Editor’s Preface (Fall 2017)

Nathan Goetting

In “Humans, Hierarchy, and Human Rights” Harold McDougall seeks to understand why so many social justice movements form, burn brightly, then either fade or are transformed away from their original mission. His explora­tion is interdisciplinary, using biological, anthropological, psychological, and sociological research to explain the causes which bring humans to band together in search of justice. It goes on to explain how hierarchies emerge within these groups. These hierarchies “other” outsiders, foster fears and prejudices, change their missions, and ultimately lead to the groups’ undoing. This tendency toward forming hierarchies has limited the lifespans of countless organizations and movements that might have otherwise lived on to battle some of humanity’s worst social ills and inspire future generations.

As long as there have been criminal prosecutions there have been prosecu­tors willing to hide exculpatory—even exonerating—evidence from those they seek to punish. The temptation to make their own work easier is too great, the drive to win in the competitive enterprise of criminal litigation is too strong, and the intoxication that comes with being an official public avenger is too euphoric. Not all prosecutors skirt the law and cut corners to win cases. But many do—and a certain minimum quantum always will.1

This fact has been proven true repeatedly since the Court declared in Brady v. Maryland2 that failing to disclose exculpatory evidence violates a defendant’s constitutional right to due process. The “Brady rule” was a necessary first step toward fixing a horribly biased litigation process and checking the dangerous, but predictable, instincts of prosecutors. However, since Brady legislatures and courts have moved in the wrong direction. They have generally been unwilling to vigorously enforce Brady’s core holding and have protected prosecutors from punishment with sweeping grants of immunity and narrow interpretations of statutes designed to vindicate those wrongfully convicted due to prosecuto­rial misconduct. When the Brady rule was announced there was a realistic hope that such injustices would recede to a lamentable, but sadly acceptable, tiny fraction of cases and that when those cases were discovered prosecutors would be punished and convictions would be overturned. Instead, politicians and judges have allowed the problem to metastasize.

In “Rosario, Vilardi, and Their Progeny: Do They Hold Rogue Prosecutors Accountable and Bring Justice to the Wrongfully Convicted?” Daniel Kelly explains how New York has moved in the opposite direction by strengthen­ing rules against recalcitrant and negligent prosecutors. However, he goes on to argue that these measures, however preferable compared to those in other jurisdictions, don’t go nearly far enough.

“The Danger of Being Wrong About Animal Rights: A Social Justice At­torney’s View” by Jerold D. Friedman seeks to answer a fundamental question with which a broadly arrayed progressive and radical legal organization like the Guild should reckon—are animals, who are undeniably made to systemati­cally suffer around the world for the humans who control them, worthy of our activism? Modern research in genetics and evolutionary biology have shown that we have more in common with our animal brethren than previously imag­ined. To Friedman, animal oppression is still oppression (with all the attendant moral corruption done to the oppressor and injustice done to the oppressed) and animal liberation is still liberation—because, ultimately, we are closer in nature and in our shared need for respectful treatment with other species of the earth than those who would harm them realize.

Sascha Bollag’s “Activism as a Legal Strategy: Promoting Environmental and Social Justice” is a primer on how attorneys can effectively advocate on behalf of radical and progressive ecological causes. It’s no secret that, with the election of Donald J. Trump and the appointment of his science-denying Environmental Protection Agency Administrator, Scott Pruitt, activism on these issues is especially urgent.

In “Democracy, Capitalism, and the Law” Joseph Taecker-Wyss, with the skill of an economist and the knowledge of a legal historian, makes the case for socialism as a remedy for the polarizing wealth inequality in the U.S. This inequality has come in tandem with an organized right-wing effort to further monetize our electoral system, making politicians even more beholden to their funders. The current reactionary Supreme Court has consistently worsened both these mutually reinforcing social problems, as with its notorious Citizens United v. FEC3 ruling. In this essay Taecker-Wyss traces these problems to their origin—a corrupt and exploitive capitalist economic system.


  1. See Bennett L. Gershman, Reflections on Brady v. Maryland, 47 S. Tex. L. Rev. 685, 686 n.8 (2006) (citing to a number of studies confirming the alarming frequency, over decades, with which wrongful convictions occur due to prosecutors hiding evidence).
  2. 373 U.S. 83 (1963).
  3. 558 U.S. 310 (2010).