Legal History Commons^™

Why Restate The Bundle? The Disintegration Of The Restatement Of Property, Thomas W. Merrill, Henry E. Smith

Faculty Scholarship

The American Law Institute (ALI) has devoted a great deal of time and energy to restating the law of property. To date, the ALI has produced 17 volumes that bear the name First, Second, or Third Restatement of Property. There is unquestionably much that is valuable in these materials. On the whole, however, the effort has been a disappointment. Some volumes seek faithfully to restate the consensus view of the law; others are transparently devoted to law reform. The ratio of reform to restatement has increased over time, to the point where significant portions of the Third Restatement …

Law And Judicial Duty, Philip A. Hamburger

Faculty Scholarship

Two hundred years ago, in Marbury v. Madison, Chief Justice Marshall delivered an opinion that has come to dominate modern discussions of constitutional law. Faced with a conflict between an act of Congress and the U.S. Constitution, he explained what today is known as "judicial review." Marshall described judicial review in terms of a particular type of "superior law" and a particular type of "judicial duty." Rather than speak generally about the hierarchy within law, he focused on "written constitutions."

He declared that the U.S. Constitution is "a superior, paramount law" and that if "the constitution is superior to any …