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Books
Antonin Scalia and American Constitutionalism: The Historical Significance of a Judicial Icon (Oxford University Press, 2020)
Originalism, Federalism, and the American Constitutional Enterprise: An Historical Inquiry (Yale University Press, 2007)
Brandeis and the Progressive Constitution:Erie, the Judicial Power, and the Politics of the Federal Courts in Twentieth-Century America. (Yale University Press, 2000)
Litigation and Inequality: Federal Diversity Jurisdiction in Industrial America, 1870–1958 (Oxford University Press, 1992)
The Crisis of Democratic Theory: Scientific Naturalism and the Problem of Value (University Press of Kentucky, 1973)
Book Chapters
“The Supreme Court and International Law, 1901-1945: Historical Commentary,” in The U.S. Supreme Court and International Law: Continuity or Change?, pgs. 285–313 (Cambridge University Press, 2011)
“Comment on Sosa v. Alvarez-Machain” in The U.S. Supreme Court and International Law: Continuity or Change?, pgs. 499-504 (Cambridge University Press, 2011)
“Some Horwitzian Themes in the Law and History of the Federal Courts,” Transformations in American Legal History: Law, Ideology, and Methods–Essays in Honor of Morton J. Horwitz, Vol. 2, pgs. 271–286 (Harvard University Press, 2010)
“The Story of Michigan v. Long: Supreme Court Review and the Workings of American Federalism,” in Federal Courts Stories, pgs. 115–139 (Foundation Press, 2009)
“The Courts, Federalism, and the Federal Constitution: 1920-2000,” in The Cambridge History of Law in America, Vol. 3, pgs. 127–174 (Cambridge University Press, 2008)
“Progressive Lawyering: An Historical Overview,” in Progressive Lawyering, Globalization and Markets: Rethinking Ideology and Strategy, pgs.7–22 (William S. Hein & Co., 2007)
“The Story of Erie: How Litigants, Lawyers, Judges, Politics, and Social Change Reshape the Law,” in Civil Procedure Stories, pgs. 21–74 (Foundation Press, 2004); Second Edition, revised (Foundation Press, 2008)
“The Action Was Outside the Courts: Consumer Injuries and the Uses of Contract in the United States, 1875–1945,” in Private Law and Social Inequality in the Industrial Age: Comparing Legal Cultures in Britain, France, Germany, and the United States, pgs. 505–535 (Oxford University Press, 2000)
“Violence and Social Change: The Homestead Strike,” in Present in the Past: Source Problems in American History, pgs. 259–264 (MacMillan, 1972)
Articles
“Race Across the Curriculum: A Team-Taught Course on Law and Race in America,” 66 New York Law School Law Review 125 (2022)
“Race and the Law: The Visible and the Invisible,” 66 New York Law School Law Review 141 (2022)
“Exploring the Interpretation and Application of Procedural Rules: The Problem of Implicit and Institutional Racial Bias,” 169 University of Pennsylvania Law Review 2583 (2021)
“The One Obvious Statute the DOJ Could Use to Prosecute Trump for Jan. 6,” Slate (2021)
“An Acid Test for the Roberts Court,” The Hill (2021)
“Democrats Are Ignoring the Only Thing That Matters,” The Hill (2021)
“Trump’s ‘Big Lie” is Just a Ploy,” The Hill (2021)
“Senate Has to Confront Sworn Duty with Critical Second Impeachment,” The Hill (2021)
“Amy Coney Barrett Will Cement the Legacy of Republicans if Confirmed,” The Hill (2020)
“Donald Trump Sacrifices His Own Base to Secure His Hold on Power,” The Hill (2020)
"The Republican Party Goes for Broke," The Hill (2020)
“The Fateful Republican Party Gamble,” The Hill (2020)
“The Senate Itself Is on Trial,” The Hill (2020)
“Why Law of Evidence Supports the Verdict That the President Is Guilty,” The Hill (2020)
“Nancy Pelosi Is Defending the Constitution With Her Actions,” The Hill (2019)
“Republicans Must Not Abandon Originalism of the Constitution,” The Hill (2019)
“Trump and the Coming Moment of Truth for the Federal Judiciary,” The Hill (2019)
“The Historical Significance of Judge Learned Hand: What Endures and Why?” 50 Arizona State Law Journal 855 (2018)
“Exploring the Origins of America’s ‘Adversarial’ Legal Culture,” 70 Stanford Law Review Online 37 (2017)
“What Changes in American Constitutional Law And What Does Not?” 102 Iowa Law Review Online 64 (2017)
“The Judicial Legacy of Louis Brandeis and the Nature of American Constitutionalism,” 33 Touro Law Review 5 (2017)
“Capitalism and Risk: Concepts, Consequences, and Ideologies,” 64 Buffalo Law Review 23 (2016)
“Reflections on the Fiftieth Anniversary of the March and the Speech: History, Memory, Values,” 59 New York Law School Law Review 17 (2015)
“Paradoxes of Court-Centered Legal History: Some Values of Historical Understanding for a Practical Legal Education,” 64 Journal of Legal Education 229 (2014)
“Democracy, the Constitution, and Legal Postitivism in America: Lessons from a Winding and Troubled History,” 66 Florida Law Review 4 (2014)
“From the Particular to the General: Three Federal Rules and the Jurisprudence of the Rehnquist and Roberts Courts,” 162 University of Pennsylvania Law Review 7 (2014)
“National League of Cities: Judicial Decision-Making and the Nature of Constitutional Federalism,” 91 Denver University Law Review Online 179–190 (2014)
“Semi-Wonderful Town, Semi-Wonderful State: Bill Nelson’s New York,” 89 Chicago-Kent Law Review 1085–1108 (2014)
“The Umpire Changes the Rules,” co-authored with B. Goldstein, Huffington Post, (2013)
“Understanding Curtiss-Wright,” 31 Law and History Review 653 (2013)
“Scholarly, Graceful, and Illuminating: The Books of James F. Simon,” 57 New York Law School Law Review 483 (2013)
“The Ideal of Judicial Independence: Complications and Challenges,” 47 Tulsa Law Review 141 (2012)
“Barry Friedman’s The Will of the People: Probing the Dynamics and Uncertainties of American Constitutionalism,” Michigan State Law Review 663 (2010)
“Ex Parte Young and the Transformation of the Federal Courts, 1890-1917,” 40 University of Toledo Law Review 931 (2009)
“Naming and Blaming: The Case of ‘The Rehnquist Court’,” 37 Reviews in American History 440 (2009)
“The Class Action Fairness Act in Perspective: The Old and the New in Federal Jurisdictional Reform,” 156 University of Pennsylvania Law Review 1823 (2008)
“Evolving Understandings of American Federalism: Some Shifting Parameters,” 50 New York Law School Law Review 635–698 (2005–06)
“The Particularly Dubious Case of Hans v. Louisiana: An Essay on Law, Race, History, and ‘Federal Courts’,” 81 North Carolina Law Review 1927–2059 (2003)
“Caseload Burdens and Jurisdictional Limitations: Some Observations from the History of the Federal Courts,” 46 New York Law School Law Review 7–28 (2002–03)
“On the Complexity of ‘Ideas in America’: Origins and Achievements of the Classical Age of Pragmatism,” 27 Law & Social Inquiry 967–999 (2002)
“The New Deal ‘Constitutional Revolution’ as an Historical Problem,” 78 Virginia Quarterly Review 238 (2002)
“Brandeis, Erie, and the New Deal ‘Constitutional Revolution’,” 26 Journal of Supreme Court History 257–278 (2001)
“Reconsidering the Frankfurterian Paradigm: Reflections on Histories of Lower Federal Courts,” 24 Law & Social Inquiry 679–750 (1999)
“Rethinking Constitutional Change,” 80 Virginia Law Review 277–290 (1994)
“The System of Corporate Diversity Litigation: Method and Implications,” 12(1) In Brief 13 (1993)
“Geography as a Litigation Weapon: Consumers, Forum-Selection Clauses, and the Rehnquist Court,” 40 UCLA Law Review 423–515 (1992)
“Social Thought,” 35 American Quarterly 80 (1983)
“The Professionalization of Philosophy,” 7 Reviews in American History 51 (1979)
“Alexander Bickel and the Post-Realist Constitution,” 11 Harvard Civil Rights-Civil Liberties Law Review 521–564 (1976)
“Service Intellectuals and the Politics of ‘Science’,” 15 History of Education Quarterly 97 (1975)
“Brandeis and the Democratic Vision,” 1 Reviews in American History 253 (1973)
“American Jurisprudence Between the Wars: Legal Realism and the Crisis of Democratic Theory,” 75 American Historical Review 424 (1969)
“Ideas and Interests: Businessmen and the Interstate Commerce Act,” 54 Journal of American History 561 (1967)
Other Writing
“The Twisted History of an ‘Original’ Concept,” Balkinization Blog (2023)
Book Review of Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture by Susanna L. Blumenthal, 35 Law and History Review 267 (2017)
“Issues and Readings on the Recent History of the Federal Judiciary,” Legal History Blog (2013)
Book Review of Bush v. Gore: Exposing the Hidden Crisis in American Democracy by Charles Zelden (2011)
Book Review of White Collar Radicals: TVA’S Knoxville Fifteen, the New Deal, and the McCarthy Eraby Kenneth O’Reilly, 97 Journal of American History 841 (2010)
“Henry M. Hart, Jr.,” in The Yale Biographical Dictionary of American Law, pgs. 255–256 (Yale University Press, 2009)
Book Review of Architect of Justice: Felix S. Cohen and the Founding of American Pluralismby Dalia Mitchell, 95 Journal of American History 250 (2008)
“Erie v. Tompkins,” in Federalism in America: An Encyclopedia, ed. Ellis Katz et al. (2006)
Book Review of The Rise of Judicial Management in the U.S. District Court, Southern District of Texas by Steven Harmon Wilson, 23 Law and History Review 481 (2005)
Book Review of Unholy War: Terror in the Name of Islamby John I. Esposito, 227 New York Law Journal 2 (June 7, 2002)
Book Review of The Metaphysical Club: A Story of Ideas in America by Louis Menand, H-Law, H-New Reviews (2002)
Book Review of Civil Rights and Public Accommodations: The Heart of Atlanta Motel and McClung Casesby Richard C. Cortner, 107 The American Historical Review 248–249 (2002)
Book Review of The Supreme Court Under Edward Douglass White, 1910–1921 by Walter F. Pratt, Jr., 106 American Historical Review 588–589 (2001)
Book Review of Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolutionby Shawn Francis Peter, 224 New York Law Journal 2 (2000)
Book Review of Shifting the Blame: Literature, Law, and the Theory of Accidents in Nineteenth-Century Americaby Nan Goodman, 220 New York Law Journal 2 (1998)
Book Review of The Strange Career of Legal Liberalismby Laura Kalman, 102 American Historical Review 1264 (1997)
Book Review of Reclaiming the Federal Courts by Larry W. Yackle, 15 Law and History Review 206–208 (1997)
Book Review of American Legal Realism and Empirical Social Science by John Henry Schlegel, 83 Journal of American History 254–255 (1996)
“Learned Hand: The Jurisprudential Trajectory of an Old Progressive,” Book Review of Learned Hand: The Man and The Judge, by Gerald Gunther. 43 Buffalo Law Review 873–926 (1995)
“Consensus” in A Company to American Thought, pg. 140 (Blackwell, 1995)
Book Review of Justice Oliver Wendell Holmes: Law and the Inner Self by Edward White, 61 Journal of Southern History 620–623 (1995)
Book Review of The Constitution Besieged by Howard Gillman, 81 Journal of American History 750–751 (1994)
Book Review of Legal Hermeneutics: History, Theory and Practice edited by G. Leyh. 79 Journal of American History 1567 (1993)
Book Review of Earl Warren: A Public Life by G. Edward White, 70 The Journal of American History 201–202 (1983)
Book Review of Furious Fancies: American Political Thought in the Post-Liberal Era by Philip Abbott, 68 Journal of American History 443–444 (1981)
“Bennett Champ Clark,” in Dictionary of American Biography, Supp. Vol. 5, pg. 113 (Charles Scribner’s Sons, 1977)
“Dudley Field Malone,” in Dictionary of American Biography, Supp. Vol. 4, pg. 541 (Charles Scribner’s Sons, 1977)
Book Review of From the Diaries of Felix Frankfurter by Joseph P. Lash, 49 New England Quarterly 314–317 (1976)
Book Review of Karl Llewellyn and the Realist Movement by William Twining, 19 American Journal of Legal History 240 (1975)
Book Review of Roscoe Pound: Philosopher of Law by David Wigdor, 48 New England Quarterly 298–300 (1974)
Book Review of Constitutional Change: Amendment Politics and Supreme Court Litigation Since 1900 by Clement E. Vose, 17 American Journal of Legal History 393 (1973)
Book Review of The Modern Supreme Court by Robert C. McCloskey, 58 The American Historical Review 180–181 (1973)
“Martin Conboy,” in Dictionary of American Biography, Supp. Vol. 3, pg. 180 (Charles Scribner’s Sons, 1973)
