Ernest A. Young
Alston & Bird Distinguished Professor of Law
Professor Young teaches constitutional law, federal courts, and foreign relations law. He is one of the nation's leading authorities on the constitutional law of federalism, having written extensively on the Rehnquist Court's "Federalist Revival" and the difficulties confronting courts as they seek to draw lines between national and state authority. He also is an active commentator on foreign relations law, where he focuses on the interaction between domestic and supranational courts and the application of international law by domestic courts. Professor Young also writes on constitutional interpretation and constitutional theory. He has been known to dabble in maritime law and comparative constitutional law.
A native of Abilene, Texas, Professor Young joined the Duke Law faculty in 2008, after serving as the Charles Alan Wright Chair in Federal Courts at the University of Texas at Austin School of Law, where he had taught since 1999. He graduated from Dartmouth College in 1990 and Harvard Law School in 1993. After law school, he served as a law clerk to Judge Michael Boudin of the 1st U.S. Circuit Court of Appeals (1993-94) and to Justice David Souter of the U.S. Supreme Court (1995-96). Professor Young practiced law at Cohan, Simpson, Cowlishaw, & Wulff in Dallas, Texas (1994-95) and at Covington & Burling in Washington, D.C. (1996-98), where he specialized in appellate litigation. He has also been a visiting professor at Harvard Law School (2004-05) and Villanova University School of Law (1998-99), as well as an adjunct professor at Georgetown University Law Center (1997).
Elected to the American Law Institute in 2006, Professor Young is an active participant in both public and private litigation in his areas of interest. He has been the principal author of amicus briefs on behalf of leading constitutional scholars in several recent Supreme Court cases, including Medellin v. Texas (concerning presidential power and the authority of the International Court of Justice over domestic courts) and Gonzales v. Raich (concerning federal power to regulate medical marijuana).
Current Appointments & Affiliations
- Alston & Bird Distinguished Professor of Law, Law School, Duke University 2009
- Professor of Law, Law School, Duke University 2008
Contact Information
- Duke Law School 210 Science Dr, Duke Box 90362, Durham, NC 27708
- Duke Law School Room 3177, Duke Box 90362, Durham, NC 27708
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(919) 613-8506
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See the Duke Law profile page
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View this faculty member's publications on the Duke Law web site
- Background
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Education, Training, & Certifications
- J.D., Harvard University 1993
- Recognition
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In the News
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OCT 17, 2021 School of Law -
OCT 9, 2019 Duke Law -
JUN 27, 2016 SCOTUSblog -
APR 18, 2016 The New York Times -
JAN 26, 2016 Los Angeles Times -
MAY 1, 2015 Duke Today -
NOV 27, 2013 -
JUN 27, 2013 Governing -
JUN 26, 2013 -
JUN 10, 2013
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- Expertise
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Global Scholarship
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Expertise
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- Research
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External Relationships
- Grant & Eisenhofer, PA
- Johns & Counsel
- Kessler Topaz Meltzer Check LLP
- Labaton Sucharow LLP
- Michael Bynum
- Pomerantz LLP
- Publications & Artistic Works
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Selected Publications
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Books
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Young, Ernest A. Dying Constitutionalism and the Lost Years of the Fourteenth Amendment (In preparation), 2023.
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Young, E. The Supreme Court and the Constitution. Foundation Press, 2017.Link to Item
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Young, E. The Supreme Court and the Constitutional Structure. Foundation Press, 2012.Link to Item
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Academic Articles
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Young, Ernest A. “State Sovereign Immunity After the Revolution (In preparation),” 2023.
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Young, Ernest A. “State Sovereign Immunity After the Revolution (In preparation),” 2023.Link to Item
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Young, Ernest A., and Curtis Bradley. “Standing and Probability (In preparation),” 2023.Link to Item
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Young, Ernest A., and Rebekah Strotman. “Standing in State Court (In preparation),” 2023.
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Young, E. “Standing, Equity, and Injury in Fact.” Notre Dame Law Review 97, no. 5 (2022): 1885–1910.Link to Item
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Young, E., and C. Bradley. “Unpacking Third-Party Standing.” Yale Law Journal 131, no. 1 (2021): 1–77.Link to Item
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Young, E. “Chaos, Accomplishment, and Work, or, What I Learned on Paternity Leave.” Duke Journal of Gender Law & Policy 27, no. 1 (2020): 269–77.Link to Item
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Young, E. “State Standing and Cooperative Federalism.” Notre Dame Law Review 94, no. 5 (2019): 1893–1925.Link to Item
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Young, E. “Dartmouth College v. Woodward and the Structure of Civil Society.” The University of New Hampshire Law Review 18, no. 1 (2019): 41–61.Link to Item
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Young, E. “Dying Constitutionalism and the Fourteenth Amendment.” Marquette Law Review 102, no. 3 (2019): 949–78.Link to Item
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Young, E. “Erie as a Way of Life.” Akron Law Review 52, no. 2 (2019): 193–213.Link to Item
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Young, E. “Against Amendments.” Duke Journal of Constitutional Law & Public Policy 13, no. 2 (2018): 149–59.Link to Item
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Young, E., and M. Lemos. “State Public Law Litigation in an Age of Polarization (In preparation),” 2018.
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Young, E. “Federalism as a Check on Executive Authority: State Public Litigation, Executive Authority, and Political Polarization.” Texas Review of Law & Politics 22, no. 2 (2018): 305–16.
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Young, E., and M. Lemos. “State Public-Law Litigation in an Age of Polarization.” Texas Law Review 97, no. 1 (2018): 43–123.Link to Item
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Young, E. “What Can Europe Tell Us About the Future of American Federalism?” Arizona State Law Journal 49 (2017): 1109–40.Link to Item
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Young, E. “Our Prescriptive Judicial Power: Constitutive and Entrenchment Effects of Historical Practice in Federal Courts Law.” William & Mary Law Review 58, no. 2 (2016): 535.Link to Item
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Young, E. “Universal Jurisdiction, the Alien Tort Statute, and Transnational Public Law Litigation after Kiobel.” Duke Law Journal 64 (2015): 1023–1127.Link to Item
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Young, E. “Federalism as a Constitutional Principle (Accepted).” University of Cincinnati, 2015.Link to Item
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Young, E. “Federalism as a Constitutional Principle.” University of Cincinnati Law Review 83 (2015): 1057–82.Link to Item
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Young, E. “Modern-Day Nullification: Marijuana and the Persistence of Federalism in an Age of Overlapping Regulatory Jurisdiction.” Case Western Reserve Law Review 65, no. 3 (2015): 770–94.Link to Item
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Young, E. “Is There a Federal Definitions Power?” Case Western Reserve University Law Review 64, no. 3 (2014): 1269–91.Link to Item
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Young, E. “Prudential Standing After Lexmark International, Inc. v. Static Control Components, Inc.” Duke Journal of Constitutional Law & Public Policy 10 (2014): 149–63.Link to Item
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Young, E. “Exit, Voice, and Loyalty as Federalism Strategies: Lessons from the Same-Sex Marriage Debate.” University of Colorado Law Review 85 (2014): 1133–54.Link to Item
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Young, E. “A General Defense of Erie Railroad Co. v. Tompkins.” Journal of Law, Economics & Policy 10 (2013): 17–123.Link to Item
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Young, E. “United States v. Windsor And The Role Of State Law In Defining Rights Claims.” Virginia Law Review Online 99 (2013): 39–47.Link to Item
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Young, E. “In Praise of Judge Fletcher--And of General Standing Principles.” Alabama Law Review 65, no. 2 (2013): 473–99.Link to Item
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Young, E., and E. Kadens. “How Customary is Customary International Law?” William & Mary Law Review 54 (2013): 885–920.Link to Item
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Young, E. “A Research Agenda for Uncooperative Federalists.” Tulsa Law Review 48 (2013): 427–53.Link to Item
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Young, E., and E. Blondel. “Federalism, Liberty, and Equality in United States v. Windsor.” 2012 2013 Cato Sup. Ct. Rev., 2013, 117–47.Link to Item
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Young, E. “Sorrell v. IMS Health and the End of the Constitutional Double Standard.” Vermont Law Review 36 (2012): 903–30.Link to Item
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Young, E. “Its Hour Come Round at Last?: State Sovereign Immunity and the Great State Debt Crisis of the Early Twenty-First Century.” Harvard Journal of Law & Public Policy 35 (2012): 593–622.Link to Item
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Young, E. “'The Ordinary Diet of the Law': The Presumption Against Preemption in the Roberts Court.” Supreme Court Review 2011 (2012): 253–344.Link to Item
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Young, E. “Popular Constitutionalism and the Underenforcement Problem: The Case of the National Healthcare Law.” Law & Contemporary Problems 75 (2012): 157–201.Link to Item
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Young, E., and E. Johnson. “The Constitutional Law of State Debt.” Duke Journal of Constitutional Law & Public Policy 7 (2012): 117–59.Link to Item
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Young, E., and S. Dogan. “Judicial Takings and Collateral Attack on State Court Property Decisions.” Duke Journal of Constitutional Law & Public Policy 6 (2011): 107–34.Link to Item
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Young, E. “The Continuity of Statutory and Constitutional Interpretation: An Essay for Phil Frickey.” California Law Review 98 (2010): 1371–92.Link to Item
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Young, E. “What Does it Take to Make a Federal System? On Constitutional Entrenchment, Separate Spheres, and Identity.” Tulsa Law Review 45 (2010): 831–44.Link to Item
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Young, E. “Historical Practice and the Contemporary Debate Over Customary International Law.” Columbia Law Review Sidebar 109 (2009): 31–41.Link to Item
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Young, E., and E. Blondel. “Does the Supreme Court Follow the Economic Returns? A Response to 'A Macrotheory of the Court'.” Duke Law Journal 58 (2009): 1759–82.Link to Item
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“Treaties as "Part of our Law".” Texas Law Review 88 (2009): 91–141.Link to Item
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Young, E. “Supranational Rulings As Judgments and Precedents.” Duke Journal of Comparative & International Law 18 (2008): 477–519.Link to Item
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Young, E. “Preemption and Federal Common Law.” Notre Dame Law Review 83 (2008): 1639–79.Link to Item
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Young, E. “Executive Preemption.” Northwestern University Law Review 102 (2008): 869–901.Link to Item
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Young, E., and S. Benjamin. “Tennis with the Net Down: Administrative Federalism without Congress.” Duke Law Journal 57 (2008): 2111–55.Link to Item
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“Curricula and Complacency: A Response To Professor Levinson.” Yale Law Journal Pocket Part 118 (2008): 12.Link to Item
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Young, E. “The Constitutive and Entrenchment Functions of Constitutions: A Research Agenda.” University of Pennsylvania Journal of Constitutional Law 10 (2008): 399–411.Link to Item
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Young, E. “The Constitution Outside the Constitution.” Yale Law Journal 177 (2007): 408–73.Link to Item
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Young, E. “Sosa and the Retail Incorporation of International Law.” Harvard Law Review Forum 120 (2007): 28–35.Link to Item
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Young, E. “Stalking the Yeti: Protective Jurisdiction, Foreign Affairs Removal, and Complete Preemption.” California Law Review 95 (2007): 1775–1820.Link to Item
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Young, E. “Federal Suits and General Laws: A Comment on Judge Fletcher's Reading of Sosa v. Alvarez-Machain.” Virginia Law Review in Brief 93 (2007): 33–39.Link to Item
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Young, E. “Toward a Framework Statute for Supranational Adjudication.” Emory Law Journal 57 (2007): 93–114.Link to Item
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Young, E. “The Constitution Outside the Constitution,” 2007.Link to Item
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Young, E., and C. Cuellar. “Supranational Courts, Presidential Power, and the Medellin Case.” Federal Sentencing Reporter 18 (2006): 240.
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Young, E. “The Conservative Case for Federalism.” George Washington Law Review 74 (2006): 874–87.Link to Item
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Young, E. “Just Blowing Smoke? Politics, Doctrine, and the "Federalist Revival" after Gonzales v. Raich.” Supreme Court Review 2005 (2005): 1–50.Link to Item
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Young, E. “Foreign Law and the Denominator Problem (The Supreme Court, 2004 Term).” Harvard Law Review 119 (2005): 148–67.Link to Item
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Young, E. “Institutional Settlement in a Globalizing Judicial System.” Duke Law Journal 54 (2005): 1143–1261.Link to Item
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Young, E. “Entries on "Citizen-State Diversity" and "Suits Against a State,".” The Heritage Guide to the Constitution 2005 (2005): 252.
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Young, E. “Making Federalism Doctrine: Fidelity, Institutional Competence, and Compensating Adjustments.” William and Mary Law Review 46 (2005): 1733–1855.Link to Item
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Young, E. “It's Just Water: Toward the Normalization of Admiralty.” Journal of Maritime Law & Commerce 35 (2004): 469–521.Link to Item
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Young, E. “Welcome to the Dark Side: Liberals Rediscover Federalism in the Wake of the War on Terror.” Brooklyn Law Review 69 (2004): 1277–1311.Link to Item
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Young, E. “English Constitutionalism circa 2005, or, Some Funny Things Happened After the Revolution.” Constitutional Commentary 21 (2004): 771–802.Link to Item
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Young, E. “The Rehnquist Court's Two Federalisms.” Texas Law Review 83 (2004): 1–165.Link to Item
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Young, E. “The Trouble with Global Constitutionalism.” Texas International Law Journal 38 (2003): 527–45.Link to Item
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Young, E. “Is the Sky Falling on the Federal Government? State Sovereign Immunity, the Section Five Power, and the Federal Balance.” Texas Law Review 81 (2003): 1551–1608.Link to Item
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Young, E. “Protecting Member State Autonomy in the European Union: Some Cautionary Tales from American Federalism.” N.Y.U. Law Review 77 (2002): 1612–1735.Link to Item
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Young, E. “Sorting Out the Debate Over Customary International Law.” Virginia Journal of International Law 42 (2002): 365–511.Link to Item
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Young, E. “Judicial Activism and Conservative Politics.” University of Colorado Law Review 73 (2002): 1139–1216.Link to Item
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Young, E. “Two Cheers for Process Federalism.” Villlanova Law Review 46 (2001): 1349–95.Link to Item
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Young, E., and L. Baker. “Federalism and the Double Standard of Judicial Review.” Duke Law Journal 51 (2001): 75–164.Link to Item
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Young, E., and S. Levinson. “Who's Afraid of the Twelfth Amendment?” Florida State University Law Review 29 (2001): 925–73.Link to Item
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Young, E. “Dual Federalism, Concurrent Jurisdiction, and the Foreign Affairs Exception.” George Washington Law Review 69 (2001): 139–88.Link to Item
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Young, E., M. Berman., and R. Reese. “State Accountability for Violations of Intellectual Property Rights: How To ‘Fix’ Florida Prepaid (And How Not To).” Texas Law Review 79 (2001): 1037–1197.Link to Item
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Young, E. “Hercules, Herbert, and Amar: The Trouble with Intratextualism.” Harvard Law Review 113 (2000): 730–77.Link to Item
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Young, E. “Constitutional Avoidance, Resistance Norms, and the Preservation of Judicial Review.” Texas Law Review 78 (2000): 1549–1614.Link to Item
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Young, E. “'Alden v. Maine' and the Jurisprudence of Structure.” William and Mary Law Review 41 (2000): 1601–76.Link to Item
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Young, E. “State Sovereign Immunity and the Future of Federalism.” Supreme Court Review 1999 (1999): 1–79.Link to Item
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Young, E. “The Last Brooding Omnipresence: Erie Railroad Co. v. Tompkins and the Unconstitutionality of Preemptive Federal Maritime Law.” Saint Louis University Law Journal 43 (1999): 1349–66.Link to Item
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Young, E. “The Virtues of Presidential Weakness: A Comment on Fitts.” Saint Louis University Law Journal 43 (1999): 741–48.Link to Item
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Young, E. “Preemption at Sea.” George Washington Law Review 67 (1999): 273–358.Link to Item
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Young, E. “Rediscovering Conservatism: Burkean Political Theory & Constitutional Interpretation.” North Carolina Law Review 72 (1994): 619–724.Link to Item
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Young, E. “The Supreme Court, 1991 Term - Leading Cases.” Harvard Law Review 106 (1992): 338–47.Link to Item
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Young, E. “Recent Developments: Regulation of Racist Speech: In re Welfare of R.A.V.” Harvard Journal of Law & Public Policy 14 (1991): 903–13.Link to Item
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Book Sections
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Young, Ernest A. “Federalism and Loyalty (Accepted).” In The Law and Politics of Federalism, 2023.
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Young, Ernest A. “Many Models of Process Federalism (In preparation),” 2023.
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Young, E. “Smoke Next Time: Nullification, Commandeering, and the Future of Marijuana Regulation.” In Marijuana Federalism: Uncle Sam and Mary Jane, 85–102. Brookings Institution Press, 2020.
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Young, E. “Foreign Affairs Federalism in the United States.” In Oxford Handbook of Comparative Foreign Relations Law, 259–75. Oxford University Press, 2019.
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Young, E. “A Comparative Perspective.” In Oxford Principles of European Union Law, 142–88. Oxford University Press, 2018.Link to Item
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Young, E. “Almost Legal: Disobedience and Partial Nullification in American Constitutional Politics and Law.” In Nullification & Secession in Modern Constitutional Thought, 146–78, 2016.
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Young, E. “Marijuana, Nullification, and the Checks and Balances Model of Federalism.” In Nullification & Secession in Modern Constitutional Thought, 125–45, 2016.
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Young, Ernest A. “Constitutionalism Outside the Courts.” In Oxford Handbook of the U.S. Constitution, 843–62, 2015.Link to Item
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Young, E. “The Puzzling Persistence of Dual Federalism.” In Federalism and Subsidiarity, 34–82, 2014.Link to Item
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Young, E. “Big Picture Issues in Chamber of Commerce v. Whiting.” In Immigration Regulation After CofC v. Whiting: The States’ Expanded Authority Over Immigrants and Employers, 75–80. ALI-ABA, 2011.
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Young, E. “The Story of Banco Nacional de Cuba v. Sabbatino: Federal Judicial Power in Foreign Relations Cases.” In Federal Courts Stories, 415–44, 2010.
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Young, E. “The Story of 'Gregory v. Ashcroft ' (1991): Clear Statement Rules and the Statutory Constitution of American Federalism.” In Statutory Interpretation Stories, 197–225, 2010.
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Young, E. “Welcome to the Dark Side: Liberals Rediscover Federalism In the Wake of the War on Terror.” In Terrorism, Government, and Law: National Authority and Local Autonomy in the War on Terror, 49–77, 2008.
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Young, E. “Federal Preemption and State Autonomy.” In Federal Preemption: States’ Powers, National Interests, 249–76, 2007.
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Young, E. “What British Devolutionaries Should Know About American Federalism.” In Patterns of Regionalism and Federalism, 2006.
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Young, E. “Taming the Most Dangerous Branch: The Scope and Accountability of Executive Power in the United States.” In The Executive and Public Law: Power and Accountability in Comparative Perspective, 161, 2006.
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Other Articles
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Young, E. “Symposium: United States v. Texas and the future of state-federal litigation.” Scotusblog, 2016.
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Young, E. “Daniel J. Meltzer '75: 1951-2015.” Harvard Law Today, 2015.
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Young, E. “Justice and Politics for All: An Authority on Constitutional Law Passes Judgment on Recent Supreme Court Cases,.” Dartmouth Alumni Magazine, 2012.Link to Item
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Young, E. “Justice Souter's Conservatism.” Acs (American Constitutional Society) Blog, 2009.
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Young, E. “Europe's Constitutional Convention: Will The European Union Embrace Federalism?” Findlaw’S Writ, 2002.
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- Teaching & Mentoring
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Recent Courses
- LAW 342: Federal Courts 2023
- LAW 545JS: Advanced Topics in Federalism 2023
- LAW 640: Independent Research 2023
- LAW 120: Constitutional Law 2022
- LAW 344: Federal Courts II: Public Law Litigation 2022
- LAW 546JS: Advanced Topics in Federal (and State) Jurisdiction 2022
- LAW 604: Ad Hoc Tutorial 2022
- LAW 640: Independent Research 2022
- LAW 120: Constitutional Law 2021
- LAW 343: Federal Courts I: Constitutional and Judicial Power 2021
- LAW 344: Federal Courts II: Public Law Litigation 2021
- LAW 545JS: Advanced Topics in Federalism 2021
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