Law Commons^™

Anti-Modalities, David E. Pozen, Adam Samaha

Faculty Scholarship

Constitutional argument runs on the rails of “modalities.” These are the accepted categories of reasoning used to make claims about the content of supreme law. Some of the modalities, such as ethical and prudential arguments, seem strikingly open ended at first sight. Their contours come into clearer view, however, when we attend to the kinds of claims that are not made by constitutional interpreters – the analytical and rhetorical moves that are familiar in debates over public policy and political morality but are considered out of bounds in debates over constitutional meaning. In this Article, we seek to identify the …

Early Prerogative And Administrative Power: A Response To Paul Craig, Philip A. Hamburger

Faculty Scholarship

What does English experience imply about American constitutional law? My book, Is Administrative Law Unlawful?, argues that federal administrative power generally is unconstitutional. In supporting this conclusion, the book observes that eighteenth-century Americans adopted their constitutions not only with their eyes on the future, but also looking over their shoulder at the past – especially the English past. This much should not be controversial. There remain, however, all sorts of questions about how to understand the English history and its relevance for early Americans.

In opposition to my claims about American law, Paul Craig lobs three critiques from across the …

Regime Theory, Anu Bradford

Faculty Scholarship

Regime theory is an approach within international relations theory, a sub-discipline of political science, which seeks to explain the occurrence of co-operation among States by focusing on the role that regimes play in mitigating international anarchy and overcoming various collective action problems among States (International Relations, Principal Theories; State; see also Co-operation, International Law of). Different schools of thought within international relations have emerged, and various analytical approaches exist within the regime theory itself (see Sec. F.3 below). However, typically regime theory is associated with neoliberal institutionalism that builds on a premise that regimes are central in facilitating international co-operation …