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June 5, 2019|Felix Frankfurter, labor law, Labor Unions, National Labor Relations Act, Norris-LaGuardia Act, Sherman Act, The Labor Injunction

The Labor Myth of “Government by Injunction”

by Mark Pulliam|

The Los Angeles Times building was destroyed after labor unionists bombed it. The attack killed 21 people on October 1, 1910.
One of the more widely embraced myths of labor law is the Norris-LaGuardia Act of 1932 ending federal courts enjoining peaceful labor protests.

September 12, 2018|A.L.A. Schechter Poultry Corp. v. United States, Chevron deference, Chevron v. Natural Resources Defense Council, Clarence Thomas, FCC v. Pottsville Broadcasting Co., Felix Frankfurter, Michael McConnell, Mike Lee, Panama Refining Co. v. Ryan, Philip Hamburger

Dismantling the Administrative State

by Mark Pulliam|

Gino Santa Mario/Adobe Stock Images
Peter J. Wallison's Judicial Fortitude offers a brief and accessible introduction to the struggle to control the administrative state.

June 8, 2018|advisory opinions, Felix Frankfurter, Veto

Advisory Opinions Will Save Everyone’s Time — and Keep Constitutionalism in Mind

by James R. Rogers|

Evakhov Valeriy/Shutterstock.com
By letting the judiciary offer advisory opinions on legislation, we might not just save time but also get better legislation.

June 1, 2018|advisory capacity, Felix Frankfurter, U.S. Supreme Court

Debating Advisory Capacity for Courts

by James R. Rogers|

Chambers of the Supreme Court of North Carolina (Nagel Photography / Shutterstock.com).
State supreme courts could easily use their advisory capacity, but it's important to fully consider the costs and benefits.

July 14, 2017|Democracy, Felix Frankfurter, Progressivism, Senate

Constraints on Democratic Decision Making Are Not Necessarily Anti-Democratic

by James R. Rogers|

Socially, a community can create a better future for itself, as it were, by tying its hands today.

August 15, 2016|

American Tradition in Theory and Practice

by Sanford Levinson|

In response to: The Unforgettable Fire: Tradition and the Shape of the Law

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 actual practices or examples. The essay, albeit interesting, is written from a lofty perspective; there are too few concrete examples that truly allow the reader to ascertain the implications of his argument. Almost always, when it comes to politics or law, the devil (or saving…

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The Courts and Tradition: A Begrudging Respect

by David Bernstein

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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Legal Realism, Legal Revolution

by James Stoner

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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August 8, 2016|

The Courts and Tradition: A Begrudging Respect

by David Bernstein|

In response to: The Unforgettable Fire: Tradition and the Shape of the Law

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, torts, property, and more. On the other hand, it strikes me that American common law as interpreted by the judiciary has been far less respectful of precedent (and therefore to some extent, of tradition) than has the common law in other countries. Years ago, I had…

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More Responses

American Tradition in Theory and Practice

by Sanford Levinson

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

by James Stoner

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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May 19, 2014|FDR, Felix Frankfurter, Quebec, Separation of Powers, Stephen Harper

When Judges Talk to Politicians

by F.H. Buckley|

Imagine, if you will, that a president who has not shown himself overly careful about a strict observance of the Constitution, announces that he does not propose to abide by the term limits of the Twenty-Second Amendment, and that he proposes to run for a third term. He notes that the members of the Supreme Court might have a problem with this, but argues that they should not have the sole authority to interpret the Constitution, that he also might do so when backed by the will of the people, and that democratic government is the grundnorm of the Constitution…

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June 3, 2013|Felix Frankfurter, Judicial Review, living constitution, Progressivism, Zeitgeist

The Zeitgeist and the Judiciary: a 100th Anniversary Reflection

by David Upham|

A century ago, a brilliant young lawyer named Felix Frankfurter spoke at the 25th anniversary of the Harvard Law Review.  His speech was entitled “The Zeitgeist and the Judiciary.”

At 30, Frankfurter was already a central figure in progressive circles, and would prove one of the most influential American jurists of the 20th century.  During the first quarter-century of his adult life, he maintained a regular correspondence with Justice Holmes, regularly wrote legal commentary for Herbert Croly’s new magazine, The New Republic, co-founded the ACLU, and served as advisor to Franklin Roosevelt.  In the next quarter-century (1939-1963), he became one of the most influential and prolific Supreme Court justices in American history.

“The Zeitgeist and the Judiciary” is a remarkable exemplar of  early progressive jurisprudence.  His brief, candid remarks display the main aspects of the progressive political and constitutional project. 

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May 9, 2012|Felix Frankfurter, Judicial Restraint, Judicial Supremacy, Separation of Powers, United States Constitution

The Folly of Judicial Restraint in an Age of Judicial Supremacy

by Richard Samuelson|

In the past few months, we have heard a great deal about “judicial restraint.” In particular, Progressives have complained that if the U.S. Supreme Court strikes down the Obamacare mandate that all Americans carry health insurance, it will be a case of “judicial activism” on the part of the Supreme Court. And conservatives, they say, have long supported judicial restraint, rather than judicial activism. Some conservative commentators have asked whether this categorization is fair. That’s an interesting question from a party perspective, but it pushes aside another question: whether the idea of judicial restraint is compatible with current notions of judicial supremacy?

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Book Reviews

A Mirror of the 20th-Century Congress

by Joseph Postell

Wright undermined the very basis of his local popularity—the decentralized nature of the House—by supporting reforms that gave power to the party leaders.

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The Graces of Flannery O'Connor

by Henry T. Edmondson III

O'Connor's correspondence is a goldmine of piercing insight and startling reflections on everything from literature to philosophy to raising peacocks.

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Liberty Classics

Rereading Politica in the Post-Liberal Moment

by Glenn A. Moots

Althusius offers a rich constitutionalism that empowers persons to thrive alongside one another in deliberate communities.

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James Fenimore Cooper and the American Experiment

by Melissa Matthes

In The American Democrat, James Fenimore Cooper defended democracy against both mob rule and majority tyranny.

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Podcasts

Stuck With Decadence

A discussion with Ross Douthat

Ross Douthat discusses with Richard Reinsch his new book The Decadent Society.

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Can the Postmodern Natural Law Remedy Our Failing Humanism?

A discussion with Graham McAleer

Graham McAleer discusses how postmodern natural law can help us think more coherently about human beings and our actions.

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Did the Civil Rights Constitution Distort American Politics?

A discussion with Christopher Caldwell

Christopher Caldwell discusses his new book, The Age of Entitlement.

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America, Land of Deformed Institutions

A discussion with Yuval Levin

Yuval Levin pinpoints that American alienation and anger emerges from our weak political, social, and religious institutions.

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About

Law & Liberty’s focus is on the classical liberal tradition of law and political thought and how it shapes a society of free and responsible persons. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law & Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.

The opinions expressed on Law & Liberty are solely those of the contributors to the site and do not reflect the opinions of Liberty Fund.
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