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Articles 31 - 33 of 33
Full-Text Articles in Public Law and Legal Theory
Anti-Formalism In Recent Constitutional Theory, Mark V. Tushnet
Anti-Formalism In Recent Constitutional Theory, Mark V. Tushnet
Michigan Law Review
The focus in constitutional theory on judicial review rests on a much deeper political theory than the phrase "countermajoritarian difficulty" standing alone suggests. Majoritarian or democratic decision making is itself a solution to a set of problems that arise from a particular view of human nature and political action. In this Article, I identify, explicate, and criticize some recent developments in constitutional theory which are of interest to the extent that they reject that view of human nature and politics. I take as my focus important articles by Robert Burt, Robert Cover, Owen Fiss, Frank Michelman, and Cass Sunstein. I …
In Re Radical Interpretations Of American Law: The Relation Of Law And History, A. E. Keir Nash
In Re Radical Interpretations Of American Law: The Relation Of Law And History, A. E. Keir Nash
Michigan Law Review
This Article centers instead upon assessing two types of legal analysis - non-Marxist radical interpretation and "non-reductionist" Marxist theory - which, despite conspicuous differences, share the belief that understanding the American historical experience is a prerequisite to understanding American law. Both approaches also share two other important convictions. One is that a "consensual" or "liberal pluralist" version of American history has little explanatory validity, at least in regard to such major problems as the political and legal breakdown represented by the Civil War, and the law's role in American economic development. They also agree that historical explanations which downplay discussion …
Constitutional Interpretation, Terrance Sandalow
Constitutional Interpretation, Terrance Sandalow
Articles
"[We] must never forget," Chief Justice Marshall admonished us in a statement pregnant with more than one meaning, "that it is a constitution we are expounding."' Marshall meant that the Constitution should be read as a document "intended to endure for ages.to come, and, consequently, to be adapted to the various crises of human affairs."'2 But he meant also that the construction placed upon the document must have regard for its "great outlines" and "important objects."'3 Limits are implied by the very nature of the task. There is not the same freedom in construing the Constitution as in constructing a …