Civil Rights
Equality Divided
Equal protection law today is divided. When minorities challenge laws of general application and argue that government has segregated or profiled on the basis of race, plaintiffs must show that…
Forewords
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Federalism - Sep. of Pwr.
Democracy and Disdain
Sometimes the Justices seem barely able to hide their disdain for the other branches of government. Take the oral argument three Terms ago in Northwest Austin Municipal Utility District No.…
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Constitutional Theory
Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law
Why is the “neutrality” of Supreme Court decisionmaking a matter of persistent political disagreement? What should be done to mitigate such conflict? Once the predominant focus of constitutional law scholarship,…
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Federalism
Federalism All the Way Down
In this Foreword, Professor Gerken argues that constitutional theories of federalism remain rooted in a sovereignty account, and they remain disconnected from the many parts of “Our Federalism” where sovereignty…
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Constitutional Theory
System Effects and the Constitution
A system effect arises when the properties of an aggregate differ from the properties of its members, taken one by one. Familiar examples include Condorcet’s paradox and the Prisoners’ Dilemma.…
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Constitutional Theory
Demosprudence Through Dissent
It is morning, June 28, 2007, in the august amphitheater of the United States Supreme Court. Three prominent black civil rights lawyers wait expectantly. They, along with members of the…
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Civil Rights
Constitutions and Capabilities: “Perception” Against Lofty Formalism
For several centuries, an approach to the foundation of basic political principles that draws its key insights from Aristotle and the ancient Greek and Roman Stoics has played a role…
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Constitutional Theory
The Court’s Agenda – And the Nation’s
"Government by judiciary” is the traditional warning from those who seek to limit the power of the courts. Policymaking in a democracy, so the argument goes, should be left to…