Now showing items 61-70 of 94
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 ...
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 ...
The Gender of Judges
(Law and Inequality, 1986)
The breadth and variety of the topics discussed at the 1985 NAWJ Convention raise a troubling question: is there any longer a need for an association of women law judges? While a few of the discussions center around "women's ...
Justice O'Connor's Dilemma: The Baseline Question
(William and Mary Law Review, 1998)
Many commentators view City of Boerne v. Flores,' in which a divided Supreme Court struck down the Religious Freedom Restoration Act of 1993 (RFRA), as a major defeat in the battle for religious freedom in the United ...
The Founders' Unwritten Constitution
(University of Chicago Law Review, 1987)
In seeking to understand and interpret our written Constitution, judges and scholars have often focused on two related issues: how did the founding generation understand the Constitution they created, and to what extent ...
(Constitutional Commentary, 2000)
Congress should repeal 28 U.S.C. § 1332 in its entirety, abolishing diversity jurisdiction altogether.
What's Law Got to Do With It?
(Perspectives on Politics, 2004)
The authors of this fascinating study modestly disclaim its significance, yet suggest that the results prove their model a success. As a legal expert, I have a rather different perspective on the results. I look at the ...
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 ...
Selective Judicial Activism
(Georgetown Journal of Law & Public Policy, 2016)
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 ...
Republican Citizenship in a Democratic Society
(Texas Law Review, 1988)
Amy Gutmann's Democratic Education might equally well be entitled Republican Education, for its central theme is how to produce true republican citizens-citizens who possess both the ability and the motivation to participate ...