Judith Resnik

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120 Yale Law Journal 539 (2010)


Is the California prison system so overcrowded as to require a reduction in population in order for the state to comply with its constitutional obligation not to be “deliberately indifferent” to the known medical needs of prisoners? Is the phrase “under God,” added in the 1950s to the Pledge of Allegiance, unconstitutional? When does the First Amendment protect the speech of government employees? How long can the federal government hold an immigrant in detention after that person is ordered to leave the United States? These questions have come to the fore of constitutional jurisprudence in part through decisions by Stephen Reinhardt, appointed in 1980 by President Jimmy Carter to the U.S. Court of Appeals for the Ninth Circuit.

But to focus only on cases that have made headlines is to miss the bulk of Judge Reinhardt’s work. According to one database, from January of 2005 through July of 2010, Judge Reinhardt participated in more than fifteen hundred decisions. My reading of Reinhardt takes but a slice of this large corpus addressing human relations and legal obligations that is, as detailed below, a jurisprudence of facticity. His lengthy opinions are dense with the experiences of individuals who, while rights-holders, sometimes encounter inattentive judges and ineffective lawyers.

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