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Wielding a Judicial 'Wild Card'

By William Vogeler, Esq. on April 18, 2017 | Last updated on March 21, 2019

Rolling Stone called Judge Jed S. Rakoff a "legal hero of our time," but the judge doesn't come across as a rock 'n roller.

With a resume that includes triumphs at Oxford, Harvard, Wall Street, and the United States District Court, Rakoff wears well the garlands of his labors. He spends his time now as an adjunct professor at Columbia Law School, contributor to the New York Times and occasional guest jurist for the U.S. Ninth Circuit Court of Appeals.

So why does Rakoff think that judges should have a "wild card?" Did he save something from 1969, when he graduated from Harvard Law School and the Beatles cut their last album?

In a recent interview about injustices in the legal system, Rakoff said judges should have a "wild card" to dismiss cases sua sponte when they see injustice. "I think that's a great idea," he said. "Now there would be abuses, obviously."

Wild Card

Rakoff offered his ideas to Joel Cohen, author of a book, "Broken Scales: Reflections on Injustice," in an interview for the ABA Journal.

"I think judges would use a wild card sparingly, and there would have to be a high standard," he said. "But I think it would allow them to do just what I said judges are specially obligated to do -- to be sensitive to the particular rights and issues involving individuals, even when that individual is disreputable or unpopular."

Since Rakoff assumed senior status at the federal district court in New York in 2010, he has spoken more about needs for legal reform. Last year, for example, he wrote in the New York Times that fewer and fewer people "have their day in court."

In the ABA Journal interview, he suggested judges need to speak publicly about improving the system.

"I think what is often overlooked, is that the judicial canons of ethics authorize judges to speak out publicly on matters of importance to the administration of justice and the development of the law," he said.

Criminal Injustice

In the criminal justice system, Rakoff said too many judges have admitted evidence that should have been challenged. He cited a report by the National Academy of Sciences in 2009 that criticized fingerprinting, hair analysis, bite-mark analysis, arson analysis and other types of forensic evidence.

"Most lawyers have very little scientific background," he said. "A judge, it seems to me, should educate himself, and if he thinks the science is doubtful, make some inquiry."

While Rakoff embraced the idea of a "wild card" for judges, he said federal canons provide them with the power to do what is necessary to prevent injustices. He said they should follow the law, but work within it when they perceive injustice.

"The hardest question, which I don't think I've ever had to face, would be where I felt the law required me to do something that was totally immoral and unjust--that just could not be defended on any basic moral plane," he said. "And I think at that point, resignation is the right answer, not doing something rogue."

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