Michael
C. Dorf
Ithaca,
607.255.3890
email to: mikedorf@gmail.com
blog @ michaeldorf.org
Current and Previous Positions
Cornell Law School
Robert S. Stevens Professor of Law. Teaching and Research
interests
include:
Civil Procedure, Constitutional Law, Constitutional Interpretation,
Comparative
Constitutional Law, Democratic Experimentalism, Federal Courts,
and Jurisprudence.
Dewey & LeBoeuf
Special Counsel (January 2008-present). Previously served with
former Dewey
Ballentine on various constitutional and other matters, including as counsel for the Coalition for Fair Lumber
Imports,
Executive Committee, in litigation challenging the
constitutionality of the NAFTA Chapter 19 dispute resolution process.
Isidor and Seville Sulzbacher
Professor of Law (2006-2008); Michael I. Sovern
Professor of Law (2004-2006); Professor of Law (1997-2004); Vice-Dean
(1998-2002);
Associate Professor (1995-1997).
Associate Professor (1994-95); Assistant
Professor
(1992-94); Outstanding Professor of the Year Award (1993).
Law Clerk to United States Supreme Court Justice Anthony M.
Kennedy
(1991-92).
Law Clerk to Hon. Stephen Reinhardt of
Education
Scholarly Publications
Books
No Litmus Test: Law and Politics in the 21st Century (Rowman & Littlefield 2006).
Constitutional Law Stories (editor, and author of Introduction, Foundation Press 2004).
On Reading the Constitution (Harvard University Press 1991) (co-author Laurence H. Tribe).
Law Review Articles and Essays
How the Written Constitution Crowds Out the Extra-Constitutional Rule of Recognition (forthcoming as chapter in Oxford U. Press Book).
Does
Heller
Protect a Right to Carry Guns Outside the Home? (forthcoming in
symposium issue of the Syracuse Law Review).
Dynamic
Incorporation of Foreign Law (forthcoming in the University of
Pennsylvania Law Review).
The
Morality of Prophylactic Legislation (with
Special Reference to Speed Limits, Assisted Suicide, Torture, and
Detention
Without Trial) (forthcoming in Current
Legal Problems 2008 Yearbook).
Abortion Rights, 23 Touro L.
Rev. 815 (2008) (edited and footnoted transcript of oral remarks
delivered at the Nineteenth Annual Supreme Court Review session in
August 2007).
Book Review of Sanford Levinson, Our
Undemocratic Constitution: Where the
Constitution Goes Wrong (and How We the People Can Correct It)
(2006), 122(4) Political Science Quarterly 663
(2007-08).
Does Federal
Executive Branch Experience Explain Why Some Republican Supreme Court
Justices "Evolve" and Others Don't?, 1 Harvard Law & Pol'y
Review 457 (2007).
Fallback
Law, 107 Columbia Law Review 303 (2007).
The Orwellian Military
Commissions Act of
2006, 5(1) Journal
of International Criminal Justice 10 (2007).
The Detention and Trial of Enemy
Combatants: A Drama in Three Branches, 122(1) Political Science Quarterly 47
(2007), reprinted in Terrorist Attacks
and Nuclear Proliferation: Strategies for Overlapping Dangers
(Academy of Political Science 2007) (Demetrios James Caraley &
Loren Morales Kando, eds.).
Whose Ox is Being
Gored? When Attitudinalism
Meets
Federalism, 21
The Coherentism of Democracy and Distrust, 114 Yale Law Journal 1237 (2005).
Identity Politics and the Second Amendment, 73 Fordham Law Review 549 (2004).
Interpretive Holism and the Structural Method, or How Charles Black
Might
Have Thought About Campaign Finance Reform and Congressional Timidity,
92
After Bureaucracy, 71
Foreword: Problem-Solving Courts: From Innovation to Institutionalization, 40 American Criminal Law Review 1501 (co-author Jeffrey A. Fagan, 2003).
Constitutional Existence Conditions and Judicial
Review,
89
Legal Indeterminacy and Institutional Design, 78 N.Y.U. Law Review 875 (2003), republished in abridged and edited form as Problem-Solving Courts and the Judicial Accountability Deficit, Ch. 12 in Public Accountability: Designs, Dilemmas and Experiences 301-28 (Michael W. Dowdle, ed. Cambridge U. Press, 2006).
The Domain of Reflexive Law, 103
Equal Protection Incorporation, 88 Virginia Law Review 951 (2002).
A Partial Defense of an Anti-Discrimination Principle, Issues in Legal Scholarship (bepress 2002).
The Paths to Legal Equality: A Reply to Dean Sullivan, 90
Prefazione a Maurizio Oliviero, L'impeachment: Dalle Origini Inglesi All'Esperienza Degli Stati Uniti D'America (Perugia 2001) (Preface in English).
Can Process Theory Constrain Courts?, 72 University of Colorado Law Review 923 (co-author Samuel Issacharoff, 2001).
The 2000 Presidential Election: Archetype or Exception?,
99
Shared Constitutional Interpretation, 2000 Supreme Court Review 61 (co-author Barry Friedman, 2001).
The Good Society, Commerce, and the
What Does the Second Amendment Mean Today?, 76 Chicago-Kent Law Review 291 (2000), revised and reprinted as Chapter Ten in The Second Amendment in Law and History (ed., Carl T. Bogus, The New Press, 2001).
Rights and Rules: An Overview, 6 Legal Theory 241 (co-author Matthew D. Adler, Cambridge U. Press, 2000).
The Heterogeneity of Rights, 6 Legal Theory 269 (
No Federalists Here: Anti-Federalism and Nationalism on the
Drug Treatment Courts and Emergent Experimentalist Government, 53 Vanderbilt Law Review 831 (co-author Charles F. Sabel, 2000).
Be Careful What You Wish For, 16 Constitutional Commentary 505 (1999).
In Praise of Justice Blackmun: (Corrected) Typos and All, 99
Create Your Own Constitutional Theory, 87
Courts, Reasons, and Rules, Chapter Eight in Rules & Reasoning: Essays in Honour of Fred Schauer (ed., Linda Meyer, Hart Publishing 1999), reprinted in 19 Quinnipiac Law Review 483 (2000).
The Supreme Court 1997 Term -- Foreword: The Limits of Socratic Deliberation, 112 Harvard Law Review 4 (1998).
The Relevance of Federal Norms for State
Separation of
Powers, 4
God and Man in the Yale Dormitories, 84 Virginia Law Review 843 (1998).
A Constitution of Democratic Experimentalism, 98 Columbia Law Review 267 (1998) (co-author Charles F. Sabel).
Instrumental and Non-Instrumental Federalism, 28
Integrating Normative and Descriptive Constitutional Theory: The
Case of
Original Meaning, 85
Recipe for Trouble: Some Thoughts on Meaning, Translation and
Normative
Theory, 85
Truth, Justice, and the American Constitution,
97
Incidental Burdens on Fundamental Rights, 109 Harvard Law Review 1175 (1996).
A Nonoriginalist Perspective on the Lessons of History, 19 Harvard Journal of Law & Public Policy 351 (1996).
A Comment on Text, Time and Audience
Understanding in
Constitutional Law, 73
Prediction and the Rule of Law, 42 U.C.L.A. Law Review 651 (1995).
Dicta and Article III, 142 University of
Facial Challenges to State and Federal Statutes, 46 Stanford Law Review 236 (1994).
Levels of Generality in the Definition of
Rights, 57
University of
Physics Articles
Why Some Things are Darker When Wet, Applied Optics 27, 1278 (1988) (co-author John Lekner).
Matrix Methods for the Calculation of Reflection
Amplitudes, Journal of the Optical Society of America, A4, 2092 (1987)
(co-author
John Lekner).
Reflection and Transmission Ellipsometry
of a Uniform
Layer, Journal of the Optical Society of America, A4, 2096 (1987) (co-author John Lekner).
Some Potential Legal Implications of an Obama/Biden
White House: What Biden's Senate Record Reveals , FindLaw.com (Aug.
2008).
If
the Government Plans to Hold Salim Hamdan Indefinitely, Despite His
Sixty-Six Month Sentence, What Was the Point of Putting Him on Trial?, FindLaw.com (Aug. 2008).
What California's Trans Fat Ban Teaches Us About Federalism, FindLaw.com (July 2008).
The
Application for an ICC Warrant to Arrest Sudanese President Al Bashir
on Charges of Genocide: An Important But Potentially Counterproductive
Symbolic Gesture
, FindLaw.com (July 2008).
The Supreme Court's Blockbuster Second Amendment
Ruling: What the Court Resolved and What it Left Open, FindLaw.com
(June 2008).
Did
the Supreme Court Violate or Vindicate the Constitution in the Latest
Guantanamo Bay Decision? The Difference Between Separation of Powers
and Checks and Balances, FindLaw.com (June 2008).
Does
the Constitution Permit Government to Favor Religion over Nonreligion?
Justice Scalia Says Yes, FindLaw.com (June 2008).
The
California Same-Sex Marriage Ruling: What it Says, What it Means, and
Why It's Right, FindLaw.com (May 2008).
Does the Foolhardy McCain/Clinton Proposal for a "Gas Tax Holiday" Expose a More Fundamental Flaw in Democracy?, FindLaw.com (May 2008).
How the Supreme Court's Lethal Injection Ruling Elevates Appearances Over Reality, FindLaw.com (Apr. 2008).
A
Small Religion Brings a Big First Amendment Question to the Supreme
Court: When Does Private Religious Speech Become Government Speech?,
FindLaw.com (Apr. 2008).
With the Supreme Court Poised to Redefine the Right to Bear Arms, Far-Reaching Questions Loom, FindLaw.com (Mar. 2008).
Who Killed the "Living Constitution"? , FindLaw.com (Mar. 2008).
Did Justice Stevens Pull a Fast One? The Hidden Logic of a Recent Retroactivity Case in the Supreme Court, FindLaw.com (Feb. 2008).
Is
The Bush Administration Right to Seek the Death Penalty for 9/11
Captives?, FindLaw.com (Feb. 2008).
Bush's
War on Earmarks: The Right Message from the Wrong Messenger,
FindLaw.com (Jan. 2008).
When
Does Taking Account of Discrimination by Others Amount to
Discrimination Itself? A Question Posed By the Obama and Clinton
Candidacies,
FindLaw.com (Jan. 2008).
Picking
an Attorney in Chief: How the Lawyers Running for President Are
Portraying their Legal Experience in their Campaigns,
FindLaw.com (Jan. 2008).
The EPA Versus the Department of Transportation: Three
Puzzles in a Federal Court Ruling and the Pending Energy Bill,
FindLaw.com (Dec. 2007).
What's
at Stake in the Latest Guantanamo Bay Case?, FindLaw.com (Dec.
2007).
The
U.S. Court of Appeals for the Ninth Circuit Dismisses a Challenge to
Warrantless Wiretapping But Leaves Plaintiffs With a Sliver of Hope,
FindLaw.com (Nov. 2007).
Does
the First Amendment Protect Highly Offensive Speech at a Funeral and
Directed at the Deceased?, FindLaw.com (Nov. 2007).
Harry Potter and the Framers' Intent, FindLaw.com (Octt. 2007).
Does the Sexual Harassment Verdict Against Isiah Thomas and the Knicks Demonstrate the Perils of Corporate Management Unconstrained by Shareholder Democracy?, FindLaw.com (Octt. 2007).
The
Supreme Court and the Butterfly Effect, FindLaw.com (Sept. 2007).
A
Federal District Judge Holds the Amended Patriot Act Unconstitutional,
FindLaw.com (Sept. 2007).
The Sins of Alberto Gonzales, and Advice for the Next Attorney General, FindLaw.com (Aug. 2007).
The Supreme Court Wreaks Havoc in the Lower Federal
Courts--Again, FindLaw.com (Aug. 2007).
New York State Imitates the U.S.-Attorney-Firing
Standoff But With a Key Difference: An Elected Attorney General,
FindLaw.com (July 2007).
Meet
the New Federal Rules of Civil Procedure: Same as the Old Rules?,
FindLaw.com (July 2007).
The Supreme Court's Split Over Public School Integration: Who Really Betrayed Brown's Legacy?, FindLaw.com (July 2007).
The Supreme Court's Most Kafkaesque Decision: Penalizing a Criminal Defendant for Relying on a Court's Official Statement of the Due Date for His Habeas Corpus Appeal, FindLaw.com (June 2007).
Freedom
to Want, N.Y. Times (NY/Regions Opinion, June 17, 2007).
A
Mootness Dismissal Illustrates the Supreme Court's Split Personality:
Is it a Constitutional Court or a Court of Error?, FindLaw.com
(June 2007).
Google
Wins the Right to Display Thumbnails and to "Frame" Copyrighted
Material Used Without Permission: A Mostly Sensible Ruling by the Ninth
Circuit Court of Appeals, FindLaw.com (May 2007).
The President's Disingenuous Arguments Against
Expanding the Federal Hate Crime Law, FindLaw.com (May 2007).
How the Firing
of Don Imus Undermined First Amendment Values: An Analogy to Secondary
Boycotts, FindLaw.com (April 2007).
The Supreme
Court's Global Warming Ruling May
Not Slow Global Warming, But it Does Restore Some Common Sense to
Standing Doctrine, FindLaw.com (April 2007).
Al Gore May Be a Hypocrite For Living in an
Energy-Intensive Mansion, But He's Right About the Need for a Carbon Tax,
FindLaw.com (March 2007).
The FBI's
Misuse of National Security Letters Reveals the Often-False Dichotomy
Between Security and Privacy, FindLaw.com (March 2007).
A
Federal Appeals Court Upholds the Jurisdiction-Stripping Provisions of
the Military Commissions Act of 2006, But Overlooks the Possibility of
an Evolving Conception of Habeas Corpus, FindLaw.com (Feb. 2007).
Is Giuliani's Abortion Triangulation Coherent?,
FindLaw.com (Feb. 2007).
Universities Adjust to State Affirmative Action Bans: Are the New Programs Legal? Are They a Good Idea?, FindLaw.com (Jan. 2007).
The Big
News in the Rehnquist FBI File: There is None, FindLaw.com (Jan.
2007).
A
Federal Appeals Court Upholds the Government’s Seizure of Computer
Records of Major League Baseball Players’ Drug Tests,
FindLaw.com
(Jan. 2007).
The Bush Administration Wins a Round on Military Commissions, But the District Court Ruling May Have a Silver Lining for Detainees, FindLaw.com (Dec. 2006).
The Supreme Court Oral Argument in the Global Warming Case Reveals What's Wrong with the Standing Doctrine, FindLaw.com (Dec. 2006).
Chief Justice Roberts Advocates the Passive Virtues, Even as the Supreme Court's Docket Illustrates their Subtle Vices, FindLaw.com (Nov. 2006).
In a Brief, Unsigned New Opinion, the Supreme Court Sends the Wrong Signal on Voter ID and Voter Fraud, FindLaw.com (Nov. 2006).
Mark Foley's Name is on the Ballot. Should Voters Be Told That He's Not Really Running? A Florida Judge Says No, and Bush v. Gore Suggests She May Be Right, FindLaw.com (Oct. 2006).
Why the Military Commissions Act is No Moderate Compromise, FindLaw.com (Oct. 2006).
The Nation's Top Military Court Rules that a Senator Cannot Wear Two Hats: Does the Ruling Call Into Question Reserve Duty By Members of Congress?, FindLaw.com (Sept. 2006).
Can Congress Fire Rumsfeld?, FindLaw.com (Sept. 2006).
If Pluto's Not a Planet, Is Ketchup a Vegetable, a Fetus a Person, or Same-Sex Marriage an Oxymoron? Natural Kinds in Science and Law, FindLaw.com (Aug. 2006)
Joe Lieberman's Run as an Independent is Bad for the Democratic Party, But is it Good for Democracy?, FindLaw.com (Aug. 2006).
Playing With Fire: The Administration's Draft Bill on Detainees Would Violate the Geneva Conventions and Thereby Put Americans at Risk, FindLaw.com (July 2006).
A Former Client Sues Disgraced Washington Lobbyist Jack Abramoff: What the Case Reveals About American Politics, FindLaw.com (July 2006).
The Hidden -- And Obvious -- Lessons in the Supreme Court's Divided Ruling Invalidating Military Commissions, FindLaw.com (June 2006).
In the Wetlands Case, the Supreme Court Divides Over the Clean Water Act--And Seemingly Over How to Read Statutes as Well, FindLaw.com (June 2006).
The Supreme Court Finds No First Amendment Protection for Government Employee Speech Pursuant to Official Duties, FindLaw.com (June 2006).
The Indictment of the Milberg Weiss Law Firm and America's Love/Hate Relationship with Class Action Litigation, FindLaw.com (May 2006).
What the Moussaoui Sentence Teaches About "Mitigating" Evidence, FindLaw.com (May 2006).
Can the Government Limit Speech to Protect a Captive Audience? A Court Rejects a High School Student's Claimed Right to Anti-Gay Speech While Legislatures React to Offensive Protests at G.I. Funerals, FindLaw.com (April 2006).
The Supreme Court Denies Review in the Case of "Dirty Bomber" Jose Padilla, But an Unusual Troika of Justices, Including the Chief, Issues a Warning to the Government, FindLaw.com (April 2006).
A New York Appeals Court Orders the State Legislature to Fund New York City Schools . . . Or Does It?, FindLaw.com (March 2006).
Does South Dakota's New Abortion Ban Cross the Line Between "Test" Legislation and Defiance of the Supreme Court?, FindLaw.com (March 2006).
The Supreme Court's Unanimous Decision Recognizing a Religious Right to Use Hallucinogenic Tea, FindLaw.com (Feb. 2006).
What Are the Inherent Powers of the President? How the Bush Administration Has Mistaken Default Rules for Exclusive Rights, FindLaw.com (Feb. 2006).
Should Judges Testify at a Colleague's Confirmation Hearing? The Separation-of-Powers Concern Raised by the Alito Hearings, FindLaw.com (Jan. 2006).
Hell Hath No Fury Like a Conservative Justice Scorned: The Government's Overreaching in the Case of Jose Padilla, FindLaw.com (Jan. 2006).
Howard Stern Goes Into Orbit, Taking the First Amendment With Him, FindLaw.com (Dec. 2005).
What's at Stake in the Roberts Court's First Abortion Case: Surprisingly Little, FindLaw.com (Dec. 2005).
The Senate Votes to Curb Habeas Corpus Petitions by Guantanamo Bay Detainees: How the Bill Threatens the "Unwritten Constitution", FindLaw.com (Nov. 2005).
A Catholic Majority on the Supreme Court: The Good News in Judge Alito's Nomination, And a Warning, FindLaw.com (Nov. 2005).
When Sammy Met Casey, American Prospect (Nov. 2005).
A Supreme Court Order Affords Some Insight Into The Roberts Court's View of Roe v. Wade: Must Prison Officials Transport an Inmate to an Abortion Clinic?, FindLaw.com (Oct. 2005).
Stop Punting: The Supreme Court Keeps Putting off Hamdan v. Rumsfeld. It's Time to Take it on., American Prospect (Oct. 2005).
A Crash Course in Constitutional Law for Harriet Miers--and Everybody Else, FindLaw.com (Oct. 2005).
Slate Blanked: Plenty of Women Are Qualified to Serve on the Supreme Court. It's Not Clear Bush Picked One, American Prospect (Oct. 2005).
Did Houston Officials Learn Too Much From Katrina? The Salience Fallacy and What to do About it, FindLaw.com (Sept. 2005).
Does It Matter Whether John Roberts Becomes an Associate Justice, or the Chief? Why Both the President and Democratic Skeptics are Wrong to Think it Does, FindLaw.com (Sept. 2005).
Should the Law Punish Adultery? The Troubling Case of General Kevin Byrnes, FindLaw.com and same column on CNN.com (Aug. 2005).
The Five-Minute Law School: Everytying You Learn in Your First Year, More or Less, FindLaw.com (Aug. 2005).
He's No Souter, The American Prosepct Online (July 2005).
The "Nation's Second Highest Court" Upholds Military Commissions, FindLaw.com (July 2005).
Roe Reversal: Raich Minus Roe Could Equal a National Abortion Ban, The American Prospect Online (July 2005).
Should a Woman be Named to Succeed Sandra Day O'Connor? What Her Own Opinions Suggest, FindLaw.com (July 2005).
The Case of the Half-Million Dollar Typo: The Supreme Court Traps Property Owners in a Catch-22, FindLaw.com (June 2005).
In Vino Veritas? The Supreme Court's Decision on Interstate Wine Shipment Creates Some Odd Bedfellows Among the Justices, FindLaw.com (May 2005).
Why Houston Rockets Coach Jeff Van Gundy is a More Fitting Free Speech Hero than New York Times Reporter Judith Miller, FindLaw.com (May 2005).
Why Al Qaeda Conspirator Zacarias Moussaoui 's Guilty Plea Probably Won't Save His Life, FindLaw.com and CNN.com (April 2005).
Does a Transgendered Biological Male Have the Right to Use a Women's Restroom in New York City? Why a Local Gender Identity Discrimination Ban Has Become Controversial, FindLaw.com (April 2005).
How the Schiavo Federal Court Case Might Have Been Won, FindLaw.com (Mar. 2005).
Evangelicals Debate a Broadened Agenda: How Much Mixing of Religion and Politics Does the First Amendment Permit? FindLaw.com (Mar. 2005).
Thanks to a Joint Statement by Top Law Journals, Law Review Articles Will Get Shorter, But Will They Get Better?, FindLaw.com (Feb. 2005).
New York Mayor Michael Bloomberg's Response to a Same-Sex Marriage Ruling: Should Executive Officials Defend Laws They Consider Unconstitutional?, FindLaw.com (Feb. 2005).
The Supreme Court Upholds Suspicionless Dog Sniffs, FindLaw.com (Feb. 2005).
The Use of Foregin Law in American Constitutional Interpretation: A Revealing Colloquy Between Justices Scalia and Breyer, FindLaw.com (Jan. 2005).
The Justice Department's Change of Heart Regarding Torture: A Fair-Minded and Praiseworthy Analysis That Could Have Gone Still Further, FindLaw.com (Jan. 2005), reprinted as "Renouncing Torture," Chapter 16 of The Torture Debate in America 247--52 (Karen J. Greenberg, ed., Cambridge Univesity Press 2005).
Why It's Unconstitutional to Teach "Intelligent Design" in the Public Schools as an Alternative to Evolution, FindLaw.com (Dec. 2004).
When Constitutional Opportunity Knocks,
A Federal Appeals Court Rules That Universities Can Bar Military Recruiters Without Losing Federal Grant Money: A Welcome Result Based on Flawed Reasoning, FindLaw.com (Dec. 2004).
Does the Constitution Permit the Blue States to Secede? With Permission, Perhaps; Unilaterally, No, FindLaw.com (Nov. 2004).
Should Democrats Move to the Right on Cultural Issues? Lessons of the 2004 Presidential Election and the Civil Rights Movement, FindLaw.com (Nov. 2004).
Should Sinclair Management be Liable to Shareholders for Putting Politics Over Business? Why Corporate Law Alone Cannot Provide an Answer, FindLaw.com (Oct. 2004).
How Both the Bush and Kerry Plans for Medical Malpractice Reform Override the Rights of Patients--and the Interests of the States, FindLaw.com (Oct. 2004).
Have We Heard the Last of Yaser Hamdi? Why His Promise not to Sue the Government May Not be Binding, FindLaw.com (Sept. 2004).
Can Justice Truly Be Blind? Reflections on the New York Yankees, Serena Williams, and Frank Quattrone, FindLaw.com and CNN.com (Sept. 2004).
Why "Swift Boat Veterans for Truth" and other "527" Organizations Can't be Silenced, FindLaw.com and CNN.com (Sept. 2004).
Kerry Stands By His Iraq Vote, and with Bush, Against Constitutional Principles, FindLaw.com (Aug. 2004).
Is There a Constitutional Right to Sexual Privacy? Finding None, a Federal Appeals Court Upholds Alabama's Sex Toy Prohibition, FindLaw.com (Aug. 2004).
In the Event of a Terrorist Attack Affecting the Election, Who Decides Whether to Delay? What the Constitution and Federal Statutes Say, FindLaw.com (July 2004).
The Likely Impact of the 2004 Presidential Election on the Composition and Decisions of the Supreme Court, FindLaw.com and CNN.com (July 2004).
Bush Loses in the Supreme Court and America Wins (This column was published on July 1, 2004 through Project Syndicate in the following newspapers: The Miami Herald; NRC Handelsblad (Netherlands); L'Agefi (Switzerland); La Libre Belgique (Belgium); The Jordan Times (Jordan); Daily Times (Pakistan); The Straits Times (Singapore); The Nation (Thailand); El Nuevo Diario (Nicaragua); Expreso (Ecuador); Valor (Brazil); South China Morning Post (Hong Kong); and The Kazakhstan Monitor (Kazakhstan).)
Can a State Make it a Crime to Refuse to Identify Yourself to the Police? In a Narrow Ruling, the Supreme Court Says Yes, FindLaw.com and CNN.com (June 2004).
Reagan and the Courts: A Sober Assessment, FindLaw.com and CNN.com (June 2004).
What a Chinese Height Discrimination Case Says About Chinese (and American) Constitutional Law, FindLaw.com and CNN.com (May 2004).
The Supreme Court Gives Partisan Gerrymandering the Green Light--or at Least a Yellow Light, FindLaw.com (May 2004).
Rejecting the All-or-Nothing Approach in the Moussaoui Case and the Guantanamo Detainees Oral Argument, FindLaw.com (April 2004).
Can Ethnic Hatred be Eliminated by Eliminating Ethnicity? The Rwanda Experiment, FindLaw.com (April 2004).
A Federal Appeals Court Bars Release of "Partial Birth" Abortion Records, And Offers an Interesting Perspective On Privacy Rights, FindLaw.com and CNN.com (Mar. 2004).
Justice Scalia's Persuasive But Elitist Response to the Duck Hunting Controversy, FindLaw.com (Mar. 2004).
The Supreme Court's Recent Ruling that Federal Age Discrimination Law Protects the Old but not the Young: Dodging the Deeper Issue, FindLaw.com (Mar. 2004).
Three Bad Reasons--and one Very Good Reason--to Oppose a Constitutional Amendment Barring Same-Sex Marriage, FindLaw.com (Feb. 2004).
Does the First Amendment Protect Janet Jackson and Justin Timberlake? A Brief Primer on the Constitutional Law of TV Decency Regulation, FindLaw.com (Feb. 2004).
Caucuses and Democracy in Iowa and Iraq: Should Direct Elections Be Held Instead?, FindLaw.com and CNN.com (Jan. 2004).
Do Symbolic Pardons Do More Harm Than Good? The Lenny Bruce and Swiss Humanitarian Cases, FindLaw.com (Jan. 2004).
Should Foreigners Be Permitted to Make Campaign Contributions to U.S. Candidates? Surprisingly, the Answer May Be Yes, FindLaw.com (Dec. 2003).
How Should Courts Handle Frequent Filers? A Trampling Incident at a Florida Wal-Mart Highlights a Dilemma, FindLaw.com and CNN.com (Dec. 2003).
Could Justice Scalia's Affirmative Action Dissent Become a Self-Fulfilling Prophecy?, FindLaw.com (Nov. 2003) and CNN.com.
Why the Lawsuit Challenging Tennessee's "Choose Life" License Plates Should Fail, FindLaw.com (Nov. 2003).
How the Florida Legislature and Governor Have Usurped the Judicial Role in the Schiavo "Right to Die" Case, FindLaw.com (Oct. 2003).
America's Favorite Pastime Exposes a Necessary Evil in the Legal System: Harmless Error in Baseball, and in Law, FindLaw.com (Oct. 2003).
The Legal Status of the Don't-Call Registry: Sooner or Later They'll Leave You Alone, FindLaw.com and CNN.com (Sept. 2003).
The Supreme Court's Extraordinary Campaign Finance Reform Oral Argument, FindLaw.com and CNN.com (Sept. 2003).
A New Proposal to Permit Lawyers to Cite "Unpublished" Opinions: Does It Go Far Enough?, FindLaw.com (Sept. 2003).
Why Federal Law May Keep the Terminator off the Air Until After California's Recall Election: A Primer, FindLaw.com and CNN.com (Aug. 2003).
Balancing Privacy and Fair Trial Rights Against the Public's Right to Information in the Kobe Bryant Case, FindLaw.com and CNN.com (Aug. 2003).
Can Kobe Bryant Be Convicted on "He Said, She Said" Evidence Alone?, FindLaw.com and CNN.com (July 2003).
A TV Appearance by Two Supreme Court Justices Indicates How Much the Court Continues to Value Image Control, FindLaw.com (July 2003).
The Supreme Court's Divided Rulings in the University of Michigan Affirmative Action Cases: What Does it All Mean?, FindLaw.com and CNN.com (June 2003).
The Unanimous Supreme Court Decision in the Iowa Gambling Case: When is a Difference Also an Inequality?, FindLaw.com (June 2003).
How Abortion Politics Impedes Clear Thinking on Other Issues Involving Fetuses, FindLaw.com (May 2003).
The Real Threat to Second Amendment Values Isn't the Assault Weapons Ban: It's Rumsfeld's Standing Army, FindLaw.com (May 2003).
Help! Caught in an e-mail Vortex, USAToday (May 2003).
Does Federal Tort Reform Unduly Infringe on State Sovereignty?, FindLaw.com (April 2003).
A Multi-Stage Process for Post-War Iraq, FindLaw.com (April 2003).
Guiding Principles for the Loyal Opposition: Anti-War but not Anti-U.S., FindLaw.com (April 2003).
Is the War on Iraq Lawful?, FindLaw.com (Mar. 2003).
The Supreme Court Rejects Racketeering Liability for Anti-Abortion Protesters, But Fails to Admit How Close the Question Actually Was, FindLaw.com (Mar. 2003).
The Misguided Quest for Geographic Uniformity in Capital Punishment: Why It Conflicts With Constitutional Jury Trial Rights, FindLaw.com (Feb. 2003).
Why a Recent Supreme Court Copyright Ruling May Have Important Implications for Second Amendment Gun Rights As Well, FindLaw.com (Feb. 2003).
The Thirtieth Anniversary of Roe v. Wade: Was it Rightly Decided? Will it be Overruled?, FindLaw.com and CNN.com (Jan. 2003).
Is Iraq in "Material Breach" of its Obligations Under the U.N. Resolution? A Geopolitical Question, Not Simply a Legal One, FindLaw.com and CNN.com (Jan. 2003).
What's Wrong with Rankings, Within and Outside the Law--and Why They're Useful Nonetheless, FindLaw.com (Dec. 2002).
In Praise of John Rawls, the Man Who Made Moral Philosophy Respectable Again --And Whose Views Also Profoundly Informed American Legal Thought, FindLaw.com (Dec. 2002).
Ashcroft and Rehnquist Go on a Shopping Spree: The Problem with Choosing Jurisdictions and Judges Based on Predicted Results in the Sniper and Terrorism Cases, FindLaw.com (Nov. 2002).
Unsolicited Advice to Law School Applicants: With Prospects Newly Limited, Be Sure You Want to Become a Lawyer, FindLaw.com (Nov. 2002).
Eschewing Law in Favor of Force: The Problem with the Administration's National Security Strategy and U.S. Unilateralism, FindLaw.com (Oct. 2002).
Two Centuries of "Columbian" Constitutionalism, Columbia Magazine (Fall 2002), republished as chapter
22 of
Living Legacies at
Supreme Court October 2002 Term Preview--Part Two, FindLaw.com (Oct. 2002).
Supreme Court October 2002 Term Preview--Part One, FindLaw.com (Oct. 2002).
Florida Strikes Again: What the Latest Election Snafu Says About Machines and Humans, FindLaw.com (Sept. 2002).
The Story Behind the Supreme Court's Refusal to Hear a Recent Juvenile Death Penalty Case, FindLaw.com (Sept. 2002).
Who Decides Whether Yaser Hamdi, or Any Other Citizen, is an Enemy Combatant?, FindLaw.com and CNN.com (Aug. 2002).
Survey Shows Americans Believe More Measures--Especially Campaign Finance Reform--Are Needed to Respond to Corporate Accounting Scandals, FindLaw.com (Aug. 2002).
Conflicts of Interest Aren't All Bad: Lessons from the Corporate Accounting Scandals and Beyond, FindLaw.com (July 2002).
A Trial Court Ruling that the Federal Death Penalty is Unconstitutional Leaves a Key Question Unanswered, FindLaw.com and CNN.com (July 2002).
The Hidden International Influence in the Supreme Court Decision Barring Executions of the Mentally Retarded, FindLaw.com and CNN.com (June 2002).
The New Centralizers: What Bush and Bloomberg Have in Common, FindLaw.com (June 2002).
Whose Constitution is it Anyway? What Americans Don't Know About the Constitution -- And Why it Matters, FindLaw.com (May 2002).
What's Wrong with the Justice Department's New Position on the Right to Bear Arms -- And What Isn't, FindLaw.com (May 2002).
Americans' Faith in the Supreme Court--And in the Constitution: A New Survey Shows Bush v. Gore's Effect was Limited, FindLaw.com (May 2002).
Can the Legal Profession Improve its Image? Americans Believe Lawyers to be Necessary but Dishonest, Survey Finds, FindLaw.com and CNN.com (April 2002).
How a Recent Supreme Court Public Housing Decision "Exiles Compassion from the Province of Judging", FindLaw.com (April 2002).
Admitting Error and Admitting Fingerprints: Is There a Sound Factual Basis for the Law?, FindLaw.com (March 2002).
Why Congressional Power to Declare War Does Not Provide an Effective Check on the President, FindLaw.com (March 2002).
Can One Nation Arrest the Foreign Minister of Another? The World Court Says No, FindLaw.com (Feb. 2002).
A Brief History of Executive Privilege, from George Washington Through Dick Cheney, FindLaw.com (Feb. 2002).
What is an "Unlawful Combatant," and Why it Matters: The Status of Detained al Qaeda and Taliban Fighters, FindLaw.com and same column on CNN.com (Jan. 2002).
The Lower Courts Work Through a Recent Supreme Court Ruling Distinguishing Discriminatory Intentions from Discriminatory Effects FindLaw.com (Jan. 2002).
Drug Treatment Courts and Other Problem-Solving Institutions: An Idea Whose Time is Coming, FindLaw.com and same column on CNN.com (Dec. 2001).
Second Things First: Attorney General Ashcroft's Protection of the Rights of Possible Terrorists to Possess Firearms, FindLaw.com and same column on CNN.com (Dec. 2001).
The Supreme Court Considers the Latest Legislation Creating Adults-Only Zones in Cyberspace, FindLaw.com (Nov. 2001).
Ashcroft v. Oregon: Telling the States What to do in Cases of Physician-Assisted Suicide, FindLaw.com and same column on CNN.com (Nov. 2001).
Federal Court of Appeals Says the Second Amendment Places Limits on Gun Control Legislation, FindLaw.com and same column on CNN.com (Oct. 2001).
What an Auto Accident Decision Teaches About Federalism, FindLaw.com (Oct. 2001).
The Supreme Court Returns to a Changed Legal Landscape, FindLaw.com (Oct. 2001).
What Lawyers Can Do in the Wake of the Terror, FindLaw.com (Sept. 2001).
The University of Georgia Affirmative Action Ruling Poses a Fundamental Question: What is Binding Precedent?, FindLaw.com and same column on CNN.com (Sept. 2001).
How to "Think Like a Lawyer": Advice to New and Prospective Law Students, FindLaw.com (Aug. 2001).
Debate Over an ABA Legal Ethics Rule Underscores Lawyers' Competing Obligations to Keep Secret and to Disclose, FindLaw.com and same column on CNN.com (Aug. 2001).
When American States Execute Citizens of Foreign Countries: The Case of Gerardo Valdez, FindLaw.com and same column on CNN.com (July 2001).
The 2000-2001 Supreme Court Term in Review, Part II Individual Rights: How the Justices Defied Expectations, FindLaw.com, same column on CNN.com, and same column on usatoday.com (July 2001).
The 2000-2001 Supreme Court Term in Review, Part I, FindLaw.com and same column on usatoday.com (June 2001).
Confusing Ballots Versus Confusing Jury Instructions: Two Supreme Court Cases Contrasted, FindLaw.com and same column on CNN.com (June 2001).
The Supreme Court's Cell Phone Decision: An Unusual Balancing Act by the Court, FindLaw.com (May 2001).
How Reliable is Eyewitness Testimony?: A Decision by New York State's Highest Court Reveals Unsettling Truths About Juries, FindLaw.com (May 2001).
Washington Yankees in King Arthur's Court: The Supreme Court Journeys to 18th Century England to Define the Rights of 21st Century Americans, FindLaw.com (May 2001).
The Importance of Accounting for Tactical Responses to Rules: A Principle that Applies to Basketball and Campaign Finance Alike, FindLaw.com and same column on CNN.com (April 2001).
Affirmative Action Returns to the Courts: A Dilemma for the Bush Administration, FindLaw.com (April 2001).
Supreme Court 4 — Congress 0: How The Court Has Rejected Congress's View Of Civil Rights In Four Recent Cases FindLaw.com (March 2001).
Clarence Thomas's Challenge to the Rehnquist Court's Vision of Representative Government, FindLaw.com (and shorter verion on CNN.com) (March 2001).
The Supreme Court Case that Pits Free Speech Against Church-State Separation, FindLaw.com (February 2001).
The Elusive Distinction Between Withholding a Subsidy and Exacting a Penalty: The Bush Policies On Abortion And Faith-based Social Services, FindLaw.com (and shorter version on CNN.com) (February 2001).
Ashcroft, Lieberman, and the Role of Religion in Government Decisionmaking, FindLaw.com (January 2001).
Sex Discrimination at our Borders? The Supreme Court's Nguyen Case, Part I, FindLaw.com (January 2001).
Sex Discrimination at our Borders? The Supreme Court's Nguyen Case, Part II, FindLaw.com (January 2001).
Is There a Distinction Between Law and Politics? Yes, and the Bush v. Gore Decision Proves it, FindLaw.com (December 2000).
Supreme Court Pulled a Bait and Switch, Los Angeles Times (December 14, 2000) (republished on FindLaw.com).
We Need a Constitutional Right to Vote in Presidential Elections, FindLaw.com and CNN.com (December 2000).
The Cause of our Fractious Politics: Precedents for this Bitterly-Fought Election, FindLaw.com (November 2000).
The Election Dispute Poses a Familiar Problem for the Courts, FindLaw.com and CNN.com (November 2000).
Gore's Affirmative Action Versus Bush's Affirmative Access: Why Color-Blindness Still Won't Work, FindLaw.com (October 2000).
Clerkship Chaos Shows Federal Judges Are All Too Human: What's Wrong With The Current Clerk Selection Process, FindLaw.com and CNN.com (October 2000).
Bush v. Bush: How George W. Bush's Likely Supreme Court Nominees Could Undermine His Own Education Policy, FindLaw.com and CNN.com (September 2000).
A Reply to the Best Defense, FindLaw.com (August 2000).
Why the Constitution Permits a Gore-Clinton Ticket, FindLaw.com and CNN.com (July 2000).
Online Chat Re: Presidential Election and the Court, CNN.com (July 2000).
Death and Taxes, FindLaw.com and CNN.com (June 2000).
They are All Activists Now, FindLaw.com (May 2000).
What the "Partial-Birth" Abortion Case is Really About, FindLaw.com and CNN.com (April 2000).
Commentary on Race-Sensitive Admissions in Higher Education, Journal of Blacks in Higher Education (Winter 1999/2000).
Review of Scalia, A Matter of Interpretation, Common Knowledge (Fall 1998).
Splitting the Atom of Sovereignty, Harvard Law Bulletin (Fall 1995).
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Pro Bono Practice: Authored amicus curiae briefs on behalf of the AALS in Affirmative Action Case (2003) and State Legislators in Physician-Assisted Suicide Cases (1996) before United States Supreme Court; frequent consultant for Supreme Court cases.
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