University of Southern California Legal Studies Working Paper Series

Reading, Writing, and Questions in Advance: Teaching English Legal History

Daniel M. Klerman — Thu, 02 May 2013 13:41:58 PDT

This short essay describes and explains a teaching method with four key elements: (1) telling students in advance the questions to be discussed in the next class, (2) requiring some students to submit written answers to the questions before class, (3) assigning only short, primary source readings, (4) banning laptops, recording classes, and distributing PowerPoint slides. This method enhances the quality of class discussion and helps students appreciate the importance of careful reading of primary sources. With minor modifications, this method can also be used for modern law classes.

Meaning and Belief in Constitutional Interpretation

Andrei Marmor — Mon, 04 Feb 2013 09:26:08 PST

The distinction between an evaluative concept and its possible conceptions plays a prominent role in debates about constitutional interpretation. The main purpose of the paper is to raise some doubts about the linguistic assumptions that are employed in this debate, arguing that the semantic considerations underlying the concept versus conceptions distinction are much more problematic and inconclusive than generally assumed. The ways in which concepts are used in a speech act crucially depend on pragmatic determinants, and those, in turn, depend on the nature of the conversation. The paper shows that the debate about constitutional interpretation is better seen as a moral debate about the nature of the conversation that constitutional regimes should be taken to establish. The linguistic considerations in play depend on this moral issue; by themselves, they do not support any particular interpretative stance.

Repealing Rights: Proposition 8, Perry, and Crawford Contextualized

David B. Cruz — Wed, 14 Nov 2012 14:56:04 PST

California's Proposition 8 stripped same-sex couples of the right under the California Constitution to "marry" civilly, while leaving in place the right to every other state-controlled legal incident of marriage. The U.S. District subsequently court held that Prop 8 violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution in an opinion whose broad reasoning would invalidate the exclusion of same-sex couples from civil marriage by any state. The U.S. Court of Appeals for the Ninth Circuit affirmed on narrow grounds specific to California's legal history. Those defending Prop 8 in this litigation ("the Proponents") have argued that this narrow reasoning is legally erroneous and that Prop 8's constitutionality is affirmatively established by the U.S. Supreme Court's 1982 decision in Crawford v. Los Angeles Board of Education, which said that state laws merely repealing rights not required by the Fourteenth Amendment (here designated "constitutionally optional rights") do not violate that Amendment. This paper, originally presented at the N.Y.U. Review of Law & Social Change Symposium “Making Constitutional Change: the Past, Present, and Future Role of Perry v. Brown” held October 5, 2012, argues that the Proponents' optional rights argument misreads Crawford, ignoring the context of the broad pronouncements in this "political restructuring" case. Properly read, Crawford's blunt statements about the constitutionality of the repeal of constitutionally optional rights are limited to measures, unlike Prop 8, that operate neutrally rather than repealing a right only from a disfavored group (and the fact that state law treated the right to marry as a right to marry the person of one's choice equally available to Californians of all sexual orientations suffices to show that Prop 8 was not an impartial repeal) and that do not entrench themselves by disbarring legislatures from re-extending such optional rights beyond the point established by a repealing state law.

Political Theology With a Difference

Nomi M. Stolzenberg — Tue, 25 Sep 2012 14:53:35 PDT

This paper proposes for consideration a version of political theology that differs from standard accounts of the content of political theology, particularly with regard to political theology's relationship to liberalism. The account of political theology proposed here is "political theology with a difference" both in the sense that it differs from the standard account of political theology (inasmuch as rejects the view that liberalism and political theology are mutually antagonistic) and in the further sense that it is based upon a philosophical doctrine that not only accepts, but valorizes human differences. That doctrine, which stands at the core of the alternative political theology presented here, is the doctrine of accommodation. For centuries, this principle was enshrined in Christian and Jewish theology as the "doctrine of divine accommodation." That theological doctrine derived in turn from the principle of accommodation that was codified in the ancient Aristotelian tradition of classical rhetoric. This article provides an overview of the evolution of the medieval doctrine of divine accommodation, showing how it gave birth to modern secularist thought, in particular secularist political thought. It demonstrates that the secularist political theory that evolved out of the principle of divine accommodation was an emergency theory of politics (hence a political theology, in the narrow sense of the term.) But it shows how the tradition of secularist political theory that derived from the principle of accommodation was also a proto-liberal political theory, out of which modern liberalism originated. On this basis, the paper argues, contra the standard view that political theology and liberalism are mutually antagonistic, that (this) emergency political theology and liberal political theory are actually one and the same thing.

Engendering Rape

Kim S. Buchanan — Tue, 04 Sep 2012 09:24:45 PDT

This Article highlights a systematic bias in the academic, correctional, and human rights discourse that constitutes the basis for prison rape policy reform. This discourse focuses almost exclusively on sexual abuse perpetrated by men: sexual abuse of male prisoners by fellow inmates, and sexual abuse of women prisoners by male staff. But since 2007, survey and correctional data have indicated that the main perpetrators of prison sexual abuse seem to be women. In men’s facilities, inmates report much more sexual victimization by female staff than by male inmates; in women’s facilities, inmates report much higher rates of sexual abuse by fellow inmates than by male or female staff. These findings contravene conventional gender expectations, and are barely acknowledged in contemporary prison rape discourse, leading to policy decisions that are too sanguine about the likelihood of female-perpetrated sexual victimization. The selective blindness of prison rape discourse to counter-stereotypical forms of abuse illuminates a pattern of reasoning I describe as “stereotype reconciliation,” an unintentional interpretive trend by which surprising, counter-stereotypical facts are reconciled with conventional gender expectations. The authors of prison rape discourse tend to ignore these counter-stereotypical facts or to invoke alternative stereotypes, such as heterosexist notions of romance or racialized rape tropes, in ways that tend to rationalize their neglect of counter-stereotypical forms of abuse and reconcile those abuses with conventional expectations of masculine domination and feminine submission.

Racial Commodification in the Era of Elective Race: Affirmative Action and the Lesson of Elizabeth Warren

Camille Gear Rich — Mon, 20 Aug 2012 10:04:39 PDT

This Essay uses the current controversy over the racial self-identification decisions of former Harvard Law Professor Elizabeth Warren as an occasion to explore incipient cultural and legal anxieties about employers’ ability to define race under affirmative action programs. The Essay characterizes Warren’s racial self-identification decisions as proof of what I call “elective race,” a contemporary cultural trend encouraging individuals to place great emphasis on their “right” to racial self-identification and a related desire for public recognition of their complex racial identity claims. I argue that our failure to attend to the importance placed on racial self-identification by Americans today places persons with complex racial identity claims at special risk for racial commodification. The Essay further suggests that the Warren controversy gives us an opportunity to rethink the way we conceptualize racial diversity. I argue that we must shift away the current model, which conflates race and cultural difference, toward a model that assumes racial diversity initiatives are sampling for employees that can teach us about the diverse ways that race is actualized and experienced. The Essay suggests that diversity initiatives that stress race’s use value as a source of insight into the social process of racialization avoid the cultural commodification risks posed by current affirmative action programs, reorient employers away from thin concepts of diversity, and give employers a basis for making principled distinctions between employees’ racial identification claims. The Essay concludes by identifying and defending a three-part inquiry that can be used to identify proper beneficiaries of diversity-based affirmative action programs.

Campaign Finance in the Hybrid Realm of Recall Elections

Elizabeth Garrett — Tue, 24 Jul 2012 09:41:56 PDT

In the ever-evolving jurisprudence of campaign finance, one principle has endured: the rules governing candidate elections are analyzed differently from the rules governing ballot measures because the latter elections have been found not to implicate the state’s legitimate interest in combatting quid pro quo corruption. It should now be apparent to even a casual observer of the initiative process, however, that candidates are very involved in ballot measures; they use initiatives to influence turnout in elections in which they are also running, and they resort to initiatives to adopt policy change they cannot enact through the traditional legislative system. The clear relationship between candidates and direct democracy is formally present in a context of growing salience: recalls. In this article, I use recall elections as a way to consider the current state of campaign finance jurisprudence as it relates to all the mechanisms of direct democracy; recalls provide a different framework to assess campaign finance rules because they are explicitly hybrid elections, combining a ballot question about the recall of an official and, sometimes simultaneously, the election of a successor. Part I will lay out the structure of the recall process, particularly in California and Wisconsin, the two states in which statewide recalls of governors have shaken the political establishment and caught the attention of the nation. Part II will analyze the constitutional issues raised by campaign finance regimes that include contribution limitations affecting recall elections, particularly in light of Citizens United v. Federal Election Commission. Part III will extend this analysis and argue that the conclusions reached about permissible regulatory structures in the context of recalls implicate the way states and municipalities regulate money in ballot measure campaigns generally.

Textualism in Context

Andrei Marmor — Wed, 18 Jul 2012 11:44:55 PDT

The main purpose of this essay is to show that the views about linguistic communication that make Textualism a plausible theory of what the law says, show why textualism is not nearly as helpful a theory of statutory interpretation as its proponents claim. The essay begins with a brief outline of what Textualism is, in light of its critique of Intentionalism and Purposivism; it then proceeds to explain the view of language, particularly asserted linguistic content, that is required to make sense of Textualism, and defends this view against a neo-Gricean critique; finally, the paper strives to show why those same ideas about determinants of communicated content help us to see that Textualism has very little to offer by way of a general theory of statutory interpretation.

Varieties of Vagueness in the Law

Andrei Marmor — Thu, 12 Apr 2012 13:19:30 PDT

The main purpose of this essay is to articulate the different types of vagueness, and related linguistic indeterminacies, that we find in statutory language and to explain their different rationales. I argue that the various normative considerations involved in employing vague terms in legislation depend on the kind of vagueness in question. I show that while some cases of vagueness in law are concerned with fairly standard problems of borderline cases, other are not. I also argue that semantic vagueness can be distinguished from conversational vagueness, which we also find in law, and that vagueness in law should be clearly distinguished from cases of ambiguity and polysemy.

Law, Power, and "Rumors of War": Robert Jackson Confronts Law and Security After Nuremberg

Mary L. Dudziak — Mon, 09 Apr 2012 09:32:14 PDT

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 post-war years became instead the Cold War years, Jackson found himself in an era when the boundaries around wartime were eroding. The world entered an ambiguous era that seemed to be neither war nor peace. As Jackson himself would put it in 1951, rather than a break between wartime and peacetime, there was instead “a prolonged period of international tension and rumors of war, with war itself as the ever threatening alternative.”

Jackson’s response to the Cold War era was twofold. In cases involving members of the Communist Party, he argued that they were different in kind from other dissenters, so that the Justice who argued that the rule of law should apply to Nazi leaders also argued for a departure from applicable first amendment analysis because of the dangers posed by communism. In the area of war-related powers, Jackson took up more directly the ambiguous character of an era that seemed neither wartime nor peacetime. In this context, he favored limits on presidential power. Calling the Korean War an undeclared “foreign venture,” he argued in his famous Steel Seizure concurrence that it would subvert constitutional limits for a president to go to war without a declaration from congress, and then use that state of war as the basis for expanding his own domestic authority.

The essay is based on my contribution to the 2011 James McCormick Mitchell Lecture program at SUNY Buffalo Law School, which commemorated Robert Jackson’s inaugural Mitchell Lecture in October 1951.

Innocence Interrupted: Reconstructing Fatherhood in the Shadow of Child Molestation

Camille Gear Rich — Fri, 17 Feb 2012 10:29:11 PST

This Article shows why criminal law should be regarded as parenting law, as child molestation statutes formally categorized as criminal statutes are increasingly being used to regulate parents’ behavior as they engage in mundane childcare practices. In the hands of legal decision-makers, these laws end up being enforced in ways that reinstantiate traditional gender norms. This Article charts the problem by showing how the inquiry authorized by today’s broad, far reaching child molestation statutes invites and even requires judges, juries other legal decision-makers to rely on gendered notions of cultural “common sense” to resolve child molestation cases involving fathers providing seemingly mundane intimate care. The Article shows why child molestation statutes are interpreted in the intimate care cases in ways that enforce gendered parenting norms, showing that legal decision-makers turn to these stereotypes because the concepts of sexual injury at the heart of child molestation law are radically undertheorized. The article considers the role feminist legal theory has played in this undertheorization problem, addresses the stumbling blocks to future feminist theorizing on this issue, and examines the material consequences of the current undertheorized concepts of sexual injury for the practice and experience of fatherhood.

Farewell to Conceptual Analysis (in Jurisprudence)

Andrei Marmor — Mon, 23 Jan 2012 09:50:38 PST

I have two main purposes in this essay: First, to show that conceptual analysis is not nearly as central to legal philosophy as typically assumed. The main methodological thrust of analytical jurisprudence, and in particular of legal positivism, is reductionism, not conceptual analysis. Consequently, the main objections to legal positivism are best seen as arguing against the possibility of reduction. Second, I aim to show that the interpretivist challenges to analytical jurisprudence bark up the wrong tree in this respect, and actually fail to engage with the methodological stance they aim to replace. Along the way I offer a partial defense of reductionism and the limited essentialism that comes with it.

War-Time: An Idea, Its History, Its Consequences

Mary L. Dudziak — Mon, 09 Jan 2012 11:15:20 PST

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 overseas armed conflict for over a century. Meanwhile policy makers and the American public continue to view wars as exceptional events that eventually give way to normal peace times. This has two consequences. First, because war is thought to be exceptional, "wartime" remains a shorthand argument justifying extreme actions like torture and detention without trial. Second, ongoing warfare is enabled by the inattention of the American people. More disconnected than ever from the wars their nation is fighting, public disengagement leaves us without political restraints on the exercise of American war powers.

This book has just been released by Oxford University Press, and will soon be available elsewhere. This paper contains the Introduction and Table of Contents.

E-race-ing Gender: The Racial Construction of Prison Rape

Kim S. Buchanan — Wed, 23 Nov 2011 08:42:55 PST

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. The results of six recent nationwide surveys consistently refute the stereotype: there is no evidence that white prisoners are targeted for sexual abuse. The unsubstantiated racial rape myth obscures genuine racial disparities in sexual victimization that are revealed by survey after survey: inmate abusers disproportionately target multiracial prisoners, while staff abusers disproportionately target black prisoners. These counter-stereotypical racial disparities have been completely ignored in prison policy and prison-rape discourse. The stereotype may affect the institutional response to sexual abuse allegations: although most sexual abuse victims are nonwhite, an overwhelming majority of allegations that prison investigators find “substantiated” involve white victims. The racial rape myth deflects policy attention from the gendered institutional practices that foster prison rape. Most prison rapists are staff, not inmates; the factors that most affect an inmate’s risk of victimization are gendered, not racial. The persistence of the racial rape myth in the face of contradictory empirical data raises important questions about the rule of law at the intersection of race and gender. These are questions I explore and expand upon in the article I am currently working on, Engendering Race, 59 UCLA L. Rev. – (forthcoming, 2012).

The Benefits of a Right to Silence for the Innocent

Shmuel Leshem — Fri, 18 Nov 2011 13:35:27 PST

This article shows that innocent suspects benefit from exercising their right to silence during criminal proceedings. We present a model in which a criminal suspect can either make a statement or remain silent during police interrogation. At trial, the jury observes informative but imperfect signals about the suspect's guilt and the truthfulness of the suspect's statement. We show that a right to silence benefits innocent suspects by providing them with a safer alternative to speech, as well as by reducing the probability of wrongful conviction for suspects who remain silent with and without a right to silence.

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 — Mon, 15 Aug 2011 16:12:38 PDT

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 form of recognition or reparation emphasize that slavery is “not even past.” In both countries, the originary revolutionary moment – in France, associated with the Declaration of the Rights of Man, and in the U.S. with the 1787 Constitution – is invoked to create a sense of the timeless continuity of the principle of colorblindness, with slavery (and race-conscious legal remedies today) temporary deviations.

Lay Judgments of Judicial Decision-Making

Dan Simon et al. — Thu, 28 Jul 2011 12:56:17 PDT

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 outcome of the judges' decisions. Consistent with the theory of motivated reasoning, participants found the decisions highly acceptable when they agreed with the judges’ decision, but deemed them relatively unacceptable when they disagreed with them. Second, participants were indifferent to the modes of reasoning when they agreed with the outcomes of the decisions, but were differentially sensitive to the modes of reasoning when the judges’ decisions frustrated their preferred outcomes. Third, when participants were sensitive to the modes of reasoning, they gave higher ratings of acceptability to decisions that openly admitted to good reasons on both sides of the case as compared with decisions accompanied by reasons that supported one side of the case exclusively. Giving no reasons at all was found to be more acceptable than giving a single, curt reason. Fourth, the findings replicated the coherence effect. Implications for the legitimacy of the judiciary are discussed.

The Selection of Thirteenth-Century Disputes for Litigation

Daniel M. Klerman — Thu, 28 Jul 2011 09:30:24 PDT

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.

Will and Principle

Rebecca L. Brown — Wed, 27 Jul 2011 14:15:04 PDT

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 interpretation itself as any kind of meaningful form of engagement between the Court and the Constitution. A better reading of the history would be that popular values, practices, and preferences are important elements of the task of principled interpretation, particularly in determining which of several possible interpretations best fits with our traditions and culture. Thus, the evidence does not make it necessary to jettison a belief in principled interpretation.

Assisted Living for the Constitution

Rebecca L. Brown — Wed, 27 Jul 2011 14:15:01 PDT

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 by aspirational judgments about how best to attain those constitutional ideals. While social practice has some role in that process of principled interpretation, it cannot supply democratic legitimacy as does the common law’s grounding in custom.