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The Brennan Center Jorde Symposium is an annual event created in 1996 to sponsor top scholarly discourse and writing on issues central to the legacy of Justice William J. Brennan, Jr.

2018–2019

Lecturer: James Forman Jr., Yale Law School, “Locking Up Our Own: Crime and Punishment in Black America”   

James Forman Jr. NYU Jorde Symposium ©Kahn: Courtesy of NYU Photo Bureau

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. 

Additional participants: 

  • Devon Carbado, UCLA School of Law 
  • L. Song Richardson, University of California Irvine Law School
  • David Sklansky, Stanford Law School 
  • Rachel Barkow, NYU School of Law 
  • Paul Butler, Georgetown Law 

 

James Forman panel discussion Jorde Symposium ©Kahn: Courtesy of NYU Photo Bureau
Paul Butler, James Forman Jr., and Rachel Barkow

Previous Jorde Symposium events appear below in reverse chronological order.


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: 


2016–2017 

Lecturer: Heather Gerken, “Federalism 3.0”

Berkeley Law School and NYU School of Law 

Heather Gerken at Jorde Symposium

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: 

Heather Gerken at Jorde Symposium

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. 

Justice Stephen Breyer at Jorde Symposium

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: 

Justice Stephen Breyer at Jorde Symposium at Yale

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: 


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: 


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. 

Lawrence Lessig at Jorde Symposium

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: 

 


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: 


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: 


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: 


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: 


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: 


    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: 


    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: 


    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: 


      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: 


      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: 


      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: 


          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: 


          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: 


            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: