Selected Publications
BOOKS
- The New Roberts Court, Donald Trump, and Our Failing Constitution (Palgrave Macmillan, 2017).
- Neoconservative Politics and the Supreme Court: Law, Power, and Democracy (New York University Press, 2013).
- Free Expression and Democracy in America: A History (University of Chicago Press, 2008).
- American Legal Thought From Premodernism to Postmodernism: An Intellectual Voyage (Oxford University Press, 2000).
- Please Don’t Wish Me a Merry Christmas: A Critical History of the Separation of Church and State (New York University Press, 1997).
ARTICLES & ESSAYS
- “The Return of the Self, or Whatever Happened to Postmodern Jurisprudence?,” 9 Wash. U. Jurisprudence Rev. 267 (2017).
- “Brown v. Board of Education for Topeka, in Max Planck Encyclopedia of Comparative Constitutional Law” (Rainer Grote, Rüdiger Wolfrum, & Frauke Lachenmann eds., 2017).
- “(Same) Sex, Lies, and Democracy: Tradition, Religion, and Substantive Due Process (With an Emphasis on Obergefell v. Hodges),” 24 Wm. & Mary Bill Rts. J. 341 (2015).
- “Fighting the Tofu: Law and Politics in Scholarship and Adjudication,” 14 Cardozo Pub. L., Pol’y & Ethics J. 91 (2015).
- “Is the Constitution Laissez Faire? The Framers, Original Meaning, and the Market,” 81 Brook. L. Rev. 1 (2015).
- “Free Speech and Free Press, in Oxford Handbook of the U.S. Constitution” 629 (Mark Tushnet, Sanford Levinson, & Mark Graber eds., Oxford University Press, 2015).
- “The Interpretation of Constitutional History, or Charles Beard Becomes a Fortuneteller (With an Emphasis on Free Expression),” 29 Const. Commentary 323 (2014).
- “Hate Speech and Democracy,” 32 Criminal Justice Ethics 78 (2013).
- “Democracy and Dissent: Strauss, Arendt, and Voegelin in America,” 89 Denv. U. L. Rev. 671 (2012).
- “Conservative Eras in Supreme Court Decision Making: Employment Division v. Smith, Judicial Restraint, and Neoconservatism,” 32 Cardozo L. Rev. 1791 (2011).
- “Free Speech, World War I, and Republican Democracy: The Internal and External Holmes,” 6 First Amendment L. Rev. 192 (2008).
- “The Theory and Politics of First-Amendment Protections: Why Does the Supreme Court Favor Free Expression Over Religious Freedom?,” 8 U. Pa. J. Const. L. 431 (2006).
- “The Problem of Critique: Triangulating Habermas, Derrida, and Gadamer Within Metamodernism,” 4 Contemp. Pol. Theory 296 (2005).
- “Religious Minorities and the First Amendment: The History, the Doctrine, and the Future,” 6 U. Pa. J. Const. L. 222 (2003).
- “An Arrow to the Heart: The Love and Death of Postmodern Legal Scholarship,” 54 Vand. L. Rev. 2351 (2001).
- “The Supreme Court in a Postmodern World: A Flying Elephant,” 84 Minn. L. Rev. 673 (2000).
- “Made For Each Other: The Interdependence of Deconstruction and Philosophical Hermeneutics,” 26 Phil. & Soc. Criticism 51 (2000).
- “Playing With the Pieces: Postmodernism in the Lawyer’s Toolbox,” 85 Va. L. Rev. 151 (1999).
- “The Politics of Postmodern Jurisprudence,” 95 Mich. L. Rev. 166 (1996).
- “Diagnosing Power: Postmodernism in Legal Scholarship and Judicial Practice,” 88 Nw. U. L. Rev. 1046 (1994).
- “The Persistence of Power and the Struggle for Dialogic Standards in Postmodern Constitutional Jurisprudence: Michelman, Habermas, and Civic Republicanism,” 81 Geo. L.J. 2243 (1993).
- “Whose Common Good? Racism in the Political Community,” 80 Geo. L.J. 1835 (1992).
- “Republican Revival/Interpretive Turn,” 1992 Wis. L. Rev. 679.
- “An Interpretation of Max Weber’s Theory of Law: Metaphysics, Economics, and the Iron Cage of Constitutional Law,” 16 L. & Soc. Inquiry 205 (1991).
- “Exposing Sunstein’s Naked Preferences,” 1989 Duke L.J. 1335.
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I bought my first personal computer in 1984, at the beginning of my tenure as a teaching fellow and graduate student at Stanford Law School. I chose a word processing program, but within five years, the company that produced the program went defunct. Needing a new program, I searched for the best possible word processor and chose Nota Bene. At that point, I found four elements of Nota Bene to be especially appealing. First, the program enabled the user to create a text base (Orbis); no other program that I considered included this feature. Second, the program allowed me to create my own typing shorthand, which allowed me to save an enormous number of keystrokes when typing. Third, the program allowed me to cross reference between footnotes, a constant exercise when publishing in American law journals (and the program automatically updated these cross references when I added or deleted a note). Finally, the program facilitated the quick inverting of characters, words, sentences, and even paragraphs. I still enjoy using all of these features, and I have never regretted choosing Nota Bene.
Nota Bene has facilitated my research and writing of five books, the editing of an anthology, and the publication of dozens of articles. I use Orbis constantly in sorting through my research and in creating footnotes/endnotes. With Orbis, it is not unusual for me to find a useful source that I read (and took notes on) twenty or twenty-five years ago. While I usually publish in law reviews, I periodically publish in interdisciplinary and political philosophy journals. When I do so, I use Archiva to add to my bibliographic database and then use Ibidem to format my references perfectly, even though I haven’t learned the arcane minutia of the respective journal’s citation format. I probably would not have bothered trying to publish in these non-law journals but for the ease of using Ibidem.
No discussion of Nota Bene would be complete without discussing the quality of the company and the people who work there. If I have a technical problem, I email technical support and typically have a response the same day or next. Amazingly, the response often comes from Steve Siebert, the original creator of the program. Moreover, even though Nota Bene is a small software company in a world dominated by tech giants, the program is always kept up to date with new and useful features. For instance, Archiva, the component that allows access to libraries around the world when building a bibliographic database, did not exist ten years ago. Recently, Orbis expanded so that users can include non-Nota Bene documents, such as PDFs, in textbases. Another recent addition to the program, which I use frequently, allows the user to convert NB documents into perfect PDF files.
Nota Bene includes numerous aspects and components, such as Ibidem, that I rarely or never use. But other users might use these components on a daily basis. The point is that Nota Bene is an incredibly rich and flexible suite of programs centered around a world-class word processing program.
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