About this publication
Beginning in 1993, I started to develop an approach to constitutional interpretation that was grounded in an analogy to “translation.” This Medium publication collects the summaries of work addressing that theory that I have found useful in evolving that theory. My book, Fidelity & Constraint (Oxford University Press 2019), grows out of this early writing, though it is different from this early work. I have learned a great deal from the criticism. I offer this page to map the progress that some of that criticism helped produce.
My scholarship has had a few chapters. My first work was in constitutional theory. That is the foundation for Fidelity & Constraint. Beginning in the late 1990s, I shifted my primary focus to legal policy affecting the Internet, and especially copyright (See Code v2, Remix, Free Culture, The Future of Ideas). Beginning in the late 2000s, I shifted again to address institutional corruption (See Republic, Lost, One Way Forward, The US is Lesterland, Republic, Lost v2, They Don’t Represent Us). Fidelity & Constraint returns to that first work, and while it doesn’t it complete it, it at least liberates a version of my thinking for others to use as they can.
The initial articles that mapped my first thinking about this subject were Fidelity in Translation, 71 Texas Law Review 1165 (1993); Readings by Our Unitary Executive, 15 Cardozo Law Review 175 (1993); The President and the Administration, 94 Columbia Law Review 1 (1994) (with Cass Sunstein); Understanding Changed Readings: Fidelity and Theory, 47 Stanford Law Review 395 (1995); The Limits of Lieber, 16 Cardozo Law Review. 2249 (1995); Post-Constitutionalism (Book Review), 94 Michigan Law Review 1422 (1996); What Drives Derivability: Response to Responding to Imperfection (Book Review), 74 Texas Law Review 839 (1996); Translating Federalism: United States v. Lopez, 1995 Supreme Court Review 125 (1996); Fidelity and Constraint, 65 Fordham Law Review 1365 (1997); The Puzzling Persistence of Bellbottom Theory: What a Constitutional Theory Should Be, 15 Georgetown Law Journal 1837 (1997); The Erie-Effects of Volume 110: An Essay on Context in Interpretive Theory, 110 Harvard Law Review 1785 (1997); Understanding Federalism’s Text, 66 George Washington Law Review 1218 (1998).
In the balance of this publication, I address essays and writing that responded to this writing and that was particularly significant in the evolution of my own thinking.
