The Yale Law Journal

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” (citing N.Y. Life Ins. Co. v. Johnson, 923 F.2d 279, 284 (3d Cir. 1991))); Schuman, supra note 9, at 123 (expressing the concern that “[a]llowing

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Court’s initial failure to recognize states’ immunity prompted an immediate constitutional amendment.9 States do not rely solely on the Eleventh

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” Act of June 12, 1838, ch. 96, § 12, 5 Stat. 235, 239. When the State of Wisconsin was added in 1848, Act of May 29, 1848, ch. 50, 9 Stat. 233, and

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9 Yet, as I shall discuss, this conclusion is largely the product of the prevailing methodological commitments of contemporary jurisprudential

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547 U.S. 410 (2006). 9. Harper v. Poway Unified Sch. Dist., 445 F.3d 1166 (9th Cir. 2006). the yale law journal 120: 515 2 010 518

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In an earlier case, the Court had limited the First Amendment’s protections against state infringement of religious practices.9 Invoking its

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26. Id. § 182(a)(9)(A) (2006). 27. Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir. 2008) (quoting 8 U.S.C. §§ 229a(b)(5)(C)(i), (e)(1)). 28. One

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and useful Arts’”). 92. See, e.g., Harper & Row, Publishers v. Nation Enters., 471 U.S. 539, 559, 566 n.9 (1985) (relying on economic theory in

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relative tax rates8 might be lowered without triggering the political concerns and distributive qualms mentioned above: older workers.9 By one estimate

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Others saw it as an act of strategic behavior: placing oneself ahead of one’s country.9 But the distributional matrix of opportunities and