Lectures

Madison Lecture

In this Madison Lecture, Judge Martha Craig Daughtrey addresses the evolution of the women’s rights movement and the Equal Rights Amendment (ERA). Judge Daughtrey traces the history of the ERA from its passage by Congress through its eventual failure during the state ratification process, and considers the parallel development of an equal rights jurisprudence based on the Equal Protection Clause of the Fourteenth Amendment, particularly noting the successes of Justice Ruth Bader Ginsburg in arguing cases before the Supreme Court. After examining this jurisprudence, as well as ensuing changes in social mores and the composition of the Court Judge Daughtrey asks whether a renewed effort to pass and ratify the ERA is necessary.

Lord High Chancellor, United Kingdom of Great Britain and Northern Ireland.

Madison Lecture

In this James Madison Lecture series, the Lord Chancellor, Lord Irvine of Lairg, observes that the American system of constitutional supremacy and judicial review shares many common features with the British unwritten constitution’s emphasis on parliamentary sovereignty without judicial review. While the two systems are often described as polar opposites, Lord Irvine argues that both operate in a context of democratic government and translate substantially identical commitments to popular sovereignty into distinct, yet related, approaches to constitutionalism.

Madison Lecture

In this James Madison Lecture, Justice Breyer presents an approach to constitutional interpretation that places considerable weight upon the consequences of judicial decisionmaking. Eschewing an approach that relies solely on language, history, tradition, and precedent, Justice Breyer uses five contemporary examples to demonstrate how his concept of “consequential” constitutional interpretation might work in practice. Justice Breyer argues that this approach is more faithful to the principles that animated our Founding Fathers, encourages greater public participation in our democratic government, and would create a constitutional system that better promotes governmental solutions consistent with community needs and individual dignity.

Madison Lecture

Americans have fiercely debated the proper role of Article III courts in our constitutional system ever since Chief Justice John Marshall declared in Marbury v. Madison that it is “emphatically the province and duty of the judicial department to say what the law is.”‘ This debate often has focused on Supreme Court decisions involving some of our nation’s most historic events: the Court’s 1873 evisceration of the Fourteenth Amendment’s Privileges or Immunities Clause, its use of substantive due process to strike down progressive legislation at the turn of the century, its invalidation of key New Deal programs, and its opinion in Roe v. Wade are but a few of the decisions that have reignited the controversy over the meaning and risks of “judicial activism.”

Challenges to an independent judiciary are not unique to our time, but recent events have highlighted the difficulties facing a branch that can neither enforce its own decisions nor fund its own operations. In this installment of the annual William J. Brennan, Jr. Lecture on State Courts and Social Justice, I recount my state’s pragmatic approach to securing the institutional independence of its judiciary. To shore up the independence of the Western world’s largest court system, California began by making sweeping structural changes. In this Lecture, I discuss three of these structural reforms in detail: shifting of funding responsibilities from the counties to the state, transfer of ownership of local courthouse facilities to the state, and consolidation of different trial court levels into a single, unified whole. These changes have drastically increased the institutional independence of California’s judiciary and helped to solidify its status as coequal to its sister branches. I further argue that these basic structural changes also bear the promise of greater decisionmaking independence for judges in the state of California.

Madison Lecture

In this speech delivered for the annual James Madison Lecture, the Honorable Diane Wood tackles the classic question of whether courts should interpret the United States Constitution from an originalist or dynamic approach. Judge Wood argues for the dynamic approach and defends it against the common criticisms that doing so allows judges to stray from the original intent of those who wrote the Constitution or take into consideration improper foreign influences. She argues the necessity of an “unwritten Constitution” since a literalist approach to interpretation would lead to unworkable or even absurd results in the modern context, and since restricting constitutional interpretation to literal readings would mean that the Constitution has outlived its usefulness. Judges may “find” unwritten constitutional rules by using evolving notions of a decent society to interpret broad constitutional language broadly; acknowledging that certain liberties are so fundamental that no governmental entity may deny them; acknowledging that much of the Bill of Rights applies to states through selective incorporation; and inferring principles from the structure of the Constitution and pre-constitutional understandings.

Brennan Lecture

In this speech delivered for the annual Justice William J. Brennan, Jr. Lecture on State Courts and Social Justice, the Honorable Randall T. Shepard examines the growing role of state supreme courts in remaking the American system of justice. The vast size of the state court system, the flexibility of state rulemaking authority, and recent changes in the way state courts are financed have placed these high courts at the forefront of efforts to administer and reform their states’ court systems. Chief Justice Shepard explores three major areas of court reform led by state supreme courts. First, state high courts have reformed the American jury by making it more inclusive and representative, and by improving its decisionmaking capabilities. Second, these courts have implemented new initiatives to ensure equal access to justice by providing legal assistance to low-income individuals in civil cases, creating pro bono programs, and assisting pro se litigants. Third, state supreme courts have fostered equal opportunity by addressing bias and disparate treatment within the court system, and by working to ensure that the legal profession itself is open to all people. Finally, Chief Justice Shepard describes a range of other ways in which state supreme courts have been remaking their states’ court systems, from creating specialized courts to training judges in the sciences. In a profession that is fond of tradition and slow to change, many of these reforms could only proceed with leadership from state high courts.

Madison Lecture

In the New York University School of Law’s annual James Madison Lecture, Judge Pierre N. Leval discusses the increasing failure of courts to distinguish between dictum and holding. Although not opposed to the use of dictum to clarify complicated subject matter and provide guidance to future courts, Judge Levalconsidered precedent. Judge Leval further argues that the Supreme Court’s new command in Saucier v. Katz that, before dismissing a constitutional tort suit by reason of good faith immunity, a court must first declare in dictum whether the alleged conduct violates the Constitution, is particularly ill-advised.

Brennan Lecture

In this speech delivered for the annual Justice William J. Brennan, Jr., Lecture on State Courts and Social Justice, Leah Ward Sears, Chief Justice of the Georgia Supreme Court, reflects upon the state and significance of marriage as we head into the twenty-first century. Chief Justice Sears calls attention to social science evidence that shows that the health of the institution of marriage is directly related to the health of our children and communities. Yet today, alarming numbers of children do not have the support of two married parents in the home. Single parenthood, divorce, and cohabitation are at all-time highs, and a great many of these families are failing. Through a review of social science evidence, Chief Justice Sears shows the far-reaching implications that family fragmentation, a potentially self-perpetuating phenomenon, can have for judicial backlog, child well-being, and community health. She unearths an opportunity gap that renders children from fragmented families less likely to succeed and communities where marriage is the exception more prone to violence and crime. Given these dramatic family transformations and their implications, Chief Justice Sears discusses how society, through its laws, should respond. Emphasizing the emotional, financial, and social benefits flowing to children and communities from marriage, Chief Justice Sears suggests dedicating a renewed vigor to exploring ways that law can promote the benefits of marriage. While she cautions that these changes should not be implemented to the detriment of existing legal policies that protect and support children regardless of the family form they are born into, she challenges society to renew its commitment to marriage in this country, thereby manifesting the United States’ commitment to principles of equality and opportunity for all children.

Madison Lecture

Henry J. Friendly was one of the nation’s preeminent appellate judges. Judge Michael Boudin, once a law clerk to Judge Friendly, describes Judge Friendly’s career and judicial outlook in the New York University School of Law’s annual James Madison Lecture. Drawing upon Judge Friendly’s constitutional writings and decisions, the lecture touches upon Friendly’s gifts of mind, energy, and writing ability, and certain of his judicial characteristics: his attitude toward precedent and other constraints, his practical judgment, his intellectual rigor, and his essential moderation.