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Public Law and Legal Theory Commons

Open Access. Powered by Scholars. Published by Universities.®

2018

Law and Politics

Series

Separation of powers

Articles 1 - 2 of 2

Full-Text Articles in Public Law and Legal Theory

Petitioning And The Making Of The Administrative State, Maggie Blackhawk Jan 2018

Petitioning And The Making Of The Administrative State, Maggie Blackhawk

Faculty Scholarship at Penn Law

The administrative state is suffering from a crisis of legitimacy. Many have questioned the legality of the myriad commissions, boards, and agencies through which much of our modern governance occurs. Scholars such as Jerry Mashaw, Theda Skocpol, and Michele Dauber, among others, have provided compelling institutional histories, illustrating that administrative lawmaking has roots in the early American republic. Others have attempted to assuage concerns through interpretive theory, arguing that the Administrative Procedure Act of 1946 implicitly amended our Constitution. Solutions offered thus far, however, have yet to provide a deeper understanding of the meaning and function of the administrative state ...


Our Principled Constitution, Mitchell N. Berman Jan 2018

Our Principled Constitution, Mitchell N. Berman

Faculty Scholarship at Penn Law

Suppose that one of us contends, and the other denies, that transgender persons have constitutional rights to be treated in accord with their gender identity. It appears that we are disagreeing about “what the law is.” And, most probably, we disagree about what the law is on this matter because we disagree about what generally makes it the case that our constitutional law is this rather than that.

Constitutional theory should provide guidance. It should endeavor to explain what gives our constitutional rules the contents that they have, or what makes true constitutional propositions true. Call any such account a ...