A new paper from Gary Lawson & me: "Presidential Removal as Article I, Not Article II" Limits on congressional power to create independent agencies like the Fed & FTC don't come from Art II "Executive Power" absolutism. See the Necessary and Proper Clause instead: papers.ssrn.com/sol3/papers....

The wonderful @oonahathaway.bsky.social does not hold back: our international legal order is at risk. And she has some proposals... www.theguardian.com/law/2025/nov...

Very pleased to say that my new article, "The Two Tests of Search Law: What Is the Jones Test, and What Does That Say About Katz?", has just been published in final form by the Wash. U. L. Rev. You can now download it from here: wustllawreview.org/2025/11/12/t... Abstract below.

And read this brilliant HLR Foreword by the ever wonderful (sorely missed) @richardre.bsky.social harvardlawreview.org/print/vol-13...

harvardlawreview.org/wp-content/u... Read this brilliant piece by my colleagues @richschragger.bsky.social @micahschwartzman.bsky.social and Nelson Tebbe—:))

A few snippets from my new @slate.com piece on the Supreme Court's decision to hear the Watson case on mail-in voting timing: slate.com/news-and-pol...

Read Richard’s article then listen to this podcast. 👇🏻 podcasts.apple.com/us/podcast/s...

The Supreme Court had three religious freedom cases last Term. With @richschragger.bsky.social and @nelsontebbe.bsky.social, our latest comments on them, extending our analysis of religious preferentialism under the First Amendment. harvardlawreview.org/print/vol-13...

Thank you to the editors of the Harvard Law Review and to many commentators. harvardlawreview.org/print/vol-13...

Out today in HLR, my piece Skrmetti Beyond Scrutiny. What happened, what it means for trans rights and sex equality more broadly: harvardlawreview.org/print/vol-13...

NOW IN PRINT in the Notre Dame Law Review: "GIVE PARENTS THE VOTE," with Joshua Kleinfeld: arguing that parents, not strangers, should direct the voting power of children, and that state legislatures can make it happen! papers.ssrn.com/sol3/papers....

Link: papers.ssrn.com/sol3/papers....

On the blog: In approving Trump's transphobic policy of listing sex assigned at birth on passports, SCOTUS said govt was "merely attesting to a historical fact," thus echoing the obtuseness of Plessy v Ferguson's statement that Black folks were only choosing to see segregation as white supremacy. 👇

Hi new followers! If you happen to be interested in the separation of powers, Congress, government shutdowns, contempt of Congress, the filibuster, and more, have I got the book for you! www.amazon.com/dp/0300248334/

My new article "Immigration is Not Invasion" is now up on SSRN. It comprehensively explains why illegal migration and drug smuggling do not qualify as "invasion" under the Constitution and the Alien Enemies Act of 1798: papers.ssrn.com/sol3/papers....

Law Profs teaching First Amendment: I have put together a FREE, recently updated, and easy to use casebook for use in free speech classes. If you are interested in using such a casebook, send me an email or DM and I would be happy to share!

McConnell on “Against Constitutional Originalism” by Gienapp Michael W. McConnell (Stanford Law School) has posted Against Bad Originalism on SSRN. Here is the abstract: Jonathan Gienapp's book, Against Constitutional Originalism, provides excellent critiques of some features of academic…

On why judicial biographies are almost always bad, unless you collect cliches. washingtonmonthly.com/2025/11/02/a...

There will now be 10,000 new ICE agents & 100,000 new detention beds--and few safeguards protecting people from constitutional violations by the feds. Time for states to pass laws allowing people to sue fed agents. Read about it these "converse-1983" statutes here: papers.ssrn.com/sol3/papers....

I did not write the headline, but I have an op ed on Prop 50 over at the @sfchronicle.com. Shorter version: the nationalization and polarization of our politics is what got us here, and it's also the most likely way out. It will take national partisan Democratic hardball to enact anti-hardball.

For the Democratic party, this is an enormous future test, and a completely unfair burden, but the party doesn't get to choose. For many years R's have been playing constitutional hardball D's have not matched. See this article I wrote with Dave Pozen. That will have to change.

“The Constitution in Crisis: The Supreme Need for Justice Robert Jackson's Legal Realism.” www.dorfonlaw.org/2025/11/the-...

Many thanks to Mark and Mike for inviting me on their pod!

Prakash on the tariffs case thehill.com/opinion/judi...

Andrew Kent and I have a blog post on Quorum Call, the blog of the Harvard Law School Journal of Legislation, about the tariffs case being argued tomorrow. You can find it here: journals.law.harvard.edu/jol/2025/11/...

New paper out! My co-author @barryfriedman1.bsky.social of @policingproject.bsky.social and I explore how 911 dispatch protocols can unintentionally undermine the goals of alternative response — and what to do about it. Out in Criminology & Public Policy: onlinelibrary.wiley.com/doi/10.1111/...

Many thanks to the editors of the U Chicago Law Review! Link: lawreview.uchicago.edu/print-archiv...

Reposting my paper because it was not distributed in many SSRN e-journals--maybe it's a weird fit. papers.ssrn.com/sol3/papers....

New from me in @michlawreview.bsky.social reviewing ‘New Deal Law & Order: How the War on Crime Built the Modern Liberal State’ michiganlawreview.org/whats-left-o...

Review here: papers.ssrn.com/sol3/papers....

On the blog, I preview the issues in Wednesday's SCOTUS oral argument in the tariff case. I also discuss the prominent quotations of Trump's idiocy in the SG's lead brief, which cannot be persuasive but are probably included as a warning to the justices not to cross the mad king who loves tariffs.

In this post, @richardre.bsky.social argues that strategies of conciliation/dissent are not either/or. Even with a minority of 3, the liberal justices can specialize and, through division of labor, do both. But the argument against a unified strategy doesn't specify all the costs of appeasement. /2

ICYMI

Lerer on the Constitutional Paleontology and the Construction Zone Ignacio Adrian Lerer has posted CONSTITUTIONAL PALEONTOLOGY: TRACING THE ANCESTOR'S TALE OF LEGAL DOCTRINES on SSRN. Here is the abstract: Lawrence Solum’s interpretation-construction distinction revolutionized constitutional…

Great column by @jamellebouie.net on how a future Congress can wield its "broad array of powers" to restore our democracy. With quotes from excellent books by @richardprimus.bsky.social and my @georgetownlaw.bsky.social colleague @joshchafetz.bsky.social www.nytimes.com/2025/10/29/o...

This piece on Kagan/KBJ mainstreams discussion of an argument about judicial strategy that @nelsontebbe.bsky.social and I staked out in our article “Establishment Clause Appeasement” several years ago: papers.ssrn.com/sol3/papers..... /1

Why it may suit the needs of today’s dissenting liberal coalition on the Supreme Court to have some of its members be relatively conciliatory (Kagan) and others relatively confrontational (Jackson).

Legal Theory Bookworm: “The Actual Art of Governing” by Magliocca The Legal Theory Bookworm recommends The Actual Art of Governing: Justice Robert H. Jackson's Concurring Opinion in the Steel Seizure Case by Gerard N. Magliocca. Here is a description: Since the adoption of the US constitution,…

In honor of Halloween, my favorite essay in the philosophy of candy: 200proofliberals.blogspot.com/2021/03/the-...

New amicus brief, now on @ssrn.bsky.social! Submitted today in King v. Bon Charge, No. 1:25-cv-105-SB (D. Del. filed Jan. 24, 2025), exploring how Rule 4(k)(2) personal jurisdiction applies after Fuld v. PLO. Download it here: papers.ssrn.com/sol3/papers....

Excited to share that my Article, Digitial Servitude, is hot off the presses @BCLawReview! The Article examines how technology facilitates forced labor in the US by analyzing federal criminal and civil pleadings. bclawreview.bc.edu/articles/10.... 1/x

This is fun. Judge Silberman in dissent once called the Supreme Court, wait for it, a “non-court Court.” Here’s an article about it, and thanks to @richardre.bsky.social for the tip! journals.law.harvard.edu/jlpp/wp-cont...

Two quick thoughts on this: -This isn’t an either/or choice. Dissenters usually create a division of labor. Eg, “you conciliate, I rage.” -That Kagan deleted something late in Biden makes the Chief’s op a lot more reasonable/understandable. www.nytimes.com/2025/10/31/u...

I would have written an article about phone books if it meant getting to write with Zach Clopton . . . But luckily for me we wrote about Local Rules instead. So excited our article is now out with the Virginia Law Review . . . 💙🧡

Thank you @prmalone.bsky.social, Nina Srejovic & fantastic @law.stanford.edu Juelsgaard Clinic students Jina Zhou and Yiran (Isabella) Yang for filing this amicus brief on Jonathan Masur's & my behalf, explaining why a private third-party sale isn't prior art against an unrelated inventor:

Once more, a stay delayed is a stay denied.