Social and Behavioral Sciences Commons^™

The Lost Promise Of Progressive Formalism, Andrea Scoseria Katz

Scholarship@WashULaw

Today, any number of troubling government pathologies—a lawless presidency, a bloated and unaccountable administrative state, the growth of an activist bench—are associated with the emergence of a judicial philosophy that disregards the “plain meaning” of the Constitution for a loose, unprincipled “living constitutionalism.” Many trace its origins to the Progressive Era
(1890–1920), a time when Americans turned en masse to government as the solution to emerging problems of economic modernity—financial panics, industrial concentration, worsening workplace conditions, and skyrocketing unemployment and inequality—and, the argument goes, concocted a flexible, new constitutional philosophy to allow the federal government to take on vast, new …

Law's Evolving Emergent Phenomena: From Rules Of Social Intercourse To Rule Of Law Society, Brian Z. Tamanaha

Scholarship@WashULaw

Law involves institutions rooted in the history of a society that evolve in relation to surrounding social, psychological, cultural, economic, political, technological, and ecological influences. Law must be understood naturalistically, historically, and holistically. In my usage, naturalism views humans as social animals with natural traits and requirements, historicism presents law as historical manifestations that change over time, and holism sees law within social surroundings. These insights inform my perspective in A Realistic Theory of Law. While these propositions might seem obvious, few works in contemporary jurisprudence build around them.

In this essay, I draw on the notion of emergence …