests of the Modern Law Library podcast, Judge Bernice Bouie Donald and Judge M. Margaret McKeown. The judges write about the paths they took to the judiciary; their struggles to balance their work and personal lives; the people who mentored and encouraged them; and their triumphs and regrets.“They are different in every particular, yet what unites them in the aggregate is profound: This is a book about imagination, and what it took and still takes for women, and by extension other minorities invisible to the Constitution and the law, to imagine themselves into a structure that didn’t include them,” Dahlia Lithwick, senior legal correspondent at Slate, wrote in the forward to the book.In addition to discussing Her Honor, Rikleen and Rawles get into another project to which Rikleen has devoted her time. She is the executive director of Lawyers Defending American Democracy, a nonprofit, nonpartisan group that works to uphold democratic norms and the rule of law. They also discuss the “three Cs” promoted by ABA President Deborah Enix-Ross: civics, civility and collaboration.

Some American patriotic myths are harmless; George Washington may have chopped down a cherry tree at some point in his life, but the popular story told to children where young George fesses up to the deed by saying “I cannot tell a lie” is made up from whole cloth. However, there are much more pernicious lies and misinformation circulated about our past as a country, and that misinformation is used for political ends.Princeton University historians Kevin M. Kruse and Julian E. Zelizer say they have been alarmed about this uptick in misinformation, censorship and rewriting of history. Having previously co-written Fault Lines: A History of the United States Since 1974, they decided to partner as editors of a book responding to this wave of false history. They commissioned a number of other prominent historians to contribute, and the result is Myth America: Historians Take On the Biggest Legends and Lies About Our Past.In this episode of the Modern Law Library, Kruse and Zelizer speak with the ABA Journal’s Lee Rawles about how their project began and what they see as the greatest challenges facing modern historians. They offer tips on how to evaluate claims about history as a non-historian. They also discuss one of the most pervasive myths in the legal community: the true importance of Federalist Paper No. 10.

When former lawyer and bestselling author Meg Gardiner teamed up with Michael Mann for the follow-up novel to his 1995 crime thriller movie Heat, working with the legendary filmmaker was an eye-opener. “All the legends about his proclivities for research are accurate,” Gardiner told the ABA Journal's Matt Reynolds. “If you want to find out how to perform a tunnel heist in a Chicago bank, you better get a bank robber on the phone and chat with him for a couple of hours.”

In Anne Bremner’s work as a Seattle-based trial attorney, she saw a disturbing pattern—that high-profile cases often trending on Twitter challenge the concept “innocent until proven guilty,” as cases are tried online, as well as in courtroom proceedings. In this episode, the ABA Journal's Julianne Hill speaks to Bremner about the case of Amanda Knox and why it prompted her to write Justice in the Age of Judgment: From Amanda Knox to Kyle Rittenhouse and the Battle for Due Process in the Digital Age.