Articles

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Judicial Discretion in Constitutional Cases, Journal of Law & Politics (2011)

A damaging dichotomy is hindering the nation’s ability to talk intelligently and constructively about the...

 

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Instrumentalizing Jurors: An Argument Against the Fourth Amendment Exclusionary Rule, Fordham Urban Law Journal (2010)

In this symposium contribution, I argue that (1) courts infringe on jurors' deliberative autonomy in...

 

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Sodom's Shadow: The Uncertain Line Between Public and Private Morality, Hastings Law Journal (2010)

In citizens’ debates about issues of public policy, we frequently encounter what this Article calls...

 

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The Vitality of the American Sovereign, Michigan Law Review (2010)

In this book review, I examine Christian Fritz's "American Sovereigns: The People and America's Constitutional...

 

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Counsel and Confrontation, Minnesota Law Review (2009)

Responding to the Court’s recent reworking of its confrontation jurisprudence, I argue that, under the...

 

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The Myth of the Written Constitution, Notre Dame Law Review (2009)

Many Americans have long subscribed to what this Article calls the myth of the written...

 

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Popular Constitutionalism and Relaxing the Dead Hand: Can the People Be Trusted?, Washington University Law Review (2008)

A growing number of constitutional scholars are urging the nation to rethink its commitment to...

 

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The Immoral Application of Exclusionary Rules, Wisconsin Law Review (2008)

In both civil and criminal cases today, judges routinely withhold relevant evidence from jurors, fearing...

 

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State Habeas Relief for Federal Extrajudicial Detainees, Minnesota Law Review (2007)

I argue that the Court’s nineteenth-century rulings in Ableman v. Booth and Tarble’s Case marked...

 

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The Emotional Juror, Fordham Law Review (2007)

Addressing the dichotomy often drawn between emotions and rationality, I argue that, while emotions sometimes...

 

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Killing Roger Coleman: Habeas, Finality, and the Innocence Gap, William and Mary Law Review (2007)

For the past fifteen years, the execution of Roger Coleman has served as perhaps the...

 

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Choosing a Chief Justice: Presidential Prerogative or a Job for the Court?, The Journal of Law & Politics (2006)

After identifying the original rationales for our longstanding tradition of permitting the President and Senate...

 

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Our Anticompetitive Patriotism, U.C. Davis Law Review (2006)

In this article, I contend that the nation’s seemingly exclusive claim to citizens’ patriotism significantly...

 

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The Mobility Paradox, The Georgetown Law Journal (2004)

Nearly half a century ago, in an article spanning a mere nine pages, Charles Tiebout...

 

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Competing for the People's Affection: Federalism's Forgotten Marketplace, Vanderbilt Law Review (2003)

Returning to forgotten themes in the Federalist Papers, the article argues that the state and...

 

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Federal Habeas Relief and the New Tolerance for "Reasonably Erroneous" Applications of Federal Law, Ohio State Law Journal (2002)

In Williams v. Taylor and Ramdass v. Angelone, the United States Supreme Court confronted one...

 

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Evidentiary Relevance, Morally Reasonable Verdicts, and Jury Nullification, Iowa Law Review (2001)

In Old Chief v. United States, the Supreme Court stated that evidence offered by the...

 

Unpublished Papers

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Judicial Retention Elections, the Rule of Law, and the Rhetorical Weaknesses of Consequentialism, ExpressO (2011)

From Alaska to Florida, the 2010 election season brought the nation an unprecedented number of...