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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 ...
Introducing New Voices
(Journal of Law, 2014)
Students rarely have the time to repackage last semester's research for submission to law reviews. Even if they do, law reviews are loathe to publish work submitted by students. Publication in a peer-reviewed journal is ...
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, ...
Democratic Education
(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 ...
The Ghost of Liberalism Past
(Harvard law Review, 1992)
We the People is an ambitious book by one of our best constitutional theorists. Part one of a projected three-volume series, it aims at nothing less than a re-envisioning of American constitutional history and promises a ...
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 ...
Speaking of Virtue: A Republican Approach to University Regulation of Hate Speech
(Minnesota Law Review, 1991)
There is a disturbing new trend among American universities. Many universities, both public and private, are adopting regulations that punish what is commonly called '"hate speech." Hate speech is expression that is ...