Person: Gertner, Nancy
Loading...
Email Address
AA Acceptance Date
Birth Date
Research Projects
Organizational Units
Job Title
Last Name
Gertner
First Name
Nancy
Name
Gertner, Nancy
11 results
Search Results
Now showing 1 - 10 of 11
Publication Neuroscience and Sentencing(2016) Gertner, NancyThis symposium comes at a propitious time for me. I am reviewing the sentences I was obliged to give to hundreds of men—mostly African American men—over the course of a seventeen-year federal judicial career. As I have written elsewhere, I believe that 80 percent of the sentences that I imposedwereunfair,unjust,anddisproportionate. EverythingthatIthought was important—that neuroscientists, for example, have found to be salient in affecting behavior—was irrelevant to the analysis I was supposed to conduct. My goal—for which this symposium plays an important part—is to reevaluate those sentences now under a more rational and humane system, this time at least informed by the insights of science. The question is how to do that: How can neuroscience contribute to the enterprise and what are the pitfalls? This Article represents a few of my preliminary conclusions, but my retrospective analysis is not complete.Publication “Only Procedural”: Thoughts on the Substantive Law Dimensions of Preliminary Procedural Decisions in Employment Discrimination Cases(2013) Schneider, Elizabeth; Gertner, NancyThis brief essay was written for a symposium volume, Trial by Jury or Trial by Motion? Summary Judgment, Iqbal, and Employment Discrimination, based on presentations at a conference at New York Law School in April 2012. It addresses the Supreme Court’s invitation in several different contexts for trial courts to evaluate the merits of the case on the basis of limited, even skewed, information. Piqued by the Supreme Court’s recent decision in Wal-Mart, we consider these issues from our different vantage points as academic and former federal judge, both involved for many years in civil rights and employment discrimination litigation in different settings. We share a concern about how substantive law on discrimination can be shaped, misinterpreted, and misread in many of these “only procedural” rulings. The essay begins with a brief discussion of Wal-Mart to illustrate how preliminary procedural decisions have implications for substantive law. We then examine how Twombly and Iqbal have affected the substantive law dimensions of Rule 12(b)(6) decisions in general, then consider the special problems that Iqbal and Twombly pose in employment discrimination cases in particular. We conclude with some general lessons to be drawn from seeing “substance” in preliminary procedural decisions, the implications of this inquiry for federal civil litigation, and raise questions for further exploration.Publication From "Rites" to "Rights": The Decline of the Criminal Jury Trial(2012) Gertner, NancyIn Representing Justice, Judith Resnik and Dennis Curtis highlight - indeed, speak movingly - of the shift from the "pageantry and spectacle ('rites') entailed in Renaissance adjudication," to the "entitlements ('rights') to processes of a certain kinds that entailed making courts open to anyone who wanted to watch." The transformation from "rites" to "rights" is a process rightly celebrated, but, as the authors caution, in the modem American legal environment, it is at risk of backsliding. My talk illustrates one aspect of this phenomenon, from the modest colonial courthouses, in which American jurors enforced (or not infrequently, rejected) English law, to the modern federal courthouses, where the jury deliberation rooms stand empty. Colonial criminal jury trials involved far more than rituals that reflected the administration of power, although they were surely that. On the one hand, they made transparent the acts of the state in imposing its ultimate authority over the individual, the authority to punish, to take away an individual's liberty, even their life. On the other hand, the colonial citizenry was invited in not merely to be passive observers. They - at least the white men with property among them - were decisionmakers, members of a twelve-person lay jury. Courthouses had to be configured not only to make trials open, but also to permit space for the deliberating jury.Publication Videoconferencing: Learning Through Screens(College of William and Mary, 2004) Gertner, NancyPublication Federal Sentencing Under "Advisory" Guidelines: Observations by District Judges(Fordham Law Review, 2006) Adelman, Lynn; Gertner, Nancy; Richard, Kopf; Lynch, Gerard; Presnell, GregoryPublication On Competence, Legitimacy, and Proportionality(University of Pennsylvania, 2012) Gertner, NancyPublication The Judicial Repeal of the Johnson/Kennedy Administration's 'Signature' Achievement(2014) Gertner, NancyThe 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.Publication (Not) Wired: Electronic Coverage in Federal Courts(Boston Bar Association, 2014) Gertner, NancyPublication Don't Panic: Making Progress on the "Going Dark" Debate(Berkman Center for Internet & Society at Harvard Law School, 2016) Gasser, Urs; Gertner, Nancy; Goldsmith, Jack; Landau, Susan; Nye, Joseph; O'Brien, David; Olsen, Matthew; Renan, Daphna; Sanchez, Julian; Schneider, Bruce; Schwartzol, Larry; Zittrain, JonathanJust over a year ago, with support from the William and Flora Hewlett Foundation, the Berkman Center for Internet & Society at Harvard University convened a diverse group of security and policy experts from academia, civil society, and the U.S. intelligence community to begin to work through some of the particularly vexing and enduring problems of surveillance and cybersecurity. The group came together understanding that there has been no shortage of debate. Our goals were to foster a straightforward, non-talking-point exchange among people who do not normally have a chance to engage with each other and then to contribute in meaningful and concrete ways to the discourse on these issues. A public debate unfolded alongside our meetings: the claims and questions around the government finding a landscape that is “going dark” due to new forms of encryption introduced into mainstream consumer products and services by the companies who offer them. We have sought to distill our conversations and some conclusions in this report. The participants in our group who have signed on to the report, as listed on the following page, endorse “the general viewpoints and judgments reached by the group, though not necessarily every finding and recommendation.” In addition to endorsing the report, some signatories elected to individually write brief statements, which appear in Appendix A of the report and also as individual posts on Lawfareblog.com, written by Jonathan Zittrain, Bruce Schneier, and Susan Landau. Our participants who are currently employed full-time by government agencies are precluded from signing on because of their employment, and nothing can or should be inferred about their views from the contents of the report. We simply thank them for contributing to the group discussions.Publication Fairness For All Students Under Title IX(2017) Bartholet, Elizabeth; Gertner, Nancy; Halley, Janet; Gersen, JeannieFour 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.”