In a crucial moment in the history of the administrative state in 1946, Congress played a central legitimizing role by enacting the Employment Act, the Administrative Procedure Act (APA), and the Legislative Reorganization Act (LRA).
In the first third of the twentieth century, American leaders affiliated with both political parties and the broader Progressive movement restructured the nation’s “legal civic order” to advance a Fitter Families ideal of American citizenship.
Professor Marcus offers a short account of the checkered progress of the Holmes Devise.
I believe that Post addresses concerns about how judges worked the ideas into their opinions by seeing the Justices as proto-philosophers (or proto-legal-academics), who have a deep commitment to developing coherent schemas.
The essential ambition of the Taft Court volume was to invite legal historians to once again conceptualize judges and their courts as cultural actors who respond to the same sets of tensions and challenges as those that spur all cultural actors to give meaning to their times. Tushnet is off base to dismiss this approach as a form of “conceptualism.”
Contemporary disputes involving the separation of powers take on a different light when they are framed in terms of powers of the Government of the United States itself. The “all other powers” provision of the Necessary and Proper Clause distinguishes government powers from executive powers and gives Congress distinct legislative authorities with respect to each of these categories.
By Beth A. Colgan. Contrary to the Supreme Court’s historically based determination that in rem forfeitures are nonpunitive, substantial historical evidence—including the Court’s own early opinions—show that in rem forfeitures were understood to constitute punishment.
By Austin Steelman. Arthur Machen Jr.’s 1900 Harvard Law Review article “The Elasticity of the Constitution” influenced the long rise of originalism–revealing many of originalism’s now essential features–and helped give birth to a dead Constitution that proved ironically vital and ever-evolving.
By Sanford Levinson. To what extent do legal academics, historians, political scientists, and high school teachers actually assign any of the The Federalist?
By Kevin Arlyck. Most accounts of the federal judiciary’s rise to independence tell a story in which the courts consolidated their authority—especially the power of judicial review—by tacitly agreeing to withdraw from partisan politics. But as this article shows, the most insistent assertions of judicial inviolability came not from courts, but instead from the executive branch officials.