SAGE Journal Articles
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Abstract: This article evaluates the claims of those who advocate the use of common law as a corrective to the statutory and rule-based excesses of the American administrative state. Their claims are assessed in light of common-law history and in terms of current administrative law. Although many claims are exaggerated or simply wrong, there are some aspects of common law that deserve attention in public administration. These are explained from the perspective of common-law evolution. Common law developed in a very pragmatic and experimental fashion and therefore displays some qualities public administrators will find useful, especially in the adjudicative realm of agency decisions, but more broadly as well. A model with five features of common-law practice is presented for public administrators to use in improving an agency’s decision making under law.
Abstract: Rather than appealing to penal parsimony as a constraint on the otherwise insatiable demands of the criminal justice system, we should develop a positive account of the proper aims of criminal law which shows parsimony, or moderation, to be integral to those aims. We can do this by developing a republican conception of criminal law as a law that citizens impose on themselves: such a law will be modest in its scope, and will provide a criminal process of trial and punishment that addresses those subjected to it with the respect due to them as citizens.