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Jeannie Suk Gersen, Nancy Gertner & Janet E. Halley, Comment on Proposed Title IX Rulemaking (Jan. 30, 2019).
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
,
Family Law
Sub-Categories:
Civil Rights
,
Gender & Sexuality
,
Feminist Legal Theory
,
Education Law
Type: Article
Abstract
Jeannie Suk Gersen, Nancy Gertner, and Janet Halley, professors at Harvard Law School, have issued a Comment on the Department of Education’s Proposed Rule on Title IX enforcement. The authors write: “We strongly support vigorous enforcement of Title IX to ensure that students enjoy educational programs and activities unburdened by sexual harassment.” They argue that “sanctions for sexual harassment should apply only under a clear definition of wrongful conduct and after a process that is fair to all parties.” With these dual objectives in mind, the Comment reviews the Department of Education’s Proposed Rule and agrees with some aspects and disagrees with others. The authors agree (with some suggested amendments) with the Rule’s treatment of the burden of proof, the rejection of the single-investigator model, and the requirement of a live hearing process. They argue that the rules they endorse do not undermine the critical goal of enforcing Title IX. They express serious concerns about the provisions on cross examination and the definition of sexual harassment, and propose revisions that will be more protective of complainants. The Comment strongly objects to provisions encouraging schools to file complaints when they have multiple allegations against a single potential respondent but no formal complainant: the inquiry there should be refocused on the threat of harm and take into account the complainants’ as well as the respondents’ interests. The three professors say that they “strongly object to the deliberate indifference standard for schools’ ultimate responsibility to respond to sexual harassment.” Gersen, Gertner and Halley have researched, taught, and written on Title IX, sexual harassment, sexual assault, and feminist legal reform. They were three of the signatories to the statement of twenty-eight Harvard Law School professors, published in the Boston Globe on October 15, 2014, that criticized Harvard University’s newly adopted sexual harassment policy as “overwhelmingly stacked against the accused” and “in no way required by Title IX law or regulation.”
Nancy Gertner, Sexual Harassment and the Bench, 71 Stan. L. Rev. Online 88 (2018).
Categories:
Discrimination & Civil Rights
,
Government & Politics
,
Labor & Employment
Sub-Categories:
Discrimination
,
Gender & Sexuality
,
Judges & Jurisprudence
,
Courts
,
Employment Discrimination
,
Employment Practice
Type: Article
Hon. Nancy Gertner, Against These Guidelines, 87 UMKC L. Rev. 49 (2018).
Categories:
Criminal Law & Procedure
Sub-Categories:
Sentencing & Punishment
Type: Article
Nancy Gertner & Joseph Sanders, Alternatives to Traditional Adversary Methods of Presenting Scientific Expertise in the Legal System, 147 Daedalus 135 (2018).
Categories:
Criminal Law & Procedure
,
Civil Practice & Procedure
Sub-Categories:
Criminal Evidence
,
Jury Trials
,
Evidence
,
Practice & Procedure
Type: Article
Abstract
The twin goals of any litigation are to arrive at a correct outcome and provide the parties with a sense that they were treated justly, even if they do not prevail. Adversarial proceedings are often perceived to be superior to inquisitorial proceedings with respect to the second goal but inferior with respect to the first. This is especially the case when proceedings involve expert testimony. In this essay, we discuss several relatively minor changes to typical adversarial processes that offer the potential of improving trial accuracy without disrupting the overall structure of adversarial proceedings. These changes include 1) alterations to the organization of the trial, including concurrent expert testimony; 2) alterations to the role of the jury, including taking notes, asking questions, and receiving written expert reports; and 3) formal expert witness codes of conduct designed to better arm experts to resist the adversarial pressures that lead to biased testimony.
Judge Nancy Gertner (Ret.), The “Lower” Federal Courts: Judging in a Time of Trump, 93 Ind. L.J. 83 (2018).
Categories:
Government & Politics
Sub-Categories:
Courts
,
Politics & Political Theory
,
Judges & Jurisprudence
,
Executive Office
Type: Article
Abstract
To be sure, I offer only preliminary thoughts in this Essay. The Trump presidency is young. There are multiple challenges to multiple executive decisions and orders in courts across the country. A full treatment would take the reader into the robust literature on judicial decision making about context and pragmatism, with historical comparisons to other epochs where the challenges were comparable, even to empirical analyses of judging at different periods of time. I start with judging in “ordinary” times, the period during which I served. I then describe the challenges of judging in a time of Trump, and I conclude by illuminating the implications of those challenges perhaps for judicial education, law schools, and advocacy. The Future of the U.S. Constitution: A Symposium. April 14-15, 2017, Bloomington, Indiana. Sponsored by Indiana University Maurer School of Law, Indiana Law Journal & the American Constitution Society for Law and Policy.
Elizabeth Bartholet, Nancy Gertner, Janet Halley & Jeannie Suk Gersen, Fairness For All Students Under Title IX (Aug. 21, 2017).
Categories:
Discrimination & Civil Rights
,
Family Law
Sub-Categories:
Civil Rights
,
Discrimination
,
Gender & Sexuality
,
Education Law
Type: Other
Abstract
Four feminist law professors at Harvard Law School have called on the U.S. Department of Education to revise the previous Administration’s policies on sexual harassment and sexual assault on campus. In a memo submitted to the Education Department yesterday, they set out an agenda of fairness for all students, accusers and accused. In recent years the Education Department has pressured colleges and universities to adopt overbroad definitions of wrongdoing that are unfair to both men and women, and to set up procedures for handling complaints that are deeply skewed against the accused and also unfair to accusers. Janet Halley and Jeannie Suk Gersen, Elizabeth Bartholet, and Nancy Gertner are professors at Harvard Law School who have researched, taught, and written on Title IX, sexual harassment, sexual assault, and feminist legal reform. They were four of the signatories to the statement of twenty-eight Harvard Law School professors, published in the Boston Globe on October 15, 2014, that criticized Harvard University’s newly adopted sexual harassment policy as “overwhelmingly stacked against the accused” and “in no way required by Title IX law or regulation.” Janet Halley said “The college process needs legitimacy to fully address campus sexual assault. Now is the time to build in respect for fairness and due process, academic freedom, and sexual autonomy.” The professors submitted to the Education Department a memorandum entitled “Fairness for All Students under Title IX.”
Nancy Gertner, Neuroscience and Sentencing, 85 Fordham L. Rev. 533 (2016).
Categories:
Disciplinary Perspectives & Law
,
Criminal Law & Procedure
Sub-Categories:
Sentencing & Punishment
,
Law & Mind Sciences
Type: Article
Nancy Gertner, Complicated Process, 125 Yale L.J. F. 442 (Mar. 22, 2016).
Categories:
Disciplinary Perspectives & Law
,
Discrimination & Civil Rights
Sub-Categories:
Law & Public Policy
,
Gender & Sexuality
,
Feminist Legal Theory
Type: Article
Nancy Gertner, Opinions I Should Have Written, 110 Nw. U. L. Rev. 423 (2016).
Categories:
Government & Politics
,
Legal Profession
Sub-Categories:
Judges & Jurisprudence
,
Biography & Tribute
Type: Article
Nancy Gertner, The Judicial Repeal of the Johnson/Kennedy Administration's 'Signature' Achievement, in A Nation of Widening Opportunities: the Civil Rights Act at 50 (Ellen D. Katz & Samuel R. Babenstos eds., 2015).
Categories:
Discrimination & Civil Rights
,
Government & Politics
,
Labor & Employment
Sub-Categories:
Civil Rights
,
Discrimination
,
Gender & Sexuality
,
Race & Ethnicity
,
Judges & Jurisprudence
,
Courts
,
Employment Discrimination
Type: Book
Abstract
The Civil Rights Act of 1964, one of the most significant legislative achievements in American history, has been gutted. This is not because of Congress, or an Executive agency; it is because of the courts. Federal judges, from trial courts to the Supreme Court, from one end of the country to the other, of all political affiliations, have interpreted the Act virtually, although not entirely, out of existence. Plaintiffs in discrimination cases lose on summary judgment, more than any other party in any other type of case. If they get to a jury trial, their damage verdicts run the risk of being reduced by trial judges and their counsel's fees slashed -- more than the verdicts or fees of plaintiffs and plaintiffs' counsel in any other category of case. Even successful plaintiffs' verdicts are reversed more than jury verdicts in any other type of case. It is not simply that plaintiffs lose, but how they lose -- in decision after decision that legitimizes discriminator practices and behavior that would have been abhorrent when the Civil Rights Act was passed. This article offers a preliminary explanation for the pattern and suggestions for change.
Elizabeth M. Schneider & Nancy Gertner, ’Only Procedural': Thoughts on the Substantive Law Dimensions of Preliminary Procedural Decisions in Employment Discrimination Cases, 57 N.Y.L. Sch. L. Rev. 767 (2013).
Categories:
Civil Practice & Procedure
,
Labor & Employment
,
Government & Politics
Sub-Categories:
Class Action Litigation
,
Practice & Procedure
,
Courts
,
Supreme Court of the United States
,
Employment Discrimination
Type: Article
Nancy Gertner, On Competence, Legitimacy, and Proportionality, 160 U. Pa. L. Rev. 1585 (2012).
Categories:
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Sentencing & Punishment
,
Judges & Jurisprudence
,
Courts
Type: Article
Judge Nancy Gertner & Melissa Hart, Employment Law: Implicit Bias in Employment Discrimination Litigation, in Implicit Racial Bias across the Law 80 (Justin D. Levinson & Robert J. Smith eds., 2012).
Categories:
Labor & Employment
Sub-Categories:
Employment Discrimination
Type: Book
Abstract
Judges exercise enormous discretion in civil litigation, and nowhere more than in employment discrimination litigation, where the trial court’s “common sense” view of what is or is not “plausible” has significant impact on the likelihood that a case will survive summary judgment. As a general matter, doctrinal developments in the past two decades have quite consistently made it more difficult for plaintiffs to assert their claims of discrimination. In addition, many of these doctrines have increased the role of judicial judgment – and the possibility of the court’s implicit bias – in the life cycle of an employment discrimination case. This chapter begins by examining the persistence of gender and racial disparity in the workplace despite the fact that laws prohibiting discrimination have been on the books for decades. Social science offers an explanation in the form of studies that describe the role implicit bias plays in those continuing inequities just as the legal system seems especially resistant to integrating their insights. The chapter goes on to explore the ways that doctrinal developments for assessing evidence in employment discrimination cases – the procedural mechanisms that guide the cases through the system – are a one-way ratchet that makes it harder and harder to prove that discrimination occurred and that enables the judge to enact his or her biases.
Nancy Gertner, In Defense of Women: Memoirs of an Unrepentant Advocate (Beacon Press 2011).
Categories:
Disciplinary Perspectives & Law
,
Legal Profession
,
Discrimination & Civil Rights
Sub-Categories:
Gender & Sexuality
,
Feminist Legal Theory
,
Biography & Tribute
Type: Book
Abstract
Nancy Gertner launched her legal career by defending antiwar activist Susan Saxe, who was on trial for her role in a robbery that resulted in the murder of a police officer. After this high-profile, highly charged case, Gertner continued to cause a stir in case after riveting case. She threw herself into criminal and civil cases focused on women’s rights and civil liberties, establishing herself as a talented and unrepentant advocate for women. Now she looks back on that storied career of groundbreaking firsts and tells of her struggle to succeed personally and professionally while working on benchmark cases.
Nancy Gertner, Juries and Originalism: Giving "Intelligible Content" to the Right to a Jury Trial, 71 Ohio St. L.J. 935 (2011).
Categories:
Criminal Law & Procedure
,
Government & Politics
,
Constitutional Law
Sub-Categories:
Fourteenth Amendment
,
Sentencing & Punishment
,
Judges & Jurisprudence
,
Courts
Type: Article
Nancy Gertner, A Short History of American Sentencing: Too Little Law, Too Much Law, or Just Right, 100 J. Crim. L. & Criminology 691 (2010).
Categories:
Criminal Law & Procedure
,
Legal Profession
Sub-Categories:
Jury Trials
,
Sentencing & Punishment
,
Criminal Prosecution
,
Legal History
Type: Article
Douglas R. Young, Nanci Clarence, James Brosnahan, John S. Siffert, Robert G. Morvillo, Nancy Gertner, Robert W. Tarun & Cristina Arguedas, Recommended Practices for Companies and Their Counsel in Conducting Internal Investigations, 46 Am. Crim. L. Rev. 73 (2009).
Categories:
Criminal Law & Procedure
,
Corporate Law & Securities
,
Labor & Employment
Sub-Categories:
Criminal Prosecution
,
White Collar Crime
,
Corporate Law
,
Securities Law & Regulation
,
Whistleblowers
Type: Article
Nancy Gertner, Offense/Offender Distinction and Competence (response to Douglas A. Berman), in Criminal Law Conversations 625 (Paul Robinson, Stephen P. Garvey & Kimberly Ferzan eds., 2009).
Categories:
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Jury Trials
,
Sentencing & Punishment
,
Courts
,
Judges & Jurisprudence
Type: Book
Nancy Gertner, Alternatives to the Carceral State: The Judge’s Role, 74 Soc. Res. 663 (2007).
Categories:
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Sentencing & Punishment
,
Judges & Jurisprudence
Type: Article
Nancy Gertner, From Omnipotence to Impotence: American Judges and Sentencing, 4 Ohio St. J. Crim. L. 523 (2007).
Categories:
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Sentencing & Punishment
,
Judges & Jurisprudence
Type: Article
Lynn S. Adelman, Nancy Gertner, Richard G. Kopf, Gerald E. Lynch & Gregory A. Presnell, Federal Sentenciing Under “Advisory” Guidelines: Observations by District Judges, 75 Fordham L. Rev. 1 (2006).
Categories:
Criminal Law & Procedure
,
Government & Politics
Sub-Categories:
Sentencing & Punishment
,
Judges & Jurisprudence
,
Courts
Type: Article
Nancy Gertner, Is the Jury Worth Saving?, 75 B.U. L. Rev. 923 (1995) (reviewing Stephen J. Adler, The Jury: Trial and Error in the American Courtoom (1994)).
Categories:
Criminal Law & Procedure
Sub-Categories:
Jury Trials
Type: Article
Nancy Gertner, Bakke on Affirmative Action for Women — Pedestal or Cage, 14 Harv. C.R.-C.L. L. Rev. 173 (1979).
Categories:
Discrimination & Civil Rights
,
Constitutional Law
,
Government & Politics
,
Labor & Employment
Sub-Categories:
Fourteenth Amendment
,
Discrimination
,
Gender & Sexuality
,
Race & Ethnicity
,
Civil Rights
,
Age Discrimination
,
Supreme Court of the United States
,
Employment Discrimination
Type: Article