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Law, Power, And "Rumors Of War": Robert Jackson Confronts Law And Security After Nuremberg, Mary L. Dudziak Apr 2012

Law, Power, And "Rumors Of War": Robert Jackson Confronts Law And Security After Nuremberg, Mary L. Dudziak

University of Southern California Legal Studies Working Paper Series

Supreme Court Justice Robert Jackson’s most important legacy was his role as chief prosecutor for the United States at the Nuremberg Trials. This essay follows Jackson’s legal thought from his return to the United States after Nuremberg, until his death in 1954. Jackson hoped that the lesson of Nuremberg would be “to establish the supremacy of law over such lawless and catastrophic forces as war and persecutions.” Jackson changed law that applied to warfare. In looking to the future, he seems to have assumed that although law had changed, war would retain its essential character. Yet as the ...


War-Time: An Idea, Its History, Its Consequences, Mary L. Dudziak Jan 2012

War-Time: An Idea, Its History, Its Consequences, Mary L. Dudziak

University of Southern California Legal Studies Working Paper Series

When is wartime? On the surface, it is a period of time in which a society is at war. But we now live in what President Obama has called "an age without surrender ceremonies," as the Administration announced an "end to conflict in Iraq," even though conflict on the ground is ongoing. It is no longer easy to distinguish between wartime and peacetime. In this inventive meditation on war, time, and the law, Mary Dudziak argues that wartime is not as discrete a time period as we like to think. Instead, America has been engaged in some form of ongoing ...


E-Race-Ing Gender: The Racial Construction Of Prison Rape, Kim S. Buchanan Nov 2011

E-Race-Ing Gender: The Racial Construction Of Prison Rape, Kim S. Buchanan

University of Southern California Legal Studies Working Paper Series

Prison rape is a form of gender violence. Men’s prisons institutionalize a toxic form of masculinity when they foster homophobia, physical violence and an institutional culture that requires inmates to prove their masculinity by fighting. Staff and inmate abusers alike target small, young, effeminate, gay, bisexual and transgender inmates. According to recent nationwide survey data, the two factors that most strongly predict an inmate’s risk of sexual abuse are (1) prior sexual victimization, and (2) gay, bisexual or transgender identity. Nonetheless, prison rape continues to be understood in accordance with an inaccurate stereotype that it is typically black-on-white ...


An Institutional Conception Of Authority, Andrei Marmor Sep 2011

An Institutional Conception Of Authority, Andrei Marmor

University of Southern California Legal Studies Working Paper Series

The essay develops a conception of practical authorities that ties their legitimacy to the particular nature of the social practice or institution in which practical authorities invariably operate, and the terms of the subjects’ participation in that practice. The main argument of the paper draws on the distinction between what it takes to have practical authority and what would make it legitimate. The general idea is that what it takes to have practical authority is always determined by a social or institutional practice, and thus the legitimacy of any given authority crucially depends on the nature of the practice and ...


Will And Principle, Rebecca L. Brown Jul 2011

Will And Principle, Rebecca L. Brown

University of Southern California Legal Studies Working Paper Series

In his book, The Will of the People, Barry Friedman documents a long‐term correspondence between popular opinion and Supreme Court decision‐making. He infers from this correspondence that the Court responds to popular will and that the public, in turn, seeks to “discipline” the Court if it goes too far astray. Thus, he reasons, the Court gains legitimacy by not being counter‐majoritarian in any meaningful sense. This comment, prepared for a symposium on the book, argues that the interpretation of the facts is faulty because it leaves out any role for principle in constitutional interpretation—or indeed, for ...


Assisted Living For The Constitution, Rebecca L. Brown Jul 2011

Assisted Living For The Constitution, Rebecca L. Brown

University of Southern California Legal Studies Working Paper Series

David Strauss’s wonderful book, The Living Constitution, posits that constitutional interpretation can gain legitimacy by analogy to the common law. This comment argues that the analogy, while plausible and helpful, is not perfect and that the imperfection undermines the claim to legitimacy. The analogy breaks down when it comes to the kinds of principle that are employed under the two types of adjudication. The common law develops principle from the bottom up, by capturing customs and practices that have already gained wide acceptance, while constitutional interpretation develops principle by resort to the abstract textual references in the Constitution, bolstered ...


A Sword And A Shield: The Uses Of Law In The Bush Administration, Mary L. Dudziak Oct 2010

A Sword And A Shield: The Uses Of Law In The Bush Administration, Mary L. Dudziak

University of Southern California Legal Studies Working Paper Series

The Bush administration has been criticized for departures from the rule of law, but within the administration law was not ignored. Instead it was seen variously as a tool and as a potential threat to the operation of the executive branch. Two narratives compete for attention. In an era when the legality of torture was openly debated, the deployment of law in wartime seemed the most immediate issue. At the same time, however, a decades-long conservative movement to change American law was both significantly furthered and complicated, as Supreme Court appointments moved the Court to the right, but the lack ...


Unlimited War And Social Change: Unpacking The Cold War's Impact, Mary L. Dudziak Sep 2010

Unlimited War And Social Change: Unpacking The Cold War's Impact, Mary L. Dudziak

University of Southern California Legal Studies Working Paper Series

This paper is a draft chapter of a short book critically examining the way assumptions about the temporality of war inform American legal and political thought. In earlier work, I show that a set of ideas about time are a feature of the way we think about war. Historical progression is thought to consist in movement from one kind of time to another (from wartime to peacetime, to wartime, etc.). Wartime is thought of as an exception to normal life, inevitably followed by peacetime. Scholars who study the impact of war on American law and politics tend to work within ...


Just Say No: Birth Control In The Connecticut Supreme Court Before Griswold V. Connecticut, Mary L. Dudziak Jul 2010

Just Say No: Birth Control In The Connecticut Supreme Court Before Griswold V. Connecticut, Mary L. Dudziak

University of Southern California Legal Studies Working Paper Series

This essay examines the right to use birth control in Connecticut before Griswold v. Connecticut (1965). It is often assumed that the Connecticut birth control ban was not enforced, and consequently did not affect access to birth control in the state. Accordingly, the cases challenging the state statute have been viewed as not real cases or controversies deserving of court attention. This essay demonstrates that this view is erroneous. Connecticut law was enforced against the personnel of birth control clinics for aiding and abetting the use of contraceptives. Enforcement of the statute against those working in clinics kept birth control ...


To Secure The Blessings, Ronald R. Garet Jul 2010

To Secure The Blessings, Ronald R. Garet

University of Southern California Legal Studies Working Paper Series

The Constitution’s Preamble states, in part: “We the people of the United States, in order to… secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” While the word “blessings” in this context might mean simply benefits, it might have a more specifically ethical and dispositional meaning, such as benefits for which we should be grateful. Those who favor an evangelical reading of the Constitution might further specify the ethical and dispositional meaning, so that “blessings” recalls God’s promise to Abraham and Israel and the relationship ...


The Case Of "Death For A Dollar Ninety-Five": Miscarriages Of Justice And Constructions Of American Identity, Mary L. Dudziak May 2010

The Case Of "Death For A Dollar Ninety-Five": Miscarriages Of Justice And Constructions Of American Identity, Mary L. Dudziak

University of Southern California Legal Studies Working Paper Series

This is a story about a case long forgotten. It was a case that needed to be forgotten, to safeguard the meaning of American justice. The case of “Death for a Dollar Ninety-Five” began one July night in Marion, Alabama, in 1957, and soon captured the attention of the world. It involved an African American man, a white woman, and the robbery of a small amount of change late in the evening. The conviction was swift and the penalty was death. International criticism soon rained down on the Alabama Governor and the American Secretary of State, leading to clemency and ...


Book Review: Jeff Benedict's "Little Pink House": The Back Story Of The Kelo Case, George Lefcoe Jan 2010

Book Review: Jeff Benedict's "Little Pink House": The Back Story Of The Kelo Case, George Lefcoe

University of Southern California Legal Studies Working Paper Series

Little Pink House is a fast paced account by Jeff Benedict of the events surrounding the 2005 U.S. Supreme Court decision in Kelo v. City of New London. Along with tracking Benedict’s story line, this review also highlights some of the core legal and policy issues that are an important part of the story for law-trained readers. At the core of the tale is how Kelo and a handful of her neighbors challenged the New London Development Corporation’s (NLDC) use of eminent domain for the economic redevelopment of the Fort Trumbull neighborhood. A libertarian-inspired public interest law ...


Gendered Laws, Racial Stories, Kim S. Buchanan Sep 2009

Gendered Laws, Racial Stories, Kim S. Buchanan

University of Southern California Legal Studies Working Paper Series

In this Article, I argue that, in prisons and in Title VII jurisprudence, the legal response to same-sex sexual harassment and abuse enforces the norms of masculinity that abusers enact in the practice of such abuse and harassment. Prison guards and administrators routinely refuse to prevent or punish sexual abuse, telling the victim to “Be a man. Stand up and fight.” If he is raped, the victim is often told that he is—or has been made—“gay,” and therefore “liked it.” Similar norms, albeit in less violent and more coded form, inflect Title VII jurisprudence of same-sex sexual harassment ...


Board Of Education Of Kiryas Joel Village School District V. Grumet: A Religious Group's Quest For Its Own Public School, Nomi Stolzenberg Jul 2009

Board Of Education Of Kiryas Joel Village School District V. Grumet: A Religious Group's Quest For Its Own Public School, Nomi Stolzenberg

University of Southern California Legal Studies Working Paper Series

The case of Kiryas Joel School District v. Grumet, handed down by the Supreme Court in 1994, involving the quest of a religious group to establish its own public school, attracted national attention. Seemingly, the Supreme Court vindicated the civil libertarian position that creating a public school district in the religiously homogeneous village of Kiryas Joel, established and populated exclusively by members of the Satmar sect of ultra-Orthodox Hasidic Jews, constituted a violation of the principle of separation between church and state embodied in the establishment clause. In fact, the Court's decision did no such thing. Instead, it offered ...


Deep And Wide: Justice Marshall's Contributions To Constitutional Law, Rebecca L. Brown Jul 2009

Deep And Wide: Justice Marshall's Contributions To Constitutional Law, Rebecca L. Brown

University of Southern California Legal Studies Working Paper Series

This essay, a contribution to a symposium marking the 100th anniversary of Justice Thurgood Marshall’s birth, explores Justice Marshall’s singular understanding of equality as a driving force underlying all of constitutional law. His theory of equality as giving rise to an obligation on government to provide reasons for its actions reflects a sophisticated and under-appreciated perspective on American constitutionalism, as illustrated by several examples offered in the essay.


Argument Selection In Constitutional Law: Choosing And Reconstructing Conceptual Systems, Michael Shapiro May 2009

Argument Selection In Constitutional Law: Choosing And Reconstructing Conceptual Systems, Michael Shapiro

University of Southern California Legal Studies Working Paper Series

In some cases, it is clear that more than one constitutional argument will fairly lead to the same adjudicatory outcome. For the most part, courts choose exactly one of them, although in some cases they cumulate the converging arguments. When courts select just one, or at least fewer than all, on what basis do they, and should they, choose? Put tersely, what are the criteria for choosing among arguments that meet at the same outcome?

The virtue of formulating this question by imposing the same-outcome constraint is that it requires us to look closely at exactly what distinguishes one argument ...


Law, War, And The History Of Time, Mary L. Dudziak Apr 2009

Law, War, And The History Of Time, Mary L. Dudziak

University of Southern California Legal Studies Working Paper Series

This paper examines wartime as a form of time, arguing that assumptions about the temporality of war are a feature of American legal thought. Time is thought to be linear and episodic, moving from one kind of time (peacetime) to another kind of time (wartime) in sequence. In this way of thinking, war is by definition temporary, so that war’s impact on law is limited in time. This understanding of war and time, however, is in tension with the practice of war in 20th century U.S. history, for American involvement in overseas military action has been continuous.

Drawing ...


Direct Democracy And Public Choice, Elizabeth Garrett Jan 2009

Direct Democracy And Public Choice, Elizabeth Garrett

University of Southern California Legal Studies Working Paper Series

Public choice, with its focus on interest groups, relationships among institutions, and the importance of procedures and institutions in shaping policies, has been a significant influence on the literature studying direct democracy. Direct democracy encompasses two methods of providing voters with direct lawmaking authority – the initiative and the referendum – as well as a third method of directly influencing lawmakers outside of the regular electoral process – the recall. Twenty-seven states provide for the initiative, the popular referendum or both; and the legislative referendum is required in every state for adoption of constitutional amendments. When one considers that about half of the ...


Mark Tushnet's Thurgood Marshall And The Rule Of Law, Mary L. Dudziak Sep 2008

Mark Tushnet's Thurgood Marshall And The Rule Of Law, Mary L. Dudziak

University of Southern California Legal Studies Working Paper Series

This essay, written for a symposium issue of the Quinnipiac Law Review on the work of Mark Tushnet, takes up Tushnet’s writings on Thurgood Marshall. Tushnet’s body of scholarship on Marshall includes two books, Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1936-1961, and Making Constitutional Law: Thurgood Marshall and the Supreme Court, 1961-1991; an edited collection: Thurgood Marshall: His Speeches, Writings, Arguments, Opinions and Reminiscences; and many articles and essays. Tushnet follows Marshall from his early career as a civil rights lawyer through his service on the United States Supreme Court, focusing more than other ...


New Voices In Politics: Justice Marshall's Jurisprudence On Law And Politics, Elizabeth Garrett Sep 2008

New Voices In Politics: Justice Marshall's Jurisprudence On Law And Politics, Elizabeth Garrett

University of Southern California Legal Studies Working Paper Series

Justice Marshall’s career reveals his commitment to the objective that all people, regardless of their race, ethnicity or economic class, should have an equal opportunity to participate in the political process. His view of participation emphasized not just its instrumental value, but also Marshall’s belief that participation is intrinsically valuable to participants and the larger society. He saw the foremost constitutional principle as equality; and he viewed participation in politics as a related principle that “recognizes the moral worth of each individual, and in this way shows again that all persons are equal.” The Justice also understood that ...


Redevelopment Takings After Kelo: What's Blight Got To Do With It?, George Lefcoe Mar 2008

Redevelopment Takings After Kelo: What's Blight Got To Do With It?, George Lefcoe

University of Southern California Legal Studies Working Paper Series

Cities large and small across the country are utilizing redevelopment powers to become land developers, transforming underutilized areas into desirable commercial and mixed use enclaves, improving the appearance of the city and shoring up sagging tax bases. In using their eminent domain powers to assist private redevelopers, local governments open themselves to Fifth Amendment claims that these projects aren’t for “public uses.” After the U.S. Supreme Court opinion in Kelo v. City of New London, state and local government officials need not worry about federal courts declaring anytime soon that their economic redevelopment projects aren’t a sufficient ...


Conflicts Between The Commander In Chief And Congress: Concurrent Power Over The Conduct Of War, Jules Lobel Nov 2007

Conflicts Between The Commander In Chief And Congress: Concurrent Power Over The Conduct Of War, Jules Lobel

University of Pittsburgh School of Law Working Paper Series

The Bush Administration argues that the Commander in Chief has exclusive power to decide what military tactics to use to defeat a wartime enemy. The Administration’s constitutional position that Congress may not permissibly interfere with these Executive Commander in Chief powers has been heavily criticized, particularly with respect to the Executive power to interrogate prisoners or engage in warrantless wiretapping on American citizens and its argument that Congress cannot limit the Iraq war. Yet, many critics concur in the Administration’s starting point—that the President has exclusive authority over battlefield operations.

This article challenges that assumption. It argues ...


Conflicts Between The Commander In Chief And, Jules Lobel Nov 2007

Conflicts Between The Commander In Chief And, Jules Lobel

University of Pittsburgh School of Law Working Paper Series

The Bush Administration argues that the Commander in Chief has exclusive power to decide what military tactics to use to defeat a wartime enemy. The Administration’s constitutional position that Congress may not permissibly interfere with these Executive Commander in Chief powers has been heavily criticized, particularly with respect to the Executive power to interrogate prisoners or engage in warrantless wiretapping on American citizens and its argument that Congress cannot limit the Iraq war. Yet, many critics concur in the Administration’s starting point—that the President has exclusive authority over battlefield operations.

This article challenges that assumption. It argues ...


Search Me?, John Burkoff Aug 2007

Search Me?, John Burkoff

University of Pittsburgh School of Law Working Paper Series

Professor Burkoff contends that most people who purportedly “consent” to searches by law enforcement officers are not really – "freely and voluntarily," as the Supreme Court decisional law supposedly requires – consenting to such searches. Yet, absent unusual circumstances, the great likelihood is that a court nonetheless will conclude that such consent was valid and any evidence seized admissible under the Fourth Amendment.

Professor Burkoff argues, however, that the Supreme Court’s 2006 decision in Georgia v. Randolph now dictates that the application of consent law doctrine should reflect the actual voluntariness (or involuntariness) of the questioned consents that come before the ...


Of Cops And Bumper Stickers: Notes Toward A Theory Of Selective Prosecution, Richard Delgado Aug 2007

Of Cops And Bumper Stickers: Notes Toward A Theory Of Selective Prosecution, Richard Delgado

University of Pittsburgh School of Law Working Paper Series

The author, Professor Richard Delgado, takes as his point of departure a remark by the chair of the Colorado committee that voted academic sanctions against Ward Churchill. This essay explores the role of retaliatory motives in academic misconduct cases.

In Churchill’s case, Colorado authorities delved deeply and painstakingly into Churchill’s publications only when it appeared that the state could not fire him from his tenured position for his inflammatory remarks on the victims of the 9/11 tragedy. What bearing should the investigation’s relation to the hue and cry that led to it have on its own ...


Revitalizing The Presumption Against Preemption To Prevent Regulatory Gaps: A Case Study Of Judicial Tolerance Of Illegal Railroad Waste Transfer Stations, Carter H. Strickland Jr. Mar 2007

Revitalizing The Presumption Against Preemption To Prevent Regulatory Gaps: A Case Study Of Judicial Tolerance Of Illegal Railroad Waste Transfer Stations, Carter H. Strickland Jr.

Rutgers Law School (Newark) Faculty Papers

This article addresses the problem of regulatory gaps that are created through imprecise preemption rulings. It begins with a detailed case study of how railroads were able to enter the highly regulated solid waste industry, to claim that all state oversight is preempted by a federal statute intended to deregulate railroad economics, and to obtain the economic benefits of operating in a regulatory gap. The net result of current preemption doctrine in those cases has been to strip citizens of the power to ensure that waste transfer stations are safe, and this fundamental injustice serves as a backdrop to analyzing ...


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 ...


Shooting The Messenger, Richard Delgado Oct 2006

Shooting The Messenger, Richard Delgado

University of Pittsburgh School of Law Working Paper Series

This essay reviews Ward Churchill’s "On the Justice of Roosting Chickens: Reflections on the Consequences of U.S. Imperial Arrogance and Criminality" (2003).

One of the most talked about — but least read — books of recent years, "On the Justice of Roosting Chickens" documents a long history of U.S. wars, invasions, and violations of international law on the way to concluding that when the terrible events of 9/11 took place, the U.S. deserved and should have expected retribution. In popular language, we "had it coming."

As the reader may recall, when Hamilton College rescinded Churchill’s invitation ...


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.