Fontana, David

GW Law Faculty Publications

August 11, 2021

SSRN | Scholarly Commons


The Democratic Problems with Washington as the Capital, 24 Theoretical Inquiries L. 119 (2023).

(With Christopher N. Krewson.) The Costs of Policy Legitimation: A Test of the Political Capital Hypothesis, 11 J.L. & Cts. 227 (2023).

Destructive Federal Decentralization, 29 Wm. & Mary Bill Rts. J. 619 (2021).

What Do Constitutional Law Professors Do?, 2020 Wis. L. Rev. 317.

(With Naomi Schoenbaum.)  Unsexing Pregnancy, 119 Colum. L. Rev. 309 (2019).

How Do People Think About the Supreme Court When They Care?, 93 N.Y.U. L. Rev. Online 50 (2018),

Federal Decentralization, 104 Va. L. Rev. 727 (2018).

Unbundling Populism, 65 UCLA L. Rev. 1482 (2018).

(With Aziz Z. Huq.)  Institutional Loyalties in Constitutional Law, 85 U. Chi. L. Rev. 1 (2018).

The Geography of Campaign Finance Law, 90 S. Cal. L. Rev. 1247 (2017).

Cooperative Judicial Nominations During the Obama Administration, 2017 Wis. L. Rev. 285 (2017).

The Administrative Difference of Powers?, 116 Colum. L. Rev. Online 81 (2016),

Placing the Government in Fragile Democracies, 50 Wake Forest L. Rev. 985 (2015).

"The Narrowing of Federal Power by the American Political Capital," 23 William & Mary Bill of Rights Journal 733-758 (2015).

"The People's Justice?," Yale Law Journal Forum (Mar. 24, 2014),

"Perpetual Constitutional Moments: A Reply to Hostovsky Brandes and Weintal," in Israeli Constitutional Law in the Making, p. 303-310. Ed. by Gideon Sapir, Daphne Barak-Erez and Aharon Barak. Oxford: Hart Publishing, 2013.

"Relational Federalism: An Essay in Honor of Heather Gerken," (Symposium: Heather Gerken: Not Your Father's Federalism), 48 Tulsa Law Review 503-521 (2013).

"Executive Branch Legalities," responding to Trevor W. Morrison, "Constitutional Alarmism," [124 Harv. L. Rev. 1688 (2011)], Harvard Law Review Forum (2012),

(With Braman, Donald.) "Judicial Backlash or Just Backlash? Evidence from a National Experiment," 112 Columbia Law Review 731-799 (2012).

"Docket Control and Success of Constitutional Courts," in Comparative Constitutional Law. Edited by Tom Ginsburg and Rosalind Dixon. Northampton, MA: Edward Elgar, 2011.

"The Rise and Fall of Comparative Constitutional Law in the Postwar Era," 36 Yale Journal of International Law 1-53 (2011).

"Comparative Originalism," 88 Texas Law Review See Also 189-199 (2010),

"Obama and the American Civil Religion from the Political Left," (Symposium: Civil Religion in the United States and Europe) 41 The George Washington International Law Review 909-922 (2010).

"The Permanent and Presidential Transition Models of Political Party Policy Leadership," 103 Northwestern University Law Review 1993-2005 (2010).

"Government in Opposition," 119 Yale Law Journal 548-623 (2009).

"The Second American Revolution in the Separation of Powers" (Symposium: What, If Anything, Do We Know About Constitutional Design), 87 Texas Law Review 1409-1429 (2009).

"A Defense of the Supreme Court's Use of Foreign Law," 24 International Litigation Quarterly 8-14 (2008).

"Reforming the Administrative Procedure Act: Democracy Index Rulemaking." 74 Fordham Law Review 81-127 (2005)

"The Next Generation of Transnational/Domestic Constitutional Law Scholarship: A Reply to Professor Tushnet." 38 Loyola of Los Angeles Law Review 445-483 (2004).

(With Ackerman, Bruce.) "Thomas Jefferson Counts Himself Into the Presidency," 90 Virginia Law Review 551-643 (2004).

"A Case for the Twenty-first Century Constitutional Canon: Schneiderman v. United States." 35 Connecticut Law Review 35-90 (2002).

"Refined Comparativism in Constitutional Law." 49 UCLA Law Review 539-623 (2001).


Review of The First Amendment in Cross-Cultural Perspective, by Ronald J. Krotoszynski. 56 Am. J. Comp. L. 1085-1094 (2008).

"The Current Generation of Constitutional Law." Review of The New Constitutional Order, by Mark Tushnet. 93 Georgetown Law Journal 1061-1091 (2005).

Review of Comparative Constitutional Law, by Vicki C. Jackson & Mark Tushnet. 25 Yale Journal of International Law 242-244 (2000).

Review of Global Justice, by Ian Shapiro & Lea Brilmayer. 25 Yale Journal of International Law 557-560 (2000).


(With David Schleicher.) The Basketball Court, Slow Boring (July 11, 2023),

America’s Hidden Crisis of Power and Place, Wash. Post (Aug. 2, 2021),

(With Micha Schwartzman.) Opinion, Trump Picked the Youngest Judges to Sit on the Federal Bench.  Your Move, Biden, Wash. Post (Feb. 16, 2021, 12:33 PM),

(With Christopher Krewson.)  Can the Supreme Court Learn to Speak Up?, Wash. Post, Feb. 26, 2020,

Washington Is Now a Cool City.  That’s Terrible News for American Democracy, Wash. Post (May 7, 2018),

(With Bassin, Ian.) "The Case for a Liberal Scalia: Why President Obama Should Nominate a True Progressive to the Court," (Feb. 17, 2016, 6:47PM),

"The Return of the Jewish Athlete," The Huffington Post, (Jan. 15, 2014, 8:07 AM),

"The Neglected District," The Huffington Post (Jan. 27, 2014, 9:51 AM),

"The North Country Difference," The Huffington Post (Feb. 17, 2014, 6:13 PM),

"Obama Needs a Fresh Approach to Naming Judges," (Mary 15, 2013, 9:38 PM),

"ObamaCare Is Working," Watertown Daily Times, Op-Ed. (Mar. 21, 2014, 12:30 AM).

"A Small Right-Wing Conspiracy: The Federalist Society," The Daily Beast (June 11, 2013),

"The Laboratory of Judicial Nominations," The Huffington Post (Mar. 11, 2013, 12:27 PM),

"Gay Marriage Without the Robes," The Huffington Post (Mar. 27, 2013, 9:43 AM),

"When Morality Left the Gay Marriage Debate," The Huffington Post (Apr. 1, 2013, 10:24 AM),

"The Washington Lawyer Nominee," The Huffington Post (Apr. 12, 2013, 8:26 AM),

"Another Arab Spring Moment that Matters," The Huffington Post (Aug. 1, 2013, 9:11 AM),

"In Defense of Dick Vitale," The New Republic Online (Mar. 13, 2012),

"Obama Should Pack the (Lower) Courts," The New Republic Online (Mar. 13, 2012),

"Law School Confidential: How to Fix Legal Education," The New Republic Online (Nov. 20, 2012),

"Judging Obama's Second Term," The Huffington Post (Nov. 14, 2012),

"Judging the Senate," The Huffington Post (Nov. 26, 2012),

(With Braman, Donald.) "The New Republic: Supreme Anxiety," The New Republic (Jan. 19, 2012),
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"Sonia Sotomayor: How She Became the Public Face of the Supreme Court's Liberal Wing," The New Republic Online (June 29, 2011),

"The Postradical Legal Generation," The Chronicle Review, May 19, 2010.
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"Kagan's Record on Executive Power," Politico (May 10, 2010, 3:40 PM).
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(With Grossman, Seth.) "Elizabeth Warren," Slate (Apr. 7, 2010).

"Stephen Breyer's Making Democracy Work," Washington Post (Oc. 3, 2010) (book review),

"When Security Is Bad for Democracy: The Case for the Death of Congressional Safe Seats," The New Republic Online (Nov. 10, 2010),

"A New Kind of Adviser," The New Republic Online (May 5, 2009).

"Going Robe," The New Republic Online (Dec. 17, 2009).

(With Schwartzman, Micah.) "Old World," The New Republic Online (July 17, 2009).

"Honduras and Constitutional Democracy," The New Republic Online (July 10, 2009).

"The Supreme Court Missing in Action," Dissent Magazine, p. 68-74 (Spring 2008).

"Tony Blair's Legacy," The New Republic Online (May 15, 2007).

"Reevaluation ." The New Republic Online (May 4, 2007).

"Take Some of the Politics Out of U.S. Attorney Selection Process," National Law Journal (May 7, 2007).

"Appointing Prosecutors: Make It Less Political," National Law Journal, (April 30, 2007).

(With Florence, Justin.) "Whose Prisoners Are They, Anyway?," Slate (Dec. 14, 2007).

"American Law Schools, Meet the World." 52 Chronicle of Higher Education (Chronicle Review), no. 38, p. B10 (May 26, 2006).

"Foreign Exchange." The New Republic Online (Mar. 3, 2005).

"Split Decision." The New Republic Online (Apr. 22, 2005).

"Putting Florida on the Primary Stage." The Tallahassee Democrat (Jan. 27, 2004).

(With Bruce Ackerman). "How Jefferson Counted Himself In." 293 The Atlantic Monthly, no. 2, p. 84 (Mar. 1, 2004).

"The New Crime Victims' Rights Act: Empowering Victims Without Harming Defendants' Rights." Findlaw (May 20, 2004).
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"Bush is Wrong to Oppose EU 'Statehood.' The Los Angeles Times p. 19B (Nov. 27, 2003).