The Fallacy of the (Racial) Solidarity Presumption

  This essay is adapted from remarks delivered in November 2018 at the annual Jorde Symposium at UC Berkeley School of Law, in response to a lecture by Professor James Forman Jr.     Mass incarceration in America is a story of race discrimination. On the one hand, this means our knowledge about discrimination helps […]

Populism, Pluralism, and Criminal Justice

The story that James Forman Jr. tells in his superb book, Locking Up Our Own,[1] is local and nuanced. Forman explains that mass incarceration resulted from many small decisions made in many different places.[2] Although all of those decisions were shaped by the legacies of racism and racial oppression, Forman shows that mass incarceration was […]

Symposium Introduction

I am honored to write an introduction to the Symposium on Professor Amanda Tyler’s brilliant historical study, Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay. Professor Tyler has unearthed and examined the details of an important but only partially understood aspect of the British and American experience. She scrupulously traces the […]

Constructive Constitutional History and Habeas Corpus Today

  In her book, Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay, Professor Amanda Tyler has written a definitive constitutional history of the habeas privilege in the United States.[1] Rather than rehearsing the book’s many virtues, I propose to devote this short Essay to the familiar yet intractable problem of historical […]

Speaking with a Different Voice: Why the Military Trial of Civilians and the Enemy is Constitutional

  The Constitution declares that the “Privilege of the Writ of Habeas Corpus” can be suspended by the federal government only “in Cases of Rebellion or Invasion [when] the public Safety may require it.”[1] Because some regard this Habeas Clause as the Constitution’s only “emergency” provision, the Clause looms large in treatments of the Constitution’s […]

Constitutional Remedies in Federalism’s Forgotten Shadow

“[F]ollowing our decision in Erie R. Co. v. Tompkins, 304 U.S. 64 [] (1938), federal courts are generally no longer permitted to promulgate new federal common law causes of action . . . .”[1] “When a party seeks to assert an implied cause of action under the Constitution itself . . . separation-of-powers principles are or should be central to the analysis. The […]

The Keyes of Constitutional Law

Before beginning law school in 2001, I knew the names of an embarrassingly small number of judicial decisions. The only case names that I readily possessed were Brown v. Board of Education, Roe v. Wade, Bush v. Gore, and a smattering of other opinions that had managed to escape the narrow confines of the legal community. I did, however, know the name of at least one relatively obscure opinion […]

The Accumulation of Disadvantages

The continued subjugation of a historically disadvantaged group is the product of policies that cut across all walks of life. Members of such a group are personally shunned, their educational opportunities are impaired, the jobs open to them are limited, and they are confined […]

Racial Justice in the Age of Diversity

It is a special honor to be here with Owen Fiss, my first-year small group professor at Yale Law School. Among the many giants of the legal academy at Yale, it is fair to say that none more powerfully motivated me to probe the law’s relationship to justice […]

Second Redemption, Third Reconstruction

In The Accumulation of Advantages, the picture that Professor Owen Fiss paints about equality during and since the Second Reconstruction is largely a picture in black and white. That makes some sense. The black/white experience is probably the most important throughline in the story of equal protection […]