ABA Journal: Modern Law Library Legal Talk Network

In The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic, University of Texas law professor Stephen Vladeck argues the U.S. Supreme Court is expanding its powers at the expense of the rule of law and public transparency.
A case ordinarily comes before the U.S. Supreme Court after a long appellate process; receives a public hearing where the case is argued before the justices; then a signed opinion or series of opinions and a majority ruling are issued, which generally comes months after oral arguments—and years after a matter first entered the court system. Given the limited length of each Supreme Court term, there has always been the need for an alternative form of response when the court is not in session or a swift response was absolutely necessary. The vast bulk of those occasions have been in capital cases, where a last-minute appeal might be the difference between life and death.
But since 2017, the U.S. Supreme Court has issued many more emergency orders than at any time previously, and on matters ranging from election law to immigration bans, from abortion access to COVID-19 restrictions on public gatherings.
By issuing unsigned majority emergency orders rather than signed majority opinions, Vladeck says the court is establishing precedents without supplying the legal reasonings behind its rulings. During a time when the U.S. Supreme Court and individual justices are being criticized for not abiding by a clear judicial code of ethics, Vladeck argues the secretive nature of the shadow docket will only further undermine public trust in the rule of law.
In this episode of the Modern Law Library, Vladeck discusses with the ABA Journal’s Lee Rawles the origin of the term “shadow docket,” the dangers he sees for the court and the country, and what remedies may be available to the republic.

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

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

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

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

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