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David A. Strauss : Publications

Books (Author)

    The Living Constitution (Oxford University Press, 2012). [CU] [WWW]

Journal Articles

    "Constitutional Fundamentalism and the Separation of Powers: The Recess Appointments Case," 83 University of Cincinnati Law Review 347 (2014).

    "The Neo-Hamiltonian Temptation," 123 Yale Law Journal 2676 (2014). [CU]

    "We the People, They the People, and the Puzzle of Democratic Constitutionalism," 91 Texas Law Review 1969 (2013). [CU]

    "Not Unwritten, After All? (reviewing Akhil Reed Amar, America's Unwritten Constitution: The Precedents and Principles We Live By (2012))," 126 Harvard Law Review 1532 (2013). [CU]

    "Book Review (reviewing Jack M. Balkin, Living Originalism (2011))," 32 Law & Philosophy 369 (2013). [CU]

    "'Recognizing Race' and the Elusive Ideal of Racial Neutrality," 113 Columbia Law Review Sidebar 1 (2013). [CU] [WWW]

    "Commerce Clause Revisionism and the Affordable Care Act," 2012 Supreme Court Review 1 (2013). [CU] [WWW]

    "Can Originalism Be Saved?," 92 Boston University Law Review 1161 (2012). [CU]

    "Response and Colloquy Concerning the Papers by Jack Balkin and David Strauss," 92 Boston University Law Review 1271 (2012). [CU]

    "Legitimacy, 'Constitutional Patriotism,' and the Common Law Constitution," 126 Harvard Law Review Forum 50 (2012). [CU]

    "Originalism, Conservatism, and Judicial Restraint," 34 Harvard Journal of Law and Public Policy 137 (2011). [CU]

    "The Last Liberal Justice," Democracy: A Journal of Ideas 114 (2011). [CU]

    "Do We Have a Living Constitution?," 59 Drake Law Review 973 (2011). [CU]

    "Statutes' Domains and Judges' Prerogatives," 77 University of Chicago Law Review 1261 (2010). [CU]

    "Is Carolene Products Obsolete?," 2010 University of Illinois Law Review 1251 (2010). [CU]

    "The Death of Judicial Conservatism," 4 Duke Journal of Constitutional Law and Public Policy 1 (2009). [CU]

    "The Modernizing Mission of Judicial Review," 76 University of Chicago Law Review 859 (2009). [CU]

    "Book Review (reviewing Ronald Dworkin, Justice in Robes (2006))," 119 Ethics 175 (2008). [CU]

    "Originalism and Precedent: Why Conservatives Shouldn't Be Originalists," 31 Harvard Journal of Law and Public Policy 969 (2008). [CU]

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

    "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 (2008). [CU]

    "Memo to the President (and His Opponents): Ideology Still Counts," 49 Northwestern University Law Review 102 (2007). [CU]

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

    "The Common Law Genius of the Warren Court," 49 William and Mary Law Review 845 (2007). [CU]

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

    "Reply: Legitimacy and Obedience," 118 Harvard Law Review 1854 (2004). [CU]

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

    "'Group Rights' and the Problem of Statistical Discrimination," Issues in Legal Scholarship, __ (2003). [CU]

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

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

    "Why Was Lochner Wrong," 70 University of Chicago Law Review 373 (2003). [CU]

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

    "Bush v. Gore: What Were They Thinking?," 68 University of Chicago Law Review 737 (2001). [CU]

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

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

    "Preface," 1999 Supreme Court Review ix (1999) (with Dennis J. Hutchinson & Geoffrey R. Stone ). [CU]

    "What is Constitutional Theory?," 87 California Law Review 581 (1999). [CU]

    "First Amendment Entitlements and Government Motives: A Reply to Professor Merrill," 93 Northwestern University Law Review 1205 (1999). [CU]

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

    "Why it's not Free Speech Versus Fair Trial," 1998 University of Chicago Legal Forum 109 (1998). [CU]

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

    "Book Review (reviewing Ronald Dworkin, Freedom's Law: The Moral Reading of the American Constitution (1996))," 64 University of Chicago Law Review 373 (1998). [CU]

    "Principle and Its Perils," 64 University of Chicago Law Review 373 (1997). [CU]

    "New Textualism in Constitutional Law," 66 George Washington Law Review 1153 (1997). [CU]

    "Why Plain Meaning?," 72 Notre Dame Law Review 1565 (1997). [CU]

    "Common Law Constitutional Interpretation," 63 University of Chicago Law Review 877 (1996). [CU]

    "What is the Goal of Campaign Finance Reform?," 1995 University of Chicago Legal Forum 141 (1995). [CU]

    "Affirmative Action and the Public Interest," 1995 Supreme Court Review 1 (1995). [CU]

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

    "Rights and the System of Freedom of Expression," 1993 University of Chicago Legal Forum 197 (1993). [CU]

    "State Action after the Civil Rights Era," 10 Constitutional Commentary 409 (1993). [CU]

    "Presidential Interpretation of the Constitution," 15 Cardozo Law Review 119 (1993). [CU]

    "The Role of a Bill of Rights," 59 University of Chicago Law Review 539 (1992). [CU]

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

    "Biology, Difference, and Gender Discrimination," 41 DePaul Law Review 1007 (1992). [CU]

    "Abortion, Toleration, and Moral Uncertainty," 1992 Supreme Court Review 1 (1992). [CU]

    "The Illusory Distinction between Equality of Opportunity and Equality of Result," 34 William and Mary Law Review 171 (1992). [CU]

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

    "Book Review (reviewing Rodney M. Smolla, Free Speech in an Open Society (1992))," 4 Constitution 78 (1992). [CU]

    "Why Conservatives (Not Progressives) Should be Disappointed with Justice Thomas," 2 Reconstruction 62 (1992). [CU]

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

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

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

    "Racial Discrimination in Employment: The Case for Numerical Standards," 40 Res Ipsa Loquitur 11 (1991). [CU]

    "Minority Preferences in Broadcast Licensing," 1989-1990 Preview of United States Supreme Court Cases 390 (1990). [CU]

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

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

    "The Role of Judge and Jury in Employment Discrimination Litigation," 1989-1990 Preview of United States Supreme Court Cases 169 (1989). [CU]

    "Can the Government Refuse to Disclose Routine Records Once it Begins to Use Them for Law Enforcement Purposes?," 1989-1990 Preview of United States Supreme Court Cases 72 (1989). [CU]

    "'Dial-a-Porn' and the First Amendment," 1988-1989 Preview of United States Supreme Court Cases 407 (1989). [CU]

    "Dance Halls, Teenagers, and the Freedom of 'Social' Association," 1988-1989 Preview of United States Supreme Court Cases 257 (1989). [CU]

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

    "Due Process, Government Inaction, and Private Wrongs," 1989 Supreme Court Review 53 (1989). [CU]

    "Book Review (reviewing Jerry L. Mashaw, Due Process in the Administrative State (1985))," 98 Ethics 893 (1988). [CU]

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

    "Legality, Activism, and the Patronage Case," 64 Chicago-Kent Law Review 585 (1988). [CU]

    "Supreme Court on Military Plaintiffs," 1 Inside Litigation 31 (1987). [CU]

    "Why Be Tolerant? (reviewing Lee C. Bollinger, The Tolerant Society: Freedom of Speech and Extremist Speech in America (1986))," 53 University of Chicago Law Review 1485 (1986). [CU]

    "The Myth of Colorblindness," 1986 Supreme Court Review 99 (1986). [CU]

Journals

    Editor, The Supreme Court Review(1991-2014)(with Dennis J. Hutchinson, Geoffrey R. Stone & David A. Strauss).

Book Sections

    "Is Constitutional Law Really Law?," in The Oxford Handbook of the U.S. Constitution, Mark V. Tushnet, Mark Graber & Sanford Levinson eds. (Oxford University Press, .

    "On Having Mr Madison as a Client," in Arguing Marbury v. Madison, Mark V. Tushnet ed. (Stanford University Press, 2005). [CU]

    "Bush v. Gore: What Were They Thinking?," in The Vote: Bush, Gore, and the Supreme Court, Richard A. Epstein & Cass R. Sunstein eds. (University of Chicago Press, 2001). [CU]

    "Freedom of Speech and the Common-Law Constitution," in Eternally Vigilant: Free Speech in the Modern Era, Geoffrey R. Stone & Lee C. Bollinger eds. (University of Chicago Press, 2001). [CU]

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

    "Corruption, Equality and Campaign Finance Reform," in The Constitution and Campaign Finance Reform, Frederick G. Slabach ed. (Carolina Academic Press, 1999). [CU]

    "Tragedies under the Common Law Constitution," in Constitutional Stupidities, Constitutional Tragedies, William N. Eskridge, Jr. & Sanford Levinson eds. (New York University Press, 1998). [CU]

    "The Illusory Distinction Between Equality of Opportunity and Equality of Result," in Redefining Equality, Neal Devins & Davison M. Douglas eds. (Oxford University Press, 1998). [CU]

    "David H. Souter," in The Encyclopedia of the American Constitution, Supplement I, Kenneth L. Karst, Leonard W. Levy, John G. West & Jr. eds. (MacMillan, 1992). [CU]

    "The Liberal Virtues," in Nomos XXXIV: Virtue, John William Chapman & William A. Galston eds. (New York University Press, 1992). [CU]

    "The Role of a Bill of Rights," in The Bill of Rights in the Modern State, Richard A. Epstein, Geoffrey R. Stone & Cass R. Sunstein eds. (University of Chicago Press, 1992). [CU]

Other Publications

    "Toil and Trouble in Media-Land (reviewing Amy Gajda, The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press)," The New Rambler, May 19, 2015.

    "What the 'Religious Freedom' Controversy Is Really About," Washington Post, April 11, 2015. [WWW]

    "Yes, the Health Care Mandate is About Liberty," Bloomberg View , May 2012 (with Jonathan Cohn). [WWW]

    "Why Elena Kagan Should Drop the ‘Kagan Standard’," Washington Post, June 28, 2010 (with John F. Manning). [WWW]

    "Supreme Swings," University of Chicago Magazine, October 2005. [WWW]

    "The Myth of the Unpredictable Supreme Court Justice," Chicago Tribune, August 8, 2005, at p. 9.

    "It's Time to Deal with Reality: The Myth of the Unpredictable Supreme Court Justice Debunked," Chicago Tribune, August 8, 2005. [WWW]

    "Pop Con," Legal Affairs, March/April 2005. [WWW]

    "Kerry's Even Keel," Legal Affairs, September September/October 2004. [WWW]

    "Affirmative Action: A Conservative Victory," Chicago Tribune, June 28, 2003. [WWW]

    "Civil Rights and Military Tribunals," Fathom, 2002 (with Kenneth Adams & Herbert J. Stern & Geoffrey R. Stone ). [WWW]

    "Starr Hasn't the Authority to Indict a Sitting President," Los Angeles Daily Journal, February 5, 1999, at p. 6.

    "Indicting the President," New York Times, February 3, 1999, at p. A25.

    "After the Clinton Storm," New York Times, August 7, 1998, at p. A23.

    "The Peril of Religious Segregation: A Comment on the Kiryas Joel Case," University of Chicago Law School Record, September Fall 1994.

    "Patriotism Without Hypocrisy," Boston Review, October/November 1994.

    "Whose Confirmation Mess? (reviewing Stephen Carter, The Confirmation Mess: Cleaning Up the Federal Appointments Process (1994))," American Prospect, 1994, at p.91. [WWW]

    "Bush's Losing Judicial Philosophy," Chicago Tribune, October 29, 1992, at p. 19 (with Geoffrey R. Stone). [WWW]

    "Civil Rights: Double Standards and the Top Court.," Chicago Tribune, June 22, 1989, at p. 19. [WWW]

    "Leaving the Door Open for Affirmative Action," Legal Times, May 2, 1989, at p. 29.

    "Is Judge Bork's Ideology Off Limits?," Chicago Tribune, July 23, 1987, at p. 15. [WWW]

    "Equal Protection, Colorblindness, and the 'Real Differences' among Groups," University of Chicago Law School Record, Fall 1987.