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Cass R. Sunstein : Publications

Unpublished

Books

Worst-Case Scenarios (Harvard University Press 2007).

Republic.com 2.0 (Princeton University Press 2007).

Are Judges Political? An Empirical Investigation of the Federal Judiciary (Brookings Institution Press 2006) (with David Schkade, Lisa Ellman, and Andres Sawicki).

Infotopia: How Many Minds Produce Knowledge (Oxford University Press 2006).

The Second Bill of Rights: Franklin Delano Roosevelt's Unfinished Revolution and Why We Need It More Than Ever (Basic Books 2006) (paperback edition).

Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America (Basic Books 2005).

Constitutional Law 5th ed. (Aspen 2005) (with G. Stone, L.M. Seidman, P. Karlan, and M. Tushnet).

The Laws of Fear: Beyond the Precautionary Principle (based on the Seeley Lectures 2004 at Cambridge University) (Cambridge University Press 2005).

The Second Bill of Rights: Franklin Delano Roosevelt's Unfinished Revolution and Why We Need It More Than Ever (Basic Books 2004).

Why Societies Need Dissent (Harvard University Press 2003).

Animal Rights: Current Controversies and New Directions (Oxford University Press 2004) (edited with Martha Nussbaum).

Risk and Reason (Cambridge University Press 2002) (translations forthcoming in Spanish, Chinese, and Farsi) (paperback 2004).

The Cost-Benefit State (American Bar Association 2002).

Punitive Damages: How Juries Decide (University of Chicago Press 2002) (with Reid Hastie, John Payne and David Schkade).

Republic.com (paperback edition 2002, with a new afterword) (multiple translations, including Spanish, Italian, Japanese, and Chinese) (paperback with new afterword, 2002).

Administrative Law and Regulatory Policy (1999; new edition 2002) (with Stephen Breyer, Richard B. Stewart, and Matthew Spitzer).

Free Markets and Social Justice (2002) (Chinese edition with new foreword, Japanese edition) (Japanese translation, 2002; Chinese translation, 2002).

Designing Democracy: What Constitutions Do (Oxford University Press 2001).

The Vote: Bush, Gore & the Supreme Court, University of Chicago Press (2001) (with Richard Epstein).

Constitutional Law (4th ed. 2001) (with Stone, Seidman, and Tushnet).

Behavioral Law and Economics (editor, Cambridge University Press, 2000; reprinted 2003).

One Case At A Time: Judicial Minimalism on the Supreme Court (Harvard University Press 1999; paperback 2001; Chinese translation forthcoming, 2001).

The Cost of Rights (1999), (W.W. Norton paperback 2000; translations forthcoming 2001) (with Stephen Holmes).

Clones and Clones: Facts and Fantasies About Human Cloning (with Martha Nussbaum, W.W. Norton 1998) (paperback 1999, multiple translations forthcoming).  

Legal Reasoning and Political Conflict (Oxford University Press 1996; paperback 1998).  

Free Markets and Social Justice (Oxford University Press 1997; reprinted twice in hardcover; paperback 1999).

Democracy and the Problem of Free Speech (The Free Press 1993; paperback with a new afterword 1995).

The Partial Constitution (Harvard University Press 1993; paperback 1994, reprinted 1997).  

After the Rights Revolution: Reconceiving the Regulatory State (Harvard University Press 1990 paperback 1993).

Constitutional Law (Little, Brown & Co. 1st edition 1986; 2d edition 1991; 3d edition 1995) (co-author).  

The Bill of Rights and the Modern State (University of Chicago Press 1992) (co-editor with Geoffey R. Stone and Richard A. Epstein).

Feminism and Political Theory (editor) (University of Chicago Press 1990).  

Articles and Essays (Selected)

 "Should Greenhouse Gas Permits Be Allocated on a Per Capita Basis?" 97 California Law Review 51 (2009) (with Eric Posner).   

"Trimming," 122 Harvard Law Review 1049 (2009).

"Introduction to the Conference on Law and Happiness," 37 Journal of Legal Studies 1 (2008) (with Eric A. Posner).  

"Illusory Losses," 37 Journal of Legal Studies 157 (2008).

Obama the visionary minimalist," The Colorado Independent (November 11, 2008). 

"Second Amendment Minimalism: Heller as Griswold," 122 Harvard Law Review 246 (November 2008).

"Misery and Company," The New Republic (October 22, 2008). 

"Is Osha Unconstitutional?" 94 Virginia Law Review 1407 (October 2008).

"The Empiricist Strikes Back," The New Republic (September 10, 2008). 

“The World vs. the United States and China? The Complex Climate Change Incentives of the Leading Greenhouse Gas Emitters,” 55 UCLA Law Review 1675 (August 2008).

"Disclosure is the Best Kind of Credit Regulation," Wall Street Journal A17 (August 13,2008) (with Richard Thaler). 

"Judicial Partisanship Awards," Washington Independent (July 31, 2008).

"Throwing precaution to the wind," Boston Globe C1 (July 13, 2008).

"Climate Change Justice," 96 Georgetown Law Journal 1565 (June 2008) (with Eric Posner).

"The Psychology of the Housing Mess: Human Behavior Has Compounded the Current Crunch—But Changed Behavior Can Guide Us Out of It," USA Today 11A (April 24, 2008) (with Richard H. Thaler).

"Economic Policy for Humans," Boston Globe A13 (April 17, 2008, 3rd ed.) (with Richard H. Thaler).

"A gentle prod to go green," Chicago Tribune (April 6, 2008) (with Richard Thaler).

"Designing better choices," Los Angeles Times (April 2, 2008) (with Richard Thaler).

"The Obama I know," Chicago Tribune (March 14, 2008).

"An American President: My friend, Barack Obama," The Independent (March 2, 2008).

"The Visionary Minimalist," The New Republic 13 (January 30, 2008).

"How the rise of the Daily Me threatens democracy," Financial Times 9 (January 11, 2008).

"Caste and Disability: The Moral Foundations of the Ada,"  157 University of Pennsylvania Law Review PENNumbra 101 (2008).

"The Polarization of Extremes," The Chronicle Review 9 (December 14, 2007)

"Climate Change and Animals, " 155 University of Pennsylvania Law Review 1695 (2007) (with Wayne Hsiung).

"What Happened on Deliberation Day?" 95 California Law Review 915 (2007) (with David Schkade and Reid Hastie).

"The Myth of the Balanced Court," 18 The American Prospect 28 (September, 2007).

"Animal Rights Without Controversy" 70 Law & Contemporary Problems 117 (2007) (with Jeff Leslie).

"Pay China to cut greenhouse gas emissions," Financial Times 11 (August 6, 2007) (with Eric Posner).

"Clear Statement Principles and National Security: Hamdan and Beyond," 2006 Supreme Court Review 1.

“Tribute to Bernard Meltzer,” 74 University of Chicago Law Review 443 (2007).

"Minimalists vs. Visionaries," WashingtonPost.com (June 28, 2007).

“Where are the liberal visionaries on the Supreme Court?” TNR Online (June 15, 2007).

"Second-Order Perfectionism," 75 Fordham Law Review 2867 (2007).

“The Thin Line,” The New Republic 51 (May 21, 2007).

"The Law and Economics of Company Stock in 401 (k) Plans," 50 Journal of Law & Economics 45 (2007) (with Shlomo Benartzi, Richard H. Thaler and Stephen P. Utkus).

"On Discounting Regulatory Benefits: Risk, Money, and Intergenerational Equity, "74 University of Chicago Law Review 171 (2007) (with Arden Rowell).

"Introduction: Symposium on Intergenerational Equity and Discounting," 74 University of Chicago Law Review 1 (2007) (with David A. Weisbach).

"Response - On Learning From Others," 59 Stanford Law Review 1309 (2007) (with Eric A. Posner).

"Debate: Chevronizing Foreign Relations Law," 116 Yale Law Journal 1170 (2007) (with Eric A. Posner).

"Incompletely Theorized Agreements in Constitutional Law," 74 Social Research 1 (2007).

"Ginsburg's dissent may yet prevail," Los Angeles Times A31 (April 20, 2007).

"Of Montreal and Kyoto: A Tale of Two Protocols," 31 Harvard Environmental Law Review 1 (2007).

"The Survival of the Fattest," The New Republic 59 (March 19, 2007) (with Richard H. Thaler).

“Church, state and taxpayers,” The Boston Globe D9 (March 11, 2007).

“Ideological Amplification,” 14 Constellations 273 (2007).

"Essay: On the Divergent American Reactions to Terrorism and Climate Change," 107 Columbia Law Review 503 (2007).

"A Brave New Wikiworld," The Washington Post A19 (February 24, 2007).

"The Real Judicial Activists," The American Prospect 9 (January 2007) (with Thomas Miles).

"Celebrating God, Constitutionally," 83 University of Detroit Mercy Law Review 567 (2006) (McElroy Lecture).

“The Case for Fear,” The New Republic 29 (December 11, 2006).

"Idea: Timing Controversial Decisions," 35 Hofstra Law Review 1 (2006).

"Book Review: Of Snakes and Butterflies: A Reply," 106 Columbia Law Review (2006).

"Climate change: Why U.S., China are key," San Jose Mercury News, OP2 (August 20, 2006).

“It Could Be Worse,” The New Republic 32 (October 16, 2006).

"U.S. and China must be persuaded to get in the game," Guelph Mercury (Ontario, Canada) A10 (August 21, 2006).

"Limiting Climate Change: The Neglected Obstacle," The Washington Post A21 (August 18, 2006).

"Defining executive privilege," The Boston Globe A9 (July 12, 2007).

“The Availability Heuristic, Intuitive Cost-Benefit Analysis, and Climate Change,” 77 Climatic Change 195 (2006).

"The Law of Other States," 59 Stanford Law Review 131 (2006) (with Eric Posner).

"Problems With Minimalism,” 58 Stanford Law Review 1899 (2006).

"Deliberation and Prediction Markets," in Information Markets: A New Way of Making Decisions 67 (Robert Hahn & Paul Tetlock eds., 2006).

“Costing Mead,” 116 Yale Law Journal Pocket Part 79 (2006).

“The Virtues of Simplicity,” 116 Yale Law Journal Pocket Part 70 (2006).

"Irreversible and Catastrophic: Global Warming, Terrorism, and Other Problems," 23 Pace Environmental Law Review 3 (2005) (Eleventh Annual Lloyd K. Garrison Lecture on Environmental Law).

"The Precautionary Principle as a Basis for Decision Making," The Economists' Voice: Vol. 2: No. 2, Article 8 (2005) (with Robert Hahn).

"Ranking Law Schools: A Market Test?" 81 Indiana Law Journal 25 (2006).

"Do Federal Judges Make Regulatory Policy? An Empirical Study,"73 University of Chicago Law Review 823 (2006) (with Thomas Miles).

"Burkean Minimalism," 105 Michigan Law Review 353 (2006).

"Misfearing: A Reply," 119 Harvard Law Review 1110 (2006).

"The Law of Implicit Bias," 94 California Law Review 969 (2006) (with Christine Jolls).

"Beyond Marbury: The Executive's Power to Say What the Law Is," 115 Yale Law Journal 2580 (2006).

"A New Progressivism," 17 Stanford Law & Policy Review 197 (2006).

"Boundedly Rational Borrowing," 73 University of Chicago Law Review 249 (2006).

"Irreversible and Catastrophic," 91 Cornell Law Review 841 (2006).

"Two Conceptions of Procedural Fairness," Social Research (2006).

"Debiasing Through Law," 35 Journal of Legal Studies 199 (2006) (with Christine Jolls).

"Justice Breyer's Pragmatic Constitutionalism," 115 Yale Law Journal 1719 (2006).

"Chevron Step Zero," 92 Virginia Law Review 187 (2006).

"Precautions Against What? The Availability Heuristic and Cross-Cultural Risk Perception," 57 Alabama Law Review 75 (2005).

"Correspondence: Testing Minimalism: A Reply," 104 Michigan Law Review 123 (2005).

"On Moral Intuitions and Moral Heuristics: A Response," 28 Behavioral and Brain Sciences 565 (2005).

"Moral Heuristics," 28 Behavioral and Brain Sciences 531 (2005).

"Deterring Murder: A Reply," 58 Stanford Law Review 847 (2005) (with Adrian Vermeule).

"Is Capital Punishment Morally Required? The Relevance of Life-Life Tradeoffs," 58 Stanford Law Review 703 (2005) (with Adrian Vermeule).

"Group Judgments: Deliberation, Statistical Means, and Information Markets," 80 New York University Law Review 962 (2005).

"Why Does the American Constitution Lack Social and Economic Guarantees?," in American Exceptionalism, Michael Ignatieff, ed. (2005).

"Sexual Freedom and Political Freedom," in On Nineteen Eighty Four: Orwell and Our Future, Abbott Gleason, Jack Goldsmith, Martha Nussbaum, eds. (Princeton University Press 2005).

"Administrative Law Goes to War," 118 Harvard Law Review 2663 (2005).

"Dollars and Death," 72 University of Chicago Law Review 537 (2005) (with Eric Posner).

"Environmental Protection and Cost-Benefit Analysis," 115 Ethics 2 (January 2005).

"The Right to Marry," 26 Cardozo Law Review 2081 (2005).

"Constitutive Commitments and Roosevelt's Second Bill of Rights: A Dialogue" (with Randy Barnett), 53 Drake Law Review 205 (2005).

"The Precautionary Principle as a Basis of Decisionmaking," The Economists' Voice Vol. 2 Issue 2 (2005; with Robert Hahn).

"Cost-Benefit Analysis and the Environment," 115 Ethics 351 (2005).

"Liberty after Lawrence," 65 Ohio State Law Journal 1059 (2004).

"Market Efficiency and Rationality: The Peculiar Case of Baseball," 102 Michigan Law Review 1390 (2004) (with Richard Thaler).

"Lives, Life-Years and Willingness to Pay," 104 Columbia Law Review 205 (2004).

"Minimalism at War," 2004 Supreme Court Review 47 (2004).

Empirical projects on voting behavior of federal judges, under the auspices of the Chicago Judges Project

"Deliberation, nouvelle technologies, et extremisme," 2 Raison Publique 9 (2004).

"On the Psychology of Punishment," 11 Supreme Court Economic Review 171 (2004).

"Valuing Life: A Plea for Disaggregation," 54 Duke Law Journal 385 (2004).

"Fear and Security," 71 Social Research 4 (2004).

"Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation," 90 Virginia Law Review 301 (2004) (with David Schkade and Lisa Ellman).

"Are Poor People Worth Less Than Rich People? Disaggregating the Value of Statistical Lives," University of Chicago Law & Economics, Olin Working Paper No. 207; AEI-Brookings Joint Center Working Paper No. 04-05 (2004).

"Black on Brown," 90 Virginia Law Review 1649 (2004).

"Lives or Life Years?" 104 Columbia Law Review 205 (2004).

"Moral Heuristics and Moral Framing," 88 Minnesota Law Review 1556 (2004).

"Statistics, Not Memories: What Was the Standard of Care in Administering Antenatal Steroids to Women in Preterm Labor Between 1985 and 2000?," 102 (no. 2) Obstetrics and Gynecology (August, 2003) (with William Meadow and Anthony Bell).

"Lochnering," 82 Texas Law Review 65 (2003).

"What Did Lawrence Hold? Of Autonomy, Desuetude, Sexuality, and Marriage," Supreme Court Review 27 (2003).

"Libertarian Paternalism," 93 American Economic Review 175 (2003) (with Richard Thaler).

"Libertarian Paternalism Is Not An Oxymoron," University of Chicago Law Review (2003) (with Richard Thaler).

"Interpretation and Institutions," 101 Michigan Law Review 885 (2003) (with Adrian Vermeule).

"Interpretive Theory in Its Infancy: A Reply to Posner," 101 Michigan Law Review 972 (2003) (with Adrian Vermeule).

"Why Does the American Constitution Lack Social and Economic Guarantees? " University of Chicago Public Law Working Paper No. 36 (January 2003).

"A Hand in the Matter: Has the Rehnquist Court Pushed Its Agenda on the Rest of the Country?" Legal Affairs 26 (March/April 2003).

"Manhattan," 55 Federal Communications Law Journal 585 (2003).

"Terrorism and Probability Neglect," 26 Journal of Risk and Uncertainty 121 (2003), reprinted in The Risks of Terrorism (W. Kip Viscusi ed. 2003) .

"Hazardous Heuristics," Review of Thomas Gilovich, Dale Griffin, and Daniel Kahneman, Heuristics and Biases: The Psychology of Intuitive Judgment, 70 University of Chicago Law Review 751 (2003).

"The Laws of Fear," Harvard Law Review (2002).

"Military Tribunals and Legal Culture: What a Difference Sixty Years Makes," 19 Constitutional Commentary 261 (2002) (with Jack Goldsmith).

"The Arithmetic of Arsenic," 90 Georgetown Law Review 2255 (2002).

"In Praise of Numbers: A Reply," 90 Georgetown Law Review 2379 (2002).

"On a Danger of Deliberative Democracy," Daedalus 120 (Fall 2002).

"Is There a Constitutional Right to Clone?," 53 Hastings Law Journal 987 (2002).

"The Paralyzing Principle," 25 Regulation 32 (2003).

"The Rights of Animals," 70 University of Chicago Law Review 387 (2003).

"Predictably Incoherent Judgments," 54 Stanford Law Review 1153 (2002) (with Daniel Kahneman, David Schkade, and Ilana Ritov).

"Enforcing Existing Rights," 8 Animal Law i (2002).

"Is Incoherence Outrageous?" 54 Stanford Law Review 1293 (2002) (with Daniel Kahneman, David Schkade and Ilana Ritov).

"Probability Neglect: Emotions, Worst Cases, and Law," 112 Yale Law Journal 61 (2002).

"Beyond the Precautionary Principle," 151 University of Pennsylvania Law Review 1003 (2003).

"Avoiding Absurdity? A New Canon of Regulatory Law (with notes on what's wrong with contemporary interpretive theory)," Env. L. Rep. (2002).

"State Action Is Always Present," 3 Chicago Journal of International Law 465 (2002).

"Inequality and Indignation," 30 Philosophy and Public Affairs 337 (2002) (with Edna Ullmann-Margalit).

"The Law of Group Polarization," 10 Journal of Political Philosophy 175 (2002).

"Lawless Order and Hot Cases," in A Badly Flawed Election, Ronald Dworkin, ed. (2002).

"The Laws of Fear," Review of Paul Slovic, The Perception of Risk, 115 Harvard Law Review 1119 (February 2002).

"Social and Economic Rights? Lessons from South Africa," University of Chicago, Public Law Working Paper No. 12; University of Chicago Law & Economics, Olin Working Paper No. 124 (2001).

"A New Executive Order for Improving Federal Regulation," 150 University of Pennsylvania Law Review 1489 (2002) (with Robert Hahn).

"Does the Constitution Enact the Republican Party Platform? Beyond Bush v. Gore," in Bush v. Gore: The Question of Legitimacy, Bruce A. Ackerman, ed. (2002).

"The Equal Chance to Have One's Vote Count," 21 Law and Philosophy 121 (2002).

"The Future of Free Speech," in Eternally Vigilant, Lee Bollinger and Geoffrey Stone eds. (2002).

"Regulating Risks After ATA," 2002 Supreme Court Review 1.

"Switching the Default Rule," 77 N.Y.U. Law Review 106 (2002).

"Why They Hate Us: The Role of Social Dynamics," 25 Harvard Journal of Law and Public Policy 429 (2002).

"Cost-Benefit Default Principles," 99 Michigan Law Review 1651 (June 2001).

"Human Behavior and the Law of Work," 87 Virginia Law Review 205 (April 2001).

"On Academic Fads and Fashions," 99 Michigan Law Review 1251 (2001).

"Of Artificial Intelligence and Legal Reasoning," 8 University of Chicago Law School Roundtable 29 (2001).

"Statistics, Not Experts," 51 Duke Law Journal 629 (2001) (with William Meadow).

Order Without Law, University of Chicago Law Review (2001).

"Is Cost-Benefit Analysis for Everyone?," 53 Administrative Law Review 299 (2001).

"Freedom of Expression in the United States: The Future," in Thomas R. Hensley, ed., The Boundaries of Freedom of Expression and Order in American Democracy 319 (2001).

"Social and Economic Rights? Lessons from South Africa," 11:4 Constitutional Forum 123
(2000-2001).

"Solidarity Goods," J. Polit. Philosophy (2001) (with Edna Ullmann-Margalit).

"The Future of Free Speech," 2 The Little Magazine 9 (2000).

"Deliberating About Dollars: The Severity Shift," 100 Colum. L. Rev. 1139 (2000) (with David Schkade and Daniel Kahneman).

"On Philosophy and Economics," 19 Quinnipiac L. Rev . 333 (2000).

Cognition and Cost-Benefit Analysis," in Mathew Adler and Eric Posner eds., Cost-Benefit Analysis (2001), also in 29 Journal of Legal Studies 1059 (2000).

"Standing for Animals," 47 UCLA Law Review 1333 (2000).

"Cost-Benefit Analysis and Relative Position," University of Chicago Law Review (2001) (with Robert H. Frank).

"Human Behavior and the Law of Work," Virginia Law Review (2001).

"Deliberative Trouble? Why Groups Go To Extremes," 110 Yale Law Journal 71 (2000).

"Television and the Public Interest," California Law Review (2000).

"Do People Want Optimal Deterrence?," Journal of Legal Studies (2000) (with David Schkade and Daniel Kahneman).

"Group Dynamics," in Aftermath (forthcoming book on Clinton Impeachment) (2000).

"American Advice and New Constitutions," Chicago Journal of International Law (2000).

"Agreements Without Theory," in Democracy and Difference, Stephen Macedo ed. (1999).

"Should Sex Equality Law Apply to Religious Institutions?," in Is Multiculturalism Bad for Women?, Joshua Cohen and Martha Nussbaum, eds. (1999).

" Deliberating About Dollars: The Severity Shift," 100 Columbia Law Review 1139 (2000) (with David Schakde and Daniel Kahneman).

" Nondelegation Canons," University of Chicago Law Review (2000).

"Is the Clean Air Act Unconstitutional?," Michigan Law Review (1999).

"An Incompletely Theorized Conviction," Harvard Law Review (1999).

"Availability Cascades and Risk Regulation," Stanford Law Review (1999) (with Timur Kuran), also forthcoming in Behavioral Law and Economics (Cambridge University Press 2000).

"Must Formalism Be Defended Empirically?," University of Chicago Law Review (1999).

"Second-Order Decisions," Ethics (1999) (with Edna Ullmann-Margalit), also forthcoming in Behavioral Law and Economics (Cambridge University Press 2000).

"Impeaching the President," University of Pennsylvania Law Review (1999).

"Informational Standing," University of Pennsylvania Law Review (1999).

"From Impeachment to Reform," Florida Law Review (1999).

"Assessing Punitive Damages (With Notes on Cognition and Valuation in Law)," Yale Law Journal (1998) (with Daniel Kahneman and David Schkade) (also forthcoming in revised form in Behavioral Law and Economics (Cambridge University Press 2000).

"A Behavioral Approach to Law and Economics," Stanford Law Review (1998) (with Christine Jolls and Richard Thaler),also in Behavioral Law and Economics (2000).

"Controlling Public Power in the United States," in Administrative Justice in Southern Africa, H. Corder and T. Maluwa, eds. (1997).

"Shared Outrage and Erratic Awards: The Psychology of Punitive Damages," J. of Risk and Uncertainty (1998) (with Daniel Kahneman and David Schkade).

"Is Tobacco A Drug?," Duke Law Journal (1998).

"Bad Incentives and Bad Institutions," Georgetown Law Journal (1998).

"A Note on Voluntary and Involuntary Risks," (1998).

"Practical Reason and Incompletely Theorized Agreements," forthcoming in Reasoning Practically, Edna Ullmann-Margalit, ed. (Oxford University Press 1998).

"Health-Health Tradeoffs," forthcoming in Deliberative Democracy, Jon Elster, ed. (Cambridge University Press 1998).

"Behavioral Analysis of Law," U. Chicago Law Review (1997).

"Foreword: Leaving Things Undecided," Harvard Law Review (1996).

"Bad Deaths," Journal of Risk and Uncertainty (1997).

"Incommensurability in Law," in Incommensurability: Philosophy, Law, Policy, Ruth Chang, ed. (Harvard University Press forthcoming 1998).

"Selective Fatalism," Journal of Legal Studies (forthcoming 1998).

"From Theory to Practice," Arizona State Law Journal (1997).

"Social Norms and Social Roles," Columbia Law Review (1996).

"The Expressive Function of Law," University of Pennsylvania Law Review (1996).

"Academic Freedom and the Law: Liberalism, 'Speech Codes,' and Related Problems," in The Future of Academic Freedom, L. Menand, ed. (1996).

"What the Civil Rights Movement Was and Wasn't," in Reassessing the 1960s, S. Macedo, ed. (1996).

"Which Risks First?," in University of Chicago Legal Forum (1997).

"The Right to Die," Yale Law Journal (1997).

"The Cost-Benefit State," in Rethinking Regulation, Robert Hahn, ed. (Cambridge University Press forthcoming 1997).

"Against Tradition," in The Communitarian Challenge to Liberalism, E. Paul, ed. (1996); also published in Social Philosophy and Policy (1996).

"Health-Health Tradeoffs," University of Chicago Law Review (1996).

"Political Deliberation and the Supreme Court," California Law Review (1996).

"Congress, Constitutional Moments, and the Cost-Benefit State," Stanford Law Review (1995).

"Incompletely Theorized Agreements," Harvard Law Review (1995).

"Political Conflicts and Legal Agreements," 1996 The Tanner Lectures in Human Values (1996).

"The First Amendment in Cyberspace," Yale Law Journal (1995).

"Problems With Rules," California Law Review (1995).

"The Idea of A Useable Past," Columbia Law Review (1995).

"Rights and Their Critics," Notre Dame Law Review (1995).

"Reinventing the Regulatory State," 62 University of Chicago Law Review 1 (1995) (with Richard Pildes).

"Well-Being and the State," 107 Harvard Law Review (1994).

"The Anticaste Principle," Michigan Law Review (1994).

"Conflicting Values in Law," Fordham Law Review (1994).

"Homosexuality and the Constitution," Indiana Law Journal (1994).

"The Politics of Constitutional Amendment in Eastern Europe," (with Stephen Holmes) in Constitutional Amendment, S. Levinson, ed. (Princeton University Press).

"Economic Incentives, Environmental Law, and Democracy," Ecology Law Quarterly (1994).

"Standing Injuries," 1994 Supreme Court Review .

"Liberal Constitutionalism and Liberal Justice," Texas Law Review (1994).

"Incommensurability and Valuation in Law," Michigan Law Review (1994).

"Gender, Caste, Law," in Human Capabilities, J. Glover & M. Nussbaum, eds. (Cambridge University Press 1996).

"The President and the Administration," 94 Columbia Law Review (1994).

"Article III Revisionism," 92 Michigan Law Review (1993).

"Academic Freedom and Law: Liberalism, Speech Codes, and Related Problems," Academe (1993) and in Academic Freedom, Louis Menand, ed. (1994).

"Information, Please," Eastern European Constitutional Review (1993).

"The Enduring Legacy of Republicanism," in A New Constitionalism, K. Soltan & S. Elkin, eds. (University of Chicago Press 1993).

"On Legal Theory and Legal Practice," NOMOS: Theory and Practice (forthcoming 1995).

"Endogenous Preferences, Environmental Law," J. Legal Studies (1993).

"Environmental Economics," The American Prospect (1993).

"Words, Conduct, Caste," University of Chicago Law Review (1993).

"In Defense of Liberal Education," J. Legal Educ . (1993).

"On Analogical Reasoning," 106 Harvard Law Review (1993).

"Truisms and Constitutional Duties: A Reply," Texas Law Review (1993) (with David A. Strauss).

"Presidential Power and the Council on Competitiveness," Am. Univ. J. of Ad. Law (1993).

"On Finding Facts," in Questions of Evidence, James Chandler, Arnold Davidson, and Harry Harootunian, eds (1994).

"What's Standing After Lujan? Of Citizen Suits, Injuries, and Article III," Michigan Law Review (1992).

"Federalism in South Africa? Lessons From the American Experience," American University J. of International Law (1993) and in From Apartheid to Democracy, N. Kittrie, ed. (1994).

"Democracy and Shifting Preferences," in The Idea of Democracy, David Copp, Jean Hampton, and John Roemer, eds. (Cambridge University Press 1993).

"Half-Truths of the First Amendment," Univ. Chi. Legal Forum (1993).

"Against Interest-Group Theory: A Comment," Journal of Law & Economics (1993).

"Informing America," Fla. State L.J. (1993).

"On Marshall's Conception of Equality," 44 Stanford L. Rev. 1267 (1992).

"The Negative Constitution: Transition in Latin America," University of Miami Law Review (1993), reprinted in Transition to Democracy in Latin America: The Role of the Judiciary, I. Stotzky, ed. (1993).

"Public Choice," Endogenous Preferences," International Review of Law and Economics (1992).

"The Senate, the Constitution, and the Confirmation Process," 103 Yale L. J. (1992) (with David A. Strauss).

"Economics and the Environment: Trading Debt and Technology for Nature," 14 Colum. J. Env. L. (1992) (with Catherine O'Neill), published in 24 Land Use and Environment Law Review (1993) as one of best articles on environmental and land use law in 1992.

"On Property and Constitutionalism," Cardozo L. Rev. (1992).

"Free Speech Now," 59 Univ. Chicago L. Rev. (1992).

"Neutrality in Constitutional Law" (with special reference to pornography, abortion, and surrogacy), 92 Columbia L. Rev. (1992).

"Constitutionalism, Prosperity, Democracy: Transition in Eastern Europe," Constitutional Political Economy (1991).

"Democratizing America Through Law," 20 Suffolk L. Rev . (1991).

"Constitutionalism and Secession," 58 University of Chicago Law Review 633 (1991).

"Ideas, Yes; Assaults, No," The American Prospect (1991).

"Politics and Preferences," 20 Philosophy and Public Affairs 3 (1991), reprinted in Democracy: Theory and Practice, J. Arthur, ed. (1992).

"Three Civil Rights Fallacies," 79 California Law Review 751 (1991).

"Political Economy, Administrative Law: A Comment," Journal of Law, Economics, and Organizations (1991).

"Law and Administration After Chevron," 90 Columbia Law Review (1991).

"The Limits of Compensatory Justice," NOMOS: COMPENSATORY JUSTICE (1991).

"What Judge Bork Should Have Said," Connecticut Law Review (1991).

"Republicanisms, Rights: A Comment on Pangle," Chicago-Kent Law Review (1991).

"Republicanism and the Preference Problem," Chicago-Kent Law Review (1991).

"Why Markets Won't Stop Discrimination," 8 Social Philosophy and Policy 21 (1991), and in Reassessing Civil Rights, E. Paul, ed. (Basil Blackwell 1991).

"Why the Unconstitutional Conditions Doctrine Is An Anachronism," 70 Boston University Law Review (1991).

"Political Self-Interest in American Public Law," in Beyond Self-Interest, J. Mansbridge, ed. (U. of Chi. Press 1990).

"Administrative Substance," 1990 Duke Law Journal .

"Remaking Regulation," 3 The American Prospect 73 (1990).

"Principles, Not Fictions," 57 University of Chicago Law Review (1990).

"Norms in Surprising Places: The Case of Statutory Construction," Ethics (1990).

"Paradoxes of the Regulatory State," 57 University of Chicago Law Review (1990).

"Constitutional Politics and the Conservative Court," The American Prospect (1990).

"Interpreting Statutes in the Regulatory State," 103 Harvard Law Review (1989), recipient of 1990 award of American Bar Association for best annual scholarship in administrative law.

"Unity and Plurality: The Case of Compulsory Oaths," 2 Yale Journal of Law and Humanities (1989).

"Disrupting Voluntary Transactions," in NOMOS: Markets and Justice (1989).

"On the Costs and Benefits of Aggressive Judicial Review of Administrative Action," Duke Law Journal (1989).

"The First Amendment and Cognition," Duke Law Journal (1989).

"Low Value Speech Revisited," Northwestern L. Rev. (1989).

"Introduction: Notes on Feminist Political Thought," Ethics (1989).

"Is There An Unconstitutional Conditions Doctrine?," San Diego L. Rev. (1989).

"Six Theses on Interpretation," Constitutional Commentary (1989).

"Beyond the Republican Revival," 98 Yale Law Journal (1988).

"The Beard Thesis and the New Deal," George Washington Law Review (1988).

"Standing and the Privatization of Public Law," 88 Columbia Law Review (1988).

"Sexual Orientation and the Constitution: A Note on the Relationship Between Due Process and Equal Protection," 55 University of Chicago Law Review (1988).

"Changing Conceptions of Administration," Brigham Young Law Review (1988).

"Compelling Government Action: The Problem of Affirmative Rights," in The Cambridge Lectures (1988).

"Pornography and Free Speech," in Civil Liberties in Conflict, L. Gostin, ed. (1988).

"Protectionism, National Markets, and the American Supreme Court," in volume on National Integration and the Future of the European Economic Community (European University Institute 1988).

"Constitutions and Democracies: An Epilogue," in Constitutionalism and Democracy, J. Elster & R. Slagstaad, eds. (Cambridge University Press 1988).

"Constitutionalism After the New Deal," 101 Harvard Law Review 421 (1987).

"Lochner's Legacy," 87 Columbia Law Review 893 (1987), reprinted in Law and Liberalism in the 1980s, V. Blasi, ed. (Columbia University Press 1991).

"Routine and Revolution," Northwestern Law Review (1987), reprinted in Critique and Construction, R. Lovin & M. Perry, eds. (Cambridge University Press 1990).

"Lochner's Misunderstood Legacy," Columbia Observer (1987).

"Judicial Review of Administrative Action in a Conservative Era," Administrative Law Review (1987).

"Legal Interference with Private Preferences," 53 University of Chicago Law Review 1127 (1986).

"Two Faces of Liberalism," University of Miami Law Review (1986).

"The Role of the President in Informal Rulemaking," Administrative Law Review (1986) (with Peter Strauss).

"Government Control of Information," California Law Review (1986).

"Pornography and the First Amendment," 1986 Duke Law Journal (1986).

"Madison and Constitutional Equality," 9 Harvard Journal of Law and Public Policy 146 (1986).

"Notes on Pornography and the First Amendment," 3 Journal of Law and Inequality (1986).

"Factions, Self-Interest, and the APA: Four Lessons Since 1946," 62 Virginia Law Review (1986).

"Deregulation and the Courts," 5 Journal of Public Policy and Management (1986).

"Interest Groups in American Public Law," 38 Stanford L. Rev. 29 (1985), recipient of American Bar Association award for distinguished scholarship in administrative law.

"Reviewing Agency Inaction After Heckler v. Chaney," 51 U. Chi. L. Rev. 636 (1985).

"Naked Preferences and the Constitution," 84 Colum. L. Rev. 1689 (1984), reprinted in book of readings on constitutional law (Foundation Press).

"In Defense of the Hard Look: Judicial Activism and Administrative Law," 7 Harvard Journal of Law and Public Policy 51 (1984).

"Hard Defamation Cases," 25 William & Mary L. Rev. 877 (1984).

"Rights, Minimal Terms, and Solidarity," 51 U. Chi. L. Rev. (1984).

"Legislative Attacks on School Desegregation," in Civil Rights in the Eighties: A Thirty Year Perspective (1984).

"Deregulation and the Hard-Look Doctrine," 1983 Supreme Court Review 177.

"Is Cost-Benefit Analysis a Panacea for Administrative Law?," University of Chicago Law School Record (1983).

"Politics and Adjudication," 94 Ethics 126 (1983) (review-essay).

"Public Employees, Executive Discretion, and the Air Traffic Controllers," 50 University of Chicago Law Review 731 (1982) (with Bernard Meltzer).

"Participation, Public Law, and Venue Reform," 49 University of Chicago Law Review 976 (1982).

"Public Programs and Private Rights," 95 Harvard Law Review 1193 (1982) (with Richard Stewart).

"Section 1983 and the Private Enforcement of Federal Law," 49 University of Chicago Law Review 394 (1982).

"Public Values, Private Interests, and the Equal Protection Clause," 1982 Supreme Court Review 127.

"Cost-Benefit Analysis and the Separation of Powers," 23 Arizona Law Review 1267 (1981).

Short Essays and Reviews (Selected)

"Verdicts and Virtues," The New Republic (May 22, 2006).

"It's Only $300 Billion; If We Can Fund the War in Iraq, Why Can't We Fund the Kyoto Protocol?" The Washington Post (May 10, 2006).

"Risk Management," The New Republic Online (April 24, 2006).

"Acceptable Use," The New Republic Online (January 21, 2006).

"The 9/11 Constitution," The New Republic (January 16, 2006).

"Same Difference," The New Republic Online (January 9, 2006).

"Voting Pattern," The New Republic Online (November 11, 2005).

"Courting Division," The New York Times (Octboer 6, 2005).

"Fighting for the Supreme Court: How Right-Wing Judges Are Transforming the Constitution," Harper's Magazine (September 2005).

"The Philosopher-Justice," The New Republic (September 19, 2005).

"Dual Purpose," The New Republic Online (September 6, 2005).

"Old School," The New Republic Online (September 1, 2005).

"Minimal Appeal," The New Republic (August 1, 2005).

"Super Freak," The New Republic (July 25, 2005).

"A diversity of minds, not biology," Los Angeles Times (July 23, 2005).

"Role Reversal and the High Court," The Washington Post (July 10, 2005).

"Why We Must Strive for Balance," Chicago Tribune (July 6, 2005).

"O'Connor's Balancing Act," Los Angeles Times (July 3, 2005).

"Constitution and the law now under attack," The Times Union (April 24, 2005).

"Latest Assault on Judges Threatens Rule of Law," Los Angeles Times (April 15, 2005).

"The Rhenquist Revolution," The New Republic (December 27, 2004).

"Power Base," The New Republic Online (October 27, 2005).

"Economic Security: A Human Right; Reclaiming Franklin Delano Roosevelt's second bill of rights," The American Prospect (October 2004).

"A Bench Tilting Right," Washington Post (October 30, 2004) (with David Schkade).

"The Power of Dissent," Los Angeles Times (September 17, 2003).

"Judging By Where You Sit," New York Times A31 (June 11, 2003).

"FDR's Wise Take On U.S. Security," Los Angeles Times B13 (May 27, 2003).

"Fear Factor: Truth Is, Sunbathing is Probably More Dangerous Than Terrorism," Los Angeles Times B11 (May 10, 2003).

"Sober Lemmings," The New Republic (April 14, 2003).

"The Right-Wing Assault," 14 The American Prospect 66 (2003).

"Taking Over the Courts," New York Times A19 (November 9, 2002).

"Politics By Other Means," The New Republic (October 21, 2002).

"A Conservative Nominee Liberals Should Love," Wall Street Journal (September 17, 2002).

"A Narrowed Right to Challenge the States," The New York Times (May 31, 2002).

"Keepling Up with the Clonses," The New Republic (May 6, 2002) (book review).

"Rights of Passage," The New Republic (February 25, 2002) (book review).

"Not Deciding," The New Republic (October 29, 2001) (book review)

"Chicago Diarist: The Juror," The New Republic (August 20, 2001).

"The Stifled Society," The New Republic (July 9, 2001) (book review).

"Slaughterhouse Jive," Review of Gary Francione, An Introduction to Animal Rights, New Republic 40 (January 29, 2001).

"One Fine Mess- Why Bush, Gore, and Florida Law Aren't to Blame," The New Republic 40 (January 29, 2001).

"What we'll remember in 2050: 9 views on Bush v. Gore," The Chronicle of Higher Education B15 (January 5, 2001).

"Ad Hominem," The New Republic 24 (December 11, 2000).

"The Broad Virtue in a Modest Ruling," The New York Times A29 (December 5, 2000).

"The Return Of States' Rights," 24 The American Prospect 11 (November 20, 2000).

"Is Nature Good," reviewing Alan McHughen, Pandora's Picnic Basket: The Potential and Hazards of Genetically Modified Foods, The New Republic 38 (October 23, 2000).

"Chipping Away at Buckley," The American Prospect 23 (September 25, 2000).

"The Human Variables," reviewing Truman F. Bewley, Why Wages Don't Fall During a Recession, (August 7, 2000).

"Vanity Fair," The New Republic (1999) (reviewing Robert Frank, Luxury Fever).

"A Constitutional Disgrace," The New Republic (1999). (reviewing Janet Halley, Don't).

"Let's Hear It For Bureaucrats," The New York Times (1997) (reviewing J. Mashaw, Greed, Chaos, and Governance).

"Rebuilding the Wall of Privacy," New York Times (1997) (op-ed).

"Government and Markets," The New Republic (1997) (reviewing F. Hayek, Socialism and War).

"Earl Warren is Dead," The New Republic (1996) (reviewing R. Dworkin, Freedom's Law).

"Children and Television," The New Republic (1996) (reviewing N. Minow, Abandoned in the Wasteland).

"Equality and Free Expression," The New Republic, " (1995) (reviewing N. Strossen, Defending Pornography).

"Founders, Keepers," The New Republic (1993) (reviewing Samuel Beer, To Make A Nation).

"Valuing Life," The New Republic (1993) (reviewing W. Kip Viscusi, Smoking, and W. Kip Viscusi, Fatal Tradeoffs).

"Against Positive Rights," 2 Eastern European Constitutional Review (1993).

"Where Politics Ends," The New Republic (1992).

"Hans," University of Chicago Law Review (1992).

"Something Old, Something New," 1 Eastern European Constitutional Review (1992).

"New Deals," The New Republic (1992) (reviewing B. Ackerman, We the People).

"Is The Court Independent?," The New York Review of Books (1992) (reviewing W. Rehnquist, Grand Inquests," and G. Rosenberg, The Hollow Hope).

"The Spirit of the Laws," The New Republic (1991). (reviewing L. Tribe and M. Dorf," Reading the Constitution).

"Rightalk," The New Republic (1991) (reviewing M. Glendon, Rights Talk).

"Feminism and Legal Theory," 101 Harv. L. Rev. (1988). (book review of MacKinnon, Feminism Unmodified).

Review of John Keane, Public Life and Late Capitalism, 96 Ethics (1986).

Review of Baer, Equality Under the Constitution, 95 Ethics (1984).

"Judicial Remedies and the Public Tort Law," 92 Yale Law Journal 450 (1983) (book review of Schuck, Suing Government).