Legal History Commons^™

Petitioning And The Making Of The Administrative State, Maggie Blackhawk

All Faculty Scholarship

The administrative state is suffering from a crisis of legitimacy. Many have questioned the legality of the myriad commissions, boards, and agencies through which much of our modern governance occurs. Scholars such as Jerry Mashaw, Theda Skocpol, and Michele Dauber, among others, have provided compelling institutional histories, illustrating that administrative lawmaking has roots in the early American republic. Others have attempted to assuage concerns through interpretive theory, arguing that the Administrative Procedure Act of 1946 implicitly amended our Constitution. Solutions offered thus far, however, have yet to provide a deeper understanding of the meaning and function of the administrative state …

The Administrative Origins Of Modern Civil Liberties Law, Jeremy K. Kessler

Faculty Scholarship

This Article offers a new explanation for the puzzling origin of modern civil liberties law. Legal scholars have long sought to explain how Progressive lawyers and intellectuals skeptical of individual rights and committed to a strong, activist state came to advocate for robust First Amendment protections after World War I. Most attempts to solve this puzzle focus on the executive branch's suppression of dissent during World War I and the Red Scare. Once Progressives realized that a powerful administrative state risked stifling debate and deliberation within civil society, the story goes, they turned to civil liberties law in order to …

When Truth Cannot Be Presumed: The Regulation Of Drug Promotion Under An Expanding First Amendment, Christopher Robertson

Faculty Scholarship

The Food, Drug, and Cosmetic Act (FDCA) requires that, prior to marketing a drug, the manufacturer must prove that it is safe and effective for the manufacturer’s intended uses, as shown on the proposed label. Nonetheless, physicians may prescribe drugs for other “off-label” uses, and often do so. Still, manufacturers have not been allowed to promote the unproven uses in advertisements or sales pitches.

This regime is now precarious due to an onslaught of scholarly critiques, a series of Supreme Court decisions that enlarge the First Amendment, and a landmark court of appeals decision holding that the First Amendment precludes …