What if we are asking the wrong questions when selecting American judges? Mark Tushnet thinks our current criteria might be off.

“We should look for judges who are likely to display good judgment in their rulings … and we shouldn’t care whether they have a good theory about how to interpret the Constitution as a whole—and maybe we should worry a bit if they think they have such a theory,” the Harvard Law professor writes in his new book, Who Am I to Judge? Judicial Craft Versus Constitutional Theory.

In looking at what qualities were shared by great Supreme Court justices, Tushnet identified five he thinks were of especial importance:

In this episode of The Modern Law Library, Tushnet and the ABA Journal’s Lee Rawles discuss how he thinks people should be evaluated for judicial positions; his experience as a clerk for former U.S. Supreme Court Justice Thurgood Marshall; what makes a well-crafted opinion; and why he thinks any overarching theory about the Constitution will fall short.

Should you need a license for that? For law professor and antitrust expert Rebecca Haw Allensworth, there are huge problems with professional licensing in America—and her solutions might not make anyone completely happy.

 In her new book, The Licensing Racket: How We Decide Who Is Allowed to Work, and Why It Goes Wrong, Allensworth takes a deep dive into the history and function of licensing in the United States. While licensing boards are put forth as a way to protect consumers, Allensworth says that in practice, their decisions can be arbitrary and their disciplinary functions flawed.

In this episode of the Modern Law Library, Allensworth and the ABA Journal’s Lee Rawles chat about a range of professions that currently require licenses, from hairdressing to law and medicine. While disciplinary procedures for lawyers are not open to the public, she was able to attend a number of proceedings for health care workers accused of wrongdoing, and what she found sometimes shocked her—and even shocked some of the people responsible for making those disciplinary decisions. She shares some of those stories in the episode.

The Licensing Racket argues that licensing should be done away with for many professions. For those that remain, however, Allensworth believes much more must be done by government agencies rather than allowing professions to self-police themselves through volunteers and licensing boards

For some people, retirement is an opportunity to kick back and finally relax. But for Roger M. Witten, it was a chance to finally tackle that book he'd been thinking about writing. With a little help from longtime friends and colleagues, Legal Briefs: The Ups and Downs of Life in the Law was born.

Witten's aim was to reach a general audience and given them an idea about what a life in the law could look like outside the most well-known bounds of a criminal justice, Law & Order career. The result is a series of short, digestible anecdotes from 20 attorneys, talking about memorable cases, clients and conundrums they had. A reader could flip to any chapter in Legal Briefs and spend an enjoyable 5-10 minutes getting a snapshot from a contributor's career.

Witten himself shares how he became an assistant special prosecutor for the Watergate Special Prosecution Force in the 1970s. In this episode of the Modern Law Library, he tells host Lee Rawles about defending a wise guy client code-named Ted, who nicknamed Witten "Witless" and threw a party with a banner reading "Ted - 1, FBI - 0" when they reached a successful plea agreement.

Many of the contributors to the book of essays were involved in government litigation and complex corporate matters. Witten himself was one of the foremost litigators handling Foreign Corrupt Practices Act cases, and before his retirement was a senior litigation partner in WilmerHale's New York office.

In this episode he also shares his perspective as a former Watergate prosecutor on current events within the federal government since the Trump Administration began, and recounts his experience with the late Sen. John McCain while defending campaign finance reforms.

A federal judge’s new book is giving readers a rare inside glimpse at how a judge determines which prisoners deserve to have their sentences overturned.

In his memoir, Disrobed: An Inside Look at the Life and Work of a Federal Trial Judge, Judge Frederic Block introduced readers to his colorful life and career. In Crimes and Punishments: Entering the Mind of a Sentencing Judge, he explained the rationale judges use when deciding sentences, and the human toll it can take. And now, in A Second Chance: A Federal Judge Decides Who Deserves It, he’s shining a light on how judges consider resentencing and compassionate release.

Without the passage of a key federal law in 2018, A Second Chance would not have been written. A bipartisan piece of legislation signed by President Donald Trump and supported by the ABA, the First Step Act was one of the biggest criminal justice reforms in the past decade. Among its sentencing reforms, it allows federal judges to reconsider sentences given out during tough-on-crime crackdowns, and for prisoners to petition for compassionate release.

Block, who is a senior judge on the U.S. District Court for the Eastern District of New York, soon found himself asked to reconsider sentences under the First Step Act. In the book, he outlines the crimes and rehabilitations (or lack thereof) of six federal prisoners. From a former police officer who assaulted an innocent Haitian immigrant to a trio of mobsters, Block selected an array that represents the types of cases he’s being asked to consider. Later in the book, he reveals the fate of each—whether life sentences were overturned or unrepentant prisoners were returned to their cells.

In this episode of the Modern Law Library, Block tells ABA Journal’s Lee Rawles how his own views on sentencing have changed since he ascended to the bench in the 1990s. In a case that made the news after A Second Chance went to press, Block overturned a sentence he gave out 27 years ago, during his second year on the bench. Block had imposed a quintuple life sentence on Walter Johnson after the man was convicted of robbery, cocaine possession and witness tampering. At 61, Johnson has now been released from prison, and Block discusses that decision in the episode.

Block sees a moral imperative for all strata of the justice system to work together to address mass incarceration. In addition to calling on judges to be open-minded when considering resentencing offenders, he encourages criminal defense attorneys to go through their lists of former clients to see whether any would be eligible for relief under the First Step Act. Most importantly, Block is calling upon citizens to lobby for sentencing reforms like the First Step Act on the state level, since the legislation only applies to federal prisoners. He points out that only about 200,000 of the approximately 2 million incarcerated Americans are federal prisoners; the vast majority are overseen by state courts.

Block also discusses the public response to President Joe Biden’s recent clemency decisions, and how collateral consequences have influenced his initial sentencing decisions.

It's the time of year when The Modern Law Library likes to look back on the media that we've enjoyed: our annual pop culture picks episode. This year, host Lee Rawles is joined by the ABA Journal reporters Danielle Braff and Anna Stolley Persky, and Victor Li, an assistant managing editor and host of the Legal Rebels Podcast.

Naturally, their favorite books are discussed. But they also have movies, TV shows, podcasts and even Broadway musicals to recommend. From presidential histories to wicked witches, listeners will find ways to occupy the holiday season and the new year.

Ami Cullen grew up loving horses and competing in hunter/jumper events. But when it came to her career, she decided that law would be her calling. She graduated from law school and began work with a firm in Maryland working on medical malpractice cases. Then a visit to a Colorado dude ranch changed everything.

 In Running Free: An Incredible Story of Love, Survival, and How 200 Horses Trapped in a Wildfire Helped One Woman Find Her Soul Cullen shares a lightly fictionalized version of the journey she’s been on for more than a decade.

Just as Cullen once did, Running Free’s main character Emme Muller visits the C Lazy U Ranch in Granby, Colorado, on a girl’s trip and falls in love with the wrangling way of life. She decides to leave her life as an East Coast lawyer to work at the ranch—initially planning it as a six-month sabbatical from her career.

Instead, she stays, eventually becoming head wrangler and marrying another employee at the dude ranch. But in October 2020, the East Troublesome Fire, the second-largest wildfire in Colorado history, imperiled the C Lazy U Ranch. Muller has to work with her employees and horse-loving community members to evacuate the ranch and save 200 horses from a relentless and rapidly shifting fire. 

That part of Running Free is also true, Cullen tells the ABA Journal’s Lee Rawles in this episode of The Modern Law Library. Now the director of equestrian operations at the C Lazy U Ranch, it was Cullen’s responsibility to save the herd of horses through two harrowing wildfire evacuations and an ice storm that sent fleeing horse trailers careening off the roads back in 2020. After the fire was out and recovery had begun, Cullen felt a compulsion to put down her experience in writing. The first attempt produced 80 pages that read like a legal brief, she tells Rawles. By fictionalizing her experiences and creating some composite characters, she was able to write Running Free, her first novel.

In this episode of The Modern Law Library, Cullen discusses what it was like to decide to leave the law, what it’s like to help run a dude ranch, leadership skills she learned from working with horses, and why you’re never too old to take up equestrianship.

J. Craig Williams believes empathy is an important quality to be a trial lawyer. It’s served him in his profession, and it’s a tool he has also been using as an author trying to get into the minds of people from past eras.

In How Would You Decide? 10 Famous Trials That Changed History, Book One, Williams examines cases and trials from history through the lens of a modern trial lawyer. He uses the accounts of the historical proceedings to illustrate current principles of litigation and civil rights, and explains what each can tell us about the rule of law. 

In this episode of The Modern Law Library, Williams tells the ABA Journal’s Lee Rawles that empathy was key in trying to understand the people involved in events like the Salem Witch trials, and figuring out how injustices could be perpetrated. He realized there were parallels to be drawn between society in late-17th century Salem and American society today.

The 10 trials featured in this first volume of How Would You Decide? are:

The case that most readers bring up when speaking with Williams is the Boston Massacre trial. Williams, who grew up in New England, says he was surprised to find during his research that there was much he hadn’t known about the case himself. Founding Father and future president John Adams was the attorney who successfully defended the British soldiers who fired into the Massachusetts crowd, an extremely risky professional and social decision. Williams and Rawles discuss Adams’s representation and what it meant for the establishment of the rule of law in the United States.

Listeners might best know Williams from his Lawyer2Lawyer podcast, which he launched in 2005, making him a pioneer in legal podcasting. Since Williams was already familiar with audio production, How Would You Decide? was a natural fit for multimedia. He launched a companion website, 10FamousTrials.com, making available more of the source material he relied on to write the book. He also partnered with Legal Talk Network to release a miniseries podcast, which is currently in production. In Dispute covers one of the 10 trials each episode, featuring commentary and reenactments drawn from trial transcripts and historical documents.

In this episode, Williams and Rawles discuss his research process, how he selected which trials to feature, and what might make it into Book Two. They also get into the holiday spirit by talking about The Sled, a Christmas story Williams and his wife wrote for their grandchildren.

Glenn Fine's career-long crusade against corruption might have its roots in his college days. As a point guard for the Harvard basketball team, Fine had his personal best game on Dec. 16, 1978, the same day he interviewed for–and received–a Rhodes scholarship. He put up 19 points against Boston College, including eight steals, and the team nearly eeked out a win against the favored Boston players. A remarkable day.

What Fine would later discover was that mobsters had bribed Boston College players to play worse to keep the game tight and not cover the point spread. Henry Hill and Jimmy Burke–later portrayed by Ray Liotta and Robert De Niro in the movie Goodfellas were part of the point-shaving scheme.

Fine would later be drafted in the 10th round of the NBA draft by the San Antonio Spurs, but it was the anti-corruption law that stuck, not basketball.

Fine took a job out of law school as a prosecutor in Washington, D.C., and joined the Office of the Inspector General at the Department of Justice in 1995. He would go on to serve as Inspector General at the DOJ from 2000 to 2011, then at the Department of Defense from 2015 until 2020. He was one of the five inspectors general fired by then-President Donald Trump in what the Washington Post referred to as the "slow-motion Friday night massacre of inspectors general."

But what do inspectors general do? It's a question Fine wants to answer with his book, Watchdogs: Inspectors General and the Battle for Honest and Accountable Government. In this episode of the Modern Law Library, Fine and the ABA Journal's Lee Rawles discuss the function, history and importance of the position, along with ways Fine believes government oversight can be improved.

As of the book's publication in 2024, there are 74 inspector general offices at the federal level, with more than 14,000 employees. As the IG for the Department of Defense, Fine oversaw the largest office, with some 1,700 employees. Inspectors general conduct independent, non-partisan oversight investigations into waste, fraud, misconduct and best practices, and deliver their reports and recommendations to Congress and the agencies involved. The IGs cannot enforce the adoption of recommendations, but their work acts as the "sunshine" for disinfection, Fine says.

One major recommendation Fine makes in Watchdogs is that an inspector general be established for the U.S. Supreme Court and the federal judiciary, who could perhaps file their reports to the chief justice or the head of the Administrative Office of the U.S. Courts. Fine points to judicial ethics concerns and polls finding public trust in the Supreme Court at historic lows, and argues one way to increase public trust is through the transparency provided by an inspector general.

Also in this episode, Fine offers advice for anyone considering a career in public service. Rawles and Fine discuss stories of his own investigations, including evaluating the claims of a whistleblowing scientist at the FBI laboratory and looking into how the infamous double-agent spy Robert Hanssen was able to fool his FBI superiors and pass intel to Soviets and Russians.

The first image conjured in your mind by the word “sheriff” might be the protagonist of a Wild West movie or Robin Hood’s foe, the Sheriff of Nottingham. But unless you’re a resident of Alaska, Connecticut, Hawaii and Rhode Island, there’s likely an elected law-enforcement official in your area who holds that title.

In The Highest Law in the Land: How the Unchecked Power of Sheriffs Threatens Democracy, lawyer and journalist Jessica Pishko takes a deep dive into the history of this position in American life, and at a far-right movement hoping to co-opt the role of sheriff to advance extreme conservative policies.

There are some 3,000 sheriffs in the United States, one per county (or county equivalent). In this episode of The Modern Law Library, Pishko and the ABA Journal's Lee Rawles discuss how the rural/urban divide impacts the demographics of sheriffs. Ninety-seven percent of the land area in the United States is considered rural, but only 20% of the people live in those rural areas. In the 2020 census, Greene County, Alabama, had 7,730 residents and one sheriff. Cook County, Illinois, which contains the city of Chicago, had 5,275,541 residents and one sheriff. This leads to a larger proportion of sheriffs representing a rural and more conservative demographic, Pishko says.

Pishko explains the “constitutional sheriff” movement, including its similarities to other fringe movements like the sovereign citizens. Adherents claim that sheriffs alone have the power to interpret how the Constitution and the first 10 Amendments should be enforced in their counties. They claim that state governments, the federal government, the president and the U.S. Supreme Court have no power over sheriffs, and that as elected officials, sheriffs are answerable only to their constituents.

In this episode, Pishko also describes the large role sheriffs have in incarcerations, how their enforcement powers differ or overlap with police, and what disciplinary or oversight measures are available when a sheriff abuses their office. Pishko and Rawles also discuss the roles sheriffs might have in local elections, and whether they might have an impact on the 2024 presidential election.

Most—though not all—of the 13 short stories in Company deal with members of the Collins family. Three generations of narrators bear witness to the changing fortunes of the family, and as with any witness statement, everyone has a different perspective on what actually happened. Also, there are ghosts—and at least one witch. 

The matriarch and patriarch of the Collins family ran a jazz club in Atlantic City. Their four daughters and eight grandchildren face issues of race and class, fecundity and infertility, marriage and divorce.

In this episode of The Modern Law Library, the ABA Journal’s Lee Rawles speaks with author Shannon Sanders about the similarity between crafting a perfect brief and a short story, and its differences from novel writing. They discuss the ways families are built, through biology, shared experiences and legal paperwork.

Sanders shares how she balances her full-time legal work, her family life and her work as a writer. She also offers tips for people looking to publish their short stories in magazines and literary journals. The hardback version of Company is available now, and the paperback will be released on Nov. 12.