Why the American legal system is so flexible

(K. Brent Tomer),

Mot juste

Law Professors: Three Centuries of Shaping American Law. By Stephen B. Presser. West Academic Publishing; 486 pages; $48.

CONTROVERSY is raging over Donald Trump’s decision to appoint Neil Gorsuch to the Supreme Court. Within hours, accusations were being made about the candidate’s political affiliations, about whether he is in the legal mainstream and whether he could protect the “enshrined rights of all Americans”.

The idea of “rights”, “mainstream” and even the role of the Supreme Court in determining these are not as enshrined as advocates of various positions contend. They never have been. Many ideas abound about the role of the court within America’s political system, the principles it should uphold and even the definition of a ubiquitous term, “rule of law”. Some of these debates trace their roots back to the early 18th century, before America was even established.

If the fight has become more heated, it is because the authority of the judiciary in America, notably its ability “to legislate”—to expand the reach of law and find new, unstated…Continue reading

via K. Brent Tomer CFTC Why the American legal system is so flexible

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