Crimes Against Humanity Nuremberg, 1946

The Honorable Stephen Breyer

We are honored to publish this keynote address delivered by Justice Breyer in a ceremony held at the Capital Rotunda, Washington, D.C., to mark Yom Hashoah, the Day of Remembrance, on April 16, 1996.

A New Vision for the Legal Profession

Harry T. Edwards

I fear that our law schools and law firms are moving in opposite directions. The schools should be training ethical practitioners and producing scholarship that judges, legislators, and practitioners can use. The firms should be ensuring that associates and partners practice law in an ethical manner. But many law schools–especially the so-called “elite” ones–have abandoned their proper place, by emphasizing abstract theory at the expense of practical scholarship and pedagogy. Many law firms have also abandoned their place, by pursuing profit above all else. My view is that if law schools continue to stray from their principal mission of professional scholarship and training, the disjunction between legal education and the legal profession will grow and society will be the worse for it.

Introductory Remarks

Norman L. Greene

“Politicians on Judges: Fair Criticism or Intimidation” was a program produced by the Committee on Lectures and Continuing Education of the Association of the Bar of the City of New York and held on October 7, 1996, before a large gathering at the Association.

Some Thoughts on Judicial Independence

Mario M. Cuomo

Once every four years we are asked to look closely at our unique democracy and ask ourselves how well it’s working and whether we need to make some changes. Invariably, for those who take the time to reflect, it becomes a reminder of the genius of the original design: a separation of powers to give the ship of state balance, a political system–legislative and executive–to implement the will of the majority, and a judicial system to protect the minority from being deprived of rights so basic no majority should be powerful enough to deny them. Tonight we discuss how that design is being tested by recent events.

Administrative Law and the Legacy of Henry J. Friendly

The Honorable A. Raymond Randolph

Winston Churchill once told a friend, “I never say, ‘It gives me great pleasure,’ to speak to any audience because there are only a few activities from which I derive intense pleasure and speaking is not one of them.” I do not share Churchill’s sentiments today. I gladly confess-it does indeed give me great pleasure to speak to you about Judge Henry J. Friendly and administrative law. Judge Friendly remains my judicial hero. When Ed Huddleson suggested this topic, I could hardly resist. The subject he proposed is fitting. For I know personally that Judge Friendly was very much an admirer of Judge Leventhal’s work on the D.C. Circuit.

The Judicial Branch in State Government: Parables of Law, Politics, and Power

The Honorable Christine M. Durham

In this Brennan Lecture, Justice Christine Durham explores the influence of power and politics on the judicial process of state court judges. The federal separation-of-powers doctrine tends to be far more strict than any separation-of-powers concerns found in state constitutions. Thus, unlike the federal courts, which largely are insulated from the political process, state court judges are actively involved in legislative and executive functions. Justice Durham suggests that the political pressure stemming from frequent interbranch activity, as well as the majoritarian pressure stemming from the popular election of most state judges, may influence decisions, often with disturbing results. Justice Durham also considers the effects such pressure can have on the integrity of the decisionmaking process.

The Ballot and the Bench

The Honorable Shirley S. Abrahamson

In this Speech, Shirley S. Abrahamson, Chief Justice of the Wisconsin Supreme Court, discusses and examines the benefits and drawbacks of popular elections of state court judges. While acknowledging that elections have the potential to compromise the integrity of the judiciary, in part because both voters and campaign donors will come before the court, the Chief Justice concludes that state electoral systems can be important tools to educate voters about the practice of judging and the importance of judicial independence.

Uncommon Humanity: Reflections on Judging in a Post-Human Era

Jeffrey L. Amestoy

In this speech delivered for the annual Justice William J. Brennan, Jr. Lecture on State Courts and Social Justice, Vermont Supreme Court Chief Justice Jeffrey Amestoy uses the recent landmark Vermont decision of Baker v. Baker—the “same-sex marriage” case—as an occasion for deeper reflection on what it means to be human. In this “post-human” era—an era in which genetic manipulation, artificial intelligence, and cloning alter the human entity itself courts face unprecedented legal issues. Judges, as well as the rest of us, increasingly are forced to consider what to protect from such biotechnological advances, and where to draw lines among humans, animals, and chimera. The Chief Justice cautions that judges should not do so without consideration of what makes us human. This will require judges not to define humanity, but to describe and recognize it with, as Justice William Brennan urged, an awareness of the range of human experience. By imagining humanity—not through reason alone, but in a way that the heart can recognize—judges will be a humanizing counterweight in the legal challenges that lie ahead.

The Constitutional Right to a Remedy

Thomas R. Phillips

Of all the rights guaranteed by state constitutions but absent from the federal Bill of Rights, the right to a remedy through open access to the courts may be the most important. The remedy clause, which appears in the constitutions of forty states, usually takes one of two basic forms, but courts have interpreted and applied the clause in a variety of different and often contradictory ways. In this address, Chief Justice Phillips traces the development of the remedy guarantee from its inception in Magna Carta and explication by Coke and Blackstone. Many framers of the original state constitutions in colonial America adopted this guarantee as their own, recognizing it as a constraint on both judicial and legislative power. The Chief Justice examines subsequent judicial interpretations of the remedy clause as a potential check on legislative action limiting tort recoveries, particularly in the employment, construction, and medical malpractice contexts. Although he offers several reasons for caution against too robust a reading of the clause, the Chief Justice ultimately posits an approach that aims to protect absolute rights through equal access to justice, while urging state appellate courts to develop a coherent doctrine of remedies jurisprudence that reflects the continuing importance of the right to a remedy.