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Full-Text Articles in Legal History

Table Of Contents, Seattle University Law Review Sep 2019

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.


Our Administered Constitution: Administrative Constitutionalism From The Founding To The Present, Sophia Z. Lee Sep 2019

Our Administered Constitution: Administrative Constitutionalism From The Founding To The Present, Sophia Z. Lee

Faculty Scholarship at Penn Law

This article argues that administrative agencies have been primary interpreters and implementers of the federal Constitution throughout the history of the United States, although the scale and scope of this "administrative constitutionalism" has changed significantly over time as the balance of opportunities and constraints has shifted. Courts have nonetheless cast an increasingly long shadow over the administered Constitution. In part, this is because of the well-known expansion of judicial review in the 20th century. But the shift has as much to do with changes in the legal profession, legal theory, and lawyers’ roles in agency administration. The result is that ...


An Evolutionary Theory Of Administrative Law, Karrigan S. Bork May 2019

An Evolutionary Theory Of Administrative Law, Karrigan S. Bork

SMU Law Review

Law evolves to accommodate change—this is axiomatic in most academic legal traditions. But in the era of the administrative state, with congressional gridlock and a judiciary hesitant to address policy questions, evolution of statutory law has become much more difficult. This leads to pent up demand for change in legal regimes. If the legislature and the courts cannot provide an outlet for this pressure, where does it go? How does the law continue to change? Although other scholars have looked to agencies as engines of legal change, we lack a theoretical framework to understand how that change happens. I ...


The Shallow State: The Federal Communications Commission And The New Deal, Daniel R. Ernst May 2019

The Shallow State: The Federal Communications Commission And The New Deal, Daniel R. Ernst

Georgetown Law Faculty Publications and Other Works

American lawyers and law professors commonly turn to the New Deal for insights into the law and politics of today’s administrative state. Usually, they have looked to agencies created in the 1930s that became the foundation of the postwar political order. Some have celebrated these agencies; others have deplored them as the core of an elitist, antidemocratic Deep State. This article takes a different tack by studying the Federal Communications Commission, an agency created before the New Deal. For most of Franklin D. Roosevelt’s first two presidential terms, the FCC languished within the “Shallow State,” bossed about by ...


O’Neill, Oh O’Neill, Wherefore Art Thou O’Neill: Defining And Cementing The Requirements For Asserting Deliberative Process Privilege, Andrew Scott Apr 2019

O’Neill, Oh O’Neill, Wherefore Art Thou O’Neill: Defining And Cementing The Requirements For Asserting Deliberative Process Privilege, Andrew Scott

Dickinson Law Review

The government may invoke the deliberative process privilege to protect the communications of government officials involving policy-driven decision-making. The privilege protects communications made before policy makers act upon the policy decision to allow government officials to speak candidly when deciding a course of action without fear of their words being used against them.

This privilege is not absolute and courts recognize the legitimate countervailing interest the public has in transparency. The Supreme Court in United States v. Reynolds held that someone with control over the protected information should personally consider the privilege before asserting it but did not provide definitive ...


Standing For Standing Rock?: Vindicating Native American Religious And Land Rights By Adapting New Zealand's Te Awa Tupua Act To American Soil, Malcolm Mcdermond Apr 2019

Standing For Standing Rock?: Vindicating Native American Religious And Land Rights By Adapting New Zealand's Te Awa Tupua Act To American Soil, Malcolm Mcdermond

Dickinson Law Review

On February 23, 2017, the Standing Rock Sioux Tribe (“Tribe”) was forced to disband its nearly year-long protest against the construction of the Dakota Access Pipeline, which threatened the integrity of its ancestral lands. The Tribe sought declaratory and injunctive relief in the United States District Court for the District of Columbia, but the court ruled against the Tribe and failed to protect its interests. While the United States was forcibly removing Indigenous protesters, other countries were taking steps to protect Indigenous populations. In unprecedented legislative action, New Zealand took radical steps to protect the land and cultural rights of ...


Table Of Contents, Seattle University Law Review Feb 2019

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.


Global Judicial Transparency Norms: A Peek Behind The Robes In A Whole New World — A Look At Global “Democratizing” Trends In Judicial Opinion-Issuing Practices, J. Lyn Entrikin Jan 2019

Global Judicial Transparency Norms: A Peek Behind The Robes In A Whole New World — A Look At Global “Democratizing” Trends In Judicial Opinion-Issuing Practices, J. Lyn Entrikin

Washington University Global Studies Law Review

Global developments over the last two decades have debunked the traditional understanding that separate opinions are idiosyncratic of courts in nations following the common law tradition. History reflects that judicial opinion-issuing practices have evolved around the world, adapting to the increasing globalization of legal systems. And recent research confirms that most international and supranational tribunals, even those headquartered in continental Europe, expressly permit individual judges to issue separate opinions, although in some courts various internal norms and customs operate to discourage the practice. In addition, the majority of European national constitutional courts now permit individual judges to publish separate opinions ...


The Depravity Of The 1930s And The Modern Administrative State, Steven G. Calabresi, Gary Lawson Jan 2019

The Depravity Of The 1930s And The Modern Administrative State, Steven G. Calabresi, Gary Lawson

Notre Dame Law Review

Gillian Metzger’s 2017 Harvard Law Review foreword, entitled 1930s Redux: The Administrative State Under Siege, is a paean to the modern administrative state, with its massive subdelegations of legislative and judicial power to so-called “expert” bureaucrats, who are layered well out of reach of electoral accountability yet do not have the constitutional status of Article III judges. We disagree with this celebration of technocratic government on just about every level, but this Article focuses on two relatively narrow points.

First, responding more to implicit assumptions that pervade modern discourse than specifically to Professor Metzger’s analysis, we challenge the ...


The Operational And Administrative Militaries, Mark P. Nevitt Jan 2019

The Operational And Administrative Militaries, Mark P. Nevitt

Faculty Scholarship at Penn Law

This Article offers a new way of thinking about the military. The U.S. military’s existing legal architecture arose from tragedy: in response to operational military failures in Vietnam, the 1980 failed Iranian hostage rescue attempt and other military misadventures, Congress revamped the Department of Defense (DoD)’s organization. The resulting law, the Goldwater-Nichols Act, formed two militaries within the DoD that endure to this day. These two militaries – the operational military and the administrative military – were once opaque to the outside observer but have emerged from the shadows in light of recent conflicts. The operational military remains the ...