Our administrative law contains, built right into its structure, a series of legal “black holes” and “grey holes” – domains in which statutes, judicial decisions, and institutional practice either explicitly or implicitly exempt the executive from legal constraints. Legal black holes and grey holes are best understood by drawing upon the thought of Carl Schmitt, in particular his account of the relationship between legality and emergencies. In this sense, American administrative law is Schmittian. Moreover, it is inevitably so. Extending legality to eliminate these black and grey holes is impracticable; any aspiration to eliminate the Schmittian elements of our administrative law is utopian.
Our Schmittian Administrative Law
- Volume 122
- Issue 4
- February 2009
May 1, 2009
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Developments in the Law — Access to Courts
Vol. 122 No. 4 Table of Contents Introduction Compensating Victims of Wrongful Detention, Torture, and Abuse in the U.S. War on Terror Mandatory Arbitration Clauses: Proposals for Reform of Cons of Defendant Arbitration Access to Courts and Videoconferencing in Immigration Court Proceedings The Political Question Doctrine, Executive Deference, and Foreign Relations Aesthetic Injuries, Animal Rights, and Anthropomorphism -
Prediction Markets and Law: A Skeptical Account
Vol. 122 No. 4 -
United States v. Stevens
En Banc Third Circuit Strikes Down Federal Statute Prohibiting the Interstate Sale of Depictions of Animal Cruelty.
Vol. 122 No. 4