Critics of Marbury v. Madison have long complained that judicial review frustrates majoritarian democracy. In addition, critics sometimes complain that the Constitution's text does not entail judicial review of federal legislation. In Marbury, Chief Justice John Marshall invokes the judicial oath of office in support of judicial review, but the oath does not distinguish judges from other ublic officials who also swear fealty to the Constitution. Nor do Marshall's other arguments, such as the possibility of clear constitutional violation by the legislature, justify privileging judicial interpretation. The opinion, for all its majesty, never squarely addresses the fundamental question of whose interpretation of the Constitution should prevail in cases of conflict. Both sorts of criticism-that a sound democratic constitution should not establish judicial review and that the American Constitution is best read not to establish judicial review-can lead ultimately to calls for the complete abolition of judicial review, for "[t]aking the Constitution [a]way from the [c]ourts."Ingredient in most forms of judicial review skepticism is the implicit claim that it would be possible for courts to accept the word of Congress as final on matters of constitutional interpretation. Once one acknowledges that courts have the duty to apply statutes and other nonconstitutional sources of law, however, it becomes difficult to understand how they could not exercise at least some version of the Marbury power. In short, it may be impossible to take the entire Constitution away from the courts.

IN Common Sense, our brief for the American Revolution, the pamphleteer Tom Paine famously declared that America the is king.' We have been repeating the sentiment in patriotic and legalistic ceremony ever since. Surprisingly little attention has been devoted in either constitutional scholarship or jurisprudence, however, to what Paine might have meant by this, beyond his desire to demythologize and revolt against monarchic prerogatives. What, precisely, is the law that Paine declared to have dethroned the king? Does the phrase, penned by the advocate not only of our own revolution, but also of the rights of man everywhere,2 presage our modern practice of rights-based constitutionalism?3 By the law

Christopher L. Eisgruber, "Marbury," Marshall, and the Politics of Constitutional Judgment, Virginia Law Review, Vol. 89, No. 6, Marbury v. Madison: A Bicentennial Symposium (Oct., 2003), pp. 1203-1234

T HE same might be said the meaning custom and usage Section 1983, except that even the doctrine is difficult to find. Section 1983 creates a cause action for the deprivation federal rights under color any statute, ordinance, regulation, custom, or usage, any State.2 This last clause is usually thought to limit the statute only to state action, but if custom and usage are given their ordinary meaning, the statute reaches a wide range private conduct. Interpreted in this way, these terms would transform the under color of clause from a limitation on the statute to a dramatic expansion its scope. Such an interpretation would allow claims to be brought against private individuals or institutions that acted systematically to deny federal rights. Yet the

This paper addresses the collection of data, and sets forth a theory about the legal rules that should govern it. At the outset, I propose a typology for categorizing privacy invasions. A given state of informational privacy may be represented by: the observed behavior, the collecting agent, and the searching agent. Using this typology, I identify the specific sources of concern about collection of clickstream data. Then, based on expected levels of utility and expected transaction costs of flipping to a different rule, I argue for a particular set of privacy defaults for data mining.

In the thirteen years since Congress enacted the Americans with Disabilities Act (ADA), many commentators have sought to draw a strong normative distinction between the statute's mandate to provide reasonable to people with disabilities and the antidiscrimination requirements of the civil rights laws that emerged in the 1960s and 1970s. This move has been most obvious among those who are skeptical of the ADA, but even most supporters of the ADA have taken the same view. The conventional wisdom, as evidenced by a near-consensus in the literature, seems to be that - whatever the descriptive similarities between them - there is a fundamental normative difference between antidiscrimination requirements and accommodation mandates: Antidiscrimination requirements call on employers to forego acting on illegitimate preferences (like aversive prejudice) that they ought not to have in the first place, while accommodation mandates prohibit employers from acting on the normally legitimate desire to save money. One goal of this Article is to challenge that widely held point of view. The Article's basic aim is to demonstrate that the ADA's accommodation requirement is fundamentally of a piece with the core antidiscrimination requirements of Title VII, but the Article also makes a more general argument about the fundamental normative similarity between antidiscrimination and accommodation. It seeks to show that the arguments that have been proffered for a strong normative distinction between antidiscrimination and accommodation are unpersuasive, and that the two modes of civil rights law have a great deal in common both practically and morally. Along the way, the Article contends that the notion of rational discrimination - of which the failure to accommodate is often cited as an example - is a conceptually unstable basis on which to build any normative theory of antidiscrimination law. The Article then engages the question of why so many people from so many perspectives place so much weight on what is ultimately a shaky normative distinction between antidiscrimination and accommodation. The Article contends that the antidiscrimination/accommodation distinction seems to serve an important political function for two somewhat different groups: mainstream liberal supporters of the 1960s civil rights revolution, who hope to protect traditional civil rights laws against the backlash that the ADA has provoked; and more radical leftist critics of identity politics, who hope to preempt liberal challengers by claiming that their critique is not directed at the statutes that emerged from that civil rights revolution. This move ultimately cannot do the work that mainstream liberal civil rights supporters or anti-identitarian leftists hope, but the political uses of the antidiscrimination/accommodation distinction are telling nonetheless.