scholarly journals Willard Hurst and the Administrative State: From Williams to Wisconsin

2000 ◽  
Vol 18 (1) ◽  
pp. 1-36 ◽  
Author(s):  
Daniel R. Ernst
Keyword(s):  
Administrative State ◽  
Law And Politics ◽  
American Law ◽  
The 1950S

Perhaps because Willard Hurst did not publish his first book, The Growth of American Law, until 1950, more than a decade after he entered law teaching, his readers have often found it hard to imagine him as other than a fully formed scholar. The pluralist politics of his major writings, their functionalist sociology, and their attentiveness to consensus in history have made Hurst seem so much a product of the 1950s that one can easily overlook the ways in which developments in law and politics in the preceding decades shaped his perspective on the American past.

Is Racial Equality Unconstitutional?

2018 ◽  
Author(s):  
Mark Golub
Keyword(s):  
Racial Formation ◽  
Racial Equality ◽  
Racial Consciousness ◽  
Constitutional Order ◽  
Racial Democracy ◽  
Law And Politics ◽  
Peculiar Form ◽  
American Law ◽  
Racial Domination ◽  
Fundamental Transformation

This concluding chapter considers the implications of the book’s central claims: that constitutional law marks a contested site of racial formation, that color-blind constitutionalism represents an assertion of white racial interest and identity, and that the peculiar form of racial consciousness it enacts renders the pursuit of racial equality a violation of white rights. Taking up the question of political possibility within a legal system constituted by racial domination, the chapter suggests that racial equality may not be achievable within the current American constitutional order. It calls for a rethinking of American law and politics from the premise that racial equality will require a more fundamental transformation than these constraints would permit, and points toward an explicitly antiredemptive political vision upon which a more authentic racial democracy might be founded.

Lawyers and the Conservative Counterrevolution

2018 ◽  
Vol 43 (04) ◽  
pp. 1698-1728 ◽  
Author(s):  
Ann Southworth
Keyword(s):  
Public Policy ◽  
The Other ◽  
American Government ◽  
Law And Politics ◽  
Legal Activism ◽  
The Federalist ◽  
Legal Advocacy ◽  
American Law ◽  
Roll Back ◽  
Conservative Turn

What roles have lawyers played in the conservative counterrevolution in US law and public policy? Two recent books, Jefferson Decker's The Other Rights Revolution: Conservative Lawyers and the Remaking of American Government (2016), and Amanda Hollis-Brusky's Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution (2015), speak to the question. This essay explores how these books relate to a larger story of the conservative legal movement and the roles that lawyers and their organizations and networks have played in the conservative turn in American law and politics. It highlights four interrelated threads of the movement's development: creating a support structure for conservative legal advocacy; remaking the judiciary and holding judges accountable; generating, legitimizing, and disseminating ideas to support legal change; and embracing legal activism to roll back government. The essay then considers a continuing challenge for the movement: managing tensions among its several constituencies. Finally, it suggests how this story has played out in litigation to challenge campaign finance regulation.

How American Law Adapted to the Administrative State

2014 ◽  
Vol 75 (1) ◽  
pp. 169-170
Author(s):  
Alasdair Roberts
Keyword(s):  
Administrative State ◽  
American Law

Material Liberty and the Administrative State

2020 ◽  
pp. 956-987
Author(s):  
Francesca Bignami
Keyword(s):  
Comparative Analysis ◽  
Future Development ◽  
Common Law ◽  
Comparative Law ◽  
Public Law ◽  
Individual Rights ◽  
Administrative State ◽  
Public Action ◽  
American Law ◽  
The Common

This chapter draws on three aspects of German public law to throw into sharp relief the absence of substantive protection for material rights in the American administrative state. It first briefly deals with two conceptual issues important for comparative analysis: the scope of public action covered by the concept of the administrative state, and the type of rights that come under the umbrella of material liberty. The chapter then presents the American public law on individual rights and the heavily procedural cast of those rights. This is followed by a presentation of the key elements of German public law that promote substantive fairness for material rights and that bring to light the particularities of American law. The chapter concludes by pointing to the implications for general comparative law theories of the common law tradition and for the possible future development of American law.

The Constrained Court

2011 ◽  
Author(s):  
Michael A. Bailey ◽  
Forrest Maltzman
Keyword(s):  
Decision Making ◽  
Supreme Court ◽  
Policy Preferences ◽  
Political Factors ◽  
Unique Role ◽  
Political Actors ◽  
Constitutional Order ◽  
Law And Politics ◽  
The Supreme Court ◽  
American Law

How do Supreme Court justices decide their cases? Do they follow their policy preferences? Or are they constrained by the law and by other political actors? This book combines new theoretical insights and extensive data analysis to show that law and politics together shape the behavior of justices on the Supreme Court. The book shows how two types of constraints have influenced the decision making of the modern Court. First, the book documents that important legal doctrines, such as respect for precedents, have influenced every justice since 1950. The book finds considerable variation in how these doctrines affect each justice, variation due in part to the differing experiences justices have brought to the bench. Second, it shows that justices are constrained by political factors. Justices are not isolated from what happens in the legislative and executive branches, and instead respond in predictable ways to changes in the preferences of Congress and the president. This book shatters the myth that justices are unconstrained actors who pursue their personal policy preferences at all costs. By showing how law and politics interact in the construction of American law, this book sheds new light on the unique role that the Supreme Court plays in the constitutional order.

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