Trumping Precedent With Original Meaning: Not As Radical As It Sounds

Originalism was thought to be buried in the 1980s with critiques such as those by Paul Brest and Jeff Powell. Brest charged that originalism was unworkable, while Powell maintained that originalism was inconsistent with the original intentions of the Founders. Others raised the moral challenge of why we should be ruled by the dead hand of the past. Yet an originalist approach to interpretation has-like a phoenix from the ashes or Dracula from his grave, depending on your point of view-survived into the Twenty-first Century as an intellectual contender. Indeed, it has thrived like no other approach to interpretation

Taking Problem Solving Pedagogy Seriously: A Response to the Attorney General

Attorney General Janet Reno has taken seriously the notion that lawyers should make the world better than they find it, that problems should be prevented, where possible, before they occur, and that law should serve the needs of the people and deliver long-term justice. I want to suggest some concrete ways in which we can take her challenges seriously

Constitutional Law Casebooks: A View From the Podium

A Review of Constitutional Law: Cases and Materials by Edward L. Barrett, and Constitutional Law: Principles and Policy by Jerome A. Barron and C. Thomas Dienes, and The Process of Constitutional Decisionmaking by Paul Brest, and Constitutional Law--Cases ad Other Problems by Paul A. Freund, Arthur F. Sutherland, Mark DeWolf Howe and Ernest J. Brown, and Constitutional Law: Cases and Materials by Gerald Gunther, and Constitutional Law: Case and Materials b Paul Kauper and Francis Beytagh, and Constitutional Law: Cases--Comments--Questions by William B. Lockhart, Yale Kamisar, and Jesse H. Choper

Real Results: Why Strategic Philanthropy is Social Justice Philanthropy

The crises affecting our nation and the world have prompted philanthropists to become more organized, focused and, perhaps above all, "strategic" in their efforts. The movement toward "strategic philanthropy" has already contributed to greater philanthropic effectiveness. Yet, despite important contributions to education, health, the arts and the environment, it is clear that philanthropy's ultimate impact is still limited. Great disparities along the lines of race, gender, class and other identity markers persist and, in some cases, are even exacerbated.This suggests that something is missing from our sector's understanding of what makes for truly strategic and effective philanthropy:A clear understanding of one's goals includes not only the desired impact but also identifies who will benefit (or not) and how.A commitment to evidence-based strategy cannot ignore the tangible, positive impact -- and often the necessity -- of influencing public policy.Keeping a philanthropic strategy on course requires the input of those who stand to gain or lose the most from grantmaking: the grantees and the communities they serve.Truly strategic philanthropy is social justice philanthropy

Just Like a Tree Planted by the Waters, I Shall Not Be Moved : Charles Ogletree, Jr., and the Plain Virtues of Lawyering for Racial Equality

It was a moment of unbelievable risk, a precipice of career suicide, a decision that would challenge the careful planning of more timid lawyers. His wife urged caution; a Harvard colleague explored back channels with the Senate Judiciary Committee to telegraph warning to him of unseen torpedoes that might lie in his path. Even he hesitated in the face of the immediate demands of the substantial scholarly writing required to earn tenure at Harvard. Yet, at the end of the day of October 10, 1991, Charles Ogletree, Jr., known as Tree to his friends, chose to step into a role for which he is now most remembered: counsel to Professor Anita Hill during her testimony about Judge Clarence Thomas\u27s inappropriate sexual behavior when she worked for him as a government lawyer. It was a defining choice that made visible to the world the deep character traits that have made Tree a well-loved and respected figure in the legal academy, a fixture on the front lines of the legal fight for racial equality. This Essay is a personal reflection on the character traits and public commitments to racial equality that I have observed since I first learned who Charles Ogletree was

How Far Have We Come? Foundation CEOs on Progress and Impact

The performance of major U.S. foundations is much discussed and debated. It is also very difficult to gauge. The past decade or so has seen increased interest and effort related to the question of how foundations are doing, and how they might do better. These questions are not new. The earliest major American philanthropists were interested in answering them. But recent years have seen an uptick in at least the discussion of these issues.Indeed, our organization, the Center for Effective Philanthropy (CEP) has focused much energy on this issue, and we have noted how uniquely challenging assessing foundation performance can be. Among the challenges are the difficulty of drawing a causal link between what a foundation funds and change on the ground, the extended time horizons associated with making progress on the difficult issues foundations often address, and the fact that information from different program areas cannot be easily aggregated using some common measure. There is no universal measure -- no easy analog to return on investment -- for foundations.So what conclusion do foundation leaders draw about their success? Brest and others suggest that, "philanthropy remains an underperformer in achieving social outcomes."6 Do foundation CEOs agree? How much progress do they believe foundations have made?In January 2013, we sent surveys to 472 full-time CEOs leading U.S.-based foundations that give at least $5 million annually in grants; 211 CEOs completed the survey for a 45 percent response rate. The survey was designed to collect data on CEOs' understanding of progress and their attitudes and practices in relation to foundation impact. This research was not meant to serve as an objective evaluation of how much progress foundations have made through their work

Foundation Chief Executives as Artful Jugglers

Hundreds of thousands of books have been written about business leadership, with new titles coming out each year. There is a growing literature about what it takes to build and lead high-performing nonprofit organizations, and a trove of research and writing exists on military and political leadership. Precious little has been written, however, about what it takes to successfully lead a philanthropic organization. While a number of good books about philanthropy have been published lately, each touches only lightly on the subject of leadership, and none focus much attention on the role of the CEO. A recent National Center for Family Philanthropy report about the role of the CEO in a family foundation context makes an important descriptive contribution to the field, but there is room for more research and insight into what it takes to be a successful foundation CEO. In the past two decades, the number of foundations in the United States alone has more than tripled, rising from about 32,000 foundations in 1990 to approximately 115,000 today. Given the proliferation of foundations, and the hundreds of billions of dollars in assets that foundations control, it is essential to ask: What makes foundation CEOs successful? What makes them fail

Turning the Table on Assessment: The Grantee Perception Report

This book chapter describes the origins of the GPR, illustrates lessons learned, and provides examples of changes made by foundations that have used this tool. It also reports on some of the broadly applicable insights gained from CEP's large-scale surveys of grantees. (This material is excerpted from the Grantmakers for Effective Organizations (GEO) book, A Funder's Guide to Organizational Assessment.