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Is Administrative Law Unlawful? - Podcast

Administrative Law & Regulation Practice Group Podcast
Adam J. White, Philip A. Hamburger July 03, 2014

Is Administrative Law Unlawful?

In his new book, Is Administrative Law Unlawful?, Professor Philip Hamburger answers the provocative question posed in his title in the affirmative. Rather than accepting administrative law as a novel power necessitated by modern society, he locates its origins in the medieval and early modern English tradition of royal prerogative and traces resistance to administrative law from the Middle Ages to the present. Medieval parliaments periodically tried to confine the Crown to governing through regular law, but the most effective response was the seventeenth-century development of English constitutional law, which concluded that the government could rule only through the law of the land and the courts, not through administrative edicts. Although the United States Constitution pursued this conclusion even more vigorously, administrative power reemerged in the Progressive and New Deal Eras. Since then, Professor Hamburger argues, administrative law has returned American government and society to precisely the sort of consolidated or absolute power that the U.S. Constitution — and constitutions in general — were designed to prevent.

Professor Hamburger joined us on a Teleforum conference call to discuss his new book, with additional commentary from Adam White. Mr. White’s recent review of the book for the Wall Street Journal is available here.

  • Prof. Philip A. Hamburger, Maurice and Hilda Friedman Professor of Law, Columbia Law School
  • Adam J. White, Counsel, Boyden Gray & Associates

Failing Law Schools? - Podcast

Professional Responsibility & Legal Education Practice Group Podcast
Brian Z. Tamanaha, James A. Haynes May 08, 2014

Failing Law Schools

Washington University in Saint Louis School of Law Professor Brian Z. Tamanaha argues law schools are failing abjectly. Recent front-page stories have detailed widespread practices, including false reporting of LSAT and GPA scores, misleading placement reports, and the fundamental failure to prepare graduates to enter the profession.

Addressing all these problems and more in his book, Failing Law Schools, Prof. Tamanaha lays out the how and why of the crisis and the likely consequences if these trends continue. The out-of-pocket cost of obtaining a law degree at many schools now approaches $200,000. The legal job market is the worst in decades, with the scarce jobs offering starting salaries well below what is needed to handle such a debt load. At the heart of the problem, Prof. Tamanaha argues, are the economic demands and competitive pressures on law schools, paired with a lack of regulatory oversight, the work environment of professors, the limited information available to prospective students, and loan-based tuition financing. Bringing to the table his years of experience from within the legal academy, Prof. Tamanaha assesses what he believes is wrong with law schools and suggests how to fix them. James Haynes of the Federalist Society's Professional Responsibility & Legal Education Practice Group Executive Committee discussed the book and its premises with Prof. Tamanaha.

Featuring:

  • Professor Brian Z. Tamanaha, William Gardiner Hammond Professor of Law, Israel Treiman Faculty Fellow 2013-2014, Washington University School of Law
  • James A. Haynes, Professional Responsibility & Legal Education Practice Group, The Federalist Society

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Originalism and the Good Constitution - Podcast

Federalism & Separation of Powers Practice Group Podcast
Michael B. Rappaport, John O. McGinnis, Michael S. Greve March 19, 2014

Originalism and the Good Constitution

Originalism holds that the U.S. Constitution should be interpreted according to its meaning at the time it was enacted. In their innovative defense of originalism, John McGinnis and Michael Rappaport maintain that the text of the Constitution should be adhered to by the Supreme Court because it was enacted by supermajorities — both its original enactment under Article VII and subsequent Amendments under Article V. A text approved by supermajorities has special value in a democracy because it has unusually wide support and thus tends to maximize the welfare of the greatest number.

The authors recognize and respond to many possible objections. Does originalism perpetuate the dead hand of the past? How can following the original meaning be justified, given that African Americans and women were excluded from the enactment of the Constitution in 1787 and many of its subsequent Amendments? What is originalism’s place in interpretation of the Constitution, when after two hundred years there is so much non-originalist precedent?

A fascinating counterfactual they pose is this: had the Supreme Court not interpreted the Constitution so freely, perhaps the nation would have resorted to the Article V amendment process more often and with greater effect. The authors of Originalism and the Good Constitution, Prof. Michael B. Rappaport and Prof. John O. McGinnis, discussed the book along with commentary from Prof. Michael Greve on a live Teleforum conference call.

Featuring:

  • Prof. Michael S. Greve, Professor of Law, George Mason University School of Law
  • Prof. Michael B. Rappaport, Darling Foundation Professor of Law, University of San Diego School of Law
  • Prof. John O. McGinnis, George C. Dix Professor in Constitutional Law, Northwestern University School of Law

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The Conscience of the Constitution - Podcast

Federalism & Separation of Powers Practice Group Podcast
Timothy Sandefur, Clark Neily February 07, 2014

The Conscience Constitution: The Declaration of Independence and the Right to LibertyIs liberty or democracy the primary constitutional value? At a time when Americans are increasingly facing violations of their civil liberties, Timothy Sandefur's insightful new book explains why the Declaration of Independence, with its doctrines on the primacy of liberty, the natural rights of man, and the limits on legitimate government, should serve as the guidepost for understanding the Constitution. The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty argues that modern legal doctrines, which value democracy over liberty, are endangering individual rights and corrupting our civic institutions. Mr. Sandefur discussed his new book followed by commentary from Mr. Clark Neily of the Institute for Justice.

Featuring:

  • Timothy Sandefur, author, The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty, and Principal Attorney, National Litigation Center, Pacific Legal Foundation
  • Commentary by: Clark Neily, Senior Attorney, Institute for Justice

[Listen now!]