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Making Law, Making War, Making America (Revised 12/6/06), Mary Dudziak Dec 2006

Making Law, Making War, Making America (Revised 12/6/06), Mary Dudziak

University of Southern California Legal Studies Working Paper Series

It is often said that “in times of war, law is silent,” but this essay argues that the experience of the twentieth century provides a sharp contrast to this old saying. It is not just that law was not silent during warfare, but that law provided a language within which war could be seen. War is not a natural category outside the law, but is in part produced by it. Across decades of conflict, law was a marker that defined for the nation some of those times when conflict would be contemplated as a “war,” and helped cabin other uses ...


Working Toward Democracy: Thurgood Marshall And The Constitution Of Kenya, Mary L. Dudziak Dec 2006

Working Toward Democracy: Thurgood Marshall And The Constitution Of Kenya, Mary L. Dudziak

University of Southern California Legal Studies Working Paper Series

This Article is a work of transnational legal history. Drawing upon new research in foreign archives, it sheds new light on the life of Thurgood Marshall, exploring for the first time an episode that he cared very deeply about: his work with African nationalists on an independence constitution for Kenya. The story is paradoxical, for Marshall, a civil rights legend in America, would seek to protect the rights of white landholders in Kenya who had gained their land through discriminatory land laws, but were soon to lose political power. In order to understand why Marshall would take pride in entrenching ...


Are Constitutions Legitimate?, Andrei Marmor Jul 2006

Are Constitutions Legitimate?, Andrei Marmor

University of Southern California Legal Studies Working Paper Series

This paper argues that constitutionalism raises some serious concerns of moral legitimacy. Following a preliminary outline of the main features of constitutionalism, the paper presents some of the main moral concerns about the legitimacy of constitutions. It then considers in detail a number of arguments that purport to answer those concerns, arguing that they all fail to meet the challenge. The paper concludes with a brief outline of some of the moral implications of this failure and some suggestions for reform.


The Dual Path Initiative Framework, Elizabeth Garrett, Mathew Mccubbins Jul 2006

The Dual Path Initiative Framework, Elizabeth Garrett, Mathew Mccubbins

University of Southern California Legal Studies Working Paper Series

In this Article, we focus on two complaints about initiatives that can be addressed through a new legal framework. First, some have argued that the policy choices made through direct democracy are often not socially optimal, and the processes through which initiatives are passed may make welfare-reducing decisions inevitable. Second, initiatives, once enacted, often fail to be implemented by government officials. In response to these two problems, we propose a new comprehensive framework of postqualification reforms that keeps both the spirit and intent of the initiative process: the Dual Path Initiative Process with a Citizens’ Initiative Implementation Oversight Commission.

First ...


Discrimination And Diplomacy: Recovering The Fuller National Stake In 1960s Civil Rights Reform, Mary L. Dudziak Apr 2006

Discrimination And Diplomacy: Recovering The Fuller National Stake In 1960s Civil Rights Reform, Mary L. Dudziak

University of Southern California Legal Studies Working Paper Series

The conventional understanding of the history behind the passage of the Civil Rights Act of 1964 leaves out an important issue: the role of foreign relations. Legal scholarship on the basis for federal legislative power to regulate civil rights often focuses on the question of whether the Commerce Power was an appropriate basis for civil rights legislation. Congress turned to the Commerce Power because its earlier attempt to regulate race discrimination by private actors under the enabling clauses of the Thirteenth and Fourteenth Amendments was struck down by the Supreme Court. Concerned about that precedent, in the 1960s the Kennedy ...


Transparency In The Budget Process, Elizabeth Garrett, Adrian Vermeule Jan 2006

Transparency In The Budget Process, Elizabeth Garrett, Adrian Vermeule

University of Southern California Legal Studies Working Paper Series

Budget procedures are often adopted or changed to improve “transparency” in budgeting. This phrase can refer to two different, although related, stages of the budget process. First, transparency may refer to the outputs of budgeting; here the ideal is that the tradeoffs inherent in a budget should be made clear, salient and understandable to policy makers and the public. Second, transparency may refer to the inputs of budgeting; here the ideal is to ensure that the decision-making process is itself conducted in public. This paper focuses on the second concept of budget transparency – the degree to which important budgeting decisions ...