Constitutional Constraints

The main ambition of “Constitutional Constraints” is to open up the subject of constitutional constraints on government officials, including Presidents and Supreme Court Justices, as a topic for discussion within the field of Constitutional Theory. The subject has so far received little comprehensive discussion in the law reviews, in part because of a division between […]

Ideology and Exceptionalism in Intellectual Property: En Empirical Study

This article investigates the relationship between ideology and judicial decision-making in the context of intellectual property. Using data drawn from Supreme Court intellectual property cases decided in between 1954 and 2006, the authors show that ideology is a significant determinant of cases involving intellectual property rights: the more conservative a judge is, the more likely […]

A Tale of Two Lochners: The Untold History of Substantive Due Process and the Idea of Fundamental Rights

This article challenges the standard narrative of the Lochner era by challenging one of its most basic assumptions: that the idea of right existing at the beginning of the twentieth century was the modern notion of right-as-trump. Precisely the opposite view prevailed during the first two decades of the century: rights could easily be trumped […]

Out of the Shadows: Preventive Detention, Suspected Terrorists, and War

Unlike many other developed (and developing) nations, the United States does not have a statute authorizing preventive detention without charges. U.S. law has no formal statutory mechanism by which such a person could be detained. Some have suggested that this is a potentially profound defect in our national security armature. Indeed, had a rational preventive […]

Yellow by Law

Over the past decade, scholars have paid increasing attention to Japanese-American constitutional history. For the most part, this literature focuses on the government’s decision during World War II to intern people of Japanese ancestry. But the trope of the Japanese as perpetual foreigners predates internment. My aim in this Article is to explore another historical […]

Citizenship, Organizational Citizenship, and the Laws of Overlapping Obligations

The article reveals a deep ambivalence in the law about the role of individual dissent within public and private settings and offers a way to reconcile the conflicting demands of organizational loyalty and legal compliance. It describes the vast inconsistencies that currently exist in the laws of private sector wrongful discharge, public employee First Amendment […]

Warrantless Wiretapping, FISA Reform, and the Lessons of Public Liberty: A Comment on Holmes’s Jorde Lecture

The Jorde Lecture by Holmes burns with the light of clear analysis and calm rationality. In this Essay, I wish to build on it through consideration of its model of “public liberty.” In particular, I discuss how private liberty, and in particular, information privacy, has an important role, indeed is a precondition, for public liberty. […]

Philosophy and the Politics of Unreason

Stephen Holmes has presented a lecture full of good ideas and genuine common sense. If I were in a position to hire him as Deputy Secretary of State for Policy and Planning, I would. Over the past few years, he has produced a number of pieces that identify the errors and dangers in arguments made […]

The Perilous Dialogue

The security or freedom framework fails to capture the single most important characteristic of counterterrorist law: increased executive power that shifts the balance of power between the branches of government. At each point where the legislature would be expected to push back””at the introduction of the measures, at the renewal of temporary provisions, and in […]

In Case of Emergency: Misunderstanding Tradeoffs in the War on Terror

Emergency-room personnel are acutely aware of the serious risks posed by excessive delay. Understanding the need for immediate and unhesitating action, they nevertheless routinely consume precious time to follow protocols drilled into them and practiced in advance. Why do they do this? They do it, quite obviously, to minimize the risk of making fatal but […]