Article by cary franklin :: This Article argues that the “traditional concept” of sex discrimination is an invented tradition. It purports to reflect the historical record, but in fact reflects normative judgments about how deeply the law should intervene in the sex-based regulation of the workplace. Recovering the largely forgotten legislative history of Title VII’s sex provision, this Article shows that there was little consensus and much debate in the 1960s about what qualified as sex discrimination. Employers advanced the argument that Title VII applied only to practices that sorted men and women into two perfectly sex-differentiated groups in order to preserve the traditional gendered organization of the workplace and insulate particular employment practices from scrutiny. In the 1970s, courts adopted this interpretation but no longer cited the need to preserve conventional sex and family roles as a justification; instead, courts cited deference to the legislature and fidelity to tradition as justifications for interpreting the law narrowly. This Article shows that history does not compel courts to interpret Title VII’s prohibition of sex discrimination in anticlassificationist terms — and that, in fact, in cases where anticlassificationism produces expansive rather than narrow results, courts have routinely departed from it.
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Book Review by richard h. pildes :: THE EXECUTIVE UNBOUND: AFTER THE MADISONIAN REPUBLIC. By Eric A. Posner and Adrian Vermeule. New York, N.Y.: Oxford University Press. 2010. Pp. 3, 249. $29.95.

How much does law in fact constrain the exercise of presidential power, in both domestic and foreign affairs? How much should law constrain presidential power? It is widely recognized that the expansion of presidential power from the start of the twentieth century onward has been among the central features of American political development. While Andrew Jackson, with his rhetorical creation of the “plebiscitary presidency,” and Abraham Lincoln, with his invocation of presidential war powers during the existential military threat of the Civil War, were among the most powerful and activist of all presidents, the nineteenth-century presidency was essentially a narrowly understood office that presided over a highly decentralized and fragmented political system. What Theodore Roosevelt later began identifying and celebrating as the “Jackson-Lincoln” school of presidential practice remained latent through most of the nineteenth century.
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Book Review by robert weisberg :: THE COLLAPSE OF AMERICAN CRIMINAL JUSTICE. By William J. Stuntz. Cambridge, Mass.: Harvard University Press. 2011. Pp. viii, 413. $35.00.

The cruelly early death of Professor William Stuntz cost us our deepest thinker about criminal law. I use the term “thinker” because the clichéd term “scholar” would miss the point. Law professors speak of each other as scholars in part as a default. Given the vocabulary of the profession, it makes no sense to call ourselves “lawyers” in the way our colleagues can call themselves economists, historians, philosophers, or chemists. But the term “scholar” summons up an image of classical and historical erudition, an image that corresponds poorly to the analytic commentary that many legal academics write; more importantly, it would mischaracterize Stuntz’s contribution. Stuntz was surely erudite in all the venerable ways, and his sensitivity to historical perspective was exquisite, but his writing does not depend on reference to esoteric knowledge, primary materials, or archival sources — nor on any methodological breakthroughs of empirical science. His materials were the legal doctrines, manifest institutional structures, and empirical data available to all of us. His contribution, fully realized in this grand valedictory book, was to teach us to think creatively and critically about how we design the technology of government and to accept responsibility for its means and its products.
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