Constitutional Law and Rhetoric

Constitutional Law

Law as Rhetoric, Rhetoric as Argument

Many lawyers lack a basic understanding of the structure and process of legal argumentation. Their limited understanding, which often leads to less than effective advocacy, stems from legal education's failure to make the structure and process of legal argument explicit and systematic. One approach to this problem is to explore the intrinsic relationship of law to rhetoric. Because law and rhet...

Constitutional Law: Parole Status

In Rose v. Haskins,' the Court of Appeals for the Sixth Circuit reiterated the orthodox view that since a prisoner parole system is not constitutionally compelled, parole status is merely a "privilege" regulated by statute and not circumscribed by either the specific constitutional guarantees applicable to a criminal proceeding nor the traditional safeguards of procedural due process. However, ...

Constitutional Law: Increased Sentence

Ordinary Administrative Law as Constitutional Common Law

Henry Monaghan famously argued that much of constitutional interpretation takes the form of what he termed constitutional common law, a body of doctrines and rules that are constitutionally inspired but not constitutionally required and that can be altered or reversed by Congress. This Essay argues that a fair amount of ordinary administrative law qualifies as constitutional common law: Constit...