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Outlaw Blues
(Michigan Law Review, 1989-05)
Mark Tushnet's new book ("Red, White, and Blue: A Critical Analysis of Constitutional Law") is an example of how too many layers of theoretical detachment can obscure truly innovative scholarship. His fervent insistence ...
Introduction: Is the Supreme Court Failing at Its Job, or Are We Failing at Ours?
(Vanderbilt Law Review, 2016)
It is a pleasure and a privilege to write an introduction to this Symposium celebrating Dean Erwin Chemerinsky's important new book, The Case Against the Supreme Court. Chemerinsky is one of the leading constitutional ...
A Pox on Both Your Houses
(Journal of Law, Economics, and Policy, 2013)
As Erie Railroad Co. v. Tompkins celebrates its 75th anniversary, it is becoming more apparent that it is on a collision course with itself. The Court keeps trying – and failing – to sort out the tensions within the Erie ...
Normalizing Erie
(Vanderbilt Law Review, 2016)
This Article argues that the Erie doctrine should be normalized by bringing it into line with ordinary doctrines of federalism. Under ordinary federalism doctrines – such as the dormant commerce clause, implied preemption, ...
Enlightening the Religion Clauses
(Journal of Contemporary Legal Issues, 1996)
I have argued that the government may not single out any irrational beliefs for preferential treatment, nor is it required to treat alternative epistemologies as favorably as Enlightenment rationality. Both history ...
Property is the New Privacy
(Harvard law Review, 2015)
Richard Epstein’s new book, The Classical Liberal Constitution, is the latest entry in what might be called conservative foundationalist constitutional theory. The movement’s primary goal is to elevate judicial protection ...
Civic Virtue and the Feminine Voice in Constitutional Adjudication
(Virginia Law Review, 1986)
What is true of women's writing is also true of women's jurisprudence. This article contends that modern men and women, in general, have distinctly different perspectives on the world and that, while the masculine vision ...
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 ...
Separation of Powers: Asking a Different Question
(Williamn and Mary Law Review, 1989)
What I find most intriguing about Professor Casper's essay1 is its historical description of the founders' attitude not so much toward "separation of powers," but toward separation of powers "questions." In other words, I ...
Democracy's Distrust: Contested Values and the Decline of Expertise
(Harvard Law Review Forum, 2011)
This response to Professor Dan Kahan’s recent Harvard Foreword, Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law, argues that while Kahan accurately describes the contemporary “neutrality ...