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International Law and Constitutional Interpretation: The Commander in Chief Clause Reconsidered
(Michigan Law Review, 2007)
The Commander in Chief Clause is a difficult, underexplored area of constitutional interpretation. It is also a context in which international law is often mentioned, but not fully defended, as a possible method of ...
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 ...
Putting the Law Back in Constitutional Law
(Constitutional Commentary, 2009)
Taking a cue from Professor Laurence Tribe's decision to abandon the third edition of his constitutional law treatise, the organizers of this symposium have asked us to address whether constitutional law is in crisis. I ...
Gender Justice
(Constitutional Commentary, 1989)
GENDER JUSTICE is an avowedly liberal tract on the problems of gender discrimination in our society. It seeks to provide an alternative to the visions of both conservatives and radical feminists. The book fails in its ...
The Barking Dog
(Case Western Reserve Law Review, 1996)
Professor Tushnet, and indeed many of the participants in this symposium, seem to believe that United States v. Lopez will have some lasting significance. Those participants who disagree have suggested that the case's lack ...
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 ...
Plea Bargains that Waive Claims of Ineffective Assistance - Waiving Padilla and Fry
(Duquesne Law Review, 2013)
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 ...
The Captures Clause
(University of Chicago Law Review, 2009)
The Captures Clause of the United States Constitution gives Congress the power to "make Rules concerning Captures on Land and Water." A variety of courts, scholars, politicians and others have recently cited the Clause to ...
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 ...