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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 ...


All Born To Freedom? Comparing The Law And Politics Of Race And The Memory Of Slavery In The U.S. And France Today, Ariela J. Gross Aug 2011

All Born To Freedom? Comparing The Law And Politics Of Race And The Memory Of Slavery In The U.S. And France Today, Ariela J. Gross

University of Southern California Legal Studies Working Paper Series

Both the United States and France have seen a burgeoning of memorialization of slavery and abolition in recent years, and France has even passed a memorial law declaring slavery a crime against humanity. This Essay compares law, racial politics, and the memory of slavery in two nations trying to come to terms with their slave pasts. Despite important differences in their histories and civil rights regimes, I argue that in both France and the U.S., movements that oppose race-conscious law portray slavery as part of the deep past, and a generalized past detached from race, whereas those seeking some ...


Lay Judgments Of Judicial Decision-Making, Dan Simon, Nicholas Scurich Jul 2011

Lay Judgments Of Judicial Decision-Making, Dan Simon, Nicholas Scurich

University of Southern California Legal Studies Working Paper Series

This exploratory study examined lay people's evaluations of judicial decision-making, specifically of the judicial decision-making process and the judiciary's legitimacy. Seven hundred participants were presented with three judicial decisions, which were portrayed as following on the heels of solid and appropriate legal procedure. Each decision was accompanied by one of four types of reasoning. Participants were asked to evaluate the acceptability of the decisions, focusing on the manner in which they were made and the legitimacy of the decision-maker, regardless of their outcomes. The study yielded four findings. First, lay people’s judgments were highly contingent on the ...


Righting The Relationship Between Race And Religion In Law, Nomi M. Stolzenberg Jun 2011

Righting The Relationship Between Race And Religion In Law, Nomi M. Stolzenberg

University of Southern California Legal Studies Working Paper Series

This review discusses the interrelationship of race and religion in law, the subject of Eve Darian-Smith's new book, which seeks to rectify the neglect of religion in the study of race and law and the parallel neglect of race in studies of law and religion. Concurring with the book’s basic propositions, that the segregation of race and religion into separate fields of legal studies needs to be overcome and the religious origins of fundamental liberal legal ideas need to be recognized, I tease out different ways in which race and religion can be “linked” and religion can “play ...


The Pursuit Of Intimacy And Parental Rights, Scott Altman Mar 2011

The Pursuit Of Intimacy And Parental Rights, Scott Altman

University of Southern California Legal Studies Working Paper Series

This paper explores whether parents’ rights to live with their children and to deny others access to those children are justified by the more basic right to form and maintain intimate relationships. Many theories treat parental rights as derivative – indirectly justified by children’s interests. This paper asserts a nonderivative justification based on the value of intimacy to parents.

The paper initially explores the potential intimate relationship between a father and his newborn genetic child. It asks whether the interest in parental intimacy creates any reason to demand access to this particular child. Just as a right to intimacy provides ...


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 ...


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 ...


Putting "Duty" In Its Place: A Reply To Professors Goldberg And Zipursky, Dilan Esper, Gregory C. Keating Mar 2010

Putting "Duty" In Its Place: A Reply To Professors Goldberg And Zipursky, Dilan Esper, Gregory C. Keating

University of Southern California Legal Studies Working Paper Series

Black-letter law has it that “duty”—the first element of a prima facie case of negligence in tort—is a nonissue in most cases. “Duty” fixes the legal standard applicable to the conduct in question and that standard is generally the tort obligation to exercise reasonable care for the protection of those who might foreseeably be endangered by one’s actions. Commentators from Oliver Wendell Holmes to the drafters of the pending Restatement Third of Torts have recognized a general duty not to subject others to unreasonable risk of physical harm as the very foundation of modern negligence law. From ...


Is Negligent Infliction Of Emotional Distress A Freestanding Tort?, Gregory C. Keating Mar 2010

Is Negligent Infliction Of Emotional Distress A Freestanding Tort?, Gregory C. Keating

University of Southern California Legal Studies Working Paper Series

Liability for negligent infliction of emotional distress (NIED) is often taken to be a freestanding tort, which guards our interest in emotional tranquility against careless injury. Scope of duty determinations− settling who owes a legal obligation to exercise reasonable care and to whom they owe that obligation− are paramount on this account. Gruesome accidents may traumatize hundreds and even thousands of people. Unless the duty to exercise reasonable care not to inflict emotional harm is carefully controlled, liability will be excessive.

In this paper, prepared for a conference on the Restatement 3rd of Torts, I argue that courts have come ...


The Dilemma Of Direct Democracy, Craig M. Burnett, Elizabeth Garrett, Mathew Mccubbins Mar 2010

The Dilemma Of Direct Democracy, Craig M. Burnett, Elizabeth Garrett, Mathew Mccubbins

University of Southern California Legal Studies Working Paper Series

One of the oldest axioms about human decision-making is that knowledge is power. To be more specific, knowledge may enable people to make reasoned – that is, welfare improving – decisions. To determine whether this adage applies to voters with respect to ballot measures, we test four hypotheses. We find first that voters who know certain basic facts about an initiative vote similarly to voters who have knowledge of an information shortcut related to that initiative. We also show that many voters employ a “defensive no” strategy when faced with complex policy choices on the ballot. This reaction means that voters whose ...


Comparative Studies Of Law, Slavery And Race In The Americas, Alejandro De La Fuente, Ariela J. Gross Feb 2010

Comparative Studies Of Law, Slavery And Race In The Americas, Alejandro De La Fuente, Ariela J. Gross

University of Southern California Legal Studies Working Paper Series

This critical essay surveys the historical research comparing U.S. and Latin American law and slavery. An earlier generation of comparative work on race and slavery, by Frank Tannenbaum and others, drew heavily on law to draw sharp contrasts between U.S. and Latin American slavery, emphasizing the relative harshness of U.S. slave law. Revisionist social historians criticized Tannenbaum for providing a misleading top-down history based on metropolitan codes, and pointed to demographic and economic factors to explain variations in slavery regimes. More recently, legal historians have begun to explore law “from the bottom up” -- slaves’ claims in court ...


Should We Ban Or Welcome "Spec" Home Buyers?, George Lefcoe Jan 2010

Should We Ban Or Welcome "Spec" Home Buyers?, George Lefcoe

University of Southern California Legal Studies Working Paper Series

This paper begins by recounting the extent to which speculating buyers contributed more than proportionately to housing price volatility and the rate of mortgage foreclosure. The second section turns to the way spec buyers deceived mortgage lenders by committing occupancy fraud, claiming falsely that they were buying as owner occupants so they could benefit from more favorable mortgage rates and terms. The third section starts by describing the mischief spec buyers caused home builders and condo developers by signaling phantom housing demand, and degrading ‘for sale’ housing tracts and condo developments by leaving newly bought homes vacant or filling them ...


Langdell And The Invention Of Legal Doctrine, Catharine Wells Nov 2009

Langdell And The Invention Of Legal Doctrine, Catharine Wells

University of Southern California Legal Studies Working Paper Series

This paper addresses two related questions.

The first relates to Langdell and his development of a doctrinal theory of contract law. The substance and method of Langdell’s work has not been well understood and this paper uses a variety of historical materials to remedy this problem. It begins with a review of contract law prior to Langdell. Contract law at this time was in a very primitive state. The available treatises were confusing and the cases themselves offered little guidance for predicting future case outcomes. The paper then proceeds to examine Langdell’s method by describing certain logic texts ...


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 ...


Facts On The Ground, Nomi M. Stolzenberg Jun 2009

Facts On The Ground, Nomi M. Stolzenberg

University of Southern California Legal Studies Working Paper Series

The phrase “creating facts on the ground” is commonly used to refer to Israeli settlement policy in the occupied territories. What does it mean? Intuitively, we understand that it connotes the establishment of de facto possession with the aim of attaining de jure possession, but how exactly does the conversion of de facto into de jure possession come about? And what are to make of it when it does? In addition to the myriad empirical effects it produces, the practice of creating facts on the ground generates two orders of normative consequences: the “first-order” normative effect consisting in the pressure ...


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 ...


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 ...


You Are Living In A Gold Rush, Richard Delgado Aug 2007

You Are Living In A Gold Rush, Richard Delgado

University of Pittsburgh School of Law Working Paper Series

This article argues that our times, characterized as they are by dreams of vast wealth, environmental destruction, and growing social inequality, resemble nothing so much as earlier get-rich-quick periods like the Gilded Age and the California gold rush.

I put forward a number of parallels between those earlier periods and now and suggest that the current fever is likely to end soon. This will come as a relief to those of you who, like me, deplore the regressive social policies, bellicose foreign relations, and coarsening of public taste that we have been living through—even if some of our more ...


No Seat At The Table - How Corporate Governance And Law Keep Women Out Of The Boardroom , Douglas M. Branson Mar 2007

No Seat At The Table - How Corporate Governance And Law Keep Women Out Of The Boardroom , Douglas M. Branson

University of Pittsburgh School of Law Working Paper Series

Based upon substantial numbers of women enrolling in MBA and law programs, from the 1970s onward expectations have been high. With 25 and later 36% female MBA matriculates, and 33% and later 49-51% in law, by the 21st Century the expectation was that great numbers of women would populate the CEO suites and boardrooms in the U.S.

NO SEAT AT THE TABLE (NYU Press 2007) documents how the numbers lag badly behind the expectations, and how the reality lags further yet behind the numbers. Analyses of Fortune 500 proxy data, as the enclosed chapter demonstrates, produce scant reason to ...


Solving The Lawyer Problem In Criminal Cases, George C. Thomas Iii Feb 2007

Solving The Lawyer Problem In Criminal Cases, George C. Thomas Iii

Rutgers Law School (Newark) Faculty Papers

We are learning that the vaunted American adversarial system too often fails to protect innocent defendants. Part of the problem is that indigent criminal defenders, in many parts of the country, are overburdened to the point that they cannot always provide an adequate adversarial testing of the State’s case. Part of the problem is the emotional burn out that many defenders experience. A less well known part of the problem is that the very nature of the adversarial mentality too often causes prosecutors to cut corners and thus threaten innocent defendants. “Solving the Lawyer Problem in Criminal Cases,” a ...


Parallel Courts, Elena A. Baylis Feb 2007

Parallel Courts, Elena A. Baylis

University of Pittsburgh School of Law Working Paper Series

Even as American attention is focused on Iraq’s struggles to rebuild its political and legal systems in the face of violent sectarian divisions, another fractured society – Kosovo – has just begun negotiations to resolve the question of its political independence. The persistent ethnic divisions that have obstructed Kosovo’s efforts to establish multi-ethnic “rule of law” offer lessons in transitional justice for Iraq and other states.

In Kosovo today, two parallel judicial systems each claim absolute and exclusive jurisdiction over the province. One system is sponsored by the United Nations administration in Kosovo and is mostly, although not exclusively, staffed ...


Chain Reaction: How Property Begets Property, Sabrina Safrin Jan 2007

Chain Reaction: How Property Begets Property, Sabrina Safrin

Rutgers Law School (Newark) Faculty Papers

Classic theories for the evolution of property rights consider the emergence of private property to be a progressive development reflecting a society’s movement to a more efficient property regime. This article argues that instead of this progressive dynamic, a more subtle and damaging chain reaction dynamic can come into play that traditional theories for intellectual and other property rights neither anticipate nor explain. The article suggests that the expansion of intellectual and other property rights have an internally generative dynamic. Drawing upon contemporary case studies, the article argues that property rights evolve in reaction to each other. The creation ...


The Multiethnic Placement Act: Threat To Foster Child Safety And Wellbeing, David J. Herring Jan 2007

The Multiethnic Placement Act: Threat To Foster Child Safety And Wellbeing, David J. Herring

University of Pittsburgh School of Law Working Paper Series

Despite the efforts of public officials to reduce the time children spend in foster care, many children live in foster homes for a substantial portion of their childhoods. In fact, a child placed in a foster home may remain in that home for an extended period, with a significant possibility of remaining there permanently. In light of this situation, the decision to place a child in a particular foster home is extremely important.

The federal Multiethnic Placement Act (MEPA) significantly affects foster care placement decisions. This law expressly prohibits public child welfare agencies from delaying or denying a child’s ...


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 ...


Legal Scholarship, Humility, And The Scientific Method, David J. Herring May 2006

Legal Scholarship, Humility, And The Scientific Method, David J. Herring

University of Pittsburgh School of Law Working Paper Series

This essay responds to the question of "What next for law and behavioral biology?" by describing an approach to legal scholarship that relies on the scientific method. There are two steps involved in this approach to legal scholarship. First, the legal scholar must become familiar with an area of scientific research that is relevant to the development of law and policy. (This essay uses behavioral biology research as an example.) Second, the legal scholar must seek and form relationships across disciplines, becoming an active member of a scientific research team that conducts studies relevant to particular issues of law and ...


Constitutional Tipping Points: Civil Rights, Social Change, And Fact-Based Adjudication, Suzanne B. Goldberg Mar 2006

Constitutional Tipping Points: Civil Rights, Social Change, And Fact-Based Adjudication, Suzanne B. Goldberg

Rutgers Law School (Newark) Faculty Papers

Judicial opinions typically rely on facts about a social group to justify or reject limitations on group members' rights, especially when traditional views about the status or capacity of group members are in contest. Yet the fact based approach to decision making obscures the normative judgments that actually determine whether restrictions on individual rights are reasonable. This article offers an account of how and why courts intervene in social conflicts by focusing on facts rather than declaring norms. In part, it argues that this approach preserves judicial flexibility to retain traditional justifications for restricting group members' rights in some settings ...


Homo Sacer, Homosexual: Some Thoughts On Waging Tax Guerrilla Warfare, Anthony C. Infanti Mar 2006

Homo Sacer, Homosexual: Some Thoughts On Waging Tax Guerrilla Warfare, Anthony C. Infanti

University of Pittsburgh School of Law Working Paper Series

Inspired by Giorgio Agamben’s Homo Sacer: Sovereign Power and Bare Life, this essay raises the question whether lesbians and gay men should fundamentally rethink their relationship with the law. Until now, lesbians and gay men have played by the rules: We bide our time for the appropriate moment to challenge the application of the law, and then do so from within the legal system through impact litigation. Focusing on Agamben’s discussion of Kafka’s parable Before the Law, this essay challenges us to consider whether, instead of engaging the law on its own terms, lesbians and gay men ...