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Hard Cases Make Good Judges
(Northwestern University Law Review, 2004)
Not every constitutional case requires recourse to first principles, and indeed, most require more subtlety than such recourse can produce. The Rehnquist Court's free speech cases provide an example of the benefits of a ...
Pick a Number, Any Number: State Representation in Congress After the 2000 Census
(California Law Review, 2002)
In this essay, Professors Edelman and Sherry explain the mathematics behind the allocation of congressional seats to each state, and survey the different methods of allocation that Congress has used over the years. Using ...
Logic Without Experience: The Problem of Federal Appellate Courts
(Notre Dame Law Review, 2006)
Conventional wisdom holds that federal jurisdiction is contracting and district court discretion is expanding. This Article argues that the conventional wisdom is wrong, and that the true doctrinal trends do not bode well ...
Overruling Erie: Nationwide Class Actions and National Common Law
(University of Pennsylvania Law Review, 2008)
In this essay, part of a symposium on the Class Action Fairness Act, I argue that CAFA should be read as having overruled Erie Railroad Co. v. Tompkins as applied to the nationwide class actions that fall within CAFA's ...
The Unmaking of a Precedent
(Supreme Court Review, 2003)
How far can you stretch precedent before it breaks? The 2002 Term suggests that some Justices seem to think that treating precedent like silly putty is preferable to acknowledging that it might be in need of revision. But ...
Judges of Character
(Wake Forest L. Rev., 2003)
For forty years, legal academics have been lost in a wilderness born of the countermajoritarian difficulty. Despite a two-century pedigree, we are still arguing about the legitimacy of judicial review and asking whether ...
Too Clever By Half: The Problem with Novelty in Constitutional Law
(Northwestern University Law Review, 2001)
As Robert Bennett's article illustrates, the "counter-majoritarian difficulty" remains--some forty years after its christening--a central theme in constitutional scholarship. [See Robert W. Bennett, "Counter-Conversationalism ...
Politics and Judgment
(Missouri Law Review, 2005)
Two hundred years after its most famous invocation in Marbury v. Madison, judicial review has apparently lost its luster. Despite its global spread, it is in disrepute in its country of origin. The mainstream American ...
Haste Makes Waste: Congress and the Common Law in Cyberspace
(Vanderbilt Law Review, 2002)
Every time a new technology creates legal problems, we face in a particular context the general question of relative institutional competence. Do we turn first to the judiciary, allowing time for a gradual solution derived ...
Warning: Labeling Constitutions May Be Hazardous to Your Regime
(Law and Contemporary Problems, 2004)
What do the following cases have in common? In Boy Scouts of America v. Dale,2 the Court upheld the right of a private organization to ignore a generally applicable state statute prohibiting discrimination on the basis of ...