In this Essay, I identify several shifts in focus that might further illuminate the intersection of constitutional conventions and judicial review: first, attending to the role of internal executive-branch conventions, which are distinct in important ways from settlements between the political branches that are Issacharoff and Morrison’s primary focus; second, widening the lens to include […]
Against Constitution by Convention
The Constitution emerged from a convention—a convention of the states. State popular conventions, by ratifying it, made it law. Though it was meant to “form a more perfect union,” no one could have supposed the Philadelphia Convention’s proposal was anything close to perfect. Indeed, the Constitution’s terms refute any blithe confidence in its flawlessness. Article […]
“Institutional Settlement” in a Provisional Constitutional Order
I want to press a bit on the question of what the unwritten aspects of our constitutional structure establish. Rather than a fixed legal order constructed by conventions, I want to suggest that this unwrittenness points to the provisionality of the constitutional order itself—that is, to its essentially unsettled character. This perspective raises three problems […]
Foreword: BJI/CLR Symposium on Charting a Path for Federal Judiciary Reform
A principal mission of the Berkeley Judicial Institute (BJI), which I am privileged to serve as Executive Director, is to “fill a long-standing need to establish an effective bridge between the legal academy and the judiciary.” This mission statement reflects a common perception among both legal scholars and judges that the two institutions often talk […]
The Current Challenge of Federal Court Reform
Keynoter? What a daunting assignment before this gathering! I’m reminded of President John F. Kennedy’s remark at a dinner honoring Nobel Prize winners: “This is the most extraordinary collection of talent . . . that has ever been gathered together at the White House, with the possible exception of when Thomas Jefferson dined alone.”[1] As I survey this […]
Interbranch Information Sharing: Examining the Statutory Opinion Transmission Project
In 2007, the Administrative Office of the U.S. Courts revitalized a little-known program to “foster communication” between the judicial and legislative branches, enabling federal appellate judges to send to Congress, without further comment, opinions “that describe possible technical problems in statutes.” In our view, such a program is sensible: The Judiciary is uniquely situated to […]
Resistance Lawyering
This is the story of a group of abolitionist lawyers who devoted themselves to working within a legal system that they considered to be fundamentally unjust and illegitimate. These “resistance lawyers” used the limited and unfriendly procedural tools of the hated Fugitive Slave Law of 1850 to frustrate, oppose, and, if possible, dismantle the operation […]
Confronting Mass Incarceration: Lecture from the 2018–2019 Jorde Symposium
Presented at the Brennan Center Jorde Symposium on November 1, 2018 (University of California, Berkeley) and March 14, 2019 (New York University) Introduction Thank you. It’s a real honor to be at any event that is sponsored by the Brennan Center. I read your tweets, your emails, your policy reports, and your articles […]
Three Lessons for Criminal Law Reformers from Locking Up Our Own
This essay is adapted from remarks delivered in March 2019 at the annual Jorde Symposium at NYU School of Law, in response to a lecture by Professor James Forman Jr. James Forman Jr.’s Locking Up Our Own is that rare nonfiction work that is a page turner even when you know the […]
Locking Up My Own: Reflections of a Black (Recovering) Prosecutor
These remarks were delivered in May 2019 at the annual Jorde Symposium at the New York University School of Law, in response to a lecture by Professor James Forman. I. The Past: Locking Up My Own I was a prosecutor in the District of Columbia during the era of Locking Up Our […]