September 11 and American Law

Abstract:     
Fads and fashions affect theories of American law of course, but September 11 resulted in an eclipse of dominant ways of 'doing' law - and of the powers of courts and the Congress - an eclipse of uncertain length as of this writing. I document the eclipse of a neconservative law and economics and (chiefly as Laura Kalman uses the term) a legal liberalism. Tacitly adopting an 'alien' jurisprudence from Machiavelli, Carl Schmitt, and Hans Vaihinger, the Executive Branch SEEMS bent on using a "War on Terror" to transform our vulnerable society and economy (a civil libertarian and modestly welfare state) into a "warfare state," especially through expansions in the governance by special interests that is opposed by economists and legal liberals alike. Contrary to the views of some legal academics, American life and law are clearly at a turning point. I close by offering some solutions to the problems I raise.

Keywords: civil liberties, constitutional law, foreign policy, international human rights, liberal legalism (jurisprudence), separation of powers, September 11

Working Paper Series