Formal Versus Functional Method in Comparative Constitutional Law

Constitutional Law

The Use and Misuse of Comparative Constitutional Law (The George P. Smith Lecture in International Law)

This article examines the extent and nature of the use offoreign law in constitutional adjudication in common law systems outside the United States, with special reference to Australia. Demonstrating that the courts of other common law jurisdictions use foreign case law readily, naturally, and for a variety ofpurposes, the article reaches two broad conclusions: (1) as a generalization, other co...

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...