Race and law scholars almost uniformly prefer antisubordination to anticlassification as the best way to understand and adjudicate racism. In this short Essay, we explore whether the antisubordination framework is sufficiently capacious to meet our present demands for racial justice. We argue that the antisubordination approach relies on a particular conception of racism, which we call…

This Article offers an empirical account of felon disenfranchisement and legal financial obligations in the era of mass incarceration. It focuses on a 2018 ballot initiative, known as Amendment 4, which sought to end lifetime disenfranchisement in Florida. At the time, the Republican controlled state accounted for more than a quarter of the six million…

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…

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…

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…

We are told that we live in the era of textualism. Inspired by the commanding presence of Justice Antonin Scalia, many accounts of American constitutional law focus on, and stress the preeminence of, the written word. On this view, the contractual sense of the constitution as a defined pact means that the intentionality of the original…

Part I of this Article discusses the problems circuit splits pose and how the circuit courts’ growing caseloads, combined with the Supreme Court’s shrinking docket, are perpetuating the potential for increasing circuit splits. Part II discusses the informal en banc procedures currently in place in the courts of appeals. Part III provides an overview of…

In their article in this issue, Professors Peter Menell and Ryan Vacca describe a federal court docket that is overloaded and unable to process cases efficiently. This article first considers whether the problems Menell and Vacca describe on the civil side afflict criminal litigation to the same extent. On the assumption that the problems in…

Like other supervisory lawyers, federal judges have twin responsibilities. They must comport with ethical and professional rules that govern their own behavior while simultaneously monitoring other attorneys to ensure they are not violating similarly controlling rules. The judicial robe, however, adds an extra dimension of responsibility in the trial oversight process…

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…

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.” As I survey this…

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

Mass incarceration in America is a story of race discrimination. On the one hand, this means our knowledge about discrimination helps explain why our criminal system looks the way it does. On the other hand, mass incarceration can also teach us something profound about the nature of discrimination itself. In Locking Up Our Own, James Forman Jr. does a masterful job excavating, analyzing…

I was a prosecutor in the District of Columbia during the era of Locking Up Our Own. I was a trial attorney in the U.S. Department of Justice in the early 1990s. Most of my work was in the Public Integrity Section at Main Justice, but for approximately one year I was detailed to the misdemeanor section of the U.S. Attorney’s Office for the District of Columbia. The U.S. Attorney’s Office serves as the…

James Forman, Jr.’s Locking Up Our Own is that rare nonfiction work that is a page turner even when you know the ending. That is the product of exceptional writing, meticulous historical research, and the deep empathy of the author that gives the book its voice throughout. That is why it was both a worthy recipient the Pulitzer Prize and a feature on The Daily Show with Trevor Noah. It is as…

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 in the Atlantic. You are a vital institution. Thank you for doing the work that you are doing. I had a chance to spend some time with Tom Jorde earlier this afternoon, and Tom, I want to tell you how much I appreciate you putting your name…

“[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 . . . .” “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 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.” Because some regard this Habeas Clause as the Constitution’s only “emergency” provision, the Clause looms large in treatments of the Constitution’s…

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. Rather than rehearsing the book’s many virtues, I propose to devote this short Essay to the familiar yet intractable problem of historical translation…