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Book: New Pretrial Advocacy Book Addresses New Norms in Transformed Field of Litigation

A new book on pretrial advocacy, published this week by the National Institute for Trial Advocacy (NITA) and Wolters Kluwer, takes on a world of litigation that has been radically transformed in recent years by remote proceedings and other practice norms that often deliver resolution long before litigants face off in the courtroom (available in print and e-book here).

In Pretrial Advocacy, authors Reuben A. Guttman and J.C. Lore address the challenges of litigating in a civil justice system that is overburdened yet essential to implementation of the rule of law. Even as nearly 90% of all civil matters never come before a jury, lawyers must nevertheless prepare cases as though they will. Because modern civil litigation is, the authors say, “front loaded,” lawyers are challenged early on in the pretrial process to consider the rules of evidence and civil procedure as they gather information to plead a plausible complaint.

“The pretrial process is laden with unwritten norms. All parties, from litigants to jurists, struggle to provide efficient resolutions while balancing due process,” said Lore, a Distinguished Clinical professor and Director of Trial Advocacy at Rutgers Law School. “We wanted to write something that explains it all.” The strategies and techniques outlined in Pretrial Advocacy put forward responsive new approaches to teaching advocacy in both law school and continuing legal education settings.

In addition to practical tips and insights from some of the nation’s foremost jurists and practitioners, Pretrial Advocacy features a foreword by retired U.S. District Court Judge for the District of Massachusetts and Harvard Law faculty member Nancy Gertner. “Pretrial Advocacy fills an important space for litigators,” Gertner said. “It teaches how to try cases from the moment  a client contacts the lawyer through the trial, encouraging lawyers to engage in strategic decisions about pretrial discovery and motion practice. Why depose this witness rather than another?  What is the purpose? What are the salient documents—not every single one, not just the few ‘gotcha’ documents, but those that build the narrative.”

Pretrial Advocacy closes with chapter dedicated to public interest litigation. “We thought a chapter on public interest litigation was necessary because there are too many people—from immigrants to victims of race and gender discrimination and whistleblowers—seeking to have their voice heard, and they need competent representation,” said Guttman. Guttman is a founding partner of the Washington, D.C. law firm of Guttman, Buschner & Brooks, PLLC, where he has represented clients in False Claims cases in matters returning more than $6 billion to the United States government.

Guttman and Lore are available to the media to comment on matters in civil litigation and the civil justice system.

Pretrial Advocacy is the ideal textbook for law school clinics, law school  pretrial litigation courses, and practicing lawyers. Both practical and theoretical, it teaches litigation as a process informed by rules and cases, but also by strategic considerations. Its hands-on and accessible text makes it a perfect reference for learning skills and a continuing reference. (Available in print and e-book here.)

Learn more here.

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China’s Evolving “Operating System” for Environmental Non-State Actors and the Challenges of Meeting 21st Century Needs for Governance

The challenges of addressing climate change and the spread of infectious diseases highlight the inadequacy of mainstream twentieth century global governance systems, such as the WHO and UN climate framework (UNFCCC) States clearly do have common interests in addressing global health and environmental problems. But conventional rules-based strategies have failed to produce effective responses to increasingly important problems like climate change (Peters, 2021). This suggests a growing need to explore other strategies that can be brought to bear in addressing 21st century problems. One alternative that has garnered increased attention in recent years features roles for a variety of non-state actors in encouraging action by governments or even providing substitutes for governmental initiatives. The dramatic growth in China’s global role raises the obvious question: how does western thinking about non-state actors map onto the Chinese experience? Our book NonState Actors in China and Global Environmental Governance (Palgrave Macmillan 2021) serves as a framework and primer for practitioners and scholars on the developing institutional system of China’s environmental non-state actors. 

By Dan Guttman, Yijia Jing and Oran Young
Emergin Global Policy | July 2021

Introduction
The challenges of addressing climate change and the spread of infectious diseases highlight the inadequacy of mainstream twentieth century global governance systems featuring international legally binding instruments and intergovernmental organizations to meet twenty-first century needs for governance.

States clearly do have common interests in addressing global health and environmental problems. But conventional rules-based strategies have failed to produce effective responses to increasingly important problems like climate change (Peters, 2021). This suggests a growing need to explore other strategies that can be brought to bear in addressing 21st century problems. One alternative that has garnered increased attention in recent years features roles for a variety of non-state actors in encouraging action by governments or even providing substitutes for governmental initiatives.

The dramatic growth in China’s global role raises the obvious question: how does western thinking about non-state actors map onto the Chinese experience? Our book Non-State Actors in China and Global Environmental Governance (Palgrave Macmillan 2021) serves as a framework and primer for practitioners and scholars on the developing institutional system of China’s environmental non-state actors.

The book emerged from a 2016 Shanghai workshop hosted by Fudan University to frame questions for research that brought together two dozen scholars and practitioners from Australia, Brazil, China, the European Union (EU), and the United States (US). Now, in 2021, as formal intergovernmental organizations are struggling to address climate change and the Covid-19 pandemic, US-China tensions and related talk of decoupling call into question governmental capacity to address these challenges effectively. The landscape of China-related non-state actors has evolved in the shadow of the state. There is a premium on understanding who occupies this landscape and how it works – perhaps as a twenty-first century version of Cold War era Track 2 diplomacy or historic “invisible colleges” (cross border informal networks of researchers) – to meet today’s global governance challenges.

The Global Vernacular of Governance and Convergence or Divergence in Chinese and Western “Operating Systems”

At the Cold War’s close, many outsiders thought that as China developed markets and reentered the global system, Chinese and western systems of governance would move toward convergence. Indeed, as foreigners teaching in China or working with Chinese scholars or governance practitioners know, the English words used in law, policy, international relations or environment classes or conferences in Washington or New York (or in debates at the United Nations) are familiar in Beijing and Shanghai. These include, for example, “law/rule of law,” “governance,” “nongovernmental organization (NGO)/civil society,” “sustainability,” “transparency,” “policy,” “plan,” “public/private partnerships (PPPs)”, “public participation,” ” privatization,” “environmental public interest law.” They also include terms, such as “circular economy,” spawned in the EU, embraced in China, but less used in the US. “Governance” is the English language title of President Xi’s multivolume works on “The Governance of China.” In short, since the Cold War’s end, China has come to share what might be called a global vernacular of “governance.” Those working in China will know that the English terms are commonly qualified by the phrase “with Chinese characteristics” (e.g., “NGO with Chinese characteristics”). Nonetheless, until recently, the dominant western (America and European) perspective was that meanings would converge as China’s economic development would lead to “markets,” a rising “middle class,” and the “rule of law.”

But recent developments make clear that convergence in these systems is not occurring. Thus, while common terms are used, their practical meanings may differ fundamentally in the context of distinct national “operating systems.” For example, in relation to environmental governance, the United States (among other western countries) is “law centric.” Citizens or officials with the objective of shaping policy seek to make laws in Washington DC, through Congress, courts or executive action, or in states or localities, all of which are subject to the US Constitution. China today has many environmental laws and (in contrast to the US) many environmental courts; its legal system is designed for a “socialist rule of law with Chinese characteristics.”

However, law is only one of many “rule sets” in China. The dominant policy processes in China’s system for environmental governance today are periodic plans (central Five Year Plans at the apex), further policies guiding achievement of national goals (zhengce), and crisis management (as dramatically exemplified by China’s Covid-19 control actions). For those seeking to address climate change policy, the “point of entry” (qierudian) in the United States is changes to the law; in contrast, the point of entry in China is adoption of the Five Year plan (or other “policies”) (Young et al., 2015; Zhao et al., 2020).

In short, those seeking to address twenty-first century challenges of climate, health and further global governance must understand how common terms in the global vernacular of governance are translated in the context of the China operating system. Thus, we studied whether and how the western concept of “non-state actor” translates into today’s China. The hypothesis was that the western concepts of “non-state actor” and related terms such as “NGO” are not supple enough to capture the reality of China’s efforts to address environmental issues, which includes actors that are not strictly within the state but operate in the shadow of the state. Of course, the boundary between state and non-state varies among countries, even among western countries. Indeed, the practical meaning of terms such as “NGO” and “rule of law” is contested among western experts.

But there is likely a more basic difference between western countries and China today, where the Chinese Communist Party is core to the state or government, and the government is core to economic planning as well as considerable economic activity.

Step One: Understanding the China Non-state actor institutional landscape

Our first step in understanding China’s environmental governance was to construct a landscape that included China’s non-state actors. We asked: “Bearing in mind the deep role of Party and state in China, what occupies the space (kongjian) in China that in western societies is occupied by ‘non-state actors’?”

In relation to the term “NGO,” at year end 2019 there were 866,000 organizations which the English language state-run paper, the China Daily, referred to as NGOs. These included: (1) nonprofit enterprises (minban feiqiye danwei), which were renamed as “social service organizations” (shehui fuwu jigou) under the 2016 Charity Law. The notion of “minban feiqiye” perhaps most closely resembles western notions of “NGO,” given their roles in service delivery and sometimes advocacy; (2) “social groups” (shehui tuanti) such as farmers, professional, and business associations; and (3) “foundations” (jijinhui)). In order to register for these legal statuses, an organization must have a supervisory agency (yewu zhuguan danwei), usually a party or government agency. Organizations that cannot obtain Charity Law registration sometimes register as companies (gongsi) or go without formal legal status.

About 7000 of these registered organizations are said to focus on environment, mostly in the first category, nonprofit enterprises. The vast majority are small, with limited staff and resources, and local registration that limits activities to the locale of registration. Only a few, such as Friends of Nature, have national reach.

After WWF entered China in the early 1980s, many other NGOs chartered outside of China set up activities in China. Very few “foreign” NGOs were granted “NGO” legal status, however. As a consequence, they sought other types of status. These include housing themselves within a China entity (e.g. government agency, shiye danwei, minban feiqiye danwei) or registering as a profit-making company. The passage of the 2016 Law of the People’s Republic of China on Administration of Activities of Overseas Nongovernmental Organizations fundamentally altered the “foreign NGO” presence in China. Foreign related NGOs must now gain a sponsor from an approved list, and China’s Public Security Bureau has core supervisory authority.

Shiye danwei, a further key category of China non-state actor, (oft translated as “public service unit”), has no clear western equivalent. (Guttman, Song, Li, 2013). These organizations are not “governmental” (for example the workforce is generally not civil service) but they do operate under government (or Party) sponsorship. They include Chinese universities (e.g., Peking University, Fudan University), science academies, research institutes, and hospitals. Shiye danwei may spawn and benefit from enterprises, famously including technology companies. The role of shiye danwei is particularly important in the context of the perhaps surprisingly limited size of China’s civil service. In environmental governance, for example, the US Environmental Protection Agency has about 15,000 civil servants; China’s Ministry of Ecology and Environment has less than 1,000. Shiye danwei everywhere supplement government, functioning as fulltime government adjuncts.

They serve, for example, as policy staff for the central environmental ministry, fulltime inspection/compliance staff for local environmental bureaus, or, in the case of universities, think tank/research adjuncts. China’s recent “vertical management” (chuizhi guanli) environmental governance reform features inspection teams (ducha) deployed by central Party and government to review local official and Party leader performance. The teams are often staffed with shiye danwei workers.

Finally, non-state actors include private profit making enterprises. In the west, corporate social responsibility (CSR) emerged from such enterprises, with stimulation from advocates and investors. In China, as we explain in more detail in our volume, CSR is government mandated for state owned enterprises and many publicly traded companies. Global NGOs and China shiye danwei provide tools for corporate compliance. As a co-author of a German Technical Corporation (GTZ) sponsored cross-country CSR comparison summarizes, governments “manage voluntary actions through public policies.” fn1 In China, however, the role of government is dominant, and “policies” are, in practice, often not seen as “voluntary, but, compulsory (as “laws” are elsewhere.)

To summarize, while the above overview distinguishes China non-state actors principally based upon legal status, China non-state actors maintain political, administrative, and relational connections to the state. This feature has been strengthened in recent years as President Xi emphasizes that “the Party has its overall leadership over party, government, military, the mass, and the students.”

Step Two: Creating a Framework for the role of non-state actors in China related to environmental standard setting and implementation: streams of activity and mechanisms of influence

With this landscape in hand, we deployed two concepts to further frame a comparative understanding of the role of China non-state actors in standard setting and implementation.

We use the concept of “streams of activity” to consider the relation of non-state actors to governmental standard setting, on the one hand, and the enterprises to be regulated on the other. In a first stream, non-state actors function to supplement government in the implementation of government set standards. For example, under China’s environmental law, qualified civil society organizations (e.g., minban feiqiye danwei in good standing with environmental mission) may bring lawsuits against private polluters in the name of the public interest. Now, however, the bulk of environmental public interest lawsuits are brought by government prosecutors, who alone can sue government.

In a second stream, as we show through studies of developing water management and fisheries standards, global organizations such as the Forestry Stewardship Council or the Marine Stewardship Council, which often take the form of “multistakeholder” organizations, with profit-making enterprises as well as nonprofits as members, themselves set and seek to apply standards in China.

In a third stream, profit-making enterprises, or associations of profit-making enterprises, themselves seek to make and effectuate enterprise standards. These include foreign non-state actors, such as the Walmart-initiated Sustainability Consortium and, today, many Chinese shehui tuanti. Shehui tuanti standard setting is supported by China’s “Law on Standardization,” which provides that “[s]tandards include national standards, industry standards, local standards, group standards, and enterprise standards.” Industry standards and local standards are “recommendatory.” Article 18 of the law provides that “[t]he State encourages social organizations such as societies, associations, chambers of commerce, federations, industrial technology alliances, etc., to coordinate with relevant market entities to jointly formulate group standards that meet the needs of the market and innovation.”

Initially, Chinese business associations learned about “voluntary sustainability standards” (VSS) from global non-state actors. Beginning with the Textiles Association in 2005, shehui tuanti have increasingly been developing their own VSS. For example, working with the OECD and UN guidelines, the China Chamber of Commerce for Minerals, Metals and Chemicals Importers and Exporters (CCCMC) produced “Guidelines for Social Responsibility in Outbound Mining Investments.” Human rights and environment are the core risks addressed: those “contributing to conflict and serious human rights abuses” and risks relating to “serious misconduct in environmental, social and ethical issues.”

We used the concept “mechanisms of influence” to consider how organizations that lack state authority may affect enterprise conduct. What kinds of leverage do they use? Examples include
• The shadow of the state. For example, the Institute of Public and Environmental Affairs (IPE), a minban feiqiye danwei founded by Ma Jun, a China environmental pioneer, compiles data provided or verified by government. The data are organized and published online on maps and in related rankings (of localities as well as enterprises). When data reveal compliance problems, IPE works with enterprises to improve performance. fn2

• Provision of essential resources. One example, as we discuss in our volume, is how the Alliance for Water Stewardship (AWS) helps enterprises identify and use technologies and practices to meet environmental standards and maintain profitability. AWS works across industries (such as fashion and micro-electronics), with a focus on educating on the role of water in multinational supply chains. AWS’s working hypothesis is that the adoption of best technologies or practices by a critical mass of industry leaders will produce a “tipping point” for an industry sector.

• Crisis as opportunity. For example, Amnesty International reporting on child labor in Africa cobalt mining led to CCCMC’s development of guidelines. IPE’s success in focusing on supply chains followed on its work to bring global attention to the poisoning of 137 Chinese workers in Apple’s supply chain.

• Cultural arbitrage; taking advantage of value differences among supply chain markets. For example, The Alliance for Water Stewardship (AWS) has a substantial presence in Australia, where green awareness surrounds fashion brands. AWS’s Australian Fashion Brand Initiative sought to link Australian green fashion preference to Chinese fashion production processes.

Implications for global policymaking and implementation: Non-state actors are canaries in the coal mine but also actors whose knowledge, decisions and choices may shape or steer global governance and policy in times of challenge


How has China’s non-state actor system been working? Not surprisingly, given the nascent stage of development and difficulties of measurement, there are more “output” measures (e.g., are voluntary standards/certifications being created? taught? adapted? put into use?) than “outcome” and “impact” measures (e.g. is environment and public health improved?) to help answer this question.

In 2021, the principal impact is the very existence of a Chinese non-state actor landscape and its evolving relation to global governance. Global governmental organizations have not met the challenge of climate change and the coronavirus pandemic. Geopolitical tensions becloud governmental agreements on reform. In this context, China and global non-state actor counterparts may serve, like Track 2 diplomacy and invisible colleges in past times, as pathfinders in communication and perhaps cooperation across national boundaries. There are multiple points of entry for potential global impact.

First, in relation to global standards, China’s shehui tuanti initially learned from, and developed relations with, global non-state environmental standard setters. These relations, in turn, facilitated global non-state actor promotion of their standards in China. For example, the chapter on global fisheries explains how the global Marine Stewardship Council initially had difficulty gaining traction in China, but achieved success following work with Chinese association counterparts.

Now, China shehui tuanti are developing their own voluntary standards. In the context of the Belt and Road Initiative these include standards for activities abroad.

Of course, there is always the question of whether environmental standards set by non-state actors will have force and effect comparable to rules adopted by the state. Indeed, the chapter on shehui tuanti explains that they face a “trust deficit” from global actors in the deployment of their standards. By a similar token, current geopolitical tensions highlight the need for Chinese (and global) enterprises to develop standards to secure enterprise stability overseas. Current global tensions are heightening scrutiny, often by non-state actors, of conduct in China’s Belt and Road projects. The May 2021 ruling of a Dutch Court that Royal Dutch Shell must act to reduce emissions brings to the global forefront the notion of a court declared corporate duty (a “duty of care”) that may emerge from norms or standards in addition to those enacted by governments.

Second, with China as a dominant global manufacturing hub and a primary global consumer, China’s application of standards domestically will also have global impacts. Here, as illustrated by the Alliance for Water Stewardship and IPE as well as China’s regional pilot projects to green multinational supply chains, global and local non-state actors are working to account for and improve environmental conduct in China’s components of multinational supply chains.

The Chinese government’s rule setting may also, de facto, set global environmental standards. Global as well as Chinese non-state actors have long played advisory roles in the development of China’s laws and policies. Today, given the failure of the UN Framework Convention on Climate Change (UNFCCC) and its implementing measures like the 2015 Paris Climate Agreement to address climate change effectively, China’s domestic rules are critical to addressing the global climate challenge. For example, in 2016 the Montreal Protocol was amended to mandate the phasing out of hydrofluorocarbons, a powerful greenhouse gas used in refrigerants. China is the leading producer and consumer of air conditioning equipment. The Institute for Governance and Sustainable Development (IGSD), a western NGO, (fn3) worked with counterparts and officials in China, the US, India, as well as other countries, to garner support for the 2016 amendment. In the implementation of the amendment, IGSD’s China experts have been participating in China’s government rulemaking procedures and working with Chinese enterprises to develop new air conditioner regulations.

Finally, in this time of geopolitical tensions and climate and health crises, the relationships developed among global and Chinese climate actors may be key to finding pathways toward effective twenty-first century global governance and policies. In years past, Track 2 diplomacy and invisible colleges served to bridge understanding among countries in times of tensions. In addressing today’s challenges, Chinese and global non-state actors are both “canaries in the coal mine” and actors or agents confronting an increasingly urgent need to improve cross-border relations and governance.

As canaries in the coal mine, non-state actors are now buffeted by government laws and policies. China’s 2016 “Foreign NGO law” put the role of foreign NGOs to the test inside China, with many foreign NGOs leaving China and others seeking an alternative status, for example as businesses. On the US side, Trump Administration criminal enforcement of the 1938 “Foreign Agent Registration Act” and expansion of the US “entity list,” a trade blacklist, constitute challenges for foreign non-state actors seeking to cooperate with China.

To illustrate, the Better Cotton Initiative (BCI), a standard setting/certification and capacity building global nonprofit (comprising civil society organizations and major global brands, such as Ikea, Nike, and Adidas) had its “first harvest” in China in 2012. In fall 2020, following the US government listing of Xinjiang-related actors on the entity list, BCI announced it would suspend activities in Xinjiang, a major cotton growing area. In 2021, the BCI Shanghai representative office reported no evidence of forced labor in Xinjiang, and there were reports that China would launch its own Better Cotton Initiative. The choices in front of BCI and its members, and Chinese counterparts, will likely effect both cotton sustainability and, as a result, also inform and perhaps shape global environmental policy.

In sum, the daily and myriad choices now faced and being made by global and Chinese non-state actors are likely to play an increasing role in the evolution of global policy and institutions as we move deeper into this century. Non-state actors are daily engaged in challenges and choices at levels of granularity beyond current government law or policy. The shaping and making of these non-state actor choices may, in turn, guide global governmental institutions and policies. Those who would participate in global governance in these times – as researchers and/or practitioners – must be equipped to know the landscape and vocabulary needed to work between and among systems.

Dan Guttman is currently affiliated with Tianjin University Law School, Fudan University Institute for Global Public Policy, New York University US/Asia Law Institute, and the law firm of Guttman, Brooks & Buschner. He has been a public servant and is a Fellow of the US National Academy of Public Administration.

Yijia Jing a Chang Jiang Scholar, Seaker Chan Chair Professor in Public Management, Dean of the Institute for Global Public Policy, and Professor of the School of International Relations and Public Affairs, Fudan University.

Oran Young is professor emeritus at the Bren School of Environmental Science and Management, University of California Santa Barbara. His new book is entitled: Grand Challenges of Planetary Governance: Global Order in Turbulent Times (Edward Elgar, 2021).

References
Dan Guttman, Yijia Jing and Oran Young. (eds), 2021. Non-state Actors in China and Global Environmental Governance. Palgrave Macmillan: London and New York.

Dan Guttman, Song Yaqin & Li Haiming (2013) United States Government Contracting and China’s Shi Ye Dan Wei: Two Shadow Governments – Path Dependency from Opposite Directions, or Mutual Learning?, Asia Pacific Journal of Public Administration, 35:1, 1-51, DOI: 10.1080/23276665.2013.10779395

Oran R. Young, Dan Guttman, Ye Qi, Kris Bachus, David Belis, Hongguang Cheng, Alvin Lin, Jeremy Schreifels, Sarah Van Eynde, Yahua Wang, Liang Wu, Yilong Yan, An Yu, Durwood Zaelke, Bing Zhang, Shiqiu Zhang, Xiaofan Zhao, Xufeng Zhu. 2015. “Institutionalized Governance Processes: Comparing Environmental Problem Solving in China and the United States,” Global Environmental Change, 31:163-173.

Peters, B.G. 2021. Governing in a time of global crises: the good, the bad, and the merely normal. Global Public Policy and Governance, 1(1), 4–19. https://doi.org/10.1007/s43508-021-00006-x

Xiaofan Zhao, Oran R. Young, Ye Qi, and Dan Guttman. 2020. “Back to the Future: Can China Doubling Down and America Muddling Through Fulfill 21st Century Need for Environmental Governance?” Environmental Policy and Governance, 2020: 1-12.

________________________
1. See The CSR Navigator: Public Policies in Africa, the Americas, Asia and Europe, Deutsche Gesellschaft für Technische Zusammenarbeit (GTZ) and BertelsmannStiftung, https://www.bertelsmann-stiftung.de/fileadmin/files/BSt/Publikationen/GrauePublikationen/GP_The_CSR_Navigator.pdf, n.d., quotation from correspondence with an author.

2. Institute of Public & Environmental Affairs, see: http://wwwen.ipe.org.cn/

3. Oran Young is IGSD Board Chair.

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The Leading Question: Rethinking How We Teach Direct Examination

Trial instructors across the country implore students not to ask leading questions on direct examination. For their part, students struggle to formulate lines of inquiry devoid of leading questions. Amidst their quandary, students find themselves perplexed when they watch demonstrations or clips from real trials and see leading questions frequently used on direct examination. So what’s the deal?

Perhaps students are taught a practice without an appreciation for the source of the practice. Federal Rule of Evidence 611 outlines the “Mode and Order of Examining Witnesses and Presenting Evidence.” It is a short and easily understood rule. It is also a rule that is probably not taught in law school evidence classes. Yet FRE 611 is a gold mine of information because, among other things, it specifically addresses the use of leading questions. FRE 611(c) states:

(c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:

(1) on cross-examination; and

(2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

The rules of evidence do not categorically proscribe leading questions on direct; they may be used “as necessary to develop the witness’s testimony.” Questions that are foundational or involve matters that are not in dispute are the types of questions that can be posed as leading questions. Doing so creates efficiencies; it moves the case along. Interposing leading questions under these circumstances also makes the dialogue we call “direct examination” more natural and less formulaic. Think about a recent conversation with a friend or relative: it is human nature to cut to the chase with a leading question. And with court systems burdened with litigation—especially as we emerge from the pandemic—cutting to the chase is an efficiency that moves dockets.

For a new lawyer or one learning litigation skills, FRE 611 is empowering. Consider this line of questioning:

Q: Officer Smith, you were riding in the police cruiser with Officer Jones when Officer Jones pulled over my client’s vehicle?

Opposing Counsel: Objection: leading.

Counsel: Your Honor, I am just trying to move this proceeding along; this is foundational, and this is not a matter in dispute.

Judge: Overruled.

None of this is to say that students should not be taught how to ask non-leading questions or how to develop the skill of using prompts that turn the witness on direct examination into the storyteller. Learning how to use words like “who,” “what,” “when,” “where,” and “how,” or similar words that place the witness in the driver’s seat as the storyteller, is an important skill. Yet it is also important to learn where to use leading questions to move the testimony along. Moving it along empowers the decision-maker—judge or jury—to focus on the witness when important questions, such as those dealing with matters in dispute, are asked.

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GBB’s Judge Gertner selected for Presidential Commission on the Supreme Court

President Biden will today issue an executive order forming the Presidential Commission on the Supreme Court of the United States, comprised of a bipartisan group of experts on the Court and the Court reform debate. In addition to legal and other scholars, the Commissioners includes former federal judges and practitioners who have appeared before the Court, as well as advocates for the reform of democratic institutions and of the administration of justice. The expertise represented on the Commission includes constitutional law, history and political science.

The Commission’s purpose is to provide an analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals. The topics it will examine include the genesis of the reform debate; the Court’s role in the Constitutional system; the length of service and turnover of justices on the Court; the membership and size of the Court; and the Court’s case selection, rules, and practices.

To ensure that the Commission’s report is comprehensive and informed by a diverse spectrum of views, it will hold public meetings to hear the views of other experts, and groups and interested individuals with varied perspectives on the issues it will be examining. The Executive Order directs that the Commission complete its report within 180 days of its first public meeting. This action is part of the Administration’s commitment to closely study measures to improve the federal judiciary, including those that would expand access the court system.

The two co-chairs of this Commission are Bob Bauer, Professor of Practice and Distinguished Scholar in Residence at New York University School of Law and a former White House Counsel, as well as Yale Law School Professor Cristina Rodriguez, former Deputy Assistant Attorney General in the Office of Legal Counsel at the U.S. Department of Justice.

COMMISSIONERS

Michelle Adams.
Michelle Adams is a Professor of Law at Benjamin N. Cardozo School of Law, where she teaches Constitutional Law, Federal Courts, and Federal Civil Rights. At Cardozo, she is a Director of the Floersheimer Center for Constitutional Democracy and was a Board Member of the Innocence Project. Adams has published in the Yale Law Journal, the California Law Review, and the Texas Law Review. She recently appeared in “Amend: The Fight for America,” a 2021 Net:flix documentary about the 14th Amendment. She is the author of The Containment: Detroit, The Supreme Court, and the Battle for Racial Justice in the North, forthcoming in 2022 from Farrar, Straus and Giroux. Previously, she was a Law Professor at Seton Hall Law School, practiced law at the Legal Aid Society, and served as a Law Clerk for Magistrate Judge James C. Francis IV in the Southern District of New York. Adams holds a B.A. from Brown University, a J.D. from City University of New York Law School, and an LL.M. from Harvard Law School, where she was the first Charles Hamilton Houston Scholar. She is a two-time recipient of Cardozo’s Faculty Inspire Award.

Kate Andrias (Rapporteur)
Kate Andrias is a Professor of Law at the University of Michigan. She teaches and writes about constitutional law, labor and employment law, and administrative law, with a focus on problems of economic and political inequality. Her work has been published in numerous books and journals, including the Harvard Law Review, the NYU Law Review, the Supreme Court Review, and the Yale Law Journal. In 2016, Andrias was the recipient of Michigan Law School’s L. Hart Wright Award for Excellence in Teaching. Andrias previously served as special assistant and associate counsel to President Obama, and as chief of staff of the White House Counsel’s Office. A graduate of Yale Law School, she clerked for Justice Ruth Bader Ginsburg of the U.S. Supreme Court and the Hon. Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit.

Jack M. Balkin
Jack M. Balkin is Knight Professor of Constitutional Law and the First Amendment at Yale Law School. He is the founder and director of Yale’s Information Society Project, an interdisciplinary center that studies law and new information technologies. He also directs the Abrams Institute for Freedom of Expression, and the Knight Law and Media Program at Yale. Balkin is a member of the American Law Institute and the American Academy of Arts and Sciences, and founded and edits the group blog Balkinization. His most recent books include The Cycles of Constitutional Time, Democracy and Dysfunction (with Sanford Levinson), Processes of Constitutional Decisionmaking (7th ed. with Brest, Levinson, Amar, and Siegel), Living Originalism, and Constitutional Redemption: Political Faith in an Unjust World.

Bob Bauer (Co-Chair)
Bob Bauer is Professor of Practice and Distinguished Scholar in Residence at the New York University School of Law and Co-Director of NYU Law’s Legislative and Regulatory Process Clinic. Bauer served as White House Counsel to President Obama from 2009 to 2011. In 2013, the President named him to be Co-Chair of the Presidential Commission on Election Administration. He is co-author with Jack Goldsmith of After Trump: Reconstructing the Presidency (2020), books on federal campaign finance and numerous articles on law and politics for legal periodicals. He has co-authored numerous bipartisan reports on policy and legal reform, including “The American Voting Experience: Report and Recommendations of the Presidential Commission on Election Administration” (Presidential Commission on Election Administration, 2014); “The State of Campaign Finance in the United States” (Bipartisan Policy Center, 2018); and “Democratizing the Debates” (Annenberg Working Group on Presidential Campaign Debate Reform, 2015); ; He is a Contributing Editor of Lawfare and has published opinion pieces on constitutional and political law issues in The New York Times, The Washington Post, and The Atlantic, among other publications.

William Baude
William Baude is a Professor of Law and Faculty Director of the Constitutional Law Institute at the University of Chicago Law School, where he teaches federal courts, constitutional law, conflicts of law, and elements of the law. His most recent articles include Adjudication Outside Article III, and Is Quasi-Judicial Immunity Qualified Immunity? He is also the co-editor of the textbook, The Constitution of the United States, and an Affiliated Scholar at the Center for the Study of Constitutional Originalism. He is a graduate of the University of Chicago and the Yale Law School, and a former clerk for then-Judge Michael McConnell and Chief Justice John Roberts.

Elise Boddie
Elise Boddie is a Professor of Law and Judge Robert L. Carter Scholar at Rutgers University. An award-winning scholar, Boddie teaches and writes about constitutional law and civil rights and has published in leading law reviews. Her commentary has appeared multiple times in The New York Times, as well as in The Washington Post, among other national news outlets. Boddie has served on the national board of the American Constitution Society and the board of the New Jersey Institute for Social Justice and is the founder and director of The Inclusion Project at Rutgers. Before joining the Rutgers faculty, Boddie was Director of Litigation for the NAACP Legal Defense & Educational Fund, Inc. and supervised its nationwide litigation program, including its advocacy in several major U.S. Supreme Court cases. An honors graduate of Harvard Law School and Yale, she also holds a master’s degree in public policy from the Harvard Kennedy School of Government. Boddie clerked for Judge Robert L. Carter in the Southern District of New York. She is a member of the American Law Institute and an American Bar Foundation Fellow. In 2016, Rutgers University President Barchi appointed Boddie a Henry Rutgers Professor in recognition of her scholarship, teaching, and service. In 2021, Boddie was named the founding Newark Director of Rutgers University’s Institute for the Study of Global Racial Justice.

Guy-Uriel E. Charles
Guy-Uriel E. Charles is the Edward and Ellen Schwarzman Professor of Law at Duke Law School. He writes about the relationship between law and political power and law’s role in addressing racial subordination. He teaches courses on civil procedure; election law; constitutional law; race and law; legislation and statutory interpretation; law, economics, and politics; and law, identity, and politics. He is currently working on book, with Luis FuentesRohwer, on the past and future of voting rights, under contract with Cambridge University Press. He is also co-editing, with Aziza Ahmed, a handbook entitled Race, Racism, and the Law, under contract with Edward Elgar Publishing. This book will survey the current state of research on race and the law in the United States and aims to influence the intellectual agenda of the field. He clerked on the Sixth Circuit for the late Judge Damon J. Keith. He has published numerous articles in top law journals. He is the co-author of two leading casebooks and two edited volumes. He is also a member of the American Law Institute. On July 1, 2021, he will become the inaugural Charles J. Ogletree Jr. Professor of Law at Harvard Law School.

Andrew Manuel Crespo
Andrew Manuel Crespo is a Professor of Law at Harvard University where he teaches and writes about criminal law and procedure. Professor Crespo’s scholarship has been published in multiple leading academic journals including the Harvard Law Review, the Yale Law Journal, and the Columbia Law Review. Prior to beginning his academic career, Professor Crespo served as a Staff Attorney with the Public Defender Service for the District of Columbia, where he represented over one hundred people accused of crimes who could not afford a lawyer. Professor Crespo graduated magna cum laude from Harvard Law School, where he served as president of the Harvard Law Review and was the first Latino to hold that position. Following law school, he served as a law clerk to Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit before going on to serve for two years as a law clerk at the United States Supreme Court, first to Associate Justice Stephen Breyer and then to Associate Justice Elena Kagan during her inaugural term on the Court.

Walter Dellinger
Walter Dellinger is the Douglas Maggs Emeritus Professor of Law at Duke University and a Partner in the firm of O’Melveny & Myers. He was named one of the 100 Most Influential Lawyers in America by the National Law Journal and is the recipient of Lifetime Achievement Awards from the American Lawyer, the American Constitution Society and the Mississippi Center for Justice. Dellinger served in the White House and as Assistant Attorney General and head of the Office of Legal Counsel (OLC) from 1993 to 1996. He was acting Solicitor General for the 1996-97 Term of the US Supreme Court, He has argued 25 cases before the United States Supreme Court and has testified more than 30 times before committees of Congress. He has published in academic journals including the Harvard Law Review, the Yale Law Journal and the Duke Law Journal, and has written extensively for the Washington Post, The New York Times, the Wall Street Journal, Slate, and other publications. In 1987-88 he was a scholar at the National Humanities Center and has lectured at universities throughout the United States and other countries including China, Belgium, Netherlands, Germany, Mexico, Italy, Brazil, and Denmark. He graduated from University of North Carolina and Yale Law School and served as law clerk to Supreme Court Justice Hugo Black.

Justin Driver
Justin Driver is the Robert R. Slaughter Professor of Law at Yale Law School. He teaches and writes in the area of constitutional law, education law, and prison law. His book, The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind, was selected as a Washington Post Notable Book of the Year, an Editors’ Choice of the New York Times Book Review, and received the Steven S. Goldberg Award for Distinguished Scholarship in Education Law, among numerous other honors. A recipient of the American Society for Legal History’s William Nelson Cromwell Article Prize, he has a distinguished publication record in the nation’s leading law reviews and has also written extensively for general audiences. He is an editor of the Supreme Court Review and an elected member of the American Law Institute. He holds degrees from Brown, Oxford (where he was a Marshall Scholar), Duke (where he received certification to teach public school), and Harvard Law School (where he was an editor of the Harvard Law Review). After graduating from Harvard, he clerked for Judge Merrick Garland, Justice Sandra Day O’Connor (Ret.), and Justice Stephen Breyer.

Richard H. Fallon, Jr.
Richard H. Fallon, Jr., joined the Harvard Law School faculty as an assistant professor in 1982 and is currently Story Professor of Law. He is also an Affiliate Professor in the Harvard University Government Department. Fallon is a graduate of Yale University and Yale Law School. He also earned a B.A. degree in Philosophy, Politics, and Economics from Oxford University, which he attended as a Rhodes Scholar. Before entering teaching, Fallon served as a law clerk to Judge J. Skelly Wright and to Justice Lewis F. Powell of the United States Supreme Court. Fallon has written extensively about Constitutional Law and Federal Courts Law. He is the author of The Nature of Constitutional Rights: The Invention and Logic of Strict Judicial Scrutiny (Cambridge University Press, 2019); Law and Legitimacy in the Supreme Court (Harvard University Press, 2018), The Dynamic Constitution (Cambridge University Press, 2d ed. 2013), and Implementing the Constitution (Harvard University Press, 2001) and a co-editor of Hart Et Wechsler’s The Federal Courts and the Federal System (7th ed. 2015). Fallon is a fellow of the American Academy of Arts and Sciences and a member of the American Law Institute. He is a two-time winner of Harvard Law School’s Sacks-Freund Award, which is voted annually by the School’s graduating class to honor excellence in teaching. In 2021, the Federal Courts Section of the American Association of Law Schools honored Fallon with its lifetime achievement award.

Caroline Fredrickson
Caroline Fredrickson served as the President of the American Constitution Society from 2009-2019. Fredrickson has published works on many legal and constitutional issues and is a frequent guest on television and radio, including serving as a regular on-air commentator on impeachment. Before joining ACS, Fredrickson served as the Director of the ACLU’s Washington Legislative Office and as General Counsel and Legal Director of NARAL ProChoice America. In addition, she served as the Chief of Staff to Senator Maria Cantwell, of Washington, and Deputy Chief of Staff to then-Senate Democratic Leader Tom Daschle, of South Dakota. During the Clinton Administration, she served as Special Assistant to the President for Legislative Affairs. Fredrickson is currently an elected member of the American Law Institute, co-chair of the National Constitution Center’s Coalition of Freedom Advisory Board, a member of If/When/How’s Advisory Board, and on the boards of American Oversight and the National Institute of Money and Politics. In 2015 Fredrickson was appointed a member of the Yale Les Aspin Fellowship Committee. Fredrickson received her J.D. from Columbia Law School with honors and her B.A. from Yale University in Russian and East European Studies summa cum laude, phi beta kappa. She clerked for the Hon. James L. Oakes of the United States Court of Appeals for the Second Circuit.

Heather Gerken
Heather Gerken is the Dean and Sol & Lillian Goldman Professor of Law at Yale Law School and one of the country’s leading experts on constitutional law and election law. A founder of the “nationalist school” of federalism, her work focuses on federalism, diversity, and dissent. Gerken’s work has been featured in the Harvard Law Review, the Yale Law Journal, and the Stanford Law Review as well as The Atlantic, TheBoston Globe, NPR, and TheNew York Times. In 2017, Politico Magazine named Gerken one of The Politico 50, a list of idea makers in American politics. At Yale, she founded and runs the country’s most innovative clinic in local government law, the San Francisco Affirmative Litigation Project (SFALP). Gerken is also a renowned teacher who has won awards at both Yale and Harvard. She was named one of the nation’s “twenty-six best law teachers” in a book published by the Harvard University Press. She became dean of Yale Law School on July 1, 2017.

Nancy Gertner
Nancy Gertner was United States District Court Judge (D. Mass.) from 1994-2011. She retired to join the faculty at Harvard Law School and has been a Visiting Lecturer at Yale Law School. Prior to 1994, Gertner was a civil rights and criminal defense lawyer. Named one of “The Most Influential Lawyers of the Past 25 Years” by Massachusetts Lawyers Weekly, she has published widely on sentencing, discrimination, forensic evidence, women’s rights, and the jury system. Her autobiography, “In Defense of Women: Memoirs of an Unrepentant Advocate,” (Beacon Press) was published in 2011. She is coauthor of “The Law of Juries” (Thomson Reuters, 2021). She is the author of an edited volume of the dissenting and majority opinions of Justice Ruth Bader Ginsburg (Talbot, forthcoming). She is writing a memoir, Incomplete Sentences” (Beacon, forthcoming) about the men she has sentenced. A graduate of Barnard College, with a M.A in Political Science and J.D. from Yale, she clerked for Justice Luther Swygert, Chief Judge, 7th Circuit. She has received numerous awards, including the ABA’s Margaret Brent Award, the National Association of Women Lawyers’ Arabella Babb Mansfield Award, and the Thurgood Marshall Award from the American Bar Association. In October 2014, she was a resident scholar at the Rockefeller Foundation in Bellagio, Italy.

Jack Goldsmith
Jack Goldsmith is the Learned Hand Professor of Law at Harvard Law School, a Senior Fellow at the Hoover Institution, and co-founder of Lawfare. He teaches and writes about national security law, presidential power, cybersecurity, international law, internet law, foreign relations law, and federal courts. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

Thomas B. Griffith
Thomas B. Griffith served on the U. S. Court of Appeals for the D. C. Circuit from 2005 – 2020. He is now Special Counsel at Hunton Andrews Kurth, a Senior Advisor to the National Institute for Civil Discourse, and a Lecturer on Law at Harvard Law School. During his tenure on the D.C. Circuit, Judge Griffith served on the Judicial Conference’s Committee on the Judicial Branch, which is concerned with the federal judiciary’s relationship to the Executive Branch and Congress, and the Code of Conduct Committee, which sets the ethical standards that govern the federal judiciary. Prior to his appointment to the D.C. Circuit, Judge Griffith was the General Counsel of Brigham Young University. Previously he served as Senate Legal Counsel, the nonpartisan chief legal officer of the U.S. Senate, and before that was a partner at Wiley, Rein & Fielding. Judge Griffith has long been active in the American Bar Association’s rule of law projects in Eastern Europe and Eurasia and is currently a member of the International Advisory Board of the CEELI Institute in Prague. He is a graduate of Brigham Young University and the University of Virginia School of Law.

Tara Leigh Grove
Tara Leigh Grove is the Charles E. Tweedy, Jr., Endowed Chairholder of Law and Director of the Program in Constitutional Studies at the University of Alabama School of Law. After graduating summa cum laude from Duke University and magna cum laude from Harvard Law School, Grove clerked for Judge Emilio Garza of the U.S. Court of Appeals for the Fifth Circuit. She then spent four years as an appellate attorney for the U.S. Department of Justice, arguing fifteen cases in the courts of appeals. Grove has written extensively about the federal judiciary, exploring issues related to judicial legitimacy and judicial independence. Grove’s work has been published in prestigious law journals, such as the Harvard Law Review, the Columbia Law Review, the University of Pennsylvania Law Review, the New York University Law Review, the Cornell Law Review, and the Vanderbilt Law Review. Grove has served as a visiting professor at Harvard Law School and Northwestern Pritzker School of Law.

Bert I. Huang
Bert I. Huang is Michael I. Sovern Professor of Law at Columbia University, where he received the Reese Prize for Excellence in Teaching from the law school’s graduating class. The university has also recognized him with its Presidential Award for Outstanding Teaching. At Columbia, he created the Courts & Legal Process colloquium to bring judges, students, and faculty together to discuss new academic research about the judiciary; and he previously served as a vice dean. He has also taught at Harvard. He served as the president of the Harvard Law Review and as a law clerk for Justice David H. Souter of the U.S. Supreme Court. He also clerked for Judge Michael Boudin of the U.S. Court of Appeals for the First Circuit. He completed his J.D. and Ph.D. at Harvard University, where he was a Paul & Daisy Soros Fellow. After receiving his A.B. from Harvard, he was a Marshall Scholar at the University of Oxford and worked for the White House Council of Economic Advisers.

Sherrilyn Ifill
Sherrilyn Ifill is the President & Director-Counsel of the NAACP Legal Defense & Educational Fund, Inc. (LDF), the nation’s oldest and premier civil rights law organization :fighting for racial justice and equality. Ifill began her career as a Fellow at the American Civil Liberties Union, and then as an Assistant Counsel at LDF where she litigated voting rights cases in the South. In 1993 Ifill joined the faculty at University of Maryland School of Law, where she taught civil procedure, constitutional law, and a broad range of civil rights and clinical offerings. Her scholarship focused on the critical importance of a racially diverse judiciary to the integrity of judicial decision-making. Ifill also studies and writes about racial violence. Her critically acclaimed book, On The Courthouse Lawn: Confronting The Legacy Of Lynching In The 21st Century, is credited with inspiring contemporary conversations about lynching and reconciliation. Since returning to LDF as its 7th President & Director-Counsel in 2013, Ifill has led the organization’s bold advocacy in the federal courts, including the U.S. Supreme Court, on behalf of clients :fighting voter suppression, racial discrimination in the criminal justice system, and a broad array of other urgent civil rights issues. Ifill is a member of the American Law Institute and the American Academy of Arts & Sciences. She holds an undergraduate degree from Vassar College, a J.D. from New York University School of Law, and numerous honorary doctorates.

Michael S. Kang
Michael S. Kang is the William G. and Virginia K. Karnes Research Professor at Northwestern Pritzker School of Law and nationally recognized expert on campaign finance, voting rights, redistricting, judicial elections, and corporate governance. His research has been published widely in leading law journals and featured in The New York Times, The Washington Post, and Forbes, among others. His recent work focuses on partisan gerrymandering; the influence of party and campaign finance on elected judges; the de-regulation of campaign finance after Citizens United; and so-called “sore loser laws” that restrict losing primary candidates from running in the general election. Kang previously served as the Thomas Simmons Professor of Law at Emory University School of Law. He received his BA and JD from the University of Chicago, where he served as technical editor of the Law Review and graduated Order of the Coif. He also received a PhD in government from Harvard University and an MA from the University of Illinois. After law school, he clerked for Judge Kanne on the U.S. Court of Appeals for the Seventh Circuit and worked in private practice at Ropes & Gray in Boston.

Olatunde Johnson
Olatunde Johnson is the Jerome B. Sherman Professor of Law at Columbia Law School where she teaches and writes about legislation, administrative law, antidiscrimination law, litigation, and inequality in the United States. In February 2020, she was appointed by the United States Department of Justice to the Resolutions Committee honoring Justice John Paul Stevens. In 2016, she was awarded Columbia University’s Presidential Award for Outstanding Teaching, and Columbia Law School’s Willis L.M. Reese Prize for Excellence in Teaching. Previously, Professor Johnson served as constitutional and civil rights counsel to Senator Edward M. Kennedy on the Senate Judiciary Committee and as an attorney at the NAACP Legal Defense Fund. Professor Johnson graduated from Yale University and from Stanford Law School. After law school, she clerked for Judge David Tatel on the U.S. Court of Appeals for the D.C. Circuit and for Justice John Paul Stevens on the United States Supreme Court.

Alison L. Lacroix
Alison L. La Croix is the Robert Newton Reid Professor of Law at the University of Chicago Law School. She is also an Associate Member of the University of Chicago Department of History. Professor Lacroix is the author of The Ideological Origins of American Federalism (Harvard University Press, 2010), and in 2018 she was awarded a National Endowment for the Humanities Fellowship for her current book project, titled The Interbellum Constitution: Union, Commerce, and Slavery From the Long Founding Moment to the Civil War (Yale University Press, forthcoming). Before joining the University of Chicago faculty in 2006, she practiced in the litigation department at Debevoise & Plimpton in New York. Professor Lacroix received her B.A. and J.D. from Yale University, and her A.M. and Ph.D. from Harvard University.

Margaret H. Lemos
Maggie Lemos is the Robert G. Seaks LL.B. ’34 Professor of Law, Senior Associate Dean for Faculty and Research, and faculty co-advisor for the Bolch Judicial Institute at Duke Law School. She is a scholar of constitutional law, legal institutions, and procedure. Her current research focuses on the institutions of law interpretation and enforcement, including both public and private lawyers, and their effects on substantive rights. Lemos is also a co-author of a new multidisciplinary coursebook on judicial decision making. She teaches courses on civil procedure, legislation, and judicial process, and was awarded Duke’s Distinguished Teaching Award in 2013. Prior to joining the Duke Law faculty, Lemos was an associate professor at the Benjamin N. Cardozo School of Law; a Bristow Fellow at the Office of the Solicitor General; and a law clerk for Judge Kermit V. Lipez of the U.S. Court of Appeals for the First Circuit, and for U.S. Supreme Court Justice John Paul Stevens. She received her J.D. from New York University School of Law and her B.A. from Brown University.

David F. Levi
David F. Levi is the Levi Family Professor of Law and Judicial Studies and Director of the Bolch Judicial Institute at Duke Law School. Levi was previously the James B. Duke and Benjamin N. Duke Dean of the Duke Law School. He served as dean for 11 years from 2007-2018. Prior to his appointment at Duke, Levi was the Chief United States District Judge for the Eastern District of California with chambers in Sacramento. He was appointed to the district court in 1990. From 1986-1990 he was the United States Attorney for the Eastern District of California. Following graduation from Stanford Law School in 1980, Levi served as a law clerk to Judge Ben C. Duniway of the U.S. Court of Appeals for the Ninth Circuit, and then to Justice Lewis F. Powell, Jr., of the U.S. Supreme Court. Levi has served as member and chair of two U.S. Judicial Conference committees – the Advisory Committee on the Civil Rules and the Standing Committee on the Rules of Practice and Procedure. He was chair of the American Bar Association’s Standing Committee on the American Judicial System (2014-2016). He is an elected fellow of the American Academy of Arts and Sciences. He is the author or co-author of several books, articles, and published speeches mostly on the judiciary, judicial independence, and judicial decision-making. He is President of the American Law Institute.

Trevor W. Morrison
Trevor Morrison serves as Dean of NYU School of Law, where he is also the Eric M. and Laurie B. Roth Professor of Law. He previously held faculty appointments at Cornell Law School and Columbia Law School. Morrison’s research and teaching interests are in constitutional law (especially separation of powers), federal courts, and the law of the executive branch. After graduating from Columbia Law School, he served as a law clerk to Judge Betty Fletcher of the U.S. Court of Appeals for the Ninth Circuit and to Justice Ruth Bader Ginsburg of the U.S. Supreme Court. Between those clerkships, he was a Bristow Fellow in the U.S. Justice Department’s Office of the Solicitor General, an attorney-adviser in the Justice Department’s Office of Legal Counsel, and an associate at Wilmer, Cutler & Pickering (now WilmerHale). Morrison also served as associate counsel to President Barack Obama. He is a fellow of the American Academy of Arts & Sciences and a member of the American Law Institute and the Council on Foreign Relations.

Caleb Nelson
Caleb Nelson is the Emerson G. Spies Distinguished Professor of Law and the Caddell and Chapman Professor of Law at the University of Virginia School of Law. He earned his A.B. from Harvard College and his J.D. from Yale Law School. After law school, he clerked for Judge Stephen F. Williams on the United States Court of Appeals for the D.C. Circuit and Justice Clarence Thomas on the United States Supreme Court. He joined the Virginia faculty in 1998. At Virginia, he has taught Federal Courts, Civil Procedure, Legislation, and Constitutional Law. His articles have appeared in the Columbia Law Review, the Harvard Law Review, the Michigan Law Review, the NYU Law Review, the University of Chicago Law Review, the University of Pennsylvania Law Review (forthcoming), the Virginia Law Review, and the Yale Law Journal. He is also the author of a casebook on statutory interpretation, published by Foundation Press. He is a member of the American Law Institute and a past winner of the University of Virginia’s All-University Teaching Award. He has also taught as a visiting professor at Harvard Law School and as the James S. Carpentier Visiting Professor at Columbia Law School.

Richard H. Pildes
Professor Richard H. Pildes is Sudler Family Professor of Constitutional Law at New York University School of Law and one of the country’s leading experts on the legal aspects of American democracy and government. His academic work focuses on all aspects of the political process, as well as legal issues concerning the structure of American government, including the powers of the President, Congress, and the Supreme Court. His two casebooks, The Law of Democracy and When Elections Go Bad, created the law of democracy as a field of study in the law schools. In addition to editing the book, The Future of the Voting Rights Act, he has published more than seventy academic articles. Pildes has represented numerous clients before the Supreme Court. He served as a law clerk at the Court to Justice Thurgood Marshall and to Judge Abner J. Mikva of the United States Court of Appeals for the D.C. Circuit. He has testified several times before the United States Senate and House of Representatives. Born in Chicago, he began his teaching career at the University of Michigan Law School, before moving to NYU. He is an elected member of the American Academy of Arts and Sciences and the American Law Institute, as well as a Guggenheim Fellow.

Michael D. Ramsey
Michael D. Ramsey is Hugh and Hazel Darling Foundation Professor of Law at the University of San Diego School of Law, where he teaches and writes in the areas of constitutional law, foreign relations law, and international law. He is the author of The Constitution’s Text in Foreign Affairs (Harvard University Press 2007), co-editor of International Law in the U.S. Supreme Court: Continuity and Change (Cambridge University Press 2011), and co-author of two casebooks, Transnational Law and Practice (Aspen 2015) and International Business Transactions: A Problem-Oriented Coursebook (12th ed., West 2015). His scholarly articles have appeared in publications such as the Yale Law Journal, the University of Chicago Law Review, the Georgetown Law Journal and the American Journal of International Law. He received his B.A. magna cum laude from Dartmouth College and his J.D. summa cum laude from Stanford Law School. Prior to teaching, he served as a judicial clerk for Judge J. Clifford Wallace of the United States Court of Appeals for the Ninth Circuit and Justice Antonin Scalia of the United States Supreme Court, and practiced law with the law firm of Latham & Watkins. He has taught as a visiting professor at the University of California, San Diego, in the Department of Political Science and at the University of Paris – Sorbonne, in the Department of Comparative Law.

Cristina M. Rodriguez ( Co-Chair)
Cristina M. Rodriguez is the Leighton Homer Sur beck Professor of Law at Yale Law School. Her fields of research and teaching include constitutional law and theory, immigration law and policy, and administrative law and process. Her new book, The President and Immigration Law (with Adam B. Cox) was published by Oxford University Press in September 2020, and explores the long history of presidential control over immigration policy and its implications for the future of immigration law and the presidency itself. Rodriguez joined Yale Law School in 2013 after serving for two years as Deputy Assistant Attorney General in the Office of Legal Counsel at the U.S. Department of Justice. She was on the faculty at the New York University School of Law from 2004-2012 and has been Visiting Professor of Law at Stanford, Harvard, and Columbia Law Schools. She is a member of the American Academy of Arts and Sciences and the American Law Institute, a non-resident fellow at the Migration Policy Institute in Washington, D.C., and a past member of the Council on Foreign Relations. She is also a past recipient of the Yale Law Women Award for Excellence in Teaching. She earned her B.A. and J.D. degrees from Yale and attended Oxford University as a Rhodes Scholar, where she received a Master of Letters in Modern History. Following law school, Rodriguez clerked for Judge David S. Tatel of the U.S. Court of Appeals for the D.C. Circuit and Justice Sandra Day O’Connor of the U.S. Supreme Court.

Kermit Roosevelt
Kermit Roosevelt is a professor of law at the University of Pennsylvania Carey Law School, where he teaches constitutional law and conflict of laws. He is a graduate of Harvard College and Yale Law School. Before joining the Penn faculty, he practiced appellate litigation with Mayer Brown in Chicago and clerked for D.C. Circuit Judge Stephen F. Williams and Supreme Court Justice David H. Souter.

Bertrall Ross
Bertrall Ross is the Chancellor’s Professor of Law at the University of California, Berkeley School of Law. He teaches and writes in the areas of constitutional law, election law, administrative law, and statutory interpretation. Ross’s research is driven by a concern about democratic responsiveness and accountability, as well as the inclusion of marginalized communities in administrative and political processes. His past scholarship has been published in several books and journals, including the Columbia Law Review, the NYU Law Review, and the University of Chicago Law Review. Ross is currently working on book projects related to separation of powers, gerrymandering, and voter data as a tool for disfranchisement. Ross has been the recipient of the Berkeley Law Rutter Award for Teaching Distinction, the Berlin Prize from the American Academy in Berlin, the Princeton University Law and Public Affairs Fellowship, the Columbia Law School Kellis Parker Academic Fellowship, and the Marshall Scholarship. He is currently a public member of the Administrative Conference of the United States. Ross earned his law degree from Yale Law School and Masters degrees from the London School of Economics and Princeton University’s School of Public and International Affairs. Prior to joining Berkeley Law, he clerked for Judge Dorothy Nelson of the U.S. Court of Appeals for the Ninth Circuit and Judge Myron Thompson of the U.S. District Court for the Middle District of Alabama.

David A. Strauss
David Strauss is the Gerald Ratner Distinguished Service Professor of Law and the Faculty Director of the Supreme Court and Appellate Clinic at the University of Chicago. He is the author of The Living Constitution (Oxford University Press, 2010) and the co-author of Democracy and Equality: The Enduring Constitutional Vision of the Warren Court ( Oxford University Press, 2019), and he has written many academic and popular articles on constitutional law and related subjects. He is a Fellow of the American Academy of Arts and Sciences and a co-editor of the Supreme Court Review. He has been a visiting professor at Harvard and Georgetown. He has served as an Assistant to the Solicitor General of the United States, in the Office of Legal Counsel of the U.S. Department of Justice, and as Special Counsel to the Senate Judiciary Committee. He has argued nineteen cases before the U.S. Supreme Court.

Laurence H. Tribe
Laurence Tribe is the Carl M. Loeb University Professor and Professor of Constitutional Law Emeritus at Harvard University. Tribe has taught at Harvard since 1968 and was voted the best professor by the class of 2000. The title “University Professor” is Harvard’s highest academic honor, awarded to a handful of professors at any given time and to fewer than 75 professors in Harvard University’s history. Tribe clerked for the California and U.S. Supreme Courts; was elected to the American Academy of Arts and Sciences in 1980 and the American Philosophical Society in 2010; helped write the constitutions of South Africa, the Czech Republic, and the Marshall Islands; and has received eleven honorary degrees, most recently a degree honoris causa from the Government of Mexico in March 2011 (never before awarded to an American) and an LL.D from Columbia University. Tribe has argued 35 cases in the U.S. Supreme Court. He was appointed in 2010 by President Obama and Attorney General Holder to serve as the first Senior Counselor for Access to Justice. He has written 115 books and articles, most recently, “To End A Presidency: The Power of Impeachment.” His treatise, “American Constitutional Law,” has been cited more than any other legal text since 1950.

Adam White
Adam White is a resident scholar at the American Enterprise Institute and an assistant professor of law at George Mason University’s Antonin Scalia Law School, where he directs the C. Boyden Gray Center for the Study of the Administrative State. He writes on the courts, the Constitution, administrative law, and regulatory policy. He is a public member of the Administrative Conference of the United States, and he serves on the board of the Land Conservation Assistance Network. Previously he practiced constitutional and administrative law in Washington, D.C., and he clerked for the U.S. Court of Appeals for the D.C. Circuit. In 2005, the Harvard Journal of Law Et Public Policy published his study of the Senate’s constitutional power to grant or withhold its “advice and consent” for judicial nominations.

Keith E. Whittington
Keith E. Whittington is the William Nelson Cromwell Professor of Politics at Princeton University and is currently the chair of Academic Freedom Alliance. He works on American constitutional history, politics and law, and on American political thought. He is the author of Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present and Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History, among other works. He has been a visiting professor at Harvard Law School, Georgetown University Law Center, and the University of Texas School of Law, and he is a member of the American Academy of Arts and Sciences. He did his undergraduate work at the University of Texas at Austin and completed his Ph.D. in political science at Yale University.

Michael Waldman
Michael Waldman is the president of the Brennan Center for Justice at NYU School of Law. The Brennan Center is a nonpartisan law and policy institute that works to strengthen the systems of democracy and justice so they work for all Americans. The Center is a leading national voice on voting rights, money in politics, criminal justice reform, and constitutional law. Waldman has led the Center since 2005. He is the author of The Fight to Vote (2016), a history of the struggle to win voting rights for all citizens, The Second Amendment: A Biography (2014), and five other books. Waldman served as director of speechwriting for President Bill Clinton from 1995-1999, and special assistant to the president for policy coordination from 1993-1995. He was responsible for writing or editing nearly two thousand speeches, including four State of the Union and two inaugural addresses. He is a graduate of NYU School of Law and Columbia College.

Read the Commission Statement & Release here.

By

Remembering the Man Who Taught Us How to Interview a Witness

Larry KingHe was not a judge, a lawyer, or an FBI agent but he questioned more witnesses to history – from all walks of life –  than any lawyer I can think of.

Larry King died last month; he was 87 when he succumbed to COVID-19.

If you want to learn how to question someone, Larry King was the master. His interviews – stored for posterity on the internet – are a fabulous resource.

Larry King was naturally curious; every answer to a question only egged on his curiosity, often prompting one word follow-ups like “why ” which he would ask with his head propped on his wrist waiting in anticipation for the answer.  

King was also a master at creating narratives, sometimes punctuating an interview with a question laced with a bit of his own personal knowledge. He understood how to collect facts and he appreciated the absence of fact.  When interviewing Hank Aaron, who also died last month, King drew from his prior interviews with the “Home Run King” noting that in those interviews that Aaron had refrained from discussing racial issues. With laser sharp simplicity, King asked simply “why now?”

Larry King grew up in the Bronx; born with street smarts; he understood people.

He did not have an advanced  degree in psychology; he did not learn his skills in school; indeed, studying was not his cup of tea –as he often admitted. Yet, King was capable of examining “experts” whose CV’s spanned pages and included multiple degrees.

There is the legendary story about his interview of Edward Teller, the father of the hydrogen bomb. How does one prepare for such an interview? Read Teller’s works? Retain an expert to help prepare questions? Not King!

Shortly before his interview, Teller learned that King had not read Teller’s recent book, a sign that he was unprepared for the interview. An irritated Teller threatened not to submit to the interview but King made a deal; if Teller did not like the first few moments of the interview, he could get up and leave. King’s first question: “why do high school students find physics so intimidating?” Teller went into a monologue and the interview was off to the races.

Maybe it was just that King understood that beneath the titles and degrees, people are just human; they have basic emotions and instincts. King also had instinct and he understood human emotion; he knew how to make the interrogated feel comfortable; he knew how to get them to talk.

Larry King left us with a treasure trove of interviews which shed light on history and expose the inner emotions and perspective of those who witnessed or made history. And for trial lawyers and investigators – those who are in the business of uncorking the truth by getting people to talk, King has left us with a library of techniques.