The Constitutional Law of Agenda Control

Constitutional scholarship is preoccupied with questions of how state power should be constrained. The Constitution, however, not only sets the bounds of state action, it also structures the range of policy options officials may consider in the first instance and the rules that organize how these options are transformed into legally effective choices. This Article […]

The Difficulties of Democratic Mercy

In response to Dean Martha Minow’s 2014 Brennan Center Jorde Symposium Lecture, Forgiveness, Law, and Justice, 103 Calif. L. Rev. 1615 (2015), available here. Dean Martha Minow’s wide-ranging and learned Jorde lecture Forgiveness, Law, and Justice is characteristic in its unstinting ambition. The lecture does not merely sweep in complex normative and empirical questions concerning […]

Structural Constitutionalism as Counterterrorism

During the past decade, federal courts have adjudicated proliferating challenges to novel policy responses to terrorism. Judges often resolve the individual rights and statutory interpretation questions implicated in those controversies by deploying presumptions or rules of thumb derived from the Constitution’s Separation of Powers. These “structural constitutional presumptions” serve as heuristics to facilitate adjudication and […]

When Was Judicial Self-Restraint

This Essay responds to Judge Posner’s Jorde Symposium Essay The Rise and Fall of Judicial Restraint by analyzing the question of when, if ever, has judicial self-restraint thrived in the federal courts. Its central aim is to shed historicizing light on the trajectory of judicial activism by imaginatively rifling through an array of canonical and […]