David A. Strauss
Gerald Ratner Distinguished Service Professor of Law
1111 East 60th Street
Chicago, IL 60637
phone: 773-702-9601
email: d-strauss@uchicago.edu

Publications (Other Publications)

"On the Origin of Rules (with Apologies to Darwin): A Comment on Antonin Scalia's The Rule of Law as a Law of Rules," 75 University of Chicago Law Review 997 (Summer 2008).

“Childress Lecture: Little Rock and the Legacy of Brown,” 52 St. Louis Law Journal 1065 (Summer 2008). 

“Originalism and Precedent: Why Conservatives Shouldn’t be Originalists,” 31 Harvard Journal of Law and Public Policy 969 (Summer 2008).

 2007 Supreme Court Review (ed. with Dennis Hutchinson and Geoffrey Stone).

Little Rock and the Legacy of Brown, 52 St. Louis University Law Journal 1065 (2008).

"Memo to the President (and his opponents):  Ideology Still Counts," 102 Northwestern University Law Review Colloquy 49 (2007).

"The Common Law Genius of the Warren Court," 49 William & Mary Law Review 845 (2007).

"The Anti-Formalist," 74 University of Chicago Law Review 1885 (2007).

The Supreme Court Review 2006 (edited with Dennis J. Hutchinson and Geoffrey R. Stone).

"Originalism, Precedent, and Candor," 22 Constitutional Commentary 299 (2005).

"On Having Mr. Madison as a Client, in Arguing Marbury v. Madison" 38 (Mark Tushnet ed., Stanford Univ. Press 2005)

"Supreme Swings," University of Chicago Magazine (October 2005), p. 28.

"The Myth of the Unpredictable Supreme Court Justice," Chicago Tribune (August 7, 2005), p. 9.

"Legitimacy and Obedience," 118 Harvard Law Review 1854 (2005).

"Pop Con," Legal Affairs (March/April 2005).

"Modernization and Representation Reinforcement: An Essay in Memory of John Hart Ely," 57 Stanford Law Review 761 (2004).

"Kerry's Even Keel," Legal Affairs (September/October 2004).

"Common Law, Common Ground, and Jefferson's Principle," 112 Yale Law Journal 1717 (2003).

"Why was Lochner Wrong?" 70 University of Chicago Law Review 373 (2003).

"What's the Problem? Ackerman and Ayres on Campaign Finance Reform," 91 California Law Review 723 (2003).

"'Group Rights' and the Problem of Statistical Discrimination," appearing in Issues in Legal Scholarship, The Origins and Fate of Antisubordination Theory (2003).

"The Irrelevance of Constitutional Amendments," 114 Harvard Law Review 1457 (2001).

"Bush v. Gore: What Were They Thinking?," 68 University of Chicago Law Review 737 (2001) and in The Vote: Bush, Gore, and the Supreme Court, Cass R. Sunstein and Richard A. Epstein, eds., http://www.thevotebook.com (Univ. of Chicago Press 2001).

"Freedom of Speech and the Common Law Constitution," in Eternally Vigilant: Free Speech in the Modern Era, Lee Bollinger and Geoffrey Stone, eds. (Univ. of Chicago Press 2001).

"The False Comfort of the First Amendment," in Unsettling "Sensation": Arts-Policy Lessons from the Brooklyn Museum of Art Controversy, Lawrence Rothfield, ed. (Rutgers University Press 2001).

"Miranda, the Constitution, and Congress," 99 Michigan Law Review 958 (2001).

"Constitutions, Written and Unwritten," 21 Law and Philosophy 451 (2000).

"What Is Constitutional Theory?", 87 California Law Review 581 (1999).

"First Amendment Entitlements and Government Motives," 93 Northwestern University Law Review 1205 (1999) .

"The Independent Counsel Statute: What Went Wrong?," 51 Administrative Law Review 651 (1999).

"The New Textualism in Constitutional Law," 66 George Washington Law Review 1153 (1998).

"The Solicitor General and the Interests of the United States," 61 Law and Contemporary Problems 165 (1998).

"Why It's Not Free Speech Versus Fair Trial," 1998 University of Chicago Legal Forum 109.

"The Illusory Distinction Between Equality of Opportunity and Equality of Result," Redefining Equality in Devins & Douglas, eds., (Oxford Univ. Press 1998) (originally published in 44 William and Mary Law Review 171 (1992)).

"Tragedies Under the Common Law Constitution," in, Constitutional Stupidities, Constitutional Tragdies, Eskridge and Levinson, eds. (NYU Press 1998)

"Principle and its Perils," 64 University of Chicago Law Review 373 (1997)

"Why Plain Meaning?," 72 Notre Dame Law Review 1565 (1997)

"Common Law Constitutional Interpretation," 63 University of Chicago Law Review 877 (1996)

"Affirmative Action and the Public Interest," 1995 Supreme Court Review 1.

"What is the Goal of Campaign Finance Reform?," 1995 University of Chicago Legal Forum 141.

"Equality, Corruption, and Campaign Finance Reform," 94 Columbia Law Review 1369 (1994).

"State Action After the Civil Rights Era," 10 Constitutional Commentary 409 (1993).

"Presidential Interpretation of the Constitution," 15 Cardozo Law Review 113 (1993).

"Rights and the System of Freedom of Expression, "1993 University of Chicago Legal Forum 197.

"Abortion, Toleration, and Moral Uncertainty,"1992 Supreme Court Review 1.

"The Liberal Virtues," in Nomos XXXIV: Virtue (Chapman and Galston, eds. 1992).

"The Role of a Bill of Rights," 59 University of Chicago Law Review 539 (1992), reprinted in The Bill of Rights in the Modern State, Stone, et al., eds. (Univ. of Chicago Press 1992).

"The Senate, the Constitution, and the Confirmation Process," 101 Yale Law Journal 1491 (1992) (with Cass R. Sunstein).

"Biology, Difference, and Gender Discrimination," 41 DePaul Law Review 1007 (1992)

"On Truisms and Constitutional Obligations: A Reply," 71 University of Texas Law Review 669 (1992) (with Cass R. Sunstein).

"Persuasion, Autonomy, and Freedom of Expression," 91 Columbia Law Review 334 (1991).

"The Law and Economics of Racial Discrimination in Employment: The Case for Numerical Standards," 79 Georgetown Law Journal 1619 (1991).

"Precedent, Tradition, and Justice Scalia," 12 Cardozo Law Review 1699 (1991).

"Article III Courts and the Constitutional Structure," 65 Indiana Law Journal 307 (1990).

"Constitutional Protection for Commercial Speech: Some Lessons from the American Experience," 17 Canadian Business Law Journal 45 (1990).

"Discriminatory Intent and the Taming of Brown," 56 University of Chicago Law Review 935 (1989).

"Due Process, Government Inaction, and Private Wrongs," 1989 Supreme Court Review 53.

"Legality, Activism, and the Patronage Case," 64 Chicago-Kent Law Review 585 (1989).

"The Ubiquity of Prophylactic Rules," 55 University of Chicago Law Review 190 (1988).

Review of J. Mashaw, Due Process in the Administrative State, 98 Ethics 893 (1988).

"The Myth of Colorblindness," 1986 Supreme Court Review 199.

"Why Be Tolerant?" 53 University of Chicago Law Review 1485 (1986).

Selected other publications

"Supreme Swings," 98 University of Chicago Magazine 28 (October 2005).

"It's Time to Deal with Reality: the myth of the unpredictable Supreme Court Justice debunked," Chicago Tribune (August 7, 2005).

"Kerry's Even Keel," Legal Affairs (Sept./Oct. 2004).

"Affirmative Action: A Conservative Victory," Chicago Tribune, June 27, 2003, p. 27

"Indicting the President," New York Times, February 2, 1999, p. A25.

"After the Clinton Storm," New York Times, August 6, 1998, p. A23.

"Patriotism Without Hypocricy," Boston Review, vol. XIX, no. 5 (October/November 1994), p. 20.

"Whose Confirmation Mess?," The American Prospect, no. 18 (summer 1994), p. 91.

"The Peril of Religious Segregation: A Comment on the Kiryas Joel Case," 40 University of Chicago Law School Record 6 (1994).

"Why Conservatives (Not Progressives) Should Be Disappointed with Justice Thomas," Reconstruction, vol. 2, no. 1, p. 62 (1992).

"Bush's Losing Judicial Philosophy," Chicago Tribune, October 28, 1992, Section 1, page 19 (with Geoffrey R. Stone).

"Is Judge Bork's Ideology Off-Limits?," Chicago Tribune, July 22, 1987, Section 1, p. 15.

Selected Presentations

Civil Rights and Military Tribunals, University of Chicago Law School (January 17, 2002).

Works in Progress

The Common Law Constitution (book ms.)

"The Common Law Genius of the Warren Court"

"Must Like Cases Be Treated Alike?"