State Constitutional Law: Federalism in the Common Law Tradition

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...

Constitutional Law

Common Law and Federalism in the Age of the Regulatory State

Over the past several decades, the growth of federal statutes and the rise of the regulatory state has weakened and displaced state common law even in the absence of preemption. However, there is a strong theoretical and judicial foundation on which to argue that the existence of statutes, regulations, and the data they generate should be used to inform and develop state common law rather than ...

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