Books

(Editor), Seyla Benhabib, Another Cosmopolitanism (Oxford University Press, 2006).

(Editor, with Nancy Rosenblum), Civil Society and Government (Princeton University Press 2002).

(with K. Anthony Appiah, Judith Butler, Thomas C. Grey and Reva Siegel), Prejudicial Appearances: The Logic of American Antidiscrimination Law (Duke University Press 2001).

(Editor, with Carla Hesse), Human Rights in Political Transitions: Gettysburg to Bosnia (Zone Books 1999).

(Editor, with Michael Rogin), Race and Representation: Affirmative Action (Zone Books 1998).

(Editor), Censorship and Silencing: Practices of Cultural Regulation (Getty Research Institute for the History of Art and the Humanities: Issues & Debates 1998).

Constitutional Domains: Democracy, Community, Management (Harvard University Press 1995).

(Editor), Law and the Order of Culture (University of California Press 1991).

Articles

(with Reva Siegel), “Roe Rage: Democratic Constitutionalism and Backlash,” 42 Harvard Civil-Rights Civil-Liberties Law Review 373 (2007).

“Informed Consent to Abortion: A First Amendment Analysis of Compelled Physician Speech,” 2007 Illinois Law Review 939 (2007).

“Religion and Freedom of Speech: Portraits of Muhammad.” 14 Constellations 72 (2007).

(with Reva Siegel), “Originalism as a Political Practice: The Right’s Living Constitutionalism,” 75 Fordham Law Review 545 (2006).

“Transparent and Efficient Markets: Compelled Commercial Speech and Coerced Commercial Association in United Foods, Zauderer, and Abood,” 40 Valparaiso University Law Review 555 (2006).

“Compelled Subsidization of Speech: Johanns v. Livestock Marketing Association,” 2005 Supreme Court Review 195.

“Balancing Information and Personality Rights” in Paul Gewirtz, ed., Specialized Research in Personality Rights Law and Tort Law (China Legal System Press 2006) (in Chinese).

“The Structure of Academic Freedom,” in Beshara Doumani, ed., Academic Freedom After September 11 (Zone Press 2006).

(with Reva Siegel, “Questioning Justice: Law and Politics in Judicial Confirmation Hearings,” Yale Law Journal (The Pocket Part), Jan. 2006, http://www.thepocketpart.org/2006/01/post_and_siegel.html.

“Who’s Afraid of Jurispathic Courts?: Violence and Reason in Nomos and Narrative,” 17 Yale Journal of Law & the Humanities 9 (2005).

“Democracy and Equality,” 1 Law, Culture and the Humanities 142 (2005); republished in 603 The Annals of the American Academy of Political and Social Science 24 (2006).

(with Reva Siegel), “Popular Constitutionalism, Departmentalism, and Judicial Supremacy,” 92 California Law Review 1027 (2004).

“Redenfreiheit, Menschenwürde und Demokratie,” in Güntr Frankenberg and Peter Niesen, eds, Bilderverbot: Recht, Ethik, und Ästhetik der öffentlichen Darstellung (2004).

“Sexual Harassment and the First Amendment,” in Catharine A. MacKinnon and Reva B.Siegel, eds, Directions in Sexual Harassment Law (Yale University Press 2004).

“Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law,” 117 Harvard Law Review 4 (2003).

“Congress and the Court,” 132 Daedalus 5 (Summer 2003).

“Law and Cultural Conflict,” 78 Chicago-Kent Law Review 485 (2003).

(with Reva Siegel), “Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act,” 112 Yale Law Journal 1943 (2003).

(with Reva Siegel), “Protecting the Constitution from the People: Juricentric Restrictions on Section Five Power,” 78 Indiana Law Journal 1 (2003).

“Academic Freedom and the ‘Intifada Curriculum.’” Academe, vol. 89, No. 3, p. 16 (May-June 2003).

“Constitutionally Interpreting the FSM Controversy,” in Robert Cohen and Reginald E.. Zelnick, eds., The Free Speech Movement: Reflections on Berkeley in the 1960s (University of California Press 2002).

“Federalism in the Taft Court Era: Can It Be ‘Revived’?” 51 Duke Law Journal 1513 (2002).

“Sustaining the Premise of Legality: Learning to Live with Bush v. Gore,” in Bruce Ackerman, ed., Bush v. Gore: The Question of Legitimacy (Yale University Press 2002).

“First Amendment Rights,” in Philippe Raynaud and Elisabeth Zoller, eds., Le Droit Dans La Culture Américaine (Panthéon-Assas 2001).

“Three Concepts of Privacy,” 89 Georgetown Law Journal 2087 (2001).

“The Supreme Court Opinion as Institutional Practice: Dissent, Legal Scholarship, and Decisionmaking in the Taft Court,” 85 Minnesota Law Review 1267 (2001).

“The Challenge of Globalization to American Public Law Scholarship,” 2 Theoretical Inquiries in Law 323 (2001).

“Reconciling Theory and Doctrine in First Amendment Jurisprudence,” 88 California Law Review 2355 (2000). Republished in Lee C. Bollinger and Geoffrey R. Stone, eds., Eternally Vigilant: Free Speech in the Modern Era 152-173 (University of Chicago Press 2002).

(with Reva Siegel), “Equal Protection by Law: Federal Antidiscrimination Legislation After Morrison and Kimel,” 110 Yale Law Journal 441 (2000).

“Democratic Constitutionalism and Cultural Heterogeneity,” 25 Australian Journal of Legal Philosophy 185 (2000).

“Between Philosophy and Law: Sovereignty and the Design of Democratic Institutions,” NOMOS XLII (“Designing Democratic Institutions”) 209-223 (2000).

“The Constitutional Status of Commercial Speech,” 48 UCLA Law Review 1 (2000).

“Encryption Source Code and the First Amendment,” 15 Berkeley Technology Law Journal 713 (2000).

“Prejudicial Appearances: The Logic of American Antidiscrimination Law,” 88 California Law Review 1 (2000).

“Tort Law and the Communitarian Foundations of Privacy,” 10 The Responsive Community 19 (Winter 1999-2000).

“Defending the Lifeworld: Substantive Due Process in the Taft Court Era,” 78 Boston University Law Review 1489 (1998).

“Judicial Management: The Achievements of Chief Justice William Howard Taft,” Magazine of History, Vol. 13, No. 1. (Fall 1998), pp. 24-29.

“Judicial Management and Judicial Disinterest: The Achievements and Perils of Chief Justice William Howard Taft,” 1998 Journal of Supreme Court History, vol. I, 50-70.

“Democracy, Popular Sovereignty, and Judicial Review,” 86 California Law Review 429 (1998).

“Tragedy and Constitutional Interpretation: The California Civil Rights Initiative,” in Constitutional Stupidities, Constitutional Tragedies, William N. Eskridge, Jr. and Sanford Levinson eds. (New York University Press 1998).

“Justice for Scalia,” New York Review of Books, June 11, 1998, 57-62.

“Community and the First Amendment: A Vital Tension,” The Responsive Community, Vol. 8, No. 1, pp. 13-24 (Winter 1997/98).

“Community and the First Amendment,” 29 Arizona State Law Journal 473 (1997).

“Equality and Autonomy in First Amendment Jurisprudence," 95 Michigan Law Review 1517 (1997).

“Subsidized Speech," 106 Yale Law Journal 151 (1996).

“Introduction: After Bakke," Representations No. 55 (Summer 1996), 1-12.

“The Challenge of State Constitutions," in Constitutional Reform in California (Bruce E. Cain & Roger G. Noll, eds. 1995)

“Recuperating First Amendment Doctrine," 47 Stanford Law Review 1249 (1995).

“William Howard Taft," in The Supreme Court Justices: A Biographical Dictionary (Melvin I. Urofsky ed., 1994).

“Reconceptualizing Vagueness: Legal Rules and Social Orders," 82 California Law Review 491 (1994).

“The Legal Regulation of Gossip: Backyard Chatter and the Mass Media," in Good Gossip (Robert F. Goodman & Aaron Ben-Ze'ev eds. 1994).

“Lani Guinier, Joseph Biden, and the Vocation of Legal Scholarship," 11 Constitutional Commentary 185 (1994).

“Meiklejohn's Mistake: Individual Autonomy and the Reform of Public Discourse," 64 Colorado Law Review 1109 (1993).

“Managing Deliberation: The Quandary of Democratic Dialogue," 103 Ethics 654 (1993).

“Between Democracy and Community: The Legal Constitution of Social Form," NOMOS XXXV ("Democratic Community") 163-90 (1993).

“Chief Justice Taft and the Concept of Federalism," in Federalism and the Judicial Mind: Essays on American Constitutional Law and Politics 53-74 (Harry N. Scheiber ed. 1992); reprinted in 9 Constitutional Commentary 199 (1992).

“Postmodern Temptations," 4 Yale Journal of Law & the Humanities 391 (1992).

“Rereading Warren and Brandeis: Privacy, Property, and Appropriation," 41 Case Western Reserve Law Review 647 (1991).

“Justice William J. Brennan and the Warren Court," 8 Constitutional Commentary 11 (1991), reprinted in Mark Tushnet, ed., The Warren Court in Historical and Political Perspective (Charlottesville 1993).

“Racist Speech, Democracy, and the First Amendment," 32 William and Mary Law Review 267 (1990). Republished in Henry Louis Gates, et al., Speaking of Race, Speaking of Sex (New York University Press 1994).

“The Constitution & Outrageous Speech," Dissent (Summer 1990), 367-73.

“Theories of Constitutional Interpretation," Representations No. 30 (Spring 1990), 13-41.

“The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation, and Hustler Magazine v. Falwell," 103 Harv. L. Rev. 601 (1990).

“The Social Foundations of Privacy: Community and Self in the Common Law Tort," 77 Calif. L. Rev. 957 (1989). Reprinted in Raymond Wacks, ed., The Concept of Privacy (1993).

“Blasphemy, the First Amendment and the Concept of Intrinsic Harm," 8 Tel Aviv University Studies in Law 293 (1988).

“Justice Brennan and Federalism," in Federalism: Studies in History, Law, and Policy (H. Scheiber ed. 1988); reprinted in 7 Constitutional Commentary 227 (1990).

“Cultural Heterogeneity and Law: Pornography, Blasphemy, and the First Amendment," 76 Calif. L. Rev. 297 (1988).

“Between Management and Governance: The History and Theory of the Public Forum," 34 UCLA L. Rev. 1713 (1987).

“Defaming Public Officials: On Doctrine and Legal History," 1987 American Bar Foundation Research Journal 539.

“On the Popular Image of the Lawyer: Reflections in a Dark Glass," 75 Calif. L. Rev. 379 (1987).

“The Social Foundations of Defamation Law: Reputation and the Constitution," 74 Calif. L. Rev. 691 (1986).

“William J. Brennan, Jr.," in the Encyclopedia of the American Constitution (1986).

“The Management of Speech: Discretion and Rights," 1984 Supreme Court Review 169.

“A Theory of Genre: Romance, Realism, and Moral Reality," 33 American Quarterly 367 (1981).

Note, “National Security and the Amended Freedom of Information Act," 84 Yale Law Journal 401 (1976).

Other:

Food Marketing to Children and Youth: Threat or Opportunity? (2006). McGinnis, J.M., Gootman, J.A., Kraak, V.I. (Eds.) and the Committee on Food Marketing and the Diets of Children and Youth. Washington, D.C.: The National Academies Press. (Member of the Committee).

Occasional Pieces

“The Solomon Amendment in the Supreme Court,” The Berkeleyan, March 23, 2006, p. 2.

“Affirmative Action and Higher Education: The View From Somewhere,” 23 Yale Law & Policy Review 25 (2005).

(with William R. Kauffman, Robert O’Neil, and Wendy White), “The University Counsel: A Roundtable Discussion,” Academe (November-December 2001), vol. 87, no. 6, 26-31.

“A Particularly Feisty Supreme Court,” The San Francisco Chronicle, July 18, 2000, at A21.

“Response to Commentators,” 88 California Law Review 119 (1999).

“Regulating Election Speech Under the First Amendment,” 77 Texas Law Review 1837 (1999).

“Taft and the Administration of Justice,” 2 Green Bag 2d 311 (1999).

“Comment on Justice William J. Brennan, Jr.,” 31 Loyola of Los Angeles Law Rev. 745 (1998).

“Chief Justice William Howard Taft and the Invention of Federal Judicial Management: A Study in Judicial Leadership,” State-Federal Judicial Observer, Number 16 (March 1998), p. 1.

“A Eulogy,” 37 Washburn Law Journal xix (1997).

“Reply to Bender,” 29 Arizona State Law Journal 495 (1997).

“Between Norms and Choices,” 22 The Boston Review No. 5 (October/November 1997), page 34, republished in Susan Okin, Is Multiculturalism Bad for Women? (Princeton University Press 1999).

“He Merged Doctrine with Decency," The Recorder, July 25, 1997, pp. 10-11; "Recalling a Sparkling Vision of a Supreme Dignity," Legal Times, vol. 20, no. 11, July 28, 1997, page 15.

“States' Right Rulings: A Tempest in a Constitutional Teapot," Los Angeles Times, Sunday, July 6, 1997, Section M, Page 2.

“Commentary: Judging Lives," 70 New York University Law Review 548 (1995).

“What is the Constitution's Worst Provision?" 12 Constitutional Commentary 191 (1995).

“Editorial," The Daily Californian, February 7, 1995, at 8.

“Symposium on Pornography," The Threepenny Review, No. 55, 10-11 (Fall 1993).

“Les Compromis Intenables de Clinton," Liberation, 19 February 1993, p. 8.

“Federalism and Civil Rights," and "Public Forum," in the Encyclopedia of the American Constitution Supplement I, 204-06, 406-07 (L. Levy, K. Karst & J. West, Jr. eds. 1992).

“Le Président que les Américains Méritent," Liberation, October 17-18, 1992, p. 6.

“Gertz v. Robert Welch, Inc.," and "Time, Inc. v. Hill," in The Oxford Companion to the Supreme Court of the United States 337, 873 (K. Hall ed. 1992).

“Legal Scholarship and the Practice of Law," 63 U. Colorado Law Review 615 (1992).

“Letter," The Boston Review, Vol. XVII, No. 2 (March-April 1992), 13.

“Post-Modernism and the Law," London Review of Books, 21 February 1991, at 3.

“Jurisdictional Unity, Cultural Hegemony, and the Impetus for Human Rights," in H. Wellenreuther, ed., German and American Constitutional Thought: Context, Interaction, and Historical Realities (1990).

“The Perils of Conceptualism: A Response to Professor Fallon," 103 Harvard Law Review 1744 (1990).

“The Court at the Millennium, A Conversation," 76 ABAJ 62 (1990) (with Stephen Carter, Mark Tushnet, and Paul Reidinger).

“Tradition, the Self, and Substantive Due Process: A Comment on Michael Sandel," 77 Calif. L. Rev. 553 (1989).

“Webster's Chaotic Aftermath," Los Angeles Times, July 6, 1989, Pt. II, p. 7.

“Strong Tool Lost in Fight Against Continual Patterns of Excluding Minorities," Los Angeles Times, February 1, 1989, Pt. II, p. 7.

Book Review, Freedom of Speech by Eric Barendt, 36 Am. J. Comp. L. 174 (1988).

“Scalia Needs to Recognize the Use and Abuse of Principle," Los Angeles Times, July 27, 1986, Pt. V, p. 5.

“On Professional Prerogatives," 37 Stanford Law Review 459 (1985).

“A Visit to Nicaragua," The Recorder, July 10, 1985, at 2.

“Constitutional Questions Raised by Proposed `Legislative Reform Act,'" L.A. Daily Journal, May 30, 1984.

“Legal Concepts and Applied Social Research Concepts: Translation Problems," in J. Saks and C.H. Baron eds., The Use/Nonuse/Misuse of Applied Social Research in the Courts (Cambridge, Mass. 1980).