Judge  gavel with books in the background

Do Judicial Deference Doctrines Actually Matter?

A central principle of modern administrative law is that federal agencies—not the courts—are the primary interpreters of ambiguous federal statutes that Congress has charged the agencies to administer. The Supreme Court crystallized this deference doctrine in its 1984 Chevron decision, though some variation had existed since the 1940s (and maybe even longer, or perhaps not).…

Law and Tradition in America: Marc DeGirolami Replies

I am grateful for the learned responses of Professors Bernstein, Levinson, and Stoner to my Liberty Forum essay on law…

Capitalism: The Case of Brazil

With the closing ceremonies over, we can breathe a sigh of relief about Rio. The worst snafus of the Olympics…

From the Blog

Mike Rappaport
University of San Diego School of Law

The DEA’s Classification of Marijuana as a Schedule I Substance

Recently, the Drug Enforcement Agency once again declined to change marijuana’s classification from Schedule I…

Originalism, Changing Meanings, and Stable Meanings

One of the criticisms made against originalism by historians is that originalism fails to take…

The Tiers of Scrutiny: A Public Choice Analysis

In my last post, I discussed Justice Clarence Thomas’s criticism of the Supreme Court’s tiers…

John O. McGinnis
Northwestern University School of Law

Graduate Student Unions Undermine the Ideal of a University

It is hard to suppress schadenfreude about the recent ruling of the National Labor Relations…

Admit More Talented Immigrants

Immigration offers many potential advantages both for immigrants and for United States citizens.  Many immigrants…

A Campaign for a Seamless Rule of Law

In this year’s presidential campaign, it would be a wonderful contribution to the republic and…

Michael S. Greve
George Mason University Law School

The View from Berlin

My preceding post noodled over non-German authors’ contributions to the Frankfurter Allgemeine Zeitung’s “Crumbling Europe”…

EU Leaders Begin to Doubt “More Europe”

Beginning pre-Brexit and ending post-Turkey coup, the Frankfurter Allgemeine Zeitung published a series of articles…

No Vacation from History

My annual vacation in the Frisian Caribbean usually falls into what the German media call the Sommerloch…

Liberty Law Forum

Columns at the U.S. Supreme Court

The Unforgettable Fire: Tradition and the Shape of the Law

What is the relationship of law and tradition? Tradition, either as a proposition of independent legal value or a register in which to discuss and explain the persistence of our legal arrangements, has very little traction today. In law, as in many other areas of contemporary American life, tradition as a normatively powerful idea is…

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Responses

The Courts and Tradition: A Begrudging Respect

Marc DeGirolami’s Liberty Forum essay discusses two contexts in which tradition might influence American law: common law and constitutional law. He suggests that tradition is still robust in the former, less so in the latter. With regard to common law, I think that he’s right that custom underlies a good deal of the law of contracts,…

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American Tradition in Theory and Practice

Professor DeGirolami has written an interesting Liberty Forum essay in behalf of paying respectful attention to tradition as a major aspect of our legal order. However, I think there are two major problems with it. The first is theoretical, particularly in relation to the American political and legal experience. The second has to do with…

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Legal Realism, Legal Revolution

In the first paragraph of his celebrated 1881 book on the common law, Oliver Wendell Holmes, Jr. wrote: “The life of the law has not been logic; it has been experience.” Nor was that the first such expression in the annals of American jurisprudence. At the Philadelphia Convention of 1787, James Madison recorded John Dickinson’s…

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Law and Tradition in America: Marc DeGirolami Replies

I am grateful for the learned responses of Professors Bernstein, Levinson, and Stoner to my Liberty Forum essay on law and tradition. Of course, it will not be possible to reply to each point. But it may be simplest to consider the arguments of Professors Bernstein and Stoner together, before more particularly addressing Professor Levinson’s. Bernstein…

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