Originalists' emphasis on William Blackstone's Commentaries tends to suggest that the common law of the founding era consisted of a set of determinate rules that can be mined for the purposes of constitutional interpretation. This Article argues instead that disparate strands of the common law, some emanating from the colonies and others from England, some…
This Article explores the relationship of the U.S. Constitution to the costs of government decision making. Constitutional law clearly can escalate these costs, as when the Due Process Clauses are read to mandate additional procedure not otherwise favored by decisionmakers. This much is understood. But the Constitution and its doctrine sometimes put downward pressure on…
Policymakers fight over bureaucratic structure because it helps shape the legal interpretations and regulatory decisions of agencies through which modern governments operate. In this Article, we update positive political theories of bureaucratic structure to encompass two new issues with important implications for lawyers and political scientists: the significance of legislative responses to a crisis and…
In 1978, Justice Powell famously found that racial diversity can justify race-conscious admissions systems. However, Justice Powell wrote alone, leaving the diversity rationale in a state of limbo for nearly three decades. In 2003, a slim majority of the Supreme Court agreed with Justice Powell, finding that an educational institution had a compelling interest in…
