Justin Murray

Climenko Fellow and Lecturer on Law

2017-2018

Biography

Justin Murray’s research focuses on constitutional remedies and other enforcement mechanisms for criminal procedure. In particular, his work challenges the outcome-centric conception of legal injury that currently dominates criminal procedure's remedial jurisprudence, and explores how to make that jurisprudence more responsive to participatory interests, anti-discrimination norms, and other undervalued policies. He has published several articles, most recently in the Harvard Law Review.

Justin received his A.B. from Harvard University, where he graduated magna cum laude and was awarded the Eric Firth Prize, for the best Government thesis on the ideals of democracy. He received his J.D., magna cum laude, from the Georgetown University Law Center, where he served as an Executive Articles Editor for the Georgetown Law Journal and won the award for first place team at the Luke Charles Moore Invitational Moot Court Competition. He clerked for judges on the U.S. District Court for the District of Maryland and the U.S. Court of Appeals for the Fourth Circuit, then joined the Public Defender Service for the District of Columbia before working briefly for the Consumer Fraud Bureau of the Illinois Attorney General’s Office. Justin lives in Cambridge with his spouse, Dr. Sarah Murray, and their two children, David and Katelyn.

Areas of Interest

Justin Murray, A Contextual Approach to Harmless Error Review, 130 Harv. L. Rev. 1791 (2017).
Categories:
Criminal Law & Procedure
,
Constitutional Law
,
Government & Politics
Sub-Categories:
Criminal Prosecution
,
Jury Trials
,
Criminal Justice & Law Enforcement
,
Courts
,
Public Law
Type: Article
Abstract
Harmless error review is profoundly important, but arguably broken, in the form that courts currently employ it in criminal cases. One significant reason for this brokenness lies in the dissonance between the reductionism of modern harmless error methodology and the diverse normative ambitions of criminal procedure. Nearly all harmless error rules used by courts today focus exclusively on whether the procedural error under review affected the result of a judicial proceeding. I refer to these rules as “result-based harmless error review.” The singular preoccupation of result-based harmless error review with the outputs of criminal processes stands in marked contrast with criminal procedure’s broader ethical vision, which also encompasses non-result-related interests such as providing defendants with space for autonomous decisionmaking, enforcing compliance with nondiscrimination norms, and making transparent the inner workings of criminal justice. The vast scholarship relating to result-based harmless error review, though deeply critical of its current role in the administration of justice, has not put forward an alternative method of harmless error review that courts might realistically consider using. Commentators in this area have devoted much of their energy toward persuading courts to exempt large swaths of criminal procedure from harmless error review entirely and thus to require automatic reversal for errors involving exempted rules. Instead, courts have done just the opposite by subjecting an ever-expanding list of errors to harmless error review, and there is no reason to think this trend will abate in the foreseeable future. I attempt in this Article to chart a different course. My proposal, called “contextual harmless error review,” has two essential features. First, it would assess harm in relation to the constellation of interests served by the particular procedural rule that was infringed and would not, as under existing law, automatically confine the harmless error inquiry to estimating the error’s effect on the outcome. Second, contextual harmless error review would examine whether the error harmed the interests identified in the first step of the analysis to a degree substantial enough to justify reversal.
In Seach of Common Ground on Abortion: From Culture War to Reproductive Justice (Robin West, Justin Murray & Meredith Esser eds., Ashgate 2014).
Categories:
Family Law
,
Health Care
,
Discrimination & Civil Rights
,
Constitutional Law
,
Disciplinary Perspectives & Law
,
Government & Politics
Sub-Categories:
Fourteenth Amendment
,
Gender & Sexuality
,
Religious Rights
,
Disability Rights
,
Religion & Law
,
Feminist Legal Theory
,
Reproduction
,
Genetics & Reproduction
Type: Book
Abstract
This book brings together academics, legal practitioners and activists with a wide range of pro-choice, pro-life and other views to explore the possibilities for cultural, philosophical, moral and political common ground on the subjects of abortion and reproductive justice more generally. It aims to rethink polarized positions on sexuality, morality, religion and law, in relation to abortion, as a way of laying the groundwork for productive and collaborative dialogue.
Justin Murray, Re-Imagining Criminal Prosecution: Toward a Color-Conscious Professional Ethic for Prosecutors, 49 Am. Crim. L. Rev. 1541 (2012).
Categories:
Criminal Law & Procedure
,
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
,
Legal Profession
Sub-Categories:
Criminal Prosecution
,
Criminal Justice & Law Enforcement
,
Sentencing & Punishment
,
Race & Ethnicity
,
Critical Legal Studies
,
Law & Behavioral Sciences
,
Law & Mind Sciences
,
Legal Ethics
Type: Article
Abstract
Prosecutors, like most Americans, view the criminal-justice system as fundamentally race neutral. They are aware that blacks are stopped, searched, arrested, and locked up in numbers that are vastly out of proportion to their fraction of the overall population. Yet, they generally assume that this outcome is justified because it reflects the sad reality that blacks commit a disproportionate share of crime in America. They are unable to detect the ways in which their own discretionary choices — and those of other actors in the criminal-justice system, such as legislators, police officers, and jurors — contribute to the staggering and unequal incarceration of black Americans. In this article, I aim to undermine this color-blind assessment of criminal justice and explain why prosecutors should embrace a color-conscious vision of their professional duties. Color consciousness is complex and multi-dimensional. It involves understanding the ways in which America’s long history of segregation generated the harsh socioeconomic conditions that lead so many young black males into a life of crime. It also demands awareness of the frequency of racial profiling and acknowledgment of widely shared stereotypes that lead so many Americans to automatically perceive black men as potentially dangerous, violent and criminal. Finally, color consciousness recognizes the exclusion of blacks from political power and how this exclusion shapes the substantive content of the criminal law. Prosecutors should not only strive to acquire insight into how race operates in the criminal-justice system, but also to allow these insights to guide relevant aspects of their practice, including the ways in which they interact with police, charge crimes, negotiate plea agreements, present their case to jurors, and more. Taking these steps, particularly when they redound to the benefit of criminal suspects and defendants, would depart from the adversarial norm that largely defines the professional ethics of American lawyers. Normally, attorneys are expected to zealously represent the interests of their clients and to leave ultimate decisions about what is fair and true to the judge and jury. Prosecutors are different. They have a dual obligation to serve both as vigorous advocates within adversarial relationships and as officers of justice. Currently, no uniform guidelines exist as to the relative weight of the two components of prosecutors’ dual role, so they must make complex judgments about how to negotiate the intrinsic dissonance of their professional identity in a range of different situations. This article advances a context-specific argument that prosecutors and the institutions that supervise them should be more concerned with pursuing justice than with being a vigorous adversary when dealing with the subtle racial dimensions of their work.
Justin Murray, Exposing the Underground Establishment Clause in the Supreme Court’s Abortion Cases, 23 Regent U. L. Rev. 1 (2010).
Categories:
Constitutional Law
,
Family Law
,
Health Care
,
Discrimination & Civil Rights
Sub-Categories:
First Amendment
,
Fourteenth Amendment
,
Religion
,
Gender & Sexuality
,
Reproduction
,
Genetics & Reproduction
Type: Article
Abstract
In Roe v. Wade, the Supreme Court held that women have a constitutional right to abortion based on the Due Process Clause. To arrive at this conclusion, the Court implicitly relied on concepts that properly belong to the Establishment Clause - in particular, the Establishment Clause requirement that all laws must be supported by secular purposes, not religious ones. This Article is the first attempt to describe and critically evaluate the Court’s use of Establishment Clause ideas in Roe and later abortion cases. Some brief background is essential in order to grasp the structure and significance of the underlying Establishment Clause dynamic of Roe. The Due Process Clause allows the government to restrict fundamental constitutional liberties (such as abortion) if it has a compelling reason for doing so. States have defended their abortion laws by arguing that protecting unborn human life against homicide is a compelling reason to restrict abortion. This argument, advanced in Roe, directly presented the Supreme Court with the question of whether fetuses are human beings entitled to protection against homicide. The Court, however, refused to answer the question and provided a convoluted, ambiguous explanation for its refusal. Careful interpretation of these ambiguous passages reveals the Court’s underlying concern that neither the judiciary nor the legislature may decide the question of fetal humanity because it is a controversial religious question. When the Court’s rationale is clarified and plainly stated in this way, it becomes clear that Roe’s method of analysis - rejecting the state’s interest not because it is false or unimportant, but because it is religious and therefore an inappropriate basis for political judgment - is identical to the Establishment Clause requirement that legislation must be based on a secular purpose. However, the Court’s analysis is problematic, because Establishment Clause principles are consistent with governmental protection of fetal life. The humanity of the fetus can be plausibly supported, not only on religious grounds, but also on the secular grounds of philosophical, historical, and experiential reasoning. To be clear, I do not argue that these secular grounds prove beyond dispute that fetuses are human beings. Instead, I defend the more modest proposition that a debatable secular case can be made for viewing fetuses as human beings. This conclusion is not strong enough to justify criminalization or restriction of abortion (which is beyond the scope of this Article), but it does prove that such criminalization or restriction would not violate the Establishment Clause. Thus, the Court should revisit the fundamental question that it evaded in Roe and later cases: is the fetus a human being, such that legislatures have a compelling interest in protecting fetal life against abortion?

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