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Full-Text Articles in Jurisprudence

An Institutional Conception Of Authority, Andrei Marmor Sep 2011

An Institutional Conception Of Authority, Andrei Marmor

University of Southern California Legal Studies Working Paper Series

The essay develops a conception of practical authorities that ties their legitimacy to the particular nature of the social practice or institution in which practical authorities invariably operate, and the terms of the subjects’ participation in that practice. The main argument of the paper draws on the distinction between what it takes to have practical authority and what would make it legitimate. The general idea is that what it takes to have practical authority is always determined by a social or institutional practice, and thus the legitimacy of any given authority crucially depends on the nature of the practice and ...


The Individual Mandate, Sovereignty, And The Ends Of Good Government: A Reply To Professor Randy Barnett, Patrick Mckinley Brennan Feb 2011

The Individual Mandate, Sovereignty, And The Ends Of Good Government: A Reply To Professor Randy Barnett, Patrick Mckinley Brennan

Working Paper Series

Randy Barnett has recently argued that the individual mandate is unconstitutional because it is an improper regulation under the Necessary and Proper Clause (in conjunction with the Commerce Clause) because it improperly "commandeers" the people and thereby violates their sovereignty. In this paper, I counter that the argument from sovereignty is unavailing because it is, among other defects, hopelessly ambiguous. The variety of historically attested meanings of "sovereignty" renders the concept useless for purposes of answering questions of comparative authority, including the authority of the Congress to mandate that individuals purchase health insurance from a private market. There is no ...


Beyond Formalist Sovereignty: Who Can Represent "We The People Of The United States" Today?, David Chang Jan 2011

Beyond Formalist Sovereignty: Who Can Represent "We The People Of The United States" Today?, David Chang

University of Richmond Law Review

No abstract provided.