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Articles 1 - 3 of 3
Full-Text Articles in Law
Our Administered Constitution: Administrative Constitutionalism From The Founding To The Present, Sophia Z. Lee
Our Administered Constitution: Administrative Constitutionalism From The Founding To The Present, Sophia Z. Lee
All Faculty Scholarship
This article argues that administrative agencies have been primary interpreters and implementers of the federal Constitution throughout the history of the United States, although the scale and scope of this "administrative constitutionalism" has changed significantly over time as the balance of opportunities and constraints has shifted. Courts have nonetheless cast an increasingly long shadow over the administered Constitution. In part, this is because of the well-known expansion of judicial review in the 20th century. But the shift has as much to do with changes in the legal profession, legal theory, and lawyers’ roles in agency administration. The result is that …
Certainty Versus Flexibility In The Conflict Of Laws, Kermit Roosevelt Iii
Certainty Versus Flexibility In The Conflict Of Laws, Kermit Roosevelt Iii
All Faculty Scholarship
Traditional choice of law theory conceives of certainty and flexibility as opposed values: increase one, and you inevitably decrease the other. This article challenges the received wisdom by reconceptualizing the distinction. Rather than caring about certainty or flexibility for their own sake, it suggests, we care about them because each makes it easier to promote a certain cluster of values. And while there may be a necessary tradeoff between certainty and flexibility, there is no necessary tradeoff between the clusters of values. It is possible to improve a choice of law system with regard to both of them. The article …
Kennedy's Legacy: A Principled Justice, Mitchell N. Berman, David Peters
Kennedy's Legacy: A Principled Justice, Mitchell N. Berman, David Peters
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After three decades on the Court, Justice Anthony Kennedy remains its most widely maligned member. Concentrating on his constitutional jurisprudence, critics from across the ideological spectrum have derided Justice Kennedy as “a self-aggrandizing turncoat,” “an unprincipled weathervane,” and, succinctly, “America’s worst Justice.” We believe that Kennedy is not as bereft of a constitutional theory as common wisdom maintains. To the contrary, this Article argues, his constitutional decisionmaking reflects a genuine grasp (less than perfect, more than rudimentary) of a coherent and, we think, compelling theory of constitutional law—the account, more or less, that one of has introduced in other work …