Law Commons^™

Interpretation, Remedy, And The Rule Of Law: Why Courts Should Have The Courage Of Their Convictions, Jack M. Beermann, Ronald A. Cass

Faculty Scholarship

The Supreme Court’s decision in United States v. Arthrex opens a window on a set of issues debated in different contexts for decades. These issues—how to interpret statutes and constitutional provisions, what sources to look to, whether so far as possible to adopt interpretations that avoid declaring actions of coordinate branches unconstitutional, and where such actions are deemed to have been unconstitutional whether to provide remedies that cabin the most significant implications of such a declaration—go to the heart of the judicial role and the division of responsibilities among the branches of government.

Our principal focus, however, is on the …

Manufactured Emergencies, Robert L. Tsai

Faculty Scholarship

Emergencies are presumed to be unusual affairs, but the United States has been in one state of emergency or another for the last forty years. That is a problem. The erosion of democratic norms has led to not simply the collapse of the traditional conceptual boundary between ordinary rule and emergency governance, but also the emergence of an even graver problem: the manufactured crisis. In an age characterized by extreme partisanship, institutional gridlock, and technological manipulation of information, it has become exceedingly easy and far more tempting for a President to invoke extraordinary power by ginning up exigencies. To reduce …

50 Years Of Legal Education In Ethiopia: A Memoir, Stanley Z. Fisher

Faculty Scholarship

In this paper I describe my experience as one of the early members of the Haile Selassie I University (H.S.I.U.), Law Faculty, and share my reflections on developments in the ensuing years.

The Return Of The King: The Unsavory Origins Of Administrative Law, Gary S. Lawson

Faculty Scholarship

Philip Hamburger’s Is Administrative Law Unlawful? is a truly brilliant and important book. In a prodigious feat of scholarship, Professor Hamburger uncovers the British and civil law antecedents of modern American administrative law, showing that contemporary administrative law “is really just the most recent manifestation of a recurring problem.” That problem is the problem of power: its temptations, its dangers, and its tendency to corrupt. Administrative law, far from being a distinctive product of modernity, is thus the “contemporary expression of the old tendency toward absolute power – toward consolidated power outside and above the law.” It represents precisely the …

The Rule Of Law As A Law Of Law, Gary S. Lawson, Steven Calabresi

Faculty Scholarship

Justice Scalia is famous for his strong rule orientation, best articulated in his 1989 article, “The Rule of Law as a Law of Rules.” In this Essay, we explore the extent to which that rule orientation is consistent with the Constitution’s original meaning. We conclude that it is far less consistent with the Constitution than is generally recognized. The use of standards rather than rules is prescribed not only by a few provisions in the Bill of Rights and the Fourteenth Amendment but also by key aspects of the 1788 constitutional text. The executive power, the Necessary and Proper power, …

The Role Of Government In A Free Society: The Conception Of Lester Frank Ward, Sotirios A. Barber, James E. Fleming

Faculty Scholarship

This essay, part of a larger project, considers theories of the unitary executive and what the best of these theories imports for the rule of law and the future of constitutional theory as a whole. As we see it, at least in a sense that predates Bush administration apologist John Yoo,' the unitary executive is here to stay. Precisely because the American constitutional executive is a unitary power, President Obama can close Guantanamo unilaterally, without Congress's leave. President Obama, on his own, can also revoke Bush's executive orders regarding secrecy. He can renounce Bush administration memoranda attempting to justify torture, …

Response, David B. Lyons

Faculty Scholarship

How can one reply to the presentations and discussion of this conference? I think in the same spirit. The paper that took issue most substantially with some writing of mine was Aaron Garrett’s, Courage, Political Resistance, and Self-Deceit. What I have called political resistance has proved difficult for philosophers to theorize about. Aaron helps us to understand it much better. I am truly grateful for that and I am delighted to have provided the occasion for his paper. The same goes for the other contributions to this conference, which address issues more deeply than I have found it possible to …

Archetypal Trials And The Management Of Dissent: Some Insights From Marketing Theory, Pnina Lahav

Faculty Scholarship

Recent marketing theory uses the Jungian concept of the archetype to design strategies for the improvement of product selling. Mark and Pearson propose that archetypes such as the ruler, the hero, the outlaw, and the sage are useful in promoting a product. This article suggests that the concept of archetypes as well as myths such as the Prometheus myth and the myth of the expulsion from Paradise, when combined with the insights offered by Mark and Pearson, may help in understanding the management of trials of dissent as well. The article presents seven motifs that recur in trials of dissent …

Conservative Or Constitutionalist?, Gary S. Lawson

Faculty Scholarship

The persistence of the question posed by the editors of this journal demonstrates that legal conservatives have an identity crisis. In large measure, that crisis is an artifact of the ambiguity in the term "legal conservative." I use the term roughly to mean someone who believes in a variant of original meaning for interpreting constitutions and statutes' and who views the common law as a device for securing social coordination within a spontaneous order-all overlaid with a strong respect for the Anglo-American, Rule of Law tradition. As definitions go, this is pretty imprecise. There is no single meaning for original …

Open Texture And The Possibility Of Legal Interpretation, David B. Lyons

Faculty Scholarship

This essay concerns the possibility of interpreting law. It is always possible to interpret law in the weak sense, which assigns meaning it is not assumed the law previously possessed. My concern here is interpretation in the strong sense, which, if successful, reveals meaning that lies hidden in the law. Theories of legal interpretation have recently received much theoretical attention. The received theory of law's open texture suggests that this interest is misplaced.

The Connection Between Law And Morality: Comments On Dworkin, David B. Lyons

Faculty Scholarship

Our discussions yesterday seemed haunted by a contrast--never quite formulated--between Natural Law and Legal Positivism. The standard interpretation turns on the idea of a "necessary connection" between law and morality. Positivism has often been understood to hold, and Natural Law to deny, that there can be unjust laws.