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Full-Text Articles in Law
The National Security State: The End Of Separation Of Powers, Michael E. Tigar
The National Security State: The End Of Separation Of Powers, Michael E. Tigar
Faculty Scholarship
No abstract provided.
The Clerks Of The Four Horsemen, Barry Cushman
The Clerks Of The Four Horsemen, Barry Cushman
Journal Articles
The names of Holmes clerks such as Tommy Corcoran and Francis Biddle, of Brandeis clerks such as Dean Acheson and Henry Friendly, and of Stone clerks such as Harold Leventhal and Herbert Wechsler ring down the pages of history. But how much do we really know about Carlyle Baer, Tench Marye, or Milton Musser? This article follows the interesting and often surprising lives and careers of the men who clerked for the Four Horsemen - Justices Van Devanter, McReynolds, Sutherland, and Butler. These biographical sketches confound easy stereotypes, and prove the adage that law, like politics, can make for strange …
Due Process As Separation Of Powers, Nathan S. Chapman, Michael W. Mcconnell
Due Process As Separation Of Powers, Nathan S. Chapman, Michael W. Mcconnell
Scholarly Works
From its conceptual origin in Magna Charta, due process of law has required that government can deprive persons of rights only pursuant to a coordinated effort of separate institutions that make, execute, and adjudicate claims under the law. Originalist debates about whether the Fifth or Fourteenth Amendments were understood to entail modern “substantive due process” have obscured the way that many American lawyers and courts understood due process to limit the legislature from the Revolutionary era through the Civil War. They understood due process to prohibit legislatures from directly depriving persons of rights, especially vested property rights, because it was …
The Structure Of Classical Public Law, Barry Cushman
The Structure Of Classical Public Law, Barry Cushman
Journal Articles
Duncan Kennedy's The Rise and Fall of Classical Legal Thought circulated in manuscript for three decades before it was formally published in 2006. This essay reviews the book's treatment of Classical public law, focusing on its two principal contributions to the historiography of the subject: the concept of legal consciousness, and the structural analysis of constitutional doctrine.
Some Varieties And Vicissitudes Of Lochnerism, Barry Cushman
Some Varieties And Vicissitudes Of Lochnerism, Barry Cushman
Journal Articles
This article is a contribution to the Lochner Centennial Symposium at Boston University School of Law. Until recently, a consensus appeared to be emerging among constitutional historians concerning how best to interpret Lochner-era decisions involving Fifth and Fourteenth Amendment challenges to state and federal economic regulation. After decades during which the Court's jurisprudence had been characterized as the product of a reactionary judiciary's commitments to Social Darwinism and laissez-faire economics, more recent scholars had come to see the Court's police powers decisions as animated by what Professor Howard Gillman has called the principle of neutrality. On this view, the Court's …
Attorney General Taney & The South Carolina Police Bill, H. Jefferson Powell
Attorney General Taney & The South Carolina Police Bill, H. Jefferson Powell
Faculty Scholarship
No abstract provided.
The Incompleat Burkean: Bruce Ackerman's Foundation For Constitutional History, Eben Moglen
The Incompleat Burkean: Bruce Ackerman's Foundation For Constitutional History, Eben Moglen
Faculty Scholarship
With this book, the first in a projected series of at least three volumes, Bruce Ackerman confirms what attentive readers of his law review articles of the past ten years have already known-he is the most original and important writer on constitutional theory in the contemporary English-speaking world. We the People: Foundations, despite its informal, sometimes overly talky style, is not an easy book. Filled to the brim, even to overflowing, and containing many gestures in the direction of arguments to be made in future volumes rather than the substance of the arguments themselves, it presents both the casual reader …
Book Review. The Magic Mirror: Law In American History By Kermit L. Hall, Michael Grossberg
Book Review. The Magic Mirror: Law In American History By Kermit L. Hall, Michael Grossberg
Articles by Maurer Faculty
No abstract provided.
Original Understanding And The Constitution, Michael E. Tigar
Original Understanding And The Constitution, Michael E. Tigar
Faculty Scholarship
No abstract provided.
Book Review. The Constitutionalism Of "The Common-Law Mind", Stephen A. Conrad
Book Review. The Constitutionalism Of "The Common-Law Mind", Stephen A. Conrad
Articles by Maurer Faculty
This essay reviews the following: Constitutional History of the American Revolution, Vol. 1: The Authority of Rights by John Phillip Reid and Peripheries and Center: Constitutional Development in the Extended Polities of the British Empire and the United States, 1607-1788 by Jack P. Greene.