The Problem of Emergency in the American Supreme Court

Sixty years before Carl Schmitt wrote his Political Theology, and more than a 100 years before President Bush announced a ‘war on terrorism’ the American Supreme Court grappled with the difficult issue of emergency powers in connection with issues arising out of the American Civil War (1861–1865). The question confronting the Court in a set of cases named the Prize Cases was whether President Lincoln’s decision to respond to acts of aggression by the secessionist Southern states with measures of war was lawful. The legal problem was that Lincoln had made this decision unilaterally although the American Constitution specifically allocates the power to declare war to Congress. The Court solved the dilemma by arguing that in cases where no war has been declared, the decision whether the country is in a state of war is ultimately ‘a question to be decided by him [the President], and [the Supreme] Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted’ (Prize, p. 669). The precedent, which the Court thereby laid down, has since played out as an important leverage for the Bush government’s legal arguments in connection with the war on terrorism. This article engages the theoretical framework of Locke, Schmitt and Agamben in order to come to a better understanding of this important set of cases.     

re-reading horror stories: maternity,disability and narrative in Doris Lessing's <Emphasis Type="Italic">The Fifth Child</Emphasis>

The central issues raised in much of feminist literary theory's early scholarship remain prescient: how does narrative engage with the social‐historical? In what ways does it codify existing structures? How does it resist them? Whose stories are not being told, or read? In this article I use Doris Lessing's novel The Fifth Child (1988) as a text with which to begin to address the above questions by reading with attention to the mother story but also the ‘other’ stories operating both within and outside of the novel; in particular I am concerned with the convergence of maternity, disability and narrative. The novel's co-implication of sexual difference and corporeal difference reveals the ways in which the mother's story is both made possible and authorized by the disabled body of her child, and by his inability to tell his own story. Yet, if The Fifth Child is a horror story that uses the disabled child's body as its ground, it is also about the horror of maternity, in its conception and attendant choices. In this fictional story as well as in the social‐historical narrative circulating at the time of its publication in the late 1980s, both child and mother are indicted in their otherness and it is ultimately impossible to separate one from the other.     

… and still we are left wanting: Malta's White Paper on digital rights

CLSR welcomes occasional comment pieces on issues of current importance in the law and technology field from different jurisdictions. In this instance the Government of Malta published a White Paper in October 2012 for public consultation, proposing the introduction of the following four so-called “digital rights” in the Constitution of Malta: (1) the right to Internet access; (2) the right to informational access; (3) the right to informational freedom and (4) the right to digital informational self-determination. The author believes that the proposal is indeed a step in the right direction but lacks punch where it matters most and does not go far enough.     

Popular Constitutionalism's Hard When You're Not Very Popular: Why the ACLU Turned to Courts

Through a case study of the early American Civil Liberties Union (ACLU), this article examines the empirical ramifications of constitutional scholars' recent exhortations to "take the Constitution away from the courts" in order to promote democratic deliberation about constitutional meaning. While it is now one of the most prominent examples of a litigation-based interest group, the ACLU began its existence demonstrating a commitment to constitutionalism outside the courts. Through coding a decade's worth of meeting minutes and examining archival sources, I demonstrate that the ACLU's mounting unpopularity rendered extrajudicial politics impossible, precipitating the ACLU's shift toward litigation. The ACLU's move toward litigation, despite its early devotion to political activism outside the courts, suggests that it is not always possible for political actors to make constitutional arguments without courts. Furthermore, the ACLU's use of courts to publicize and dramatize its constitutional arguments demonstrates that litigation may actually promote popular deliberation about constitutional meaning. These political realities both highlight and contradict two empirical assumptions underlying arguments about the normative desirability of restricting courts' involvement in constitutional politics. First, the state is not a neutral arena in which all political actors are equally free to pursue their constitutional visions through majoritarian processes. Second, courts may facilitate (rather than hinder) popular deliberation about constitutional questions.     

Determinants of states' allocations of the master settlement agreement payments

To determine which factors influence states' allocation decisions for the tobacco Master Settlement Agreement and the four individual settlements' annual payments, including the decision to securitize, we analyzed the effects of voter characteristics, political parties, interest groups, prior spending on public tobacco control programs, and state fiscal health on per capita settlement funds allocated to tobacco-control, health, and other programs. Tobacco-producing states and those with high proportions of conservative Democrats or elderly, black, Hispanic, or wealthy people tended to spend less on tobacco control. Education and medical lobbies had strong positive influences on per capita allocations for tobacco-control and health-related programs. State fiscal crises affected amounts spent by states from settlement funds as well as the probability of securitizing future cash flows from the settlements.     

Fostering Juror Comfort: Effects of an Orientation Videotape

The purpose of the present study is to assess the impact of a juror orientation videotape on juror knowledge of the legal system and comfort levels regarding jury service. Juror knowledge and comfort were measured using the Juror Knowledge and Comfort Scale (JKCS). It was hypothesized that jurors exposed to the orientation videotape would be significantly more knowledgeable about the legal system and significantly more comfortable with their role as jurors. It was further hypothesized that there would be a significant correlation between the knowledge scale and comfort scale of the JKCS. Results indicate that jurors exposed to the orientation videotape scored significantly higher on both the knowledge scale and comfort scale than jurors not exposed to the orientation videotape. There is also a significant correlation between the juror knowledge and comfort components of the JKCS. The implications of the findings and directions for future research are discussed.     

The reactivity of gamma-hydroxybutyric acid (GHB) and gamma-butyrolactone (GBL) in alcoholic solutions

In this work the stability of GBL (gamma-butyrolactone) and GHB (gamma-hydroxybutyric acid) in alcoholic media was studied. Under acidic conditions the GBL will react with ethanol or methanol to give the corresponding ethyl and methyl esters of GHB. It can be seen that ester formation is dependent on the type of alcohol, the alcohol content of the solution, and the pH of the solution. Under the same conditions it was shown that GHB does not give rise directly to the corresponding ester when merely in the presence of an alcohol; however the ester will be formed if the conditions are present for conversion of GHB to GBL followed by subsequent reaction with alcohol. In alcoholic beverage samples spiked with GBL the expected conversion to GHB occurred, and the formation of the ethyl ester of GHB was also seen in some samples. Wine samples were analyzed for the presence of the ethyl ester of GHB, and the effect of adding GHB/GBL to hot beverages was studied.