Publications
SCHOLARLY PUBLICATIONS
Of Dress and Redress:Student Dress Restrictions in Constitutional Law and Culture, 54 Harv. C.R.-C.L. L. Rev. _ (forthcoming 2018) (with Deborah Ahrens).
The Myth of Merit: The Garland Nomination, the Friendly Legacy, and the Slipperiness of Appellate Court Qualifications, 4 SavannahL. Rev. 113 (2017).
Constitutional Theory, Constitutional Culture, 18 U. Pa. J. Const. L. 1067 (2016).
The Supreme Court Sourcebook(Aspen 2013) (with Richard Seamon, Joseph Thai, & Kathryn Watts).
Justice Stevens and the Seattle Schools Case: A Case Study on the Role of Righteous Anger in Constitutional Discourse, 43 U.C. Davis L. Rev. 927 (2010).
Notes Towards an Alternate Vision of the Judicial Role, 32 Seattle U. L. Rev. 511 (2009).
From Bad to Worse?: Some Early Speculation About the Roberts Court and the Constitutional Fate of the Poor, 59 S.C. L. Rev. 849 (2008).
The Court Against the Courts: Hostility to Litigation as an Organizing Theme in the Rehnquist Court’s Jurisprudence, 84 Tex. L. Rev. 1097 (2006) (winner of the 2006 Faculty Scholarship Award at the University of South Carolina School of Law).
Equal Protection Unmodified: Justice John Paul Stevens and the Case for Unmediated Constitutional Interpretation, 74 Fordham L. Rev. 2339 (2006).
Moving Down the Wedge of Injustice: A Proposal for a Third Generation of Wrongful Convictions Scholarship and Advocacy, 42 Am. Crim. L. Rev. 1219 (2005).
When Prosecutors Control Criminal Court Dockets: Dispatches on History and Policy from a Land Time Forgot, 32 Am. J. Crim. L.325 (2005).
“To Learn and Make Respectable Hereafter:” The Litchfield Law School in Cultural Context, 73 N.Y.U. L. Rev. 1978 (1998).
“Steady Habits” Under Siege: The Defense of Federalism in Jeffersonian Connecticut, in Doron Ben-Atar & Barbara B. Oberg, eds., FEDERALISTS RECONSIDERED (University Press of Virginia 1998), 199-224.
SELECT ADDITIONAL WRITINGS AND COMMENTARY
John Paul Stevens: Leader of the Resistance, Scotusblog, May 25, 2010 (solicited online essay for 30 Days of Stevens series)
Farewell to Justice Stevens from Those Who Knew Him Well, Washington Post Online, April 9, 2010 (with Joseph Thai & Eduardo Penalver)
Symposium—State Judicial Independence: A National Concern, Session 1: One Symptom of a Serious Problem: Caperton v. Massey,33 Seattle U. L. Rev. 589 (2010) (panel with Bert Brandenberg, Richard Hasen, & Kathleen Sullivan) (transcription)
Commentaries on the Constitution, entry in the ENCYCLOPEDIA OF THE SUPREME COURT OF THE UNITED STATES (Macmillan 2008).
In Forma Pauperis, entry in the ENCYCLOPEDIA OF THE SUPREME COURT OF THE UNITED STATES (Macmillan 2008)
Lau v. Nichols, entry in the ENCYCLOPEDIA OF THE SUPREME COURT OF THE UNITED STATES (Macmillan 2008)
A Tale of Two Terms, South Carolina Lawyer, September 2006
Nice Disguise: Alito’s Frightening Geniality, The New Republic, November 15, 2005 (cover story)
Introductionto Symposium: An Appreciation of Professor Herbert Johnson, 56 S.C. L. Rev.427 (2005)
The President’s Top Lawyer,The State (Columbia, S.C.), December 19, 2004 (with Deborah Pearlstein)
Court is Adjourned—What Have We Learned?,South Carolina Lawyer, September 2004, at 14 (cited in Hammon v. State, 829 N.E. 2d 444 (Ind.), rev’d sub nom. Davis v. Washington,126 S. Ct. 2266 (2006))
WORKS IN PROGRESS
The Due Process Super-Structure in Late Middle Age (article nearing completion examining the history and theoretical underpinnings of modern due process rules and categories, and arguing that many of our current doctrinal structures are beginning to reach the end of their natural life cycles) (to be submitted8/1/2019)
Hostility to Litigation Reconsidered: New Vectors, New Fault Lines, and New Stakes (article, undertaken in response to a series of requests from other scholars, analyzing ways in which Supreme Court has manifested, adapted, and doubled down on its hostility to litigation as its membership has changed and issues have evolved in dozen years since publication of my oft-cited article establishing centrality of litigation hostility to Court’s jurisprudence)
Merit, Ideology, and the Evolving Understanding of Appellate Judging: Henry Friendly’s Law Clerks as Appellate Judges(current book project)
Legal Education as a Cultural Project: Inventing the American Law School, 1800-1840 (long-term book project)
SELECT ACADEMIC PRESENTATIONS
The Due Process Super-Structure in Late Middle Age,” Annual Meeting of the Southeastern Association of Law Schools, Boca Raton, FL, July 2019 (scheduled)
The Future of Supreme Court Nominations,” Annual Meeting of the Southeastern Association of Law Schools, Boca Raton, FL, July 2019 (scheduled)
Of Dress and Redress: Student Dress Restrictions in Contemporary Constitutional Law and Culture,” Panel on “Everyday Injustices,” Harvard Law School, Cambridge, MA, November 2018
The Fourteenth Amendment at 150,” Annual Meeting of the Law and Society Association, Toronto, Canada, June 2018
Merit, Ideology, and the Evolving Understanding of Appellate Judging: Henry Friendly’s Law Clerks as Appellate Judges,” Faculty Workshop, Seattle University School of Law, Seattle, Washington, April 2018
Lessons from the Garland Nomination,” Annual Meeting of the Southeastern Association of Law Schools, Boca Raton, Florida, August 2017
The Myth of Merit,” Savannah Law Review Symposium on “American Legal Fictions,” Savannah, Georgia, September 2016
The Eminently Predictable Path of Justice Thomas,” Annual Meeting of the Southeastern Associate of Law Schools,” Amelia Island, Florida, August 2016
Beyond the Marble Façade: Image and Reality in Appellate Judging,” presented at:
Annual Conference of the Association for Law, Culture, and Humanities, Washington, District of Columbia, March 2015
Annual Meeting of the Law and Society Association, Seattle, Washington, May 2015
The Supreme Court’s 2013 Term,” Annual Meeting of the Southeastern Association of Law Schools, Amelia Island, Florida, August 2014
Revisiting the Constitutionality of Student Dress Codes,” Annual Meeting of the Law and Society Association, Minneapolis, Minnesota, May 2014
The Supreme Court in Our Constitutional Culture,” Influential Voices Lecture, Seattle University School of Law, Seattle, Washington, November 2013
Teaching About the United States Supreme Court,” Annual Meeting of the Southeastern Association of Law Schools, Palm Beach, Florida, August 2013
History and Law in the Seattle Schools Case,” Annual Conference of the History of Education Society, Seattle, Washington, November 2012
The Supreme Court’s 2010 Term: Some Dubious Achievement Awards,” Annual Meeting of the American Political Science Association, Seattle, Washington, September 2011
A Theory of Judicial Deference,” Annual Meeting of the Southeastern Association of Law Schools, Hilton Head, South Carolina, July 2011
Courses on the United States Supreme Court: Themes and Audiences,” Law and Society Association Annual Meeting, San Francisco, California, May 2011
John Paul Stevens: Leader of the Resistance,” presented at
Program in Public Law, Duke University, Durham, North Carolina, August 2010
Annual Meeting of the Southeastern Association of Law Schools, Palm Beach, Florida, August 2010
The Caperton Decision and the Deep Structure of the Due Process Clause,” Conference on Judicial Independence, Seattle University, Seattle, Washington, September 2010
Teaching Legal Doctrine in a Post-Realist World,” Annual Meeting of the Southeastern Association of Law Schools, Palm Beach, Florida, August 2009
The Role of Righteous Anger in Constitutional Discourse,” Law and Society Association Annual Meeting, Denver, Colorado, May 2009
Justice John Paul Stevens, the Seattle Schools Case, and the Role of Righteous Anger in Constitutional Discourse,” University of California-Davis Law Review Symposium on “Justice John Paul Stevens,” Davis, California, March 2009
Alternative Visions of the Judicial Role,” Annual Meeting of the Southeastern Association of Law Schools, Palm Beach, Florida, August 2008
Constitutional Theory, Constitutional Culture,” Annual Meeting of the Law and Society Association, Montreal, Canada, May 2008
The Future of Federal Courts,” Junior Federal Courts Faculty Workshop, American University’s Washington College of Law, Washington, District of Columbia, April 2008
From Bad to Worse?: Some Early Speculation About the Roberts Court and the Constitutional Fate of the Poor,” South Carolina Law Review Symposium on “The Robert Court and Equal Protection: Gender, Race, and Class,” Columbia, South Carolina, February 2008
Exploring the Due Process Super-Structure,” presented at:
Annual Meeting of the Southeastern Association of Law Schools, Amelia Island, Florida, July 2007
University of Kansas School of Law, Faculty Colloquium, Lawrence, Kansas, December 2006
Seattle University School of Law, Faculty Colloquium, Seattle, Washington, November 2006
University of Alabama School of Law, Faculty Colloquium, Tuscaloosa, Alabama, November 2006
Equal Protection Unmodified: Justice John Paul Stevens and the Case for Unmediated Constitutional Interpretation,” Conference on the Jurisprudence of Justice John Paul Stevens, Fordham University School of Law, New York, New York, October 2005
When Prosecutors Control Criminal Court Dockets: Dispatches on History and Policy from a Land Time Forgot,” Innocence Network Annual Conference, Washington, District of Columbia, April 2005
Comment” on G. Edward White’s “Historicizing Judicial Scrutiny,” Charles Knowlton Lecture, University of South Carolina, Columbia, South Carolina, March 2005
The Court Against the Courts: Hostility to Litigation as an Organizing Theme in the Rehnquist Court’s Jurisprudence,” presented at:
Faculty Colloquium, University of South Carolina School of Law, Columbia, South Carolina, January 2005
Annual Meeting of the Southeastern Association of Law Schools, Amelia Island, Florida, July 2003
Legal Education at Transylvania University: The Surprisingly Familiar Story of a Surprisingly Unfamiliar Law School,” Annual Meeting of the Southeastern Association of Law Schools, Kiawah Island, South Carolina, August 2004
SELECTED PUBLIC AND PROFESSIONAL PRESENTATIONS AND TESTIMONY
Looking Back and Looking Ahead: SCOTUS Review,” Presentation to Annual Conference of Washington Appellate Judges, Union, Washington, March 2019
A Delicate Balance: Maintaining and Restoring Constitutional Democracy,” Arts and Ideas Discussion Series, Whidbey Island Arts Center, Langley, Washington, March 2019.
Supreme Court Criminal Law and Procedure Review and Preview,” Presentation to the Criminal Law Section of the Federal Bar Association and of the King County Bar, Seattle, Washington, December 2018
The Upcoming Supreme Court Term,” Presentation to the Appellate Law Section of the King County Bar Association, Seattle, Washington, October 2018
The Supreme Court in the Balance,”CLE Program Previewing the Supreme Court, Seattle University School of Law, Seattle, Washington, October 2018
The Supreme Court: Current Cases and Future Directions,” Presentation to Monthly Meeting of 36th Legislative District Democratic Committee, Seattle, Washington, June 2018
Solving Twenty-First Century Problems with an Eighteenth-Century Constitution: Presidential Powers and their Limits in the Age of Trump,”and “Solving Twenty-First Century Problems with an Eighteenth-Century Constitution: The Supreme Court Confronts Cell Phones, Computerized Gerrymandering, Same Sex Marriage, and Modern Weapons,” Two-Lecture Series, Whidbey Island Arts and Ideas Lecture Series, Whidbey Island, Washington, March 2018
Questioning New (and Old) Arguments for Originalism,” Comment on IlanWurman author talk, Federalist Society Debate, Seattle, Washington, February 2018
The Supreme Court, Race, and War: Reflections on Korematsu and Current Controversies,” Social Justice Monday Panel, Seattle, Washington, February 2018
Constitutional Questions and Challenges: Big Cases, A Volatile Era, and a New Court,”CLE Program Previewing the Supreme Court “In the Age of Trump,” Seattle University School of Law, Seattle, Washington, October 2017
“The Travel Ban, Masterpiece Cakeshop, and Other Hot Button Cases,” Student Panel previewing Supreme Court Term, Seattle, Washington, October 2017
Free Speech in these Contested Times,” Presentation to Robert J. Bryan American Inn of Court, Tacoma, Washington, October 2017
Recent (and Upcoming) Supreme Court Cases on Criminal Law and Procedure,” Lunchtime Presentation, Criminal Law Committee, Federal Bar Association for the Western District of Washington, September 2017
Our Constitutional Order,” “Our High Court,” and “Constitutional Challenges and Questions,” Three Lecture Series, Whidbey Island Arts and Cultural Center, June 2017
Supreme Court and Ninth Circuit Update,” Spring Meeting of the Western District of Washington, Seattle, Washington, May 2015, May 2016, May 2017
The Supreme Court without Justice Scalia,” CLE Program Previewing Supreme Court’s 2016 Term, Seattle University School of Law, Seattle, Washington, October 2016
Calling for a Truce?,” Debate about Marijuana Policy Sponsored by Seattle University School of Law Federalist Society Chapter and Cannabis Law Society, October 2016
The Future of the Supreme Court: A Dialogue,” and “Big Ticket Constitutional Cases,” CLE Program Previewing Supreme Court’s 2015 Term, Seattle University School of Law, Seattle, Washington, October 2015
Forecasting the Marriage Equality Cases,” Washington Pride Foundation Reception, Seattle, Washington, April 2015
Recent Supreme Court Criminal Law and Procedure Decisions,” Federal Bar Association, Continuing Legal Education Program, presented in
Tacoma, Washington, April 2015
Seattle, Washington, October 2014
Due Process: Historical Roots and Contemporary Themes,” Annual Conference of Washington Appellate Judges, Lake Chelan, Washington, March 2015
Executive Authority in the Age of Gridlock: A Conversation between Kathy Ruemmler and Professor Andrew Siegel,” Annual Program of the Federal Bar Association, Seattle, Washington, December 2014
The Reasonableness of Rational Basis Review,” Debate Sponsored by Seattle University School of Law Federalist Society Chapter, October 2014
Nearly a Decade of the Roberts Court” and “Coming Culture War Cases,” CLE Program Previewing Supreme Court’s 2014 Term, Seattle University School of Law, Seattle, Washington, October 2014
Supreme Court Decisions Today,” Continuing Legal Education Program, Seattle University School of Law, Seattle, Washington, June 2014
Recent Trends in the Supreme Court’s Constitutional Jurisprudence,” Presentation to Annual Conference of Washington Appellate Judges, Seattle, Washington, April 2014
Themes in the Supreme Court’s Recent Equality Decisions,” Plenary Session, Washington State Bar Association Diversity Conference, Seattle, Washington, October 2013
Introduction” and “Constitutional Law Preview,” CLE Program Previewing Supreme Court’s 2013 Term, Seattle University School of Law, Seattle, Washington, October 2013
Where Does the Marriage Litigation Go From Here,” Constitution Day Program, Seattle University School of Law, Seattle, Washington, September 2013
Parenting Professors,” Annual Meeting of the Southeastern Association of Law Schools, Palm Beach, Florida, August 2013
Making Sense of the LGBTQ Cases Before the US Supreme Court,” Washington Pride Foundation Reception, Seattle, Washington April 2013
Key Decisions and Themes from the United States Supreme Court,” Presentation to Annual Conference of Washington Appellate Judges, Seattle, Washington, April 2013
Obama vs. Romney: The Future of the Supreme Court,” Lawyers for Obama Luncheon Event, Seattle, Washington, October 2012
Constitutional Limitations on Judges’ Courtroom Management Decisions,” Multiple Presentations at Washington State Annual Judicial Education Conference, Ocean Shores, Washington, October 2012
Introduction” and “Constitutional Law Preview,” CLE Program Previewing Supreme Court’s 2012 Term, Seattle University School of Law, Seattle, Washington, September 2012
Update on Federal Constitutional Law,” Presentation to Annual Conference of Washington Appellate Judges, Seatac, Washington, March 2012
The Coming Supreme Court Term: Sleepers and Whoppers,” CLE Program Previewing Supreme Court’s 2011 Term, Seattle University School of Law, Seattle, Washington, September 2011
Update on State and Federal Constitutional Law,” Presentation to Annual Conference of Washington Appellate Judges, Seatac, Washington, April 2011
Update on State and Federal Constitutional Law,” Presentation to Annual Conference of Washington Appellate Judges, Lake Chelan, Washington, April 2010
The Top Ten Story Lines from the Last Supreme Court Term,” Presentation to Annual Conference of Association of Former United States Attorneys, Seattle, Washington, September 2009
Introduction” and “Constitutional Law Preview,” CLE Program Previewing Supreme Court’s 2010 Term, Seattle University School of Law, Seattle, Washington, September 2009
The Constitutionality of Presidential Wire-Tapping and the Powers of the Presidency: A Sample Law School Class,” Seattle University School of Law Spring Visit Day, Seattle, Washington, May 2008 and May 2009
Executive Privilege: Setting the Stage,” Academic Introduction to CLE Program entitled “Congress vs. The President,” Seattle, Washington, October 2008
The Art of Constitutional Interpretation: Some Mildly Skeptical Reflections on District of Columbia v. Heller,” Seattle University School of Law Constitution Day Ceremony, Seattle, Washington, September 2008
The Reagan Justice Department Takes Charge: The Roberts Court and the Future of Constitutional Law,” Seattle University School of Law American Constitution Society Chapter, Seattle, Washington, April 2008
The Evolution of the Supreme Court’s Abortion Jurisprudence,” Seattle University School of Law American Civil Liberties Union Chapter, Seattle, Washington, March 2008
Legal Implications of the Proposed Anti-Gay Marriage Amendment,” presented at:
Peace Committee Colloquium, Shandon Presbyterian Church, Columbia, South Carolina, November 2006
Social Justice Breakfast, Washington Street United Methodist Church, Columbia, South Carolina, October 2006
Columbia Film Society, Columbia, South Carolina, May 2006
Putting the Hamdan Decision in Context,” Supreme Court Faculty Lunch Series, University of South Carolina School of Law, Columbia, South Carolina, September 2006
Repealing or Reforming Prosecutorial Docket Control: Arguments from History and Policy,” Testimony to South Carolina Senate Criminal Justice Task Force, Columbia, South Carolina, September 2006
Why Does the Supreme Court Take So Many Death Penalty Cases?,” Supreme Court Faculty Lunch Series, Columbia, South Carolina, September 2006
A Year Inside the Rehnquist Court,” Keynote Address, Annual Dinner of the John Belton O’Neall Inn of Court, Columbia, South Carolina, April 2006
The Alito Nomination in Cultural Context,” Supreme Court Faculty Lunch Series, University of South Carolina School of Law, Columbia, South Carolina, January 2006
October Term 2005 Supreme Court Preview,” Supreme Court Faculty Lunch Series, University of South Carolina School of Law, Columbia, South Carolina October 2005
The Supreme Court Confirmation Process,” Lecture to South Carolina Judiciary and Judicial Staff, South Carolina Court of Appeals, Columbia, South Carolina, October 2005
When Prosecutors Control the Criminal Court Docket: Dispatches on History and Policy from a Land Time Forgot,” Annual Conference of the South Carolina Public Defenders Association, Charleston, South Carolina, September 2005
The Roberts Nomination: Some Lessons from History,” Supreme Court Faculty Lunch Series, University of South Carolina School of Law, Columbia, South Carolina, September 2005
Some Historical and Constitutional Considerations on the Proposed Constitutional Amendment Banning Same-Sex Marriage,” Testimony to South Carolina Senate Judiciary Committee, Subcommittee on the Constitution, Columbia, South Carolina, March 2005
The Supreme Court’s 2003 Term: Lessons and Trends,” Lecture to South Carolina Judiciary and Judicial Staff, South Carolina Supreme Court, Columbia, South Carolina, July 2004
The University of Michigan Affirmative Action Decisions: Some Initial Reactions,” Faculty Colloquium, University of South Carolina School of Law, Columbia, South Carolina, June 2003
Putting the Florida Election Controversy in Context: A Comment on the Documentary ‘Unprecedented’,” Columbia Film Society, Columbia, South Carolina, June2003
