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FOR EDWARD L. RUBIN, the game of musical chairs is over. Five years after giving up a Chair at Berkeley to join Penn Law, Rubin has been appointed the first Theodore K. Warner Professor of Law.
“It’s nice to be recognized by your colleagues,” Rubin says of the faculty vote to install him in the coveted position.
A scholar in public governance, Rubin specializes in administrative law and legal theory. The workings of the administrative state hold particular interest.
In Judicial Policymaking and the Modern State: How the Courts Reformed America’s Prisons (with Malcolm Feeley, Cambridge University Press, 1998), Rubin argued that judges have the right – lo, the responsibility – to make public policy.
“In a modern state, judicial policymaking is not an aberrant procedure at all but a standard mode of judicial action, and it can be justified, just as the interpretative or fact-finding role of the judge can be justified,” Rubin comments in an interview.
“We have an ideology that law is supposed to come from (legislators),” Rubin says. “But that is an old idea.” Indeed, Rubin asserts that lawmaking is intrinsic to a judge’s job, adding that much of Common Law was created by judges who had no legislation on which to rely.
Once again, in his next book, Rubin will refute cherished notions. Due next year, the book will trace the advent of the administrative state, and will argue that many of the basic concepts that we use to describe government, such as democracy, legitimacy, law and rights, are products of a pre-administrative era and do not help us understand the government we really possess. Then Rubin plans to hit the theoretical trifecta with a book on the effect of the modern state on personal morality.
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