Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 30 of 148

Full-Text Articles in Law

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 ...


The Selection Of Thirteenth-Century Disputes For Litigation, Daniel M. Klerman Jul 2011

The Selection Of Thirteenth-Century Disputes For Litigation, Daniel M. Klerman

University of Southern California Legal Studies Working Paper Series

Priest and Klein's seminal 1984 article argued that litigated cases differ systematically and predictably from settled cases. This article tests the Priest-Klein selection model using a data set of thirteenth-century English cases. These cases are especially informative because juries rendered verdicts even in settled cases, so one can directly compare verdicts in settled and litigated cases. The results are consistent with the predictions of the Priest-Klein article, as well as with the asymmetric-information selection models developed by Hylton and Shavell.


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 ...


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 ...


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 ...


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 ...


The Constitution Of History And Memory, Ariela J. Gross May 2009

The Constitution Of History And Memory, Ariela J. Gross

University of Southern California Legal Studies Working Paper Series

Almost twenty years ago, the historian Pierre Nora wrote about the growing number of “lieux de mémoire” – museums, monuments, and memorials – where post-modern society situates public memory of traumatic or triumphant events. Yet he devoted little sustained attention to what may be the quintessential “lieu de mémoire” today, the courtroom or truth commission hearing room. Traces of our contemporary obsession with the encounter among law, history and memory are everywhere. And so are lawyers: writing new constitutions for new republics, staffing international tribunals for war criminals, taking testimonies for truth commissions. Yet much of the enthusiasm for legal strategies to ...


Legal Transplants: Slavery And The Civil Law In Louisiana, Ariela J. Gross May 2009

Legal Transplants: Slavery And The Civil Law In Louisiana, Ariela J. Gross

University of Southern California Legal Studies Working Paper Series

Can Louisiana tell us something about civil law vs. common law regimes of slavery? What can the Louisiana experience tell us about a civil law jurisdiction “transplanted” in a common-law country? Louisiana is unique among American states in having been governed first by France, then by Spain, before becoming a U.S. territory and state in the nineteenth century. Unlike other slave states, it operated under a civil code, first the Digest of 1808, and then the Code of 1825. With regard to the regulation of slaves, these codes also incorporated a “Black Code,” first adopted in 1806, which owed ...


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 ...


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 ...


Tax As Urban Legend, Anthony C. Infanti Jan 2008

Tax As Urban Legend, Anthony C. Infanti

University of Pittsburgh School of Law Working Paper Series

In this essay, I review UC-Berkeley history professor Robin Einhorn's book, "American Taxation, American Slavery." In this provocatively-titled book, Einhorn traces the relationship between democracy, taxation, and slavery from colonial times through the antebellum period. By re-telling some of the most familiar set piece stories of American history through the lens of slavery, Einhorn reveals how the stories that we tell ourselves over and over again about taxation and politics in America are little more than the stuff of urban legend.

In the review, I provide a brief summary of Einhorn's discussion of the relationship between slavery and ...


When Is The Time Of Slavery? The History And Politics Of Slavery In Contemporary Legal Argument, Ariela J. Gross Apr 2007

When Is The Time Of Slavery? The History And Politics Of Slavery In Contemporary Legal Argument, Ariela J. Gross

University of Southern California Legal Studies Working Paper Series

When is the time of slavery? Is slavery a part of our nation’s experience best buried in the deep past, or are its echoes still being felt today? Has our nation’s trajectory been one of continuous progress from slavery to freedom, or did change happen fitfully and incompletely? And was slavery an institution defined by race, or was race only incidental to its origins and operation? Contemporary debates about racial justice, and in particular about redress for racial injustice, turn not only on moral and practical concerns, but on the answers to these questions. The jurisprudence of affirmative ...


Black, White, Brown, Green, And Fordice: The Flavor Of Higher Education In Louisiana And Mississippi, Alfreda S. Diamond Feb 2007

Black, White, Brown, Green, And Fordice: The Flavor Of Higher Education In Louisiana And Mississippi, Alfreda S. Diamond

ExpressO

"Black, White, Brown, Green, and Fordice: The Flavor of Higher Education in Louisiana and Mississippi" chronicles the higher education desegregation sagas in Louisiana and Mississippi. The Article specifically compares the histories of the higher education desegregation lawsuits in the two states and their subsequent experiences and progress under Settlement Agreements. The statistical populations of many universities in both states are still largely identifiable as “white” or “black,” and so the Article will pose questions not only respecting the implementation of United States v. Fordice in both states, but also respecting the value, desirability, or possibility of the “integrative ideal” converting ...


Paying Eliza: Comity, Contracts, And Critical Race Theory, Or 19th Century Choice Of Law Doctrine And The Validation Of Antebellum Contracts For The Purchase And Sale Of Human Beings, Diane J. Klein Feb 2007

Paying Eliza: Comity, Contracts, And Critical Race Theory, Or 19th Century Choice Of Law Doctrine And The Validation Of Antebellum Contracts For The Purchase And Sale Of Human Beings, Diane J. Klein

ExpressO

During the period before the Civil War, courts in non-slave-holding states were sometimes called upon to enforce contracts for the purchase and sale of human beings (or contracts whose consideration otherwise consisted of human beings), and sometimes did so, for reasons arguably having more to do with inter-state contract law than with the “peculiar institution” itself. What may be more surprising, and more difficult to understand, is that some “Union” courts went on doing so even after the Civil War ended, when substantive changes of law, together with well-established exceptions to general principles favoring out-of-state contract enforcement, made the contrary ...


The Inescapable Federalism Of The Ninth Amendment, Kurt T. Lash Feb 2007

The Inescapable Federalism Of The Ninth Amendment, Kurt T. Lash

ExpressO

For the past several decades, the majority of courts and commentators have viewed the Ninth Amendment as a provision justifying judicial enforcement of unenumerated individual rights against state and federal abridgment. The most influential advocate of this libertarian reading of the Ninth has been Professor Randy Barnett who has argued in a number of articles and books that the Ninth was originally understood as guarding unenumerated natural rights. Recently uncovered historical evidence, however, suggests that those who framed and ratified the Ninth Amendment understood the Clause as a guardian of the retained right to local self-government. Recognizing the challenge this ...


A Textual-Historical Theory Of The Ninth Amendment, Kurt T. Lash Feb 2007

A Textual-Historical Theory Of The Ninth Amendment, Kurt T. Lash

ExpressO

Despite the lavish attention paid to the Ninth Amendment as supporting judicial enforcement of unenumerated rights, surprisingly little attention has been paid to the Amendment’s actual text. Doing so reveals a number of interpretive conundrums. For example, although often cited in support of broad readings of the Fourteenth Amendment, the text of the Ninth says nothing about how to interpret enumerated rights such as those contained in the Fourteenth. No matter how narrowly one construes the Fourteenth, the Ninth merely demands that such enumerated rights not be construed to deny or disparage other rights retained by the people. The ...


Interrogation Of Detainees: Extending A Hand Or A Boot?, Amos N. Guiora Feb 2007

Interrogation Of Detainees: Extending A Hand Or A Boot?, Amos N. Guiora

ExpressO

The so called “war on terror” provides the Bush administration with a unique opportunity to both establish clear guidelines for the interrogation of detainees and to make a forceful statement about American values. How the government chooses to act can promote either an ethical commitment to the norms of civil society, or an attitude analogous to Toby Keith’s “American Way,” where Keith sings that “you’ll be sorry that you messed with the USofA, ‘Cuz we’ll put a boot in your ass, It’s the American Way.”

No aspect of the “war on terrorism” more clearly addresses this ...


The American Tradition Of Racial Profiling, Jean Phan Feb 2007

The American Tradition Of Racial Profiling, Jean Phan

ExpressO

The enemy has always been easily recognizable in American life: He has been the savage Native American known for scalping people; the black slave bent on ravaging white women; the Asian worker unfairly competing against the white man; the Mexican immigrant who does nothing but leech off the system; the Arab who dreams up terrorist plots, and carries them out. These enemies have always been visible in American society, and yet, they don’t exist in reality. They exist only in the minds of those too afraid to consider that these strange individuals who seem so different, could be just ...


At War With The Eclectics: Mapping Pragmatism In Contemporary Legal Analysis, Justin Desautels-Stein Feb 2007

At War With The Eclectics: Mapping Pragmatism In Contemporary Legal Analysis, Justin Desautels-Stein

ExpressO

This article has two primary goals. The first is descriptive, and seeks to respond to what appears to be an increasing degree of confusion over the word “pragmatism,” especially as it is used in a good deal of legal literature. This descriptive aim begins by separating out three general categories of pragmatism: (1) the so-called “everyday” pragmatism familiar to the American vernacular, (2) the classical philosophy of the early pragmatist authors like William James and John Dewey, and (3) pragmatism as understood in the context of law. The majority of the article is subsequently concerned with exploring this last category ...


Jutstice Kennedy And The Environment: Property, States' Rights, And The Search For Nexus, Michael Blumm Jan 2007

Jutstice Kennedy And The Environment: Property, States' Rights, And The Search For Nexus, Michael Blumm

ExpressO

Justice Anthony Kennedy, now clearly the pivot of the Roberts Court, is the Court’s crucial voice in environmental and natural resources law cases. Kennedy’s central role was never more evident than in the two most celebrated environmental and natural resources law cases of 2006: Kelo v. New London and Rapanos v. U.S., since he supplied the critical vote in both: upholding local use of the condemnation power for economic development under certain circumstances, and affirming federal regulatory authority over wetlands which have a significant nexus to navigable waters. In each case Kennedy’s sole concurrence was outcome ...


Law And Heidegger’S Question Concerning Technology: A Prolegomenon To Future Law Librarianship, Paul D. Callister Jan 2007

Law And Heidegger’S Question Concerning Technology: A Prolegomenon To Future Law Librarianship, Paul D. Callister

ExpressO

Following World War II, the German philosopher Martin Heidegger offered one of the most potent criticisms of technology and modern life. His nightmare is a world whose essence has been reduced to the functional equivalent of “a giant gasoline station, an energy source for modern technology and industry. This relation of man to the world [is] in principle a technical one . . . . [It is] altogether alien to former ages and histories.” For Heidegger, the problem is not technology itself, but the technical mode of thinking that has accompanied it. Such a viewpoint of the world is a useful paradigm to consider ...


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 ...


Taxing Emotional Injury Recoveries: A Critical Analysis Of Murphy V. Internal Revenue Service, Gregory L. Germain Nov 2006

Taxing Emotional Injury Recoveries: A Critical Analysis Of Murphy V. Internal Revenue Service, Gregory L. Germain

ExpressO

Does Congress have the power under the United States Constitution to tax compensatory personal injury awards? Several months ago, the D.C. Circuit Court of Appeals said "no" in Murphy v. Internal Revenue Service. The court theorized that Ms. Murphy’s compensatory damages award did not constitute “income,” as understood by the enactors of the 16th Amendment, because the award merely made Ms. Murphy whole rather than increasing her wealth.

This paper disputes virtually every aspect of the Murphy decision. The court made errors from the beginning in analyzing the statutory issues. While the court ultimately reached the correct preliminary ...


A Complete Property Right Amendment, John H. Ryskamp Oct 2006

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.