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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 ...


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 ...


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 ...


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 ...


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 ...


The Story Of Tva V. Hill: Congress Has The Last Word, Elizabeth Garrett Nov 2009

The Story Of Tva V. Hill: Congress Has The Last Word, Elizabeth Garrett

University of Southern California Legal Studies Working Paper Series

TVA v. Hill, often noted for its importance in shaping environmental law, is also a key case in statutory interpretation law. The case involves the conflict between finishing the Tellico Dam and Reservoir, a project of the Tennessee Valley Authority that many characterized as pork barrel spending, and protecting the habitat of the rare snail darter fish. Although the Supreme Court’s decision halted construction of the nearly finished dam, Congress subsequently passed legislation ordering completion of the reservoir project. Drawing on key legislative materials and judicial documents, Professor Garrett shows how this case illuminates the interactions among the three ...


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 ...


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 ...


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 ...


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 ...


Antitrust Process And Vertical Deference: Judicial Review Of State Regulatory Inaction, Jim Rossi Feb 2007

Antitrust Process And Vertical Deference: Judicial Review Of State Regulatory Inaction, Jim Rossi

ExpressO

Courts struggle with the tension between national competition laws, on the one hand, and state and local regulation, on the other – especially as traditional governmental functions are privatized and as economic regulation advances beyond its traditional role to address market monitoring. This Article defends a process-based account of the state action antitrust exception against alternative interpretations, such as the substantive efficiency preemption approach recently advanced by Richard Squire, and elaborates on what such a process-based account would entail for courts addressing the role of state economic regulation as a defense in antitrust cases. It recasts the debate as focused around ...


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 Catch-22 In Prison Privatization: The Problem With The Solution, Ahmed M.T. Riaz Feb 2007

The Catch-22 In Prison Privatization: The Problem With The Solution, Ahmed M.T. Riaz

ExpressO

A step into just about any state prison in the United States reveals an institution plagued by over-population, with just about every prison running at more than 100% capacity. The problem, of course, is not new but one that has received great attention. In the past decade or so the solution has been privatization of state prisons. Proponents of privatization have pushed forth the idea that private institutions are the solution to prison overcrowding. However, by looking to for-profit private institutions as a means to resolving the problems of the penal system, are legislators in fact ensuring that the problems ...


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 ...


Maryland Political Contribution Loopholes: History, Discussion & Options To Tackle The Llc & “Other Business Entity” Ambiguities, Jeremy D. Tunis Feb 2007

Maryland Political Contribution Loopholes: History, Discussion & Options To Tackle The Llc & “Other Business Entity” Ambiguities, Jeremy D. Tunis

ExpressO

No abstract provided.


The Impact Of Specialized Courts On The Federal Judicial System 1925-1981: A Study Of Federal Circuits' Decision Of Reversal, Yu Wang Feb 2007

The Impact Of Specialized Courts On The Federal Judicial System 1925-1981: A Study Of Federal Circuits' Decision Of Reversal, Yu Wang

ExpressO

Today a considerable volume of federal caseload is under the jurisdiction of specialized courts at both the district level and circuit level. Ironically, neither judicial scholars nor political scientists treat this topic as a priority in their research agenda. Therefore, what the exact impact of specialized courts on the federal judicial system has not been carefully explored. The current study makes a primary effort to empirically figure out the systematic impact of specialized trial courts on the U.S. federal judicial system. By focusing on the simplest situation in history where both generalist trial courts and specialized trial courts were ...


Culture, Sovereignty, And Hollywood: Unesco And The Future Of Trade In Cultural Products, Christopher M. Bruner Feb 2007

Culture, Sovereignty, And Hollywood: Unesco And The Future Of Trade In Cultural Products, Christopher M. Bruner

ExpressO

On October 20, 2005, the General Conference of the United Nations Educational, Scientific and Cultural Organization (UNESCO) adopted a treaty – by a vote of 148-2, with 4 abstentions – that legitimates domestic legal measures aimed at the protection of local producers of "cultural activities, goods and services." Opposed by the United States and Israel, the Convention represents a major diplomatic victory for Canada and France – its principal proponents – and a major blow to Hollywood and the United States, audiovisual products being among America's most lucrative exports. Both Canada and France, like many countries around the world, have long maintained a ...


The Legality Of The Use Of White Phosphorus By The United States Military During The 2004 Fallujah Assaults, Roman O. Reyhani Jan 2007

The Legality Of The Use Of White Phosphorus By The United States Military During The 2004 Fallujah Assaults, Roman O. Reyhani

ExpressO

The assaults on Fallujah by the United States military in April and November 2004 involved the use of white phosphorus. White phosphorus has extremely damaging effects on the health of victims, including severe burns and irritation of the respiratory system. This article examines whether the use of white phosphorus was a violation of the Chemical Weapons Convention, Protocol III to the Convention on Conventional Weapons and international humanitarian law. It concludes that the use of white phosphorus was illegal as it could be argued to be a chemical weapon, a riot control agent, or incendiary weapon. Furthermore, the methods and ...


The Impact Of Specialized Courts On Federal Judicial System 1925-1981: A Study Of Federal Circuits' Decision Of Reversal, Yu Wang Jan 2007

The Impact Of Specialized Courts On Federal Judicial System 1925-1981: A Study Of Federal Circuits' Decision Of Reversal, Yu Wang

ExpressO

Today a considerable volume of federal caseload is under the jurisdiction of specialized courts at both district level and circuit level. Ironically, neither judicial scholars nor political scientists treat this topic as a priority in their research agenda. Therefore, what the exact impact of specialized courts on the federal judicial system has yet been carefully explored. The current study makes a primary effort to empirically figure out the systematic impact of specialized trial courts on the U.S. federal judicial system. By focusing on the simplest situation in history where both generalist trial courts and specialized trial courts were only ...


Signed, Sealed, Delivered, And ?: The Correlation Between Policy Areas, Signing, And Legal Ratification Of Organization Of American States’ Treaties By Member States., Alexandra R. Harrington Dec 2006

Signed, Sealed, Delivered, And ?: The Correlation Between Policy Areas, Signing, And Legal Ratification Of Organization Of American States’ Treaties By Member States., Alexandra R. Harrington

ExpressO

Abstract: Signed, Sealed, Delivered, and ?: The Correlation Between Policy areas, Signing, and Legal Ratification of Organization of American States’ Treaties by Member States.

Like any organization, the Organization of American States’ ability to affect lasting policy changes through treaties is only as strong as the will of the federal legislative bodies of its member states. No matter how lofty or well-meaning the OAS’s goals in any area or matter addressed by a treaty, or the number of OAS member states which sign onto a treaty reflecting these goals, under the OAS Charter, and the federal constitutions of most member ...


The Un: A Situation Report, Benjamin Zawacki Dec 2006

The Un: A Situation Report, Benjamin Zawacki

ExpressO

The UN: A Situation Report is a review of two recent books on the past, present, and future of the UN; in short, of its relevance in a changing and uni-polar world at the end of Kofi Annan’s two terms as Secretary-General. The books’ focus is both on the organization’s successes and failures, and its efforts at self-reform in the face of near-constant criticism. They are reviewed as individually divergent in quality but as a formidable “situation report” when read in tandem. Paul Kennedy’s The Parliament of Man, save for its first of three parts, is generally ...


Privatization And The Law And Economics Of Political Advocacy, Alexander Volokh Nov 2006

Privatization And The Law And Economics Of Political Advocacy, Alexander Volokh

ExpressO

A common argument against privatization is that private providers, motivated by self-interest, will advocate changes in substantive policy. In this Article, I evaluate this argument, using, as a case study, the argument against prison privatization based on the possibility that the private prison industry will distort the criminal law by advocating incarceration.

This “political influence” argument applies at least as well to public provision: Government agencies, too, lobby for changes in substantive law. In the prison industry, for instance, it is unclear whether private firms advocate incarceration to any significant extent, but public guard unions are known to do so ...


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.


The Conditional Effects Of Ideology And Institutional Structure On Judicial Voting In State Supreme Courts, Jeff L. Yates, Paul Brace, Brent Boyea Oct 2006

The Conditional Effects Of Ideology And Institutional Structure On Judicial Voting In State Supreme Courts, Jeff L. Yates, Paul Brace, Brent Boyea

ExpressO

Two enormously influential perspectives on courts offer fundamentally different predictions about court outcomes and the effects of judge ideology on those outcomes. Well-known to political scientists studying courts, the ideological voting (IV) literature argues that judge ideology is a strong predictor of court outcomes and that those outcomes should be proximate to the policy preferences of courts. Less known to political scientists but highly influential, the law and economics perspective (LE) focuses on settlement behavior of litigants who try to minimize costs and thus estimate likely outcomes in court, and settle simpler cases pre-trial. In this case selection process litigants ...


Combating Terrorism In Bosnia-Herzegovina: Explaining And Assessing Article 201 Of The Bosnian Criminal Code, Henry M. Lovat Oct 2006

Combating Terrorism In Bosnia-Herzegovina: Explaining And Assessing Article 201 Of The Bosnian Criminal Code, Henry M. Lovat

ExpressO

This paper explores the legal measures that have been enacted in Bosnia-Herzegovina (BiH) to counter the threat of terrorism, focusing particularly on the international and domestic political context in which the reform of the Bosnian criminal code was carried out, on the apparent origins of Article 201 of the BiH criminal code in the European Union Framework Decision on Combating Terrorism of June 2002 and on the strengths and weaknesses of this definition in the Bosnian context. The paper argues firstly that the events of 9/11, while certainly of significance, were less salient to the definition of terrorism adopted ...


Of Politics And Policy: Can The U.S. Maintain Its Credibility Abroad While Ignoring The Needs Of Its Children At Home?—Revisiting The U.N. Convention On The Rights Of The Child As A Transnational Framework For Local Governing, Cleveland Ferguson Oct 2006

Of Politics And Policy: Can The U.S. Maintain Its Credibility Abroad While Ignoring The Needs Of Its Children At Home?—Revisiting The U.N. Convention On The Rights Of The Child As A Transnational Framework For Local Governing, Cleveland Ferguson

ExpressO

The article uses the lens of the Convention on the Rights of the Child as a framework for developing solutions. It compares the world’s approach of using the underpinnings of the Convention to create the Millennium Development Goals (MDGs). This process represents a positive evolution in international human rights law. Use of the MDGs has met with some success. As a result, the article compares the U.S. go-it-alone approach with that of the collaborative model of the MDGs. Pointing out that child law is primarily state law, the article then discusses the ways in which local governments (cities ...