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Full-Text Articles in Legal History
Our Administered Constitution: Administrative Constitutionalism From The Founding To The Present, Sophia Z. Lee
Our Administered Constitution: Administrative Constitutionalism From The Founding To The Present, Sophia Z. Lee
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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 …
The Operational And Administrative Militaries, Mark P. Nevitt
The Operational And Administrative Militaries, Mark P. Nevitt
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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 focus …
Appraising The Progressive State, Herbert J. Hovenkamp
Appraising The Progressive State, Herbert J. Hovenkamp
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Since it origins in the late nineteenth century, the most salient characteristics of the progressive state have been marginalism in economics, greatly increased use of scientific theory and data in policy making, a commitment to broad participation in both economic and political markets, and a belief that resources are best moved through society by many institutions in addition to traditional markets.. These values have served to make progressive policy less stable than classical and other more laissez faire alternatives. However, the progressive state has also performed better than alternatives by every economic measure. One of the progressive state’s biggest vulnerabilities …
Introduction To The Workplace Constitution From The New Deal To The New Right, Sophia Z. Lee
Introduction To The Workplace Constitution From The New Deal To The New Right, Sophia Z. Lee
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Today, most American workers do not have constitutional rights on the job. As The Workplace Constitution shows, this outcome was far from inevitable. Instead, American workers have a long history of fighting for such rights. Beginning in the 1930s, civil rights advocates sought constitutional protections against racial discrimination by employers and unions. At the same time, a conservative right-to-work movement argued that the Constitution protected workers from having to join or support unions. Those two movements, with their shared aim of extending constitutional protections to American workers, were a potentially powerful combination. But they sought to use those protections to …
The Unitary Executive In The Modern Era, 1945–2004, Christopher S. Yoo, Steven G. Calabresi, Anthony J. Colangelo
The Unitary Executive In The Modern Era, 1945–2004, Christopher S. Yoo, Steven G. Calabresi, Anthony J. Colangelo
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Since the impeachment of President Clinton, there has been renewed debate over whether Congress can create institutions such as special counsels and independent agencies that restrict the president's control over the administration of the law. Initially, debate centered on whether the Constitution rejected the "executive by committee" used by the Articles of Confederation in favor of a "unitary executive," in which all administrative authority is centralized in the president. More recently, the debate has focused on historical practices. Some scholars suggest that independent agencies and special counsels are such established features of the constitutional landscape that any argument in favor …