UPDATE II: The danger of nonrandom case assignment: How the Southern District of New York’s 'related cases' rule has shaped the evolution of stop-and-frisk law

This comment by Professor Katherine Macfarlane responds to the content of this CRL&P post.

I write regarding Judge Gertner's recent comment.  I am thrilled by the attention and careful read my article, posted on SSRN in August, has received.  It is due to be published in the Michigan Journal of Race & Law next year.  As a result, what appears on SSRN is a draft.  I didn't anticipate that any attention would be paid to it, let alone to my previous employment. 

That said, as most articles posted to SSRN tend to do, the related cases article identifies my current affiliation (with LSU).  My work at the Law Department is disclosed on my LSU faculty page, along with my prior work at Quinn Emanuel, and my federal clerkships. This information has been available on LSU’s website since July.  I am also pretty easy to google—last year I published a short essay in the Huffington Post, and was identified as an Assistant Corporation Counsel.  In July 2013, I published an essay in the New York Observer, and though I was already at LSU by then, my prior affiliation with the Law Department appeared in my byline.  In October, I presented my paper at an academic conference, and discussed the fact that I had previously worked at the Law Department.  In November I wrote another piece about the stop-and-frisk cases for the Observer, and again acknowledged my prior employment at the Law Department.  The Observer piece also mentioned that I had appeared in front of the judge I was writing about. 

Judge Gertner is not the first person to take issue with my writing on this subject (a letter to the New York Observer editor found my piece disappointing, and also referred to me as “this lady”).  What I think may be misleading people is my familiarity with the Daniels and Floyd dockets.  Unlike many more talented and experienced scholars who have written about stop-and-frisk, I used a great deal of sources pulled directly from PACER.  Litigators live on PACER.  But legal scholars do not.  I love the stories dockets tell, and mined the dockets in the cases marked related to Daniels for useful details.  In addition, another rich source of information was CCR's own website, which links to the expert reports the plaintiffs commissioned.  Those reports, as most expert reports tend to do, include the expert’s rate.  

The most frequent criticism I’ve received relates to my “perspective.”  I am happy to admit that I have a very specific perspective, as all legal scholarship should.  And I am of course influenced by my prior work.  My interest in the related cases rule has a lot to do with the time I spent as a federal law clerk.  My interest in civil rights stems from the time I spent at MALDEF and the summer I worked for the outstanding California civil rights litigation firm run by Dan Stormer and Barbara Hadsell. 

But there’s something else going here.  Aside from my docket-heavy research, I also addressed judicial behavior, and named the judge I was talking about.  This, I suspect, has rubbed many the wrong way.  It’s certainly fair to say that the academic response has been decidedly in favor of the stop-and-frisk judge.  I cannot think of any academic amici who have backed the decision to remove her, though there are intellectually defensible arguments on both sides.  The New York Times’ “Room for Debate” series on this topic wasn’t a debate at all—like Judge Gertner, all participants were against the decision to remove.

I joined the Law Department in 2011 and ended my employment there in April 2013.  I worked on about 50-60 cases, some big, some small.  I did not work on any of the stop-and-frisk matters.  For ethical reasons, I would have had great reservations writing about any case I was involved in.  Yet my decision to write about a topic I care about is not that unusual, nor should I be discouraged from doing so.  Former ADAs become defense counsel.  Former law clerks turn journalists.  Former judges become professors. Once in a great while, former city attorneys break into academia.  All of us are shaped by our prior work, and we should be encouraged, not discouraged, to look to our past experiences for guidance, so long as we do so ethically.