This essay addresses the growing use and enforcement of terms in plea agreements by which a defendant waives his right to attack his plea agreement on the basis of constitutionally deficient representation during negotiations ...

This Article engages the two hundred year history of corporate constitutional rights jurisprudence to show that the Supreme Court has long accorded rights to corporations based on the rationale that corporations represent ...

Constitutional interpretation, and thus constitutional doctrine, is inevitably controversial. Judges, scholars, lawyers, politicians, and the American public all disagree among themselves, not only about the correct ...

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 ...

This Essay, written for a symposium asking “Is the Rational Basis Test Unconstitutional?,” defends the bifurcated-scrutiny approach of Carolene Products and its famous footnote four. A growing cadre of conservative and ...

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, ...

As part of symposium on Richard Epstein’s new book, The Classical Liberal Constitution, this article points out that his purportedly historical approach is actually present-oriented, which undermines two particular parts ...

"[W]e must never forget, that it is a constitution we are expounding.” If there was such a danger when Chief Justice John Marshall wrote those words, there is none today. Americans regularly assume that the Constitution ...

Christopher Serkin and Nelson Tebbe take an inductive and empirical approach to constitutional interpretation and elaboration. They ask whether attributes of the Constitution justify interpretive exceptionalism--that is, ...

Should courts interpret the Constitution as they interpret statutes? This question has been answered in a wide variety of ways. On the one hand, many scholars and jurists understand constitutional and statutory interpretation ...