2022–2023 Lecturer: David Blight, Yale University, “Frederick Douglass and the Two Constitutions: Proslavery and Antislavery” Yale University Professor David Blight, the author of the Pulitzer Prize-winning biography, Frederick Douglass: Prophet of Freedom, will deliver the Jorde Symposium lecture at NYU School of Law on March 9, 2023, on the theme of “Frederick Douglass and the Two Constitutions: Proslavery, and Antislavery.” Professor Blight’s lecture will probe the thought and activism of Frederick Douglass as both a moral suasionist and political abolitionist, concentrating on the abolitionist leader’s evolving views of the Constitution — from an early view that our founding charter was hopelessly complicit with slavery to his eventual embrace of a thoroughgoing antislavery interpretation. RSVP HERE Additional speakers: Martha Jones – Society of Black Alumni Presidential Professor, Professor of History, and a Professor at the SNF Agora Institute, Johns Hopkins University James Oakes – Distinguished Professor of History and Graduate School Humanities Professor, Graduate Center of the City University of New York Previous Jorde Symposium events appear below in reverse chronological order. 2021–2022 Lecturer: Steven Levitsky, Harvard University, “The Third Founding: The Rise of Multiracial Democracy and the Authoritarian Reaction Against It” Berkeley Law School and Yale Law School In the current Symposium cycle, Steven Levitsky of Harvard University reflects on the rise of multiracial democracy in the United States and the authoritarian reaction against it. He calls for a set of constitutional and electoral reforms to democratize our democracy and prevent entrenched rule by the minority, drawing on lessons learned from the breakdown of democracies in Europe and Latin America. Bio: Steven Levitsky is Professor of Government at Harvard University. His research interests include political parties, authoritarianism and democratization, and weak and informal institutions, with a focus on Latin America. He is the author (with Daniel Ziblatt) of How Democracies Die (Crown, 2018). Additional participants: Richard Albert, University of Texas Law School Miriam Seifter, University of Wisconsin Law School Tom Ginsburg, University of Chicago Law School Richard Pildes, NYU School of Law Roberto Gargarella, National Research Council, CONICET, Argentina Previous Jorde Symposium events appear below in reverse chronological order. 2020–2021 Lecturer: Pamela Karlan, Stanford Law School, “The New Countermajoritarian Difficulty” Berkeley Law School and the University of Chicago Law School Pamela Karlan of Stanford Law School explored the implications of the Supreme Court’s retreat from reinforcing representation through judicial review at a time when demographic changes are interacting with our constitutional structures to threaten majoritarian democracy. In part one of her lecture, Karlan discussed how profound changes in demography along with increased partisan and regional polarization have created the conditions for countermajoritarian entrenchment. In part two, she looked at a set of structural factors “hard-wired” into our constitutional system that facilitates minority rule, including the Electoral College and the guarantee of equal suffrage in the Senate. In part three, Karlan reviewed recent Supreme Court decisions on voting rights and representation, which she characterized as having “retreated from the proposition that restrictions on voting rights should be subjected to some form of heightened judicial skepticism.” These “democracy-depleting decisions,” she argued, “are a symptom, even more than a cause, of our present condition.” Bio: Pamela Karlan is the Kenneth and Harle Montgomery Professor of Public Interest Law at Stanford Law School. Her areas of specialization include constitutional law, constitutional litigation, and the law of democracy. Read her lecture. Additional participants: Nicholas Stephanopoulos, Harvard Law School, “The New Pro-Majoritarian Powers” Franita Tolson, USC Gould School of Law, “Countering the Real Countermajoritarian Difficulty” William Baude, University of Chicago Law School, “The Real Enemies of Democracy” 2019–2020 Lecturer: Trevor Morrison, New York University School of Law, “Constitution by Convention” Berkeley Law School and Yale Law School Dean Trevor Morrison of NYU School of Law explores the role of historical practice and established institutional arrangements in setting constitutional doctrine related to the separation of powers. Addressing high-profile controversies during the administration of President Donald Trump related to the erosion of democratic norms, Morrison focused on questions that arise when courts are called upon to judge current government practices against the backdrop of longstanding institutional settlements and historical practices. Do the courts have the capacity to enforce historical institutional arrangements if the political branches are no longer willing to respect those arrangements themselves? And how might the courts declare that certain government actions are illegitimate even though they might appear on their face to operate within the bounds of those arrangements? In a paper co-authored by his NYU colleague Professor Samuel Isaacharoff, published in the California Law Review, Morrison argued, “The current period of democratic malaise may be thought of as a political stress test in which informal arrangements that served in other periods are being challenged to see if they may continue to serve.” There is a role for the courts, the authors argued, in “preserv[ing] the institutional arrangements and practices that have long sustained government until now, and to which we will need to recur when the political dysfunction of the moment is overcome.” Bio: Trevor Morrison is Dean of New York University School of Law and the Eric M. and Laurie B. Roth Professor of Law. His research and teaching interests are in constitutional law (especially separation of powers and federalism), federal courts, and the law of the executive branch. Read his lecture. Additional participants: Saikrishna Prakash, University of Virginia School of Law, “Against Constitution by Convention” Kate Shaw, Cardozo School of Law, “Conventions in the Trenches” Daphna Renan, Harvard Law School, “'Institutional Settlement’ in a Provisional Constitutional Order” 2019–2020 Lecturer: James Forman Jr., Yale Law School, “Locking Up Our Own: Crime and Punishment in Black America” Berkeley Law School and NYU School of Law ©Kahn: Courtesy of NYU Photo Bureau James Forman Jr. of Yale Law School drew on the lessons of his Pulitzer Prize winning book, Locking Up Our Own: Crime and Punishment in Black America (Macmillan, 2018), to consider what is needed now to build a powerful movement to end mass incarceration. In the first half of his remarks, Forman reflected on the reasons why a generation of Black elected officials who won office after the adoption of the Voting Rights Act “overwhelmingly turn[ed] to law enforcement as the answer” to rising crime. To understand how this unfolded, he argued, it’s “crucial to look at the tiny decisions made by local officials” – decisions he characterized as “the individual bricks that have collectively built the prison nation that America has become.” In the second half of his remarks, Forman offered some thoughts on how to dismantle mass incarceration today, identifying four areas of engagement and mobilization: voting and political participation, with an emphasis on low-profile school board and prosecutors’ elections, jury service, judicial appointments, and public education. In closing, Forman spoke of the need to face the daunting challenge of confronting mass incarceration with hope. “People are going to tell you that change is impossible,” he said. “But if you ignore them – if you stay true to your beliefs – then one day you will create the change you dreamed of.” Bio: James Forman Jr. is J. Skelly Wright Professor of Law at Yale Law School. He specializes in criminal procedure, constitutional law, juvenile justice, and education law and policy. Read his lecture. Additional participants: L. Song Richardson, University of California Irvine Law School, “The Fallacy of the (Racial) Solidarity Presumption” David Sklansky, Stanford Law School, “Populism, Pluralism, and Criminal Justice” Rachel Barkow, NYU School of Law, "Three Lessons for Criminal Law Reformers from Locking Up Our Own Paul Butler, Georgetown Law, “Locking Up My Own: Reflections of a Black (Recovering) Prosecutor” ©Kahn: Courtesy of NYU Photo Bureau Paul Butler, James Forman Jr., and Rachel Barkow 2017–2018 Lecturer: Owen Fiss, “Equality in a Fragmented Society” Berkeley Law School and the University of Chicago Law School Owen Fiss of Yale Law School reflected on a rare area of progress on racial equality. His lecture focused on the 1971 Supreme Court case, Griggs v. Duke Power Company, which established the disparate impact principle in employment discrimination lawsuits. The Court later held, in its 1976 decision in Washington v. Davis, that the rule prohibiting disparate impact was not a constitutional rule, but rather a requirement of the Civil Rights Act of 1964. But, as Fiss explained, “The Court’s decision to downgrade the Griggs Principle from Constitution to statute enlarged the power of Congress to supervise the application and interpretation of disparate impact doctrine.” Recalling how the principle was later codified in the Civil Rights Act of 1991, and extended to housing cases in the 2015 case, Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., Fiss concluded his lecture by calling on the judicial branch to continue to apply the Griggs Principle to further the process of reconstruction. Bio: Owen Fiss is a Sterling Professor Emeritus of Law and Professorial Lecturer in Law at Yale Law School. He specializes in procedure, legal theory, and constitutional law. Read his lecture. Additional participants: Goodwin Liu, California Supreme Court. Read “Racial Justice in the Age of Diversity.” Richard Primus, University of Michigan Law School. Read “Second Redemption, Third Reconstruction.” Reva B. Siegel, Yale Law School. Read “The Constitutionalization of Disparate Impact—Court-Centered and Popular Pathways: A Comment on Owen Fiss’ Brennan Lecture” Justin Driver, University of Chicago Law School. Read “The Keyes of Constitutional Law 2016–2017 Lecturer: Heather Gerken, “Federalism 3.0” Berkeley Law School and NYU School of Law Heather Gerken of Yale Law School delivered a lecture on twenty-first century federalism. In an historical overview beginning with the changed assumptions about federal-state relations embedded into constitutional theory in the wake of the New Deal (“Federalism 1.0”) and continuing through the discrediting of “states’ rights” in the Civil Rights Era (“Federalism 2.0”), Gerken argued that constitutional theory about federalism is outdated. Federalism’s “shared operating system,” she contended, can serve nationalist ends. In her paper, published in the California Law Review’s Symposium Edition, she laid out a vision for “Federalism 3.0.,” what she called today’s federalism. “Our regulatory structures and politics are deeply intertwined,” she wrote. “Neither the federal government nor the states preside over their own empire; instead, they regulate shoulder-to-shoulder in a tight regulatory space, sometimes leaning on one another and sometimes deliberately jostling each other. So, too, states are no longer enclaves that facilitate retreats from national norms. Instead, they are the sites where those norms are forged.” Bio: Heather Gerken is the Dean and Sol & Lillian Goldman Professor of Law at Yale Law School. She is an expert on constitutional law and election law. Read her lecture. Additional participants: Robert Cooter, Berkeley Law School. “Gerken’s Federalism 3.0: Better or Worse Than It Sounds?” Jessica Bulman-Pozen, Columbia Law School. “Federalism All the Way Up: State Standing and ‘The New Process Federalism’.” Ernest Young, Duke University School of Law 2015–2016 Lecturer: Justice Stephen Breyer, “The Court and the World: The Supreme Court’s New Transnational Role” Berkeley Law School and Yale Law School Justice Stephen Breyer explored the themes he developed in a recent book, The Court and the World: American Law and the New Global Realities (Alfred A. Knopf, 2015). In an increasingly interconnected world, the Justice examined the many ways in which American judges, when interpreting American law, must take ever greater account of foreign events, law and practices. He focused on four contexts in which the Supreme Court is increasingly called to act as a transnational court: disputes involving liberty and national security; maintaining legal harmony in international commercial law; interpreting international treaties; and engaging with lawyers and judges from foreign countries to promote the interchange of substantive legal ideas and the advancement of the rule of law across the globe. Bio: Stephen Breyer is an Associate Justice of the Supreme Court of the United States. He was appointed by President Bill Clinton in 1994. Read his lecture. Additional participants: Sujit Choudhry, Berkeley Law School Jenny Martinez, Stanford Law School. Read “Who’s Afraid of International and Foreign Law?” Aharon Barak, Supreme Court of Israel Curtis Bradley, Duke Law School. Read “The Supreme Court as a Filter Between International Law and American Constitutionalism.” 2014–2015 Lecturer: Martha Minow, “Should Law Promote Forgiveness?” Berkeley Law School and the University of Chicago Law School Martha Minow of Harvard Law School explored whether law should encourage people to forgive one another. Is it desirable to promote greater connections between law, with its need for predictability, and forgiveness, with its dependence on emotions and moral judgments? Examining the use of forgiveness in disputes involving genocide, sovereign debt, and child soldiers, Minow concluded that law can help enable forgiveness while maintaining fairness and justice – enhancing human relationships without forgoing the accountability so important to social order. In her paper, published in the California Law Review’s Symposium Edition, she offered suggestions for incorporating forgiveness into existing domestic and international legal frameworks. Bio: Martha Minow is the 300th Anniversary University Professor at Harvard University. Her work focuses on privatization, military justice, and ethnic and religious conflict. Read “Forgiveness, Law, and Justice.” Additional participants: Kathryn Abrams, Berkeley Law School. Read “Seeking Emotional Ends with Legal Means.” Christopher Kutz, Berkeley Law School. Read “Forgiveness, Forgetting, and Resentment.” Aziz Huq, University of Chicago Law School. Read “Difficulties of Democratic Mercy.” Martha Nussbaum, University of Chicago Law School. 2013–2014 Lecturer: Cass R. Sunstein, “Regulatory Agencies and Public Policy” Berkeley Law School and NYU School of Law Harvard Law Professor Cass Sunstein delivered a lecture on the difficulty of quantifying benefits and costs in public policy. Regulatory agencies are generally required to quantify both benefits and costs and to show that the former justify the latter. But agencies are also permitted to consider factors that are difficult or impossible to quantify, such as human dignity and fairness. In his paper, published in the California Law Review’s Symposium Edition, Sunstein recommended that agencies engage in “breakeven analysis” to determine how high non-quantifiable benefits would have to be in order to justify the costs. Bio: Cass R. Sunstein is the Robert Walmsley University Professor at Harvard Law School. He specializes in constitutional, administrative, and environmental law, as well as behavioral economics. Read “The Limits of Quantification.” Additional participants: Lisa Heinzerling, Georgetown University Law Center. Read “Quality Control: A Reply to Professor Sunstein.” Dan Farber, Berkeley Law School. Read “Breaking Bad? The Uneasy Case for Regulatory Breakeven Analysis.” Richard L. Revesz, NYU School of Law. Read “Quantifying Regulatory Benefits.” Oren Bar-Gill, NYU School of Law Jeremy Waldron, NYU School of Law Richard L. Revesz, NYU School of Law 2012–2013 Lecturer: Lawrence Lessig, “The Corrupting Influence of Money in Politics” Berkeley Law School Lawrence Lessig of Harvard Law School delivered a lecture on the corrupting influence of money on policymaking. Lessig explained that the concern is not corruption in the traditional criminal sense, but systemic corruption. He described how Congress has become dependent upon a small handful of donors who fund campaigns, creating pressure to “bend” policymaking in ways that make fundraising easier. Abuse of congressional rules—with donors’ interests in mind—contributes to an “economy of no” in Washington. To strike at the root of this systemic corruption, Lessig proposed citizen-funded elections in the form of a publicly funded voucher system to incentivize candidates to focus their appeals on citizens, not just wealthy donors. To encourage Congress to act, Lessig called for a nonpartisan, exopolitical movement free of the rhetoric of class and political divide. Bio: Lawrence Lessig is the Roy L. Furman Professor of Law and Leadership at Harvard Law School. He is also the founder of the organizations Creative Commons and Rootstrikers. Read “What an Originalist Would Understand ‘Corruption’ to Mean” and “A Reply to Professors Cain and Charles.” Additional participants: Bruce Cain, Stanford University. Read “Is ‘Dependence Corruption’ the Solution to America’s Campaign Finance Problems?” Guy Uriel-Charles, Duke University School of Law. Read “Corruption Temptation.” 2011–2012 Lecturer: Diane P. Wood, “When to Hold, When to Fold, and When to Reshuffle: The Art of Decision-Making on a Multi-Member Court” Berkeley Law School and NYU School of Law Judge Diane P. Wood of the U.S. Court of Appeals for the Seventh Circuit delivered a lecture on judicial decision-making. She shared her unique perspective on getting along and disagreeing with colleagues on a multi-member appellate bench. Judge Wood described the many reasons why appellate judges write separate concurrences or dissents, and the good results that sometimes result from this extra effort. She also identified the risks of parting with one’s colleagues to write separately: the risk that one might become known as the “perpetual dissenter;” the risk that dissent might leave the public with the impression that courts can be scary political institutions, populated by people with strong opinions and lifetime tenure; and the risk of frayed interpersonal relations. Bio: Diane P. Wood is the Chief Judge of the United States Court of Appeals for the Seventh Circuit. She is also a Senior Lecturer in Law at the University of Chicago Law School. Read her lecture. Additional participants: Marsha Berzon, United States Court of Appeals, Ninth Circuit. Read “Dissent, ‘Dissentals,’ and Decision Making.” Kevin Quinn, Berkeley Law School. Read “The Academic Study of Decision Making on Multimember Courts.” Harry T. Edwards, United States Court of Appeals, DC Circuit Barry Friedman, NYU School of Law 2010–2011 Lecturer: Richard Posner, “The Rise and Fall of Judicial Self-Restraint" Berkeley Law Schooland the University of Chicago Law School Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit delivered a lecture on the rise and fall of judicial self-restraint, tracing the history of a theory of judicial restraint developed by Harvard Law Professor James Bradley Thayer in 1893. The “School of Thayer” posited that judges should uphold statutes unless their unconstitutionality was “… so clear that it is not open to rational question.” In his paper, published in the California Law Review’s Symposium Edition, Judge Posner argued that Thayer’s approach flourished in the absence of a theory of how to decide a constitutional case, yielding to the rise of constitutional theories that claimed to dispel doubt and yield certifiably right answers in all cases. Bio: At the time of the symposium, Richard Posner was a judge of the United States Court of Appeals for the Seventh Circuit. A former clerk for Justice William J. Brennan, Jr., Judge Posner is now a Senior Lecturer at the University of Chicago Law School. Read his lecture. Additional participants: Larry D. Kramer, Stanford Law School Pamela S. Karlan, Stanford Law School. Read “The Transformation of Judicial Self-Restraint.” Aziz Huq, University of Chicago Law School. Read “When Was Judicial Self-Restraint.” Lee Epstein, Northwestern University School of Law. Read “Was There Ever Such a Thing as Judicial Self-Restraint?” (co-authored with William M. Landes) 2009–2010 Lecturer: Richard H. Pildes, “Populism, Participation, and the Extremes of Democracy in America” Berkeley Law School and Princeton’s Woodrow Wilson School NYU Law Professor Richard H. Pildes delivered a lecture exploring the emergence of hyperpolarized democracy which, given the antimajoritarian features of American democracy, has led to legislative gridlock and paralysis. In his paper, published in the California Law Review’s Symposium Edition, he argues, “our radically polarized politics, and the absence of a center in American democracy today, reflect long-term structural and historical changes in American democracy that are likely to endure for some time to come.” Bio: Richard H. Pildes is the Sudler Family Professor of Constitutional Law at NYU Law School. He specializes in legal issues affecting democracy. Read “Why the Center Does Not Hold: The Causes of Hyperpolarized Democracy in America.” Additional participants: Michael W. McConnell, Stanford Law School. Read “Moderation and Coherence in American Democracy.” David M. Kennedy, Stanford University. Read “What Pildes Missed: The Framers, the True Impact of the Voting Rights Act, and the Far Right.” Nolan McCarty, Woodrow Wilson School. Read “The Limits of Electoral and Legislative Reform in Addressing Polarization.” Paul Frymer, Princeton University. Read “Debating the Causes of Party Polarization in America.” Sean Wilentz, Princeton University 2008–2009 Lecturer: Martha Nussbaum, “Same-Sex Marriage: The Politics of Stigma” Stanford Law School and University of Chicago University of Chicago Professor Martha Nussbaum delivered a lecture on the right to marry, with a focus on the role of the state. In her paper, published in the California Law Review’s Symposium Edition, she wrote, “so long as the state is in the marrying business, concerns with equality require it to offer marriage to same-sex couples—but … it would be a lot better, as a matter of both political theory and public policy, if the state withdrew from the marrying business, leaving the expressive domain to religions and to other private groups, and offering civil unions to both same- and opposite-sex couples.” But the prohibition of same-sex marriage, she concluded, is “an exclusion we can no longer tolerate in a society pursuing equal respect and justice for all.” Bio: Martha Nussbaum is the Ernst Freund Distinguished Service Professor of Law and Ethics at the University of Chicago where she is appointed in the philosophy department and law school. She focuses on ancient Greek and Roman philosophy, political philosophy, feminism, and ethics. Read “A Right to Marry” and “Reply.” Additional participants: Pamela Karlan, Stanford Law School. Read “Let’s Call the Whole Thing Off: Can States Abolish the Institution of Marriage?” David Novak, University of Toronto. Read “Response to Martha Nussbaum’s A Right to Marry.” Michael Warner, Yale University. Read “Response to Martha Nussbaum.” 2007–2008 Lecturer: Stephen Holmes, “Misunderstanding Trade-offs in the War on Terror” Berkeley Law School and Yale Law School NYU Law Professor Stephen Holmes delivered a lecture on the fundamental importance of abiding by rules during times of emergency, reflecting on problems stemming from too much executive discretion following the terrorist attacks of September 11, 2001. Citing the experience of emergency rooms, which minimize the risk of mistake through adherence to protocols drilled and practiced in advance, Holmes explored how due process, constitutionalism, and international law could ensure the prudent management of national emergencies. Bio: Stephen Holmes is the Walter E. Meyer Professor of Law at NYU Law School. His research focuses on transnational terrorism and the history of European liberalism. Read his lecture. Additional participants: Paul M. Schwartz, Berkeley Law School. Read “Warrantless Wiretapping, FISA Reform, and the Lessons of Public Liberty: A Comment on Holmes’s Jorde Lecture.” Laura K. Donohue, Stanford University Center for International Security and Cooperation. Read “The Perilous Dialogue.” Bruce Ackerman, Yale Law School. 2006–2007 Tenth Anniversary Brennan Center Jorde Symposium: The Living Constitution — A Symposium on the Legacy of Justice William J. Brennan Jr. In October 2006, the Brennan Center Jorde Symposium hosted The Living Constitution: A Symposium on the legacy of Justice William J. Brennan, Jr. The event marked the tenth anniversary of the Brennan Center for Justice, the fiftieth anniversary of Justice William J. Brennan, Jr.’s appointment to the Supreme Court, and the centennial of the Justice’s birth. In a lively discussion reflecting on Justice Brennan’s life and legacy, the symposium featured panels on freedom of religion and liberty and national security. Justice Ruth Bader Ginsburg delivered the closing remarks, conveying “our shared admiration and affection for a Justice who contributed monumentally to the advancement of liberty and justice, equal and accessible for all.” Participants: Michael Waldman, President, Brennan Center. Read his remarks. Robert Post, Berkeley Law School. Read “Brennan and Religion.” Michael W. McConnell, U.S. Court of Appeals for the Tenth Circuit. Read “Justice Brennan’s Accommodating Approach toward Religion.” Marcella David (moderator), University of Iowa College of Law. Geoffrey R. Stone, University of Chicago Law School. Read “National Security v. Civil Liberties.” Abraham D. Sofaer, Hoover Institution, Stanford University. Read “Justice Brennan and Civil Liberty in Times of Crisis.” James E. Johnson (moderator), Debevoise & Plimpton Burt Neuborne (introducing Ruth Bader Ginsburg), NYU School of Law and Founding Legal Director, Brennan Center for Justice. Read his introduction. Justice Ruth Bader Ginsburg, Associate Justice of the Supreme Court of the United States. Read her closing remarks. 2005–2006 Lecturer: Reva B. Siegel, “Constitutional Culture, Social Movement Conflict, and Constitutional Change: The Case of the de facto ERA” Berkeley Law School and Yale Law School Yale Law School Professor Reva B. Siegel explored the interaction between the courts and social movements in creating constitutional meaning, with a look at how equal protection doctrine prohibiting sex discrimination was forged in the Equal Rights Amendment’s defeat. In her paper, published in the California Law Review’s Symposium Edition, Siegel observed, “Social movement conflict, enabled and constrained by constitutional culture, can create new forms of constitutional understanding—a dynamic that guides officials interpreting the open-textured language of the Constitution’s rights guarantees.” Bio: Reva B. Siegel is the Nicholas deB. Katzenbach Professor of Law at Yale Law School where she focuses on the relationship between law and inequality. She also studies interactions between courts and popular movements. Read her lecture. Additional participants: Larry D. Kramer, Stanford Law School. Read “Generating Constitutional Meaning.” Robin West, Georgetown University Law Center. Read “Constitutional Culture or Ordinary Politics: A Reply to Reva Siegel.” Bruce Ackerman, Yale Law School. Read “Interpreting the Women’s Movement.” Martha Minow, Harvard Law School. Read “Constituting Our Constitution, Constituting Ourselves: Comments on Reva Siegel’s Constitutional Culture, Social Movement Conflict and Constitutional Change.” 2003–2004 Lecturer: Geoffrey R. Stone, “Free Speech in the Age of McCarthy: A Cautionary Tale” University of Chicago Law School and Berkeley Law School University of Chicago Law Professor Geoffrey R. Stone delivered a lecture on free speech on the 50th anniversary of Senator Joseph McCarthy’s censure by the U.S. Senate. Stone explored the contemporary implications of this history, offering a “cautionary tale” in the aftermath of the terrorist attacks of September 11, 2001. “Just as hard cases make bad law,” he wrote, “hard times make bad judgments. It is our responsibility as citizens, lawyers, elected officials, and judges to resist those bad judgments, to maintain a clear-eyed confidence in our national values, and to have the courage to support those values when our support matters. Justice Brennan would expect no less.” Bio: Geoffrey R. Stone is the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago Law School, specializing in First Amendment law. Stone clerked for Justice William J. Brennan, Jr. Read his lecture. Additional participants: Oren Gross, University of Minnesota Law School Eugene Volokh, UCLA School of Law. Read “Deterring Speech: When Is It McCarthyism, When Is It Proper.” Vincent Blasi, University of Virginia School of Law Samuel Issacharoff, Columbia Law School 2002–2003 Lecturer: Larry D. Kramer, “Popular Constitutionalism: Then and Now” Berkeley Law School and the University of Michigan Law School NYU Law Professor Larry D. Kramer delivered a lecture on popular constitutionalism and judicial power. In his paper, published in the California Law Review’s Symposium Edition, Kramer wrote, “Somehow, Americans have been pacified, lulled into believing that the meaning of their Constitution is something beyond their compass, something that should be left to others.” He argued that the American people must insist on our right to control the meaning of the Constitution by choosing popular constitutionalism over judicial supremacy. Bio: At the time of the symposium, Larry D. Kramer was the Associate Dean for Research at NYU School of Law. He is now president of the William and Flora Hewlett Foundation. A former clerk to Justice William J. Brennan, Jr., Kramer is a scholar of constitutional law and civil procedure. Read his lecture. Additional participants: Erwin Chemerinsky, USC School of Law. Read “In Defense of Judicial Review: A Reply to Professor Kramer.” Robert Post, Berkeley Law School. Read “Popular Constitutionalism, Departmentalism, and Judicial Supremacy.” Reva B. Siegel, Yale Law School. Read “Popular Constitutionalism, Departmentalism, and Judicial Supremacy” (co-authored with Robert Post). Frederick Schauer, Harvard University. Read “Judicial Supremacy and the Modest Constitution.” 2001–2002 Lecturer: Bruce Ackerman, “Voting with Dollars: A New Paradigm for Campaign Finance” Yale Law School and Berkeley Law School Yale Law Professor Bruce Ackerman delivered a lecture on a new approach to campaign finance. Under his plan, the government would provide voters 50 “patriot dollars” to give to their favorite candidates or political organizations. To guard against the buying of political influence, donations under this system would be made anonymously. Ackerman outlined the features and benefits of this plan and laid out a model statute for its adoption. Bio: Bruce Ackerman is Sterling Professor of Law and Political Science at Yale Law School. He specializes in constitutional law. Read “The New Paradigm Revisited” (co-authored with Ian Ayres). Additional participants: Richard A. Briffault, Columbia Law School. Read “Reforming Campaign Finance Reform: A Review of Voting with Dollars.” John Ferejohn, Stanford Law School. Read “Playing with House Money: Patriot Dollars Considered.” Pamela S. Karlan, Stanford Law School. Read “Elections and Change under Voting with Dollars.” David A. Strauss, University of Chicago Law School. Read “What’s the Problem: Ackerman and Ayres on Campaign Finance Reform.” 2000–2001 Lecturer: Kathleen Sulllivan, “Constitutionalizing Women’s Equality” Berkeley Law School and NYU School of Law Stanford Law School Dean Kathleen Sullivan reflected on the struggle to advance women’s equality under a Constitution that offers no such guarantee. She wrote, “The American approach of constitutionalizing women’s equality from a minimal text that is general, broad, vague and standard-like, however, plainly allocates considerable discretion to its interpreters. Its efficacy in advancing actual equality therefore depends upon having women or their allies in the room doing the interpreting.” Bio: At the time of the symposium, Kathleen Sullivan was the Dean of Stanford Law School. She is now a partner at the law firm of Quinn Emanuel Urquhart & Sullivan. Read her lecture. Additional participants: Susan R. Estrich, USC School of Law. Read “Politics and the Limits of Law: A Musing for Dean Sullivan.” Mary Anne Case, University of Chicago Law School. Read “Reflections on Constitutionalizing Women’s Equality.” Michael C. Dorf, Columbia Law School. Read “The Paths to Legal Equality: A Reply to Dean Sullivan.” Lawrence G. Sager, NYU School of Law. Read “Of Tiers of Scrutiny and Time Travel: A Reply to Dean Sullivan.” 1999–2000 Lecturer: Lee Bollinger, “The Mission of Public Cultural Institutions” Berkeley Law School and the University of Chicago Law School Bio: At the time of the symposium, Lee Bollinger was the president of the University of Michigan. He is now the president of Columbia University. Additional participants: David A. Hollinger, University of California, Berkeley Michael S. Roth, The Getty Research Institute Sanford Levinson, University of Texas Law School Geoffrey R. Stone, University of Chicago Law School 1998–1999 Lecturer: Robert Post, “Prejudicial Appearances: The Logic of American Antidiscrimination Law” Berkeley Law School and the University of Miami Berkeley Law Professor Robert Post argued that modern American antidiscrimination law should not be conceived as protecting the transcendental dignity of individual persons but instead as transforming social practices that define and sustain potentially oppressive categories like race or gender. He argued that antidiscrimination law would be greatly advanced by deploying sociological understandings in ways that “strike at the entire spectrum of disparate treatment,” rendering the law more effective and just. Bio: At the time of the symposium, Robert Post was a professor at Berkeley Law School. He is now a Sterling Professor of Law at Yale Law School, where he specializes in constitutional law and the First Amendment. Post also served as clerk to Justice William J. Brennan, Jr. Read his lecture. Additional participants: Judith Butler, University of California, Berkeley. Read “Appearances Aside.” Thomas C. Grey, Stanford Law School. Read “Cover Blindness.” K. Anthony Appiah, Harvard University. Read “Stereotypes and the Shaping of Identity.” Reva B. Siegel, Yale Law School. Read “Discrimination in the Eyes of the Law: How Color Blindness Discourse Disrupts and Rationalizes Social Stratification.” 1997–1998 Lecturer: Stephen Carter, “Religious Freedom as if Religion Matters: A Tribute to Justice Brennan” Berkeley Law School and Georgetown University Law Center Yale Law Professor Stephen Carter discussed the complexities inherent in the constitutional right to religious freedom. Carter wrote, “Perhaps it is an error for religionists to conceive of the worship of God as a right because, in so doing, they reduce it to a thing that one needs a right in order to do. And that reduction is potentially deadly to genuine freedom of religion.” In his view, religious freedom is not a theory about religion, but rather one about the needs of the state. Bio: Stephen Carter is the William Nelson Cromwell Professor of Law at Yale Law School. He teaches a wide range of courses including the Ethics of War and Law and Religion. Read his lecture. Additional participants: Jesse Choper, Berkeley Law School. Read “Comments on Stephen Carter’s Lecture.” Kenneth Karst, UCLA Law School. Read “Groups and the Free Exercise Clause.” Ira Lupu, George Washington Law School. Read “The Religion Clauses and Justice Brennan in Full.” Mark Tushnet, Georgetown University Law Center. Read “In Praise of Martyrdom.” 1996–1997 Lecturer: Frank Michelman, “Brennan and Democracy” Berkeley Law School and NYU School of Law Harvard Law School Professor Frank Michelman explored the inherent tensions of a democratic system where key policy issues are decided not by the people’s elected representatives but by elected judges. He asked whether we can embrace the values of democracy together with constitutionalism, judicial supervision, and the rule of law. Michelman, a former clerk of Justice William J. Brennan, Jr., drew on Brennan’s writings and record to suggest how he might have understood the judiciary’s role in promoting both democratic and constitutional government. Bio: Frank Michelman is the Robert Walmsley University Professor Emeritus at Harvard Law School. A former clerk to Justice William J. Brennan, Jr. Michelman specializes in constitutional law, legal theory, and property law. Read his lecture. Additional participants: Robert Post, Berkeley Law School. Read “Democracy, Popular Sovereignty, and Judicial Review.” Kathleen Sullivan, Stanford Law School. Read “Epistemic Democracy and Minority Rights.” Ronald Dworkin, NYU School of Law. Read “The Partnership Conception of Democracy.” Don Herzog, University of Michigan Law School. Read “Up From Individualism.”
