History lean: the reconciliation of private property and representative government
An understanding of the historical context in which the US Constitution was developed is important for constitutional legal scholars, but the legal scholar's objective is fundamentally different than the historian's because the law is forward-looking. Existing law is expected to be applicable to future disputes, and history is necessarily limited to the scope of knowledge at the time it occurred. The constitutional text is the most reliable indication of which policies won out among those considered during the constitutional period, and the legal scholar should focus on the text.
Publication Name: Columbia Law Review
The remote causes of affirmative action, or school desegregation in Kansas City, Missouri
The school desegregation remedies at issue in Missouri v. Jenkins demonstrate the weaknesses inherent in having the courts fashion educational policy. If affirmative action programs are appropriate, developing such programs should be the responsibility of legislatures and school administrations. Affirmative action programs are of questionable merit from a tort perspective because the remedies sought are not being imposed on the parties that created the harm. Courts are failing to follow equitable principles when blanket affirmative action remedies are imposed.
Publication Name: California Law Review
Rights and 'Rights Talk.' (review essay on 'Rights Talk: The Impoverishment of Political Discourse)
Mary Ann Glendon's 'Rights Talk: The Impoverishment of Political Discourse' incorrectly assumes that clarifying rhetoric about rights will help Americans to arrive at solutions to legal dilemmas. The proper first course of action should be to limit the number of rights issues in public discourse. Reducing the tension between unanimous consent and majority rule is necessary to contain controversies over topics such as abortion.
Publication Name: Harvard Law Review
- Abstracts: Reforming the new confirmation process: replacing "despise and resent" with "advise and consent". Burying Caesar: replacement of the veterans appeals process is needed to provide fairness to claimants
- Abstracts: Japan's implementation of the WTO agreement on government procurement. Japan's regulation of large retain stores: political demands versus economic interests
- Abstracts: Definition of a Resident Alien - Proposed Legislative Changes. Trends: Switzerland
- Abstracts: Title VII as the regulation of the secondary effects of speech. Farm workers, boycotts, and free speech
- Abstracts: Hiring the Trojan Horse: the union business agent as a protected applicant. Forming a new consensus