In this dissertation, I examine the Bush administration’s uniquely legal strategy to monopolize policy-making in the Global War on Terror. First, I situate juridified executive unilateralism (JEU) in the context of juridification. I argue that the Watergate Regime (the hypothesized critical juncture), a legislatively imposed quasi-constitutional corrective, formalized previously informally exercised presidential powers, fundamentally affected institutional power relations, altered the concept of legitimacy, and amplified the policy-making potential of legal actors within the Executive Branch. As a result, Watergate created disincentives for inter-branch politics and incentives for conflict resolution with reference to law. I hypothesize that due to the juridification of inter-branch politics, the Office of Legal Counsel’s (OLC) opinions function as a form of quasijudicial legislation that obviates recourse to inter-branch policy processes. In the empirical chapters, I analyze the Bush OLC’s legal memoranda to answer the question whether they qualify as unilateral power tools. Specifically, I examine those legal opinions that laid the foundation of the policy architecture that, in important ways, still governs the conduct of the Global War on Terror. Through a combination of content analysis, process tracing, and legal interpretation, I find that OLC’s legal memoranda had far-reaching policy consequences in both the domestic and foreign realms. In addition, I explore the Bush OLC’s institutional powers jurisprudence as well as its assertions of independent interpretive authority. I conclude that while such legal arguments do not make policy directly, they serve as the legal basis for unilateral executive action, and in many instances successfully establish quasi-constitutional custom. After concluding that OLC’s legal opinions constitute policy-making, I provide a typology of the various manifestations of OLC’s quasi-judicial legislation. Also, by examining branch-internal precedent cited in the Bush memos, I find that the Bush OLC’s legal interpretive activity is not sui generis. Therefore, it is a result of structural developments produced by the critical juncture, which an evaluation of JEU markers in pre-Watergate memoranda confirms. In the conclusion, I observe that the case of the Bush administration’s reliance on JEU is alarming proof that the juridification of politics has created an alternative policy-making avenue that, if unchecked, can substitute the rule of law with rule by law.

Politics as Law: Juridified Executive Unilateralism in the Global War on Terror

In the late nineteenth century, Americans opposed to universal suffrage launched a new line of attack, asserting that women lacked the rationality required for enfranchisement because of innate biological disabilities. After the Civil War, debates about women’s mental and physical capacity shifted from those rooted in divine ordinance and Enlightenment rationality to those grounded in science and evolutionary theory. New research conclusions combined with an existing system of legal dependency to form a powerful new discourse of exclusion which still echoes today. As the twentieth century turned, practitioners of the newly prestigious scientific disciplines provided rationales for antisuffragists to label these sex-based differences as physical and mental disabilities. Women’s rights advocates rejected these characterizations, but rarely refuted the assumption that disability justified exclusion. This article approaches these debates with disability as the center of inquiry to explore the intertwined nature of legal and biological power. H eady with optimism that political inequality could be eliminated in the aftermath of emancipation and the Civil War, in 1869 Republican Congressmen debated what would become the Fifteenth Amendment. Recognizing the transformative potential of the moment, women’s rights activists saw a long-awaited opportunity to ensure their own enfranchisement while guaranteeing universal manhood suffrage regardless of race. To these activists, who for years had been honing arguments about unjust, irrational exclusions based on biology, the moment appeared ripe to usher in a new era of political equality. Scientists and medical professionals quickly entered the fray, joining politicians, activists, and religious leaders who opposed adding women to the electorate. As women’s rights advocates pushed for their full enfranchisement, many experts pushed back, claiming that women voting would weaken the electoral foundations of American liberty and threaten future generations by damaging women’s reproductive capacity. Typical of this sort of reasoning was the sociologist Herbert Spencer who declared in 1873, “That men and women are mentally alike, is as untrue as that they are alike bodily.”

http://muse.jhu.edu/journals/journal_of_womens_history/v024/24.2.pitts.pdf

Disability, Scientific Authority, and Women's Political Participation at the Turn of the Twentieth-Century United States

Ongoing or recently completed across the United States are a series of lawsuits via which teacher plaintiffs are contesting how they are being evaluated using value-added models (VAMs) as part of s...

Teacher-Level Value-Added Models on Trial: Empirical and Pragmatic Issues of Concern Across Five Court Cases:

Different from more traditional policy-making avenues, the courts provide an antipolitical arena that does not require broad agreement from various constituents for policy enactment. Seeking to gui...

Shaping Educational Policy Through the Courts: The Use of Social Science Research in Amicus Briefs in Fisher I:

At the request of the SCJA president this paper addresses five questions. Does criminological research make a difference relative to the death penalty? - If criminological research does make a difference, what is the nature of that difference? - What specific instances can one cite of research findings influencing death penalty policy decisions? Why hasn’t our research made more of a difference? What can we do, either in terms of directing our research or in terms of disseminating it, to facilitate it making a difference? Specific examples of research directly impacting policy are examined. The evidence presented suggests that research on capital punishment has had some impact on policy, but not nearly enough. There is still a high level of ignorance that has limited the impact of criminological research on death penalty policy. The proposed solution is to improve the education of the general public and decision makers in order to increase the impact of criminological research on capital punishment policy.

Criminological Research and the Death Penalty: Has Research by Criminologists Impacted Capital Punishment Practices?

Social science and the law -- Expert witness testimony and amicus curiae -- Abortion -- Sex discrimination -- Sexual harassment.

Rosemary J. Erickson

Papers

The Use of Social Science Data in Supreme Court Decisions