\u3cem\u3eNeutral Principles\u3c/em\u3e in the 1950\u27s

In this Essay, I explore the intellectual setting within which Wechsler believed that defending freedom also required defending the legality of racial domination. I argue that the key to understanding this apparent paradox is to grasp the ideological/ cultural complex of the 1950\u27s within which mainstream American intellectuals in law and in other disciplines came to terms with the disintegration of the traditional, old order paradigms of the late nineteenth and early twentieth centuries by means of an intense and overriding distinction between controversial issues of values and noncontroversial questions of framework and structure within which substantive conflict would take place. On that distinction rested their conviction that their own work, and intellectual work generally, transcended ideology and politics

A Subversive Strand of the Warren Court

The choice between de jure and de facto standards of review arises whenever a legal standard is needed to identify violations of specific constitutional rights or norms in particular cases. The issue is methodological in the sense that the question is faced regardless of the particular right or norm at issue (although it is not really true that the choice between these methodologies would have no influence on the choice of rights or norms to apply). A de Jure approach limits the imposition of constitutional norms to cases in which the state has affirmatively acted to help create a particular state of affairs, whether through explicit legislation or by some other affirmative mode of exercising state power. A de facto approach focuses on a given empirical state of social affairs and, in its strongest form, imposes constitutional norms whenever a review of the social order discloses that constitutional rights or nouns are not extant, regardless of the source of their denial

The New Public Law Movement: Moderation as a Postmodern Cultural Form

The past twenty years have witnessed an explosion of public law scholarship, as legal scholars reconceptualized themes of administrative law, legislation, and constitutional law; created almost from scratch whole new areas of public law scholarship, including discrimination, environmental, and consumer protection theory; and enlivened discourse with concepts drawn from microeconomics, public choice theory, civic republicanism, practical philosophy, and hermeneutics. This intellectually intense activity has suggested the possibility that public law discourse has entered a critical stage and stimulated the Michigan Law Review to hold a conference in October 1990 on whether there is something that might be called New Public Law. At first we thought there certainly was. We still do, but on further reflection we think that the more interesting inquiry is how these new developments in public law relate to the recent politicization of jurisprudence. This inquiry was a daunting project for us, in part· because the complexity of the historical analysis and our tendency toward abstraction continually threatened to blur the focus of the inquiry, namely, to identify and analyze a movement within legal scholarship. Also~ we approached the topic from very different perspectives. One of us viewed the New Public Law as an exciting positive development, the other viewed it with skepticism. What we needed was a method for concretizing the discussion and for presenting its historical complexity and for allowing us to explore our own differences of perspective. Based upon these concerns, we have chosen to focus on two state court cases, one involving nuclear protesters and the other involving a Catholic university\u27s refusal to recognize a gay and lesbian student group. We use these cases as a grounding to present three accounts of twentieth-century American legal thought, each of which illuminates new developments in public law in a different but perhaps complementary way

The New Public Law Movement: Moderation as a Postmodern Cultural Form

The past twenty years have witnessed an explosion of public law scholarship, as legal scholars reconceptualized themes of administrative law, legislation, and constitutional law; created almost from scratch whole new areas of public law scholarship, including discrimination, environmental, and consumer protection theory; and enlivened discourse with concepts drawn from microeconomics, public choice theory, civic republicanism, practical philosophy, and hermeneutics. This intellectually intense activity has suggested the possibility that public law discourse has entered a critical stage and stimulated the Michigan Law Review to hold a conference in October 1990 on whether there is something that might be called New Public Law. At first we thought there certainly was. We still do, but on further reflection we think that the more interesting inquiry is how these new developments in public law relate to the recent politicization of jurisprudence. This inquiry was a daunting project for us, in part· because the complexity of the historical analysis and our tendency toward abstraction continually threatened to blur the focus of the inquiry, namely, to identify and analyze a movement within legal scholarship. Also~ we approached the topic from very different perspectives. One of us viewed the New Public Law as an exciting positive development, the other viewed it with skepticism. What we needed was a method for concretizing the discussion and for presenting its historical complexity and for allowing us to explore our own differences of perspective. Based upon these concerns, we have chosen to focus on two state court cases, one involving nuclear protesters and the other involving a Catholic university\u27s refusal to recognize a gay and lesbian student group. We use these cases as a grounding to present three accounts of twentieth-century American legal thought, each of which illuminates new developments in public law in a different but perhaps complementary way