Salon Series: How Rights Went Wrong with Author Jamal Greene
March 25, 2021
How is it that corporations have the right to spend unlimited sums in our elections, but a Black defendant has no right to a death penalty ruling free of racial bias? Why does a company have the right to sell private prescription data, but marginalized children don’t have the right to an adequate public education?
According to constitutional scholar Jamal Greene, it’s because our courts “flatten textured rights conflicts” into binary, all-or-nothing questions with clear winners and losers. In his new book, How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart, Greene argues that courts should reconcile competing rights, not discriminate between them. In a conversation with the Brennan Center’s Alicia Bannon, he discussed how the United States became so “rightsist,” and how we can shift this paradigm to truly ensure justice, once and for all.
This event was produced in partnership with the Brennan Center for Justice.
Jamal Greene is a constitutional law expert whose scholarship focuses on the structure of legal and constitutional argument. He teaches constitutional law, comparative constitutional law, the law of the political process, First Amendment, and federal courts.
Greene is the author of the forthcoming book, "How Rights Went Wrong: Why Our Obsession with Rights is Tearing American Apart" (HMH March 2021). He is also the author of numerous law review articles and has written in depth about the Supreme Court, about constitutional rights adjudication, and about the constitutional theory of originalism, including “Rights as Trumps?” (Harvard Law Review foreword for the 2017–2018 Supreme Court term), “Rule Originalism” (Columbia Law Review, 2016), and “The Anticanon” (Harvard Law Review, 2011), an examination of Supreme Court cases now considered examples of weak constitutional analysis, such as Dred Scott v. Sandford and Plessy v. Ferguson.
During the 2018–2019 academic year, Greene served as senior visiting scholar at the Knight First Amendment Institute at Columbia University, where he commissioned and oversaw new scholarly research relating to free speech and new communications platforms. He has been a visiting professor at Harvard Law School and has served as Columbia Law’s Vice Dean for Intellectual Life. He currently serves as co-chair of the Oversight Board, an independent body set up to review content moderation decisions on Facebook and Instagram.
Greene is a sought-after media commentator on the Supreme Court and on constitutional law. His articles have appeared in The New York Times, Slate, New York Daily News, and The Los Angeles Times. In 2019, he served as an aide to Sen. Kamala Harris (D-Ca.) during the Senate confirmation hearings of Justice Brett Kavanaugh. Before training as a lawyer, he was a baseball reporter for Sports Illustrated.
Prior to joining Columbia Law in 2008, Greene was the Alexander Fellow at New York University School of Law. He served as a law clerk to Judge Guido Calabresi on the 2nd U.S. Circuit Court of Appeals and for Justice John Paul Stevens on the U.S. Supreme Court. He is a member of the American Law Institute and sits on the Board of Academic Advisors of the American Constitution Society.
Alicia Bannon is the managing director of the Brennan Center’s Democracy Program. She leads the Center’s Fair Courts Project, where she directs research, advocacy, and litigation to promote a fair judicial system. Bannon has authored several nationally recognized reports and articles on judicial selection, access to justice, judicial diversity, and government dysfunction, and her writing has been featured in the New York Times, Atlantic, and Time, among other outlets.
Bannon was previously an adjunct professor at NYU School of Law, where she taught the Brennan Center Public Policy Advocacy Clinic, and at Seton Hall Law School, where she taught a course in professional responsibility and legal ethics. Prior to joining the Brennan Center, Bannon was a John J. Gibbons Fellow in public interest and constitutional law at Gibbons P.C. in Newark, New Jersey, where she engaged in a wide range of public interest litigation within New Jersey and nationally. Bannon was also previously a Liman Fellow and counsel in the Brennan Center’s Justice Program.
Bannon received her JD from Yale Law School. She clerked for Hon. Sonia Sotomayor in the United States Court of Appeals for the Second Circuit and Hon. Kimba M. Wood in the United States District Court for the Southern District of New York. She graduated from Harvard College summa cum laude with a degree in social studies. Prior to law school, she worked in Kenya and Uganda, managing impact evaluations of education and health interventions, and at the Center for Global Development in Washington, DC.