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Forum XXII (Spring 2022)

Rethinking Law

Going beyond constitutional jurisprudence as conventionally understood, some of today’s top legal experts consider the ways that legal thinking has bolstered—rather than corrected—injustice.


Rethinking Law

A conservative Supreme Court is poised to roll back many progressive achievements, from affirmative action to abortion. In the forum that opens Rethinking Law, legal scholars Joseph Fishkin and William E. Forbath argue that the left must stop thinking of the law as separate from politics. Instead, we must recover a lost progressive vision, a “democracy of opportunity,” that sees the public—not the judiciary—as the ultimate arbiter of what the Constitution means.

Offering a nuanced picture of the relationship between law and politics, other essays in Rethinking Law further explore the meaning of law beyond the Constitution and the courts. They look to social movements, including civil rights and LGBTQ rights, for lessons about social transformation. While contributors debate the limits of law in a vastly unequal society, they agree that it remains an essential resource for building a more just world.

Editors’ Note

Deborah Chasman & Joshua Cohen


Lead Essay: Make Progressive Politics Constitutional Again

Joseph Fishkin & William E. Forbath


Response: Up From Originalism

Andrea Scoseria Katz


Response: The Imperial Roots of the Democracy of Opportunity

Aziz Rana


Response: Not Only Looking Backward

Mark Tushnet


Response: Beyond Neoclassical Antitrust

Sanjukta Paul


Response: The Hard Questions

Kate Andrias


Final Response

Joseph Fishkin & William E. Forbath


What Movements Do to Law

Amna A. Akbar, Sameer Ashar, & Jocelyn Simonson


How Law Made Neoliberalism

Amy Kapczynski, David Singh Grewal, & Jedediah Britton-Purdy


Legislating Reproductive Justice

Rachel Rebouché


What Makes Laws Unjust?

Randall Kennedy


Queer Liberation, In and Out of the Law

Mary Bernstein


Rethinking Human Rights

Zachary Manfredi


Law for Black Radical Liberation

Paul Gowder

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