Books

War By Other Means: An Insider's Account of the War on Terrorism (2006)
John Yoo, the key legal architect of the Bush administration’s response to 9/11, delivers a...
 

The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11 (2005)

Since the September 11 attacks on the United States, the Bush administration has come under...

 

Constitutional Law

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Andrew Jackson and Presidential Power, Charleston Law Review (2008)
This paper examines Andrew Jackson's role in establishing the foundations of the Presidency. He is...
 

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Jefferson and Executive Power, Boston University Law Review (2008)
This paper argues that Thomas Jefferson was not the opponent of presidential power commonly assumed...
 

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The Conservative Case against the Federal Marriage Amendment (with Anntim Vulchev), Issues in Legal Scholarship (2008)
This Essay criticizes the proposed Federal Marriage Amendment as inconsistent with the principle of federalism....
 

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Making War (with Robert Delahunty), Cornell Law Review (2007)
We respond here to Unleashing the Dogs of War by Sai Prakash, which represents the...
 

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Wartime Process: A Dialogue on Congressional Power to Remove Issues from the Federal Courts (with Jesse Choper), California Law Review (2007)
Many have long debated whether Congress may strip the federal courts completely of jurisdiction over...
 

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Judicial Review and the War on Terror, Geo. Wash. L. Rev. (2007)
This article examines the role of the federal courts in the war on terrorism, and...
 

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Challenges to Civilian Control of the Military: A Rational Choice Approach to the War on Terror, UCLA L. Rev. (2007)
An overlooked gap in the legal study of national security decisionmaking is civil-military relations. Civilian...
 

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Executive Power v. International Law (with Robert J. Delahunty), Harvard Journal of Law & Public Policy (2007)
Critics of the Bush administration's conduct of the war on terrorism and the wars in...
 

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The Terrorist Surveillance Program and the Constitution, Geo. Mason L. Rev. (2007)
In response to the September 11 attacks, President Bush created the Terrorist Surveillance Program, which...
 

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Hamdan V. Rumsfeld: The Functional Case for Foreign Affairs Deference to the Executive Branch (with Julian Ku), Constitutional Commentary (2006)
The Supreme Court's decision in Hamdan v. Rumsfeld represents a radical new judicial approach to...
 

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Rational War and Constitutional Design (with Jide Nzelibe), Yale L.J. (2006)
Contemporary accounts of the allocation of war powers authority often focus on textual or historical...
 

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Who's so Afraid of the Eleventh Amendment (with Jesse Choper), Columbia Law Review (2006)
This Article argues that critics have exaggerated the impact and importance of the Eleventh Amendment...
 

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Thinking About Presidents (with Robert Delahunty), Cornell Law Review (2005)
Why are some Presidents great and others not? Does their attitude toward the Constitution have...
 

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War, Responsibility, and the Age of Terrorism, Stan. L. Rev. (2004)
This Article questions the widely-held view, expressed most clearly by John Hart Ely's War and...
 

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Peeking Abroad?: The Supreme Court's USe of Foreign Precendents in Constitutional Cases, Hawaii L. Rev. (2004)
This essay criticizes the Supreme Court's use of foreign legal precedents in constitutional cases. If...
 

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The Origins of Judicial Review (with Saikrishna B. Prakash), Boalt Working Papers in Public Law (2003)

This year marks the 200th anniversary of Marbury v. Madison, the case which is often...

 

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The President's Constitutional Authority to Conduct Military Operations Against Terrorist Organizations and the Nations that Harbor or Support Them, Harv. J. L. & Pub. Pol'y (2002)

The terrorist attacks on the United States on September 11, 2001 raised important questions concerning...

 

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War and the Constitutional Text, U. Chi. L. Rev. (2002)
This Essay, written as a response to a pro-Congress view in the war powers debate,...
 

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Foreign Affairs Federalism and the Separation of Powers, Boalt Working Papers in Public Law (2001)
This essay argues that Crosby v. National Foreign Trade Council may not portend a more...
 

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The Puzzling Persistence of Process-Based Federalism Theories, Tex. L. Rev. (2001)
The theory of the political safeguards of federalism has made a recent comeback, appearing in...
 

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Laws as Treaties? The Constitutionality of the Congressional-Executive AGreement, Michigan Law Review (2001)
This article develops a theory explaining the constitutionality of the congressional-executive agreement, an alternatve to...
 

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Choosing Justices: Once More Into the Breach, Mich. L. Rev. (2000)

After six years in mothballs, the Supreme Court appointments process likely will be returning to...

 

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Law as Treaties?: The Constitutionality of Congressional-Executive Agreements, Mich. L. Rev. (2000)
This article seeks to resolve the debate over the use of a statutory method for...
 

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The Scope of the Commerce Clause after Morrison (with Jesse H. Choper), Okla. City U. L. Rev. (2000)
This essay, a contribution to a fall symposium at the Oklahoma City University law school,...
 

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Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original Understanding, Columbia Law Review (1999)
As the globalization of society and the economy accelerates, treaties will come to assume a...
 

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Treaties and Public Lawmaking: A Textual and Structural Defense of Non-Self-Execution, Columbia Law Review (1999)
This Rejoinder responds to Professors Flaherty and Vazquez by advancing textual and structural constitutional arguments...
 

International Law

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Peace Through Law? The Failure of a Nobel Experiment (with Robert Delahunty), Michigan Law Review (2008)
Collective-security ideas that emerged from the First World War nobly sought to end the carnage...
 

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Counterintuitive: Intelligence Operations and International Law (with Glenn Sulmasy), Michigan Journal of International Law (2007)
This essay addresses proposals for international regulation of intelligence gathering activities. We show that international...
 

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Executive Power v. International Law (with Robert J. Delahunty), Harvard Journal of Law & Public Policy (2007)
Critics of the Bush administration's conduct of the war on terrorism and the wars in...
 

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Force Rules, Chicago Journal of International Law (2006)
This piece criticizes U.N. proposals to reform the international legal rules on the use of...
 

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International Law and the Rise of China (with Eric Posner), Chicago Journal of International Law (2006)
The rise of China raises questions about the future of international law. The current system...
 

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Rational War and Constitutional Design (with Jide Nzelibe), Yale L.J. (2006)
Contemporary accounts of the allocation of war powers authority often focus on textual or historical...
 

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A Theory of International Adjudication (with Eric Posner), Cal. L. Rev. (2004)
Abstract. Some international tribunals, such as the Iran-U.S. claims tribunal and the trade dispute panels...
 

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War, Responsibility, and the Age of Terrorism, Stan. L. Rev. (2004)
This Article questions the widely-held view, expressed most clearly by John Hart Ely's War and...
 

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Using Force, U. Chi. L. Rev. (2004)
This paper explores the international law governing the use of force in the wake of...
 

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Beyond Formalism in Foreign Affairs: A Functional Approach to the Alien Tort Statute (with Julian Ku), Supreme Court Review (2004)
This paper discusses the functional ability of federal courts to incorporate customary international law (CIL)...
 

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International Law and the War in Iraq, Am. J. Int'l L. (2003)
Many international legal scholars and foreign governments have argued that the recent war in Iraq...
 

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Foreign Affairs Federalism and the Separation of Powers, Boalt Working Papers in Public Law (2001)
This essay argues that Crosby v. National Foreign Trade Council may not portend a more...
 

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Laws as Treaties? The Constitutionality of the Congressional-Executive AGreement, Michigan Law Review (2001)
This article develops a theory explaining the constitutionality of the congressional-executive agreement, an alternatve to...
 

PDF

Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original Understanding, Columbia Law Review (1999)
As the globalization of society and the economy accelerates, treaties will come to assume a...
 

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Treaties and Public Lawmaking: A Textual and Structural Defense of Non-Self-Execution, Columbia Law Review (1999)
This Rejoinder responds to Professors Flaherty and Vazquez by advancing textual and structural constitutional arguments...
 

National Security

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Peace Through Law? The Failure of a Nobel Experiment (with Robert Delahunty), Michigan Law Review (2008)
Collective-security ideas that emerged from the First World War nobly sought to end the carnage...
 

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Making War (with Robert Delahunty), Cornell Law Review (2007)
We respond here to Unleashing the Dogs of War by Sai Prakash, which represents the...
 

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Wartime Process: A Dialogue on Congressional Power to Remove Issues from the Federal Courts (with Jesse Choper), California Law Review (2007)
Many have long debated whether Congress may strip the federal courts completely of jurisdiction over...
 

PDF

Counterintuitive: Intelligence Operations and International Law (with Glenn Sulmasy), Michigan Journal of International Law (2007)
This essay addresses proposals for international regulation of intelligence gathering activities. We show that international...
 

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Judicial Review and the War on Terror, Geo. Wash. L. Rev. (2007)
This article examines the role of the federal courts in the war on terrorism, and...
 

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Challenges to Civilian Control of the Military: A Rational Choice Approach to the War on Terror, UCLA L. Rev. (2007)
An overlooked gap in the legal study of national security decisionmaking is civil-military relations. Civilian...
 

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Executive Power v. International Law (with Robert J. Delahunty), Harvard Journal of Law & Public Policy (2007)
Critics of the Bush administration's conduct of the war on terrorism and the wars in...
 

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The Terrorist Surveillance Program and the Constitution, Geo. Mason L. Rev. (2007)
In response to the September 11 attacks, President Bush created the Terrorist Surveillance Program, which...
 

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Hamdan V. Rumsfeld: The Functional Case for Foreign Affairs Deference to the Executive Branch (with Julian Ku), Constitutional Commentary (2006)
The Supreme Court's decision in Hamdan v. Rumsfeld represents a radical new judicial approach to...
 

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International Law and the Rise of China (with Eric Posner), Chicago Journal of International Law (2006)
The rise of China raises questions about the future of international law. The current system...
 

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The Status of Terrorists (with James C. Ho), Va. J. Int'l L. (2003)
This paper identifies and analyzes two legal questions raised by the war against the al...
 

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International Law and the War in Iraq, Am. J. Int'l L. (2003)
Many international legal scholars and foreign governments have argued that the recent war in Iraq...
 

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War and the Constitutional Text, U. Chi. L. Rev. (2002)
This Essay, written as a response to a pro-Congress view in the war powers debate,...
 

Popular Press

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Election Was No Sweeping Mandate, Philadelphia Inquirer (2008)
 

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Who Will be a Good President, Philadelphia Inquirer (2008)
 

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Supreme Court grabbed more power in recent term, Philadelphia Inquirer (2008)
The U.S. Supreme Court's 2007-08 term had something for everybody. Liberals came away with a...
 

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The Supreme Court Goes to War, Wall Street Journal (2008)
Last week's Supreme Court decision in Boumediene v. Bush has been painted as a stinging...
 

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The Democrats' Super Disaster, The Wall St. Journal (2008)
The Democratic Party's grant of primary voting rights to superdelegates, many of them members of...