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…

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 evolution of the writ of…

At Yale Law School, I had the great fortune of studying with Owen Fiss, who provided a riveting introduction to constitutional law. He encouraged me to go into teaching at a time when there were scarcely any women on the faculty at Yale. His work on antisubordination—the group-disadvantaging principle—orients much of my work on inequality…

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…

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…

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…

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…