In recent years the debate over the nature and extent of judicial power in the United States has been dominated by questions concerning moral theory, unwritten constitutions, and natural law. In a significant sense, the contemporary discussion is but the continuation of the theory of judicial review first put forth by Edward S. Corwin in 1910–1911; it was this theory that the “higher law background” of American constitutional law derived from the dicta of Sir Edward Coke's opinion in Bonham's Case (1610) that was given its most complete expression in Corwin's famous two-part article in the Harvard Law Review in 1928–29. The fact is, the influence of Coke's opinion in Bonham's Case came from within the scholarly world; its significance stems not from history but from the historians; it was largely Corwin's creation. This paper seeks to correct the record and to show the deficiencies of Corwin's understanding about the relationship of the “higher law” to the American Constitution.

The Supreme Court's 1992 abortion decision, Planned Parenthood v. Casey, an the Due Process liberty cases of which it is among the most recent, can be fully understood only by attention to the often-neglected common law dimension of American constitutionalism. The fracture on the Court in this line of cases follows a severing of two elements of common law adjudication: the rule of precedent, on the one hand, and the authority of tradition, on the other. The authors of the joint opinion in Casey craft a rationalized rule of precedent in the manner of the modern reinterpreters of the common law, such as Justices Holmes and Cardozo. The dissenters, by contrast, here and in related cases, seek to recover the legal status of tradition in constitutional interpretation.

With the collapse of the Soviet Union, the People's Republic of China remains the world's only major communist society. Will China's regime go the way of its Soviet counterpart, or might it survive well into the next century and beyond? I do not undertake to answer this question directly. But my analysis of one sector of contemporary Chinese society—the legal system—suggests that the Communist party is losing its tight control over several major areas of Chinese society. In the long-run the party will be progressively weakened by current trends toward legal modernization. These trends encourage more liberal (because noninstrumentalized) forms of political, and not only legal, organization.

Based on over 75 personal interviews with members of Congress and their staffs, this article examines how three House authorization committees differ in their reactions to federal court decisions versus their reactions to federal agency decisions. In general, Congress holds the courts in higher esteem than it does the agencies. The courts are generally seen as less political than the agencies, and committee reactions to court decisions are seen as much more unusual than reactions to agency decisions. The attitudes of the three committees toward decisions of the other institutions vary in ways consonant with their institutional roles, the committees' political cultures, and the primary goals of the committee members. The domination of lawyer members on the policy oriented Judiciary Committee results in that committee being the most deferential to the courts. The constituency focused Interior Committee is oriented to local interests and members' reelection goals, and it responds to the courts or to agencies only when constituency pressures force it to do so. The power oriented Energy and Commerce Committee treats the courts and the agencies just like any other political actors.

The ability to attach conditions to federal financial aid has contributed significantly to the establishment of federal hegemony in policymaking, allowing Congress and the executive branch to exact from those dependent upon government largesse behavior which could not be compelled through direct legislation. While questions concerning the legitimacy of conditional spending in our federal system are properly directed to the courts, problems inherent in the judicial review of allocational decisions make constitutional challenges of the national spending power no more likely to succeed in the future than they have in the past. Thus, for all practical purposes, the balance of power between levels of government as well as the rights of individual citizens may be permanently impaired.

The U.S. Supreme Court, at various times, has changed the constitutional tests it claimed to use in order to settle free exercise of religion disputes. These changes in official doctrine and the manner in which many cases have been decided have left the Supreme Court open to much criticism from legal scholars. This study differs substantially from previous work in this area. It uses a fact-attitudinal model to analyze the cases from the Warren, Burger, and Rehnquist Courts. Its findings indicate that these decisions are, generally, explainable and predictable.