Articles

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Hard or Soft Pluralism?: Positive, Normative, and Institutional Considerations of States’ Extraterritorial Powers, St. Louis University Law Journal (2007)

This article is an invited commentary to an extremely thought-provoking address delivered by Richard H....

 

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Revisiting Youngstown: Against the View That Jackson's Concurrence Resolves the Relation Between Congress and the Commander-in-Chief, UCLA Law Review (2007)

Virtually all legal analysts believe that the tripartite framework from Justice Jackson’s Youngstown concurrence provides...

 

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Was Shelley v. Kraemer Incorrectly Decided? Some New Answers (winner of the 2006 Outstanding Scholarly Paper Award from the Association of American Law Schools), California Law Review (2007)

Shelley v. Kraemer, the 1948 decision that famously forbade state courts from enforcing racially restrictive...

 

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Why the Defense of Marriage Act Is Not (Yet?) Unconstitutional: Lawrence, Full Faith and Credit, and the Many Societal Actors That Determine What the Constitution Requires, Minnesota Law Review (2006)

This Article argues that the Defense of Marriage Act (DOMA) is not unconstitutional - at...

 

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Institutional Context in Constitutional Law: A Critical Examination of Term Limits, Judicial Campaign Codes, and Anti-Pornography Ordinances, Journal of Law and Politics (2005)
 

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Modeling Constitutional Doctrine (symposium), Saint Louis University Law Journal (2005)
 

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The Surprisingly Strong Case for Tailoring Constitutional Principles, University of Pennsylvania Law Review (2005)

Many constitutional principles apply to more than one level of government. This is true not...

 

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Do Codification and Private International Law Leave Room for a New Law Merchant? (symposium), Chicago Journal of International Law (2004)
 

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Exporting the Constitution, Emory Law Journal (2004)

If a foreign government enacts a law that would be unconstitutional if passed in the...

 

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Searching for the Peaceable Kingdom (reviewing Carol Weisbrod, Emblems of Pluralism), Constitutional Commentary (2004)
 

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Should "Un-American" Foreign Judgments Be Enforced?, Minnesota Law Review (2004)

In an earlier article I demonstrated that American courts are not constitutionally precluded from enforcing...

 

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Establishment, Expressivism, and Federalism, Chicago-Kent Law Review (2003)
 

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Extraterritoriality and Political Heterogeneity in American Federalism, University of Pennsylvania Law Review (2002)

It is commonly understood that as a matter of federal law, states' substantive policies may...

 

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"Illiberal" Societal Cultures, Liberalism, and American Constitutionalism, Journal of Contemporary Legal Issues (2002)
 

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The Radical Possibility of Limited Community-Based Interpretation of the Constitution, William and Mary Law Review (2002)

This Article explores a radical method under the U.S. Constitution for devolving extraordinary political power...

 

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Multiple Authoritative Interpreters of Quasi-Constitutional Federal Law: Of Tribal Courts and the Indian Civil Rights Act, Fordham Law Review (2000)
 

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Nonformalistic Law in Time and Space (comment on Larry Alexander, Formalism Revisited), University of Chicago Law Review (1999)
 

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Our Nonuniform Constitution: Geographical Variations of Constitutional Requirements in the Aid of Community, Texas Law Review (1999)

This Article highlights an overlooked but integral aspect of American constitutional law: that some activities...

 

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The Outer Limits of Community Self-Governance in Residential Associations, Municipalities, and Indian Country: A Liberal Theory, Virginia Law Review (1998)
This Article provides a normative framework that seeks to answer the questions of when and...
 

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Rationalizing Product Liability for Prescription Drugs: Implied Preemption, Federal Common Law, and Other Paths to Uniform Pharmaceutical Safety Standards (with D. Geiger), DePaul Law Review (1996)
 

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Defrocking the Courts: Resolving 'Cases or Controversies,' Not Announcing Transcendental Truths, Harvard Journal of Law and Public Policy (1994)
 

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What Has Happened to the Common Law? -- Recent American Codifications, and Their Impact on Judicial Practice and the Law's Subsequent Development, Wisconsin Law Review (1994)
The Article documents that the general failure of the nineteenth century movement to codify American...
 

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Book Note, How Communal are Reasonable People? (critique of Stephen Macedo's Liberal Virtues: Citizenship, Virtue and Community in Liberal Constitutionalism), Harvard Law Review (1991)
 

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Case Comment, Harvard Law Review (1991)
 

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Child Custody Protection Act: Hearing on H.R. 1755 Before the Subcommittee on the Constitution of the House Committee on the Judiciary, 108th Congress, 2d Session 8-17 (testimony and prepared statement of Mark D. Rosen, Associate Professor, Chicago-Kent College of Law, on the subject of Congressional power to enact H.R. 1755) (2004)