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Articles 1 - 6 of 6
Full-Text Articles in Rule of Law
When Should Original Meanings Matter?, Richard A. Primus
When Should Original Meanings Matter?, Richard A. Primus
Articles
Constitutional theory lacks an account of when each of the familiar sources of authority-text, original meaning, precedent, and so on-should be given weight. The dominant tendency is to regard all sources as potentially applicable in every case. In contrast, this Article proposes that each source of authority is pertinent in some categories of cases but not in others, much as a physical tool is appropriate for some but not all kinds of household tasks. The Article then applies this approach to identify the categories of cases in which original meaning is, or is not, a valid factor in constitutional decisionmaking.
"Dragonslaying." Review Of Democracy Defended, By G. Mackie, Donald J. Herzog
"Dragonslaying." Review Of Democracy Defended, By G. Mackie, Donald J. Herzog
Reviews
Early in the Iliad, the Achaians convene an assembly. There are a lot of them and they're unruly, too. "[Tihe place of their assembly was shaken, and the earth groaned / as the people took their positions and there was tumult. Nine heralds / shouting set about putting them in order, to make them cease their / clamour and listen to the kings beloved of Zeus."' Clutching the scepter that has come to him ultimately from Zeus, the very symbol of his right to speak and be heard, Agamemnon bitterly proposes that the Achaians give up. Nine years of struggle …
America, Defender Of Democratic Legitimacy?, James C. Hathaway
America, Defender Of Democratic Legitimacy?, James C. Hathaway
Articles
American exceptionalism - a belief that the United States has a unique mission to lead the world, but ought logically to be exempt from the rules it promotes - is at the root of much of the American academy's effort to rationalize the US government's increasing rejection of multilateralism as the cornerstone of modern public international law. Even American scholars who disagree fundamentally on the problems with multilateralism (Kenneth Anderson arguing that it favours anti-democratic intervention by unelected NGOs, Michael Reisman asserting that it privileges elitist state-based lawmaking in the face of more democratic non-state 'lawmaking' processes) can agree on …
A Skeptical Look At Contemporary Republicanism, Terrance Sandalow
A Skeptical Look At Contemporary Republicanism, Terrance Sandalow
Articles
A growing number of scholars have been led by that impulse to an interest in 'the republican tradition," arguing that it offers resources for correcting the deformities they perceive in contemporary life and for which they hold liberalism responsible. Republicanism is a mansion with many rooms, and its modem interpreters emphasize varying possibilities within it, but common to all is the vision of a politics that recognizes and seeks to strengthen the social bonds within a political community. Within the limits set by that vision differences abound, just as differences exist among liberals concerning appropriate political foundations for individual freedom. …
Justice And The Bureaucratization Of Appellate Courts, Joseph Vining
Justice And The Bureaucratization Of Appellate Courts, Joseph Vining
Articles
The author notes the growing bureaucratization of appellate justice in the United States and, in particular, the drafting of opinions by law clerks rather than by judges. Taking the Supreme Court of the United States as an example, and comparing its internal procedure with that of large administrative agencies, he questions whether the method of analysis familiarly used by lawyers to arrive at an authoritative statement of law is applicable to legal texts bureaucratically produced. He suggests that legal method and its presuppositions are ultimately associated with the authority of law, and concludes that there may be critical losses not …
Constitutional Interpretation, Terrance Sandalow
Constitutional Interpretation, Terrance Sandalow
Articles
"[We] must never forget," Chief Justice Marshall admonished us in a statement pregnant with more than one meaning, "that it is a constitution we are expounding."' Marshall meant that the Constitution should be read as a document "intended to endure for ages.to come, and, consequently, to be adapted to the various crises of human affairs."'2 But he meant also that the construction placed upon the document must have regard for its "great outlines" and "important objects."'3 Limits are implied by the very nature of the task. There is not the same freedom in construing the Constitution as in constructing a …