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In this book, legal scholars, philosophers, historians and political scientists from Australia, Canada, New Zealand, the United Kingdom and the United States analyze the common law through three of its classic themes: rules, reasoning and constitutionalism. Their essays, specially commissioned for this volume, provide an opportunity for thinkers from different jurisdictions and disciplines to talk to each other and to their wider audience within and beyond the common law world. This book allows scholars and students to consider how these themes and concepts relate to one another. It will initiate and sustain a more inclusive and well-informed theoretical discussion of the common law's method, process and structure. It will be valuable to lawyers, philosophers, political scientists and historians interested in constitutional law, comparative law, judicial process, legal theory, law and society, legal history, separation of powers, democratic theory, political philosophy, the courts and the relationship of the common law tradition to other legal systems of the world

Discusses common law protection of environmental rights, regulatory and statutory alternatives, and the rule of law; primarily in the US. Remedies for air and subsurface water and land pollution.

Mr. Justice Powell has publicly characterized the 1974 Term of the Supreme. Court as a "dull" one. Whatever the accuracy of that description, the 1974 Term was, in the public eye, a quiet one. When, late in the Term, the Court ordered the death penalty case held over for reargument, it ensured that the 1974 Term would generate few front-page testimonials to the supreme authority of the Supreme Court. But neither a dull nor a quiet Term can obscure the current reality that the Court's claim to be the "ultimate interpreter of the Constitution" appears to command more nearly universal respect today than at any time since Chief Justice Marshall invoked that document to deny Mr. Marbury the commission to which he was legally entitled. After a history of far more struggle than is generally remembered, it is now settled that (absent a constitutional amendment) the Court has the last say, and in that sense its constitutional interpretations are both authoritative and final. The Court's great prestige has, however, tended to deflect "careful inquiry into the limits beyond which its decisions, although authoritative, are not final. Even as the Justices have developed the habit of writing constitutional opinions that look like detailed legislative codes, the Court's great prestige has fostered the impression that every detailed rule laid down has the same dignity as the constitutional text itself. This impression should be understood as the illusion it is. Indeed, a wide variety of Supreme Court pronouncements are subject to modification and even reversal through ordinary political processes. For example, Congress may validate a state law previously invalidated by the Court as an unreasonable burden upon commerce. Similarly, in Miranda v. Arizona, the Court explicitly recognized that its "Miranda warnings" might be modified by Congress and, perhaps, even by the states. Were our understandings of judicial review not affected by the mystique surrounding Marbury v. Madison, it might be more readily recognized that a surprising amount of what passes as authoritative constitutional "interpretation" is best understood as something of a quite different order – a substructure of substantive, procedural, and remedial rules drawing their inspiration and authority from, but not required by, various constitutional provisions; in short, a constitutional common law subject to amendment, modification, or even reversal by Congress. I hope to demonstrate that a theory of such a constitutional common law is necessary to explain satisfactorily a number of "constitutional" doctrines, and to outline a principled basis for a specialized common law rooted in the Constitution. Finally, I will suggest some implications of express recognition of a constitutional common law of individual liberty.