Rule of Law in the United States

Paul Gowder is Professor of Law at Northwestern University's Pritzker School of Law, USA.

• Introduction: Is America the Paragon of the Rule of Law? The Methodological Problem: What is the Rule of Law, Anyway? The Black Liberation Rule of Law Where We’re Going 1. Madison’s Theory of General Law versus Property and Slavery The Special Position of Property The Affinity between Republican Property and Liberal Property Republican Property and Slavery Slavery as Lawlessness Slavery as Property Internal Tensions in the Law of Slavery as Property The Impossibility of Holding Slavery within its Bounds Dred Scott as the Triumph of Property Over PersonhoodSlavery, Land, and Territorial Expansion 2. The Fugitive Slave Acts, Judicial Independence, and the Jury Judicial Independence and the Jury Juries as Popular Legalism Fugitive Slave Act of 1850: The Return of the Vice-Admiralty Court The Rule of Law Debate about Northern Resistance to Slavery The Inevitability of the State of War 3. Reconstruction and the Black Liberation Rule of Law Black Authorship of the Reconstruction Amendments Martin Luther King Jr, Rule of Law Theorist Due Process and Equal Protection Due Process: The Protections of Judicial Procedure Pushing the Bounds of What We Call ‘Property’ The Problem of Substantive Due Process Equal Protection and General Law The Anti-Classification Response to the Problem of Generality Process and Protection Together: The Path Not Taken 4. Turning the Constitution Around: Black Liberation and the Rule of Law in the Last Century Judge Lynch’s Affront to the Rule of Law The Second Liberation Movement: From Anti-Lynching to Criminal JusticeFrom the Black Panthers to the Movement for Black Lives 5. Security and Discretion: The Problem of Executive Power Police as Executives: The Problem of Discretion in Street-Level Criminal JusticeEx Ante Police Discretion: Street-Level Arbitrary Power Ex Post Police Discretion: The Qualified Immunity Doctrine Segregation and Policing: How Property Rights and Local Quasi-Federalism Can Undermine the Rule of LawFrom Policing to National Security Presidential Power in the National Security State The Schmittian Dilemma 6. The Gavel and the Fist: The Problem of Sovereignty and Borders The Plenary Power The Courts of the Conqueror Expropriation in the Schmittian JudiciaryThe Plenary Power Doctrine is Indefensible Immigration ‘Court’: Barely Adjudication at All Expedited Removal: For When Executive Adjudication is Still Too Fair The Tendency of Arbitrary Power to Metastasize Throughout the Legal System Immigration Outlawry Harms Citizens Too Immigration Outlawry Corrupts the System as a Whole Lawless Racism: The Challenge to Birthright Citizenship Conclusion: Is there Any Hope for an American Rule of Law? The Washington Consensus: Here Comes Property Again The Crisis of the American Rule of Law: Reflections on Donald TrumpThe Danger of Legal Alienation