When Law Fails

Making Sense of Miscarriages of Justice

359 pages

January, 2009

ISBN: 9780814740521



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Charles J. Ogletree, Jr. is the Jesse Climenko Professor of Law and Executive Director of the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School. He is the author of All Deliberate Speed: Reflections on the First Half-Century of Brown v. Board of Education (WW Norton and Company, 2004) and Co-Author of From Lynch Mobs to the Killing State: Race and the Death Penalty in America.

All books by Charles J. Ogletree, Jr.

Austin Sarat is William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. Previous collaborations for NYU Press with Charles J. Ogletree include From Lynch Mobs to the Killing State: Race and the Death Penalty in America (2006), When Law Fails: Making Sense of Miscarraiges of Justice (2009), and The Road to Abolition? The Future of Capital Punishment in the United States (2010).

All books by Austin Sarat

Since 1989, there have been over 200 post-conviction DNA exonerations in the United States. On the surface, the release of innocent people from prison could be seen as a victory for the criminal justice system: the wrong person went to jail, but the mistake was fixed and the accused set free. A closer look at miscarriages of justice, however, reveals that such errors are not aberrations but deeply revealing, common features of our legal system.

The ten original essays in When Law Fails view wrongful convictions not as random mistakes but as organic outcomes of a misshaped larger system that is rife with faulty eyewitness identifications, false confessions, biased juries, and racial discrimination. Distinguished legal thinkers Charles J. Ogletree, Jr., and Austin Sarat have assembled a stellar group of contributors who try to make sense of justice gone wrong and to answer urgent questions. Are miscarriages of justice systemic or symptomatic, or are they mostly idiosyncratic? What are the broader implications of justice gone awry for the ways we think about law? Are there ways of reconceptualizing legal missteps that are particularly useful or illuminating? These instructive essays both address the questions and point the way toward further discussion.

When Law Fails reveals the dramatic consequences as well as the daily realities of breakdowns in the law’s ability to deliver justice swiftly and fairly, and calls on us to look beyond headline-grabbing exonerations to see how failure is embedded in the legal system itself. Once we are able to recognize miscarriages of justice we will be able to begin to fix our broken legal system.

Contributors: Douglas A. Berman, Markus D. Dubber, Mary L. Dudziak, Patricia Ewick, Daniel Givelber, Linda Ross Meyer, Charles J. Ogletree, Jr., Austin Sarat, Jonathan Simon, and Robert Weisberg.


  • When Law Fails provides a timely lesson in why we must remain diligent in our oversight of the legal system. This compelling collection of essays provides a stark reminder of the human cost of failure and provides a roadmap for addressing inequities in our legal system.”

    —Congressman John Conyers

  • “Ogletree and Sarat include some of the best contemporary scholars within the field of law and society in this collection that highlights numerous historical examples of law’s failure to bring justice. The detail of each contribution is nearly flawless, as is the analysis. This edited volume is a wonderful addition to the various fields within jurisprudence. . . . Highly recommended.”


  • “Ogletree and Sarat have assembled an outstanding group of contributors for these original essays.”

    Library Journal

  • “The essays are interesting, informative and thought-provoking.”

    New York Law Journal

  • “The advent of DNA evidence has revealed serious flaws in the criminal justice system, resulting in the conviction of innocent people. Anyone concerned about correcting the unfairness and imbalance in the system should read this book.”

    —Steve Bright, President, Southern Center for Human Rights

  • “Bringing into view detailed stories of failures in American legal proceedings, When Law Fails also exposes the patterns of national self-interest, institutional failure, and professional prerogative that compound and bury the errors.”

    —Martha Minow, co-author of Breaking the Cycles of Hatred: Memory, Law, and Repair

  • When Law Fails is a thoughtful consideration of the criminal justice system and the embedded failures that lie within. The book illustrates both the drama and daily consequences of miscarriages of justice.”

    The Law and Politics Book Review