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The Derivative Nature of Corporate Constitutional Rights
(William & Mary Law Review, 2015)
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 ...
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 ...
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 ...
The Inference from Authority to Interpretive Method in Constitutional and Statutory Domains
(Cornell Law Review, 2017)
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 ...
Is the Constitution Special?
(Cornell Law Review, 2016)
"[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 ...
Economic Structure and Constitutional Structure
(Texas Law Review, 2016)
In the last four decades, the American middle class has been hollowed out, and fears are growing that economic inequality is leading to political inequality. These trends raise a troubling question: Can our constitutional ...
The Constitutional Ratchet Effect
(Cornell Law Review, 2017)
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, ...