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Item Open Access A Data-Intensive Framework for Analyzing Dynamic Supreme Court Behavior(2012) Calloway, Timothy JosephMany law professors and scholars think of the Supreme Court as a black box--issues and arguments go in to the Court, and decisions come out. The almost mystical nature that these researchers impute to the Court seems to be a function of the lack of hard data and statistics about the Court's decisions. Without a robust dataset from which to draw proper conclusions, legal scholars are often left only with intuition and conjecture.
Explaining the inner workings of one of the most important institutions in the United States using such a subjective approach is obviously flawed. And, indeed, data is available that can provide researchers with a better understanding of the Court's actions, but scholars have been slow in adopting a methodology based on data and statistical analysis. The sheer quantity of available data is overwhelming and might provide one reason why such an analysis has not yet been undertaken.
Relevant data for these studies is available from a variety of sources, but two in particular are of note. First, legal database provider LexisNexis provides a huge amount of information about how the Court's opinions are treated by subsequent opinions; thus, if the Court later overrules one of its earlier opinions, that information is captured by LexisNexis. Second, researchers at Washington University in St. Louis have compiled a database that provides detailed information about each Supreme Court decision. Combining these two sources into a coherent database will provide a treasure trove of results for future researchers to study, use, and build upon.
This thesis will explore a first-of-its-kind attempt to parse these massive datasets to provide a powerful tool for future researchers. It will also provide a window to help the average citizen understand Supreme Court behavior more clearly. By utilizing traditional data extraction and dataset analysis methods, many informative conclusions can be reached to help explain why the Court acts the way it does. For example, the results show that decisions decided by a narrow margin (i.e., by a 5 to 4 vote) are almost 4x more likely to be overruled than unanimous decisions by the Court. Many more results like these can be synthesized from the dataset and will be presented in this thesis. Possibly of higher importance, this thesis presents a framework to predict the outcomes of future and pending Supreme Court cases using statistical analysis of the data gleaned from the dataset.
In the end, this thesis strives to provide input data as well as results data for future researchers to use in studying Supreme Court behavior. It also provides a framework that researchers can use to analyze the input data to create even more results data.
Item Open Access A Dilemma for Criminal Justice Under Social Injustice(2019) Ariturk, DenizA moral dilemma confronts criminal justice in unjust states. If the state punishes marginalized citizens whose crimes are connected to conditions of systemic injustice the state has failed to alleviate, it perpetuates a further injustice to those citizens. If the state does not punish, it perpetuates an injustice to victims of crime whose protection is the duty of the criminal justice system. Thus, no reaction to crime by the unjust state appears to avoid perpetuating further injustice. Tommie Shelby proposes a new solution to this old dilemma, suggesting that certain theoretical and practical qualifications can save the unjust state from perpetuating injustice. He argues that punishment can be just even as society remains unjust if it is: (a) administered through a fair criminal justice apparatus; (b) only directed at mala in se crimes; and (c) not expressive of moral judgment. In the first part of this thesis, I explore Shelby’s solution to show that certain aspects of his framework are superior to alternative ones, but that it nonetheless fails to resolve the dilemma. In Part 2, I use a novel technological reform that promises to make criminal justice fairer, the AI risk assessment, as a case study to show why even punishment that meets Shelby’s criteria will continue to perpetuate injustice as long as it operates under systemic social injustice. Punishment can only be just if society is.
Item Open Access A Sea of Debt: Histories of Commerce and Obligation in the Indian Ocean, c. 1850-1940(2012) Bishara, Fahad AhmadThis dissertation is a legal history of debt and economic life in the Indian Ocean during the nineteenth and early-twentieth century. It draws on materials from Bahrain, Muscat, Bombay, Zanzibar and London to examine how members of an ocean-wide commercial society constructed relationships of economic mutualism with one another by mobilizing debt and credit. It further explores how they expressed their debt relationships through legal idioms, and how they mobilized commercial and legal instruments to adapt to the emergence of modern capitalism in the region.
At the same time, it looks at the concomitant development of an Indian Ocean-wide empire of law centered at Bombay, and explores how this Indian Ocean contractual culture encountered an Anglo-Indian legal regime that conceived of legal documents in a radically different way. By mobilizing written deeds in imaginative ways, and by strategically accessing British courts, Indian Ocean merchants were able to shape the contours of this growing legal regime.
Most broadly, the dissertation argues that law and courts became increasingly central to economic life in the Indian Ocean, and that economic actors in the region employed a wide range of different legal strategies in adapting to a changing world of commerce. In the Indian Ocean, as elsewhere, the histories of commerce and law were inextricably intertwined.
Item Open Access A systems engineering approach to regulating autonomous systems(2017) Britton, DavidAutonomous systems are emerging across many industries. From unmanned aircraft to self-driving cars to closed-loop medical devices, these systems offer great benefits but also pose new risks. Regulators must grapple with how to manage these risks, challenged to keep pace with technological developments and exhibit appropriate precaution without stifling innovation. Seeking inspiration for a viable approach to the regulation of autonomous systems, this thesis draws from the practices of systems engineering, an interdisciplinary field of engineering aimed at managing the risks of complex projects. By comparing systems engineering practices to regulatory options, current regulations, and the inherent challenges of regulating emerging technologies, this thesis concludes that a systems engineering-based approach to regulating autonomous systems offers great potential for managing the risks of autonomous systems while also driving innovation.
Item Open Access Adaptation and Tradition in Hellenistic Sacred Laws(2012) Austino, Chad ErikThis dissertation examines the adaptability of civic cults during the Hellenistic period. Faced with shifting populations, increasing social tensions, economic changes, and political pressures, Hellenistic communities devised a number of strategies aimed at negotiating the tension between maintenance of traditional religious practices and adaptive, context-specific change. Through the lens of inscribed Greek sacred laws we see communities balancing the twin requirements of innovation and tradition. The epigraphic record shows significant changes to the choreography of religious experience in response to demographic change; experimentation in funding mechanisms, in what appear to be responses to economic and cultural changes; ambitious attempts to redefine the configuration of sacred space both inside the city and out; savvy rhetorical and ritual framing of innovation in the face of cults that had had failed or else were on the brink of doing so.
Through a series of case studies I elucidate the legislative strategies with which communities dealt with these challenges. In chapter 1, I investigate legal strategies aimed at maintaining traditional oracular procedures as more visitors were coming to iatromantic shrines. I focus on the shrine of Apollo Coropeius in Thessaly where the civic authority at Demetrias passed a law reevaluating the administrative and ritual procedures for consultation. In chapter 2, I analyze the changing obligations of sacred personnel to perform rites in the city at large, i.e. before festivals, in the face of shifting socioeconomic norms. Communities frequently experimented with alternative mechanisms to fund religious activities. A sacred law from Halicarnassus forms the backbone of this analysis. I argue that cultural pressures may have helped shape these mechanisms. Chapter 3 concerns legislative strategies for the reconfiguration of sacred space, particularly the moving or refactoring of sanctuaries. Here I analyze a third-century decree from Tanagra that regulates the transfer of a sanctuary of Demeter and Kore. Other laws, particularly from Anaphe and Peparethus, provide crucial details for the rearrangement of important cult structures. In these cases, we see the concerted efforts to provide for private and public and sacred and secular interests in order to ensure the perpetuation of traditional religious practices. The fourth chapter investigates the reinvention of cult caused by political and ideological interests. Communities employed rhetorical strategies to justify or mask the reinvention or renewal of traditional rites that had lapsed or were on the brink of doing so. I focus on two case studies that illustrate the complexities of legislating ritual reinvention. A second-century Athenian law details the rites for the revived Thargelia whereas a decree from Magnesia-on-the-Maeander details the expansion of the cult of Artemis Leukophryene with a new festival commemorating the goddess' new temple. In both cases, we can see rhetorical strategies of augmentation and renewal reflected in the writings of Anaximines of Lampsacus. The concluding chapter provides a view of the other side of the coin: what happens when communities fail to adapt to the challenges that threatened their cults? Polybius, Pausanias, and Plutarch shed much light on our most pressing questions. For instance, what did failed cults look like? How did Greeks envisage dilapidated sanctuaries and defunct cults? Overall, the case studies based on sacred laws present a Greek view of religious change that finds strength in change, continuity in adaptation, commonality in variation, stability in the shifting sands of historical change. The portrait of Greek religion that emerges from this study is one in which tradition and innovation form two sides of the same coin, rather than opposing forces
Item Restricted Adapting to Rising Sea Levels(2010) Peloso, Margaret ElizabethAccording to IPCC estimates, sea levels will rise between .18 and .6 meters by 2100. More recent estimates indicate that actual amounts of sea level rise may be much more, and that 1 meter of sea level rise by 2100 is likely a conservative estimate. These rising sea levels will result not only in more flooding during storm events, but also increased erosion and gradual inundation of coastal property. At the same time, coastal populations in the United States continue to increase rapidly: over half of all Americans live in coastal counties, and at least 25 million more people are expected to move to the coast by 2015. The end result is that human populations, coastal infrastructure, and coastal ecosystems will become increasingly vulnerable to the impacts of climate change. This study examines the political and legal constraints to and opportunities for adaptation to rising sea levels. Using legal and policy analysis and case studies from California, North Carolina and Texas, this study explores the ability of governments to use market tools, land use regulations, and property acquisition to promote adaptation to rising sea levels. Because of market dynamics and political factors including flaws in public risk perception, I conclude that governments who wish to avoid extensive coastal engineering, , can address coastal community vulnerability through a combination of regulations and incentives that spur state and local governments to engage in forward land use planning and other measures to reduce their exposure to sea level rise impacts.
Item Open Access An Exploration of the Implementation and Effects of the North Carolina HIV Control Measures(2012) Close, Erin MichelleSince the beginning of the AIDS epidemic, governmental authorities across the country have attempted to legislate the behavior of HIV-positive individuals. North Carolina's HIV Control Measures--administrative regulations promulgated by the North Carolina Commission for Public Health--exemplify this type of legislative endeavor. The North Carolina Legislature gave the North Carolina Commission for Public Health statutory authority to promulgate control measures for HIV/AIDS. The resulting HIV Control Measures ("control measures") are rules that govern the actions of HIV-positive individuals, their physicians, their partners, and state health officials that are meant to limit the spread of the disease. While these control measures were implemented to accomplish legitimate public health objectives, there is very little research evaluating the extent to which they have fulfilled, or failed to fulfill, these goals.
This project represents the beginning of an exploration of the ways that the control measures affect the behavior of HIV-positive individuals in North Carolina. This study used a combination of qualitative interviews, legal research, and document review to better understand the on-the-ground implementation of the control measures and the ways that they affect the public health of both HIV-infected and HIV-uninfected individuals in the state. The results of the study include a consideration of the positive duties required of HIV-infected individuals under the control measures. Additional themes, such as recent scientific data on HIV treatment and the effect of the Internet on HIV generally, are also explored. Finally, overall thematic conclusions are offered and suggestions for subsequent explorations are presented.
Item Open Access Anything For Views Parenting: Framing Privacy, Ethics, and Norms for Children of Influencers on YouTube(2023) Hamilton, Bridie E.Children who appear as the main characters or primary consumers of YouTube content have been the focus of emerging academic literature and public debate (Feller & Burroughs, 2022; Ferguson, 2018; Kumar, 2021). Sharenting, or posting information, photos, or videos about one's children on social media, has also been a discussion and concern among researchers, legal scholars, and parents (Kumar, 2021). Sharenting has online and offline consequences. It exposes personal information, such as a child’s name and whereabouts, which may lead to unwanted attention or safety risks (Brosch, 2016; Blum-Ross, 2015). However, there is a significant subsection of YouTube media where children appear as integral supporting characters of an adult’s content that has yet to be meaningfully researched.The normalization of sharenting has coincided with an upsurge of influencers and influencer marketing (Abidin, 2018). The influencer marketing industry was estimated to be worth 16 billion dollars in 2022, projected to increase to 21 billion dollars in 2023 (Geyser, 2023). Influencers who involve their children in content position them, at times, as unintentional microcelebrities or brand assets (Abidin, 2015). When this happens, their appearance in user-generated content contributes to the premise and profitability of their parent’s brand. However, children who consistently contribute to their parent’s brand have no rights to the money their names, images, and likenesses generate. They have no working hours to abide by and no access to representation by a third party acting without a personal stake in their profitability (Geider, 2021). Children are unaware of the long-term consequences of exposure to a digital audience, including potential privacy violations, online harassment, or reputational harm. They may also not fully understand the implications of having a digital identity established for them before they can make decisions for themselves. While existing literature demonstrates that social media platforms, laws, and policies do not adequately regulate or protect the children of influencers, there has been no effort first to define the child of an influencer and, second, to identify at what point that regulation becomes necessary. In other words, when do influencer parents go beyond mere sharenting? This research project examines the complex interplay between the potential long-term impacts of children's involvement in influencer content and the gaps in regulations related to children’s work on social media. I aim to analyze the regulatory gray area children of influencers inhabit on YouTube and to identify salient features of influencer content which place children at disproportionate risk of undesirable exposure online. The present study scopes the value children provide to user-generated monetized content. It constructs a typology to describe the unique privacy and psychological risks they are exposed to when their parents' income involves their presence. It outlines common arguments influencer parents use to justify their children's use in content production and discusses the impossibility of informed consent for children in this context.
Item Open Access Athenian Democracy on Paper(2018) Aldrup-MacDonald, John PThousands of public records survive from democratic Athens. Nearly all of them are inscribed on stone (or more rarely metal). A century and more of study has revealed that these inscriptions were the tip of the iceberg. Beyond them was an apparatus of public records, kept on perishable media, that were central to the administration of the city. Call it the paperwork of democracy. What remains to be reconstructed are the processes by which this paperwork was created and the significance of those processes for our understanding of democracy. This dissertation examines the paperwork of making decrees, the basic legislative document in Athens, using literature, court speeches, and inscribed decrees to reconstruct the process by which decrees were written and reused in city politics. It argues that paperwork was done in the central institution of democracy, the assembly; that the orators better known in their capacity as masters of speech were also masters of the rules and discourses of decree-making; that in foreign policy these orators and their audience, the masses, brought the same rigor to documentary texts that they brought to giving and hearing speeches. In sum, where earlier researchers have assumed that paperwork had nothing to do with democracy, this dissertation shows that Athenians were as clever with paperwork as they were with oratory.
Item Open Access Bad Christians and Hanging Toads: Witch Trials in Early Modern Spain, 1525-1675(2016) Rojas, Rochelle EThis dissertation challenges depictions of witchcraft as a sensational or disruptive phenomenon, presenting witch beliefs instead as organically woven into everyday community life, religious beliefs, and village culture. It argues that witch beliefs were adaptive, normal, and rational in regions that never suffered convulsive witch persecutions. Furthermore, this dissertation, the first to work systematically through Spanish secular court witch trials, upends scholars’ views about the dominance of the Spanish Inquisition in witchcraft prosecutions. Through a serial study of secular court records, this dissertation reveals that the local court of Navarra poached dozens of witch trials from the Spanish Inquisition, and independently prosecuted over one hundred accused witches over one hundred-and-fifty years. These overlooked local sources document witch beliefs in far greater detail than Inquisition records and allow the first reconstruction of village-level witch beliefs in Spain. Drawing from historical, anthropological, and literary methods, this dissertation employs a transdisciplinary approach to examine the reports from villagers, parish priests, and jurists, produced under the specific local and older accusatorial judicial procedure. Free of the Inquisitorial filter that has dominated previous studies of Spanish witchcraft, these sources reveal the way villagers—not Inquisitors—conceived of, created, feared, and survived in a world with witches and sorceresses.
Using these local sources, this dissertation illuminates the complex social webs of witchcraft accusations, the pathways of village gossip, and the inner logic of witch beliefs. It reveals the central role of Catholic performativity and the grave consequences of being marked as a mala cristiana, the importance of fama and kin ties, and reveals the rationality of the curious and pervasive presence of the common toad (Bufo bufo) in Navarra’s witch trials. By moving away from the prevalent focus given to the more spectacular witch panics and trials, this work demonstrates the value of local trial records. This dissertation argues that far from irrational or absurd, witchcraft beliefs in early modern Navarra were internally coherent and intellectually informed by an amalgamation of religious, social, and legal forces.
Item Open Access Between Fraud Heaven and Tort Hell: The Business, Politics, and Law of Lawsuits(2018) Hrom, Anna JohnsIn the 1970s, consumer advocates worried that Alabama's weak regulatory structure around consumer fraud made it a kind of "con man's heaven." But by the 1990s, the battle cry of regulatory reformers had reversed, as businesspeople mourned the state's decline into "tort hell." Debates about the correct balance of power among consumers, businesses, and the state continue to shape political contests in both Alabama and on the broader national stage today, whether contextualized under the aegis of "consumer protection," "access to justice," "tort reform," protecting "free enterprise," or cultivating a positive "business climate."
This dissertation argues for analyzing such matters in terms of a regulatory ecology, following the interconnections across institutions, including formal rules of civil procedure as well as informal codes of conduct, that shape the law of lawsuits within the American civil justice system. Drawing on case files, interviews, and archival sources, it traces the development of Alabama's first consumer-protection law and regulatory agency in the early 1980s, the construction and deconstruction of a comprehensive state tort-reform package in 1987, the rise of tort lawsuits and its invigoration of Alabama's trial-lawyer bar, and the transformation of the Alabama Supreme Court in the 1990s. It then analyzes how political narratives, fashioned in part by powerful business lobbies, molded the terms of the tort-reform debate at the state and national levels in ways that effectively swayed public opinion and created favorable conditions for successful tort reform legislation.
The dissertation does not propose a regulatory agenda; rather, it concludes that interdisciplinary perspectives on regulatory governance, drawing insights from legal, political, and business history as well as other social science disciplines, better frame problems than more simplistic assessments of tort reform. Tort lawsuits blossomed in Alabama where other avenues for resolving regulatory issues or expressing dissent closed. Tort reform is likely to unleash new pressures for addressing perceived instances of unfairness in the marketplace.
Item Open Access Brief of Amici Curiae Christopher M. Holman and Robert Cook-Deegan in Support of Neither Party(2010-10-28) Cook-Deegan, Robert Mullan; Holman, Christopher M.Item Open Access Bulletin of Duke University. School of Law(2007-01-22T21:10:28Z) Duke University. Office of the RegistrarItem Open Access Bureaucrats in Black Robes(2020) Renberg, KristenAt the time of its formation, the Supreme Court was noted to have, “…neither FORCE nor WILL, but merely judgment” (Hamilton 1788). For decades, political science research has explored how the Supreme Court achieves compliance from lower courts despite the Supreme Court’s shrinking docket and the politicization of the judiciary. In this dissertation, I explore a series of organizational problems the Supreme Court faces and how the Supreme Court has strategically solved these problems. These strategies, I argue, reflect a traditional bureaucratic organization – complex, with unavoidable procedure and inefficiencies.
The results of this dissertation contribute to political science research and demonstrate how the Supreme Court copes and overcomes its organizational limitations through relying on its managerial tools in order to gain and maintain control over the judiciary. My results indicate that, despite organizational and resource limitations, the Supreme Court is frequently able to organize itself and its procedures successfully and achieve a high degree of compliance by lower courts. There are three important implications drawn out from this dissertation. First, the Supreme Court relies on an oversight system that is akin to a fire alarm rather than a patrol system. Second, lower court actors can act strategically in order to convey critical information to the Supreme Court and may influence which decisions by lower court will be reviewed by the Supreme Court. Third, the Supreme Court actively combats policy drift in lower federal courts, and drift by lower courts is shown to occur when the Supreme Court does not delegate binding rules.
This dissertation employs a non-equivalent dependent variable research design. Chapter Two explores why and when the Supreme Court overrules its own precedents. This chapter argues that the Supreme Court is motivated to achieve compliance from lower courts and maintain its institutional legitimacy when it decides to overrule a precedent. This chapter introduces an original dataset which captures the lower courts’ treatment of precedents that were established by the Supreme Court. The empirical results in this chapter reveal that the Supreme Court is more likely to reverse one of its own precedents once a handful of lower appellate courts have begun to treat it negatively, an action which involves a lower court explicitly stating that it will not apply a precedent in their opinion. I theorize that the Supreme Court can observe how a precedent is applied in lower courts, its agent, and in turn, the Supreme Court can make an informed decision as to whether a precedent should be overruled. This chapter expands political science literature by empirically demonstrating that ideological conflicts do not exclusively motivate the Supreme Court’s decision to overrule and, instead, the act of overruling is a form of institutional and legal maintenance that is well within the Supreme Court’s responsibilities because the Supreme Court is the supervisor of the judiciary.
Chapter Three investigates the role of information at the Supreme Court’s agenda-setting stage. This chapter also introduces an original dataset of majority and dissenting opinions by the courts of appeal. The dataset also notes whether these lower court decisions were appealed to the Supreme Court or not and whether the Supreme Court decided to review the appealed case or not. Notably, the dataset in Chapter Three was developed through the meticulous coding of documents from the archive of personal papers by former Associate Justice Harry A. Blackmun. This chapter empirically demonstrates how lower court judges may ‘blow the whistle’ on their colleagues’ non-compliance with precedent, encourage the losing party to appeal to the Supreme Court, and produce a signal that captures the Supreme Court’s attention and encourages the Supreme Court to review. The results of this chapter emphasize how oversight is inherently problematic in a large hierarchy like the federal judiciary and the role lower court agents may have in shaping the Supreme Court’s agenda.
Finally, Chapter Four concerns how lower courts respond when the justices on the Supreme Court’s bench fail to organize themselves into a majority coalition; in turn, there is no decision produced by the Supreme Court with binding precedential value. Once again, this chapter introduces an original dataset of lower court treatments to majority and plurality opinions by the Supreme Court spanning from 1970 to 2016. The results of this chapter indicate that when the Supreme Court does not delegate a binding rule to lower courts, and instead the Supreme Court only offers a guideline, lower courts react by applying the guidelines they prefer in their opinions and ignoring the ones they find less favorable. This behavior suggests that, over time, the lower courts will drift from each other and the Supreme Court in their application of law in the resolution of similar cases when there is no binding rule. This chapter contributes to political science by empirically demonstrating an aspect of agency studies that is often overlooked in judicial politics – the immediate and long-term consequences of the Supreme Court’s failure to delegate and perform a crucial duty as the supervisor of the judiciary.
Item Embargo Conceptions of Victimhood: Legal, Political, and Psychological Dimensions(2023) Weese, TaraThis dissertation focuses on conceptions of victimhood across legal, political, and psychological domains. Conceptions of victimhood, as they currently stand, delegitimize the claims of legitimate victims and impose undue burdens upon victims to respond in a socially correct way. My research can be divided into three subsections: 1) legal and political conceptions of victimhood and the delegitimization of legitimate claims to victim status, 2) societal burdens placed on victims unduly because of their victim status, and 3) psychological conceptions internal to victims that make self-identification of blamelessness and victim-status more difficult than current scholarship suggests.
I build an expanded definition of victimhood that recognizes victims of structural harms and a parallel conception of survivorhood that legitimizes the suffering of victims even if they are seen as complicit actors in the harm they suffer. After building up a more robust conception of who counts as a legitimate victim, I investigate the internal self-conception that victims construct in light of the societal conceptions that surround them. In particular, I show that many victims have psychological reactions to being harmed that are at odds with the social expectations for how a victim ought to feel and act in relation to themselves and their offenders. The trajectory of my project first deals with others’ conceptions of victims, then addresses the ethical obligations imposed on victims as a condition of their legitimacy, and finally examines the psychological reactions of victims and internalization folk legal and psychological conceptions.
Item Open Access Critiquing Operation Streamline’s Role in the Mass Criminalization of Immigration(2019-04-29) Oballe Vasconcellos, JairStarting in the late 1990’s, U.S. immigration policy began categorizing and punishing illegal immigration as a criminal act, penalizing what had solely been a civil offense through the criminal justice system. This shift coincided with the implementation of various systems in the early 2000’s to address rising rates of apprehension and detention at the border. This thesis explores the impact of one of these systems, a judicial procedure in border states known as Operation Streamline. It explores the role of defense lawyers whose clients are parts of mass change of plea and sentencing procedures of up to 70 individuals in one court hearing. Drawing upon recent literature on Streamline, as well as interviews with lawyers familiar with and working in Streamline cases at the border, this thesis illuminates the numerous constraints placed upon lawyers and their clients from a compressed timeline between apprehension and sentencing. This includes the length of time a client must wait in jail for a bench trial, an inability to pay bail, and the irrelevance of an asylum claim within criminal justice procedure. Through this, I place Streamline within a larger narrative in understanding how the act of migration has been criminalized and subsequently punished through our immigration and criminal justice system and how this shift affects lawyers and undocumented immigrants.Item Open Access Divorcing the Rake: Male Chastity and the Rise of the Novel, 1753-1857(2020) Gevlin, RachelLoose understandings of naturalized sexual difference have worked for hundreds of years to bolster both the legal and social oppression of women. This dissertation, Divorcing the Rake: Male Chastity and the Rise of the Novel, 1753-1857, examines how novelistic rhetoric around sexual misconduct reinforced notions of sexual difference by naturalizing male hypersexuality while implicitly suppressing possibilities for female sexual desire. By looking at the sexual ethics forwarded by stories of adultery, bigamy, and divorce in the century between Hardwicke’s Marriage Act (1753) and the Matrimonial Causes Act (1857), my research shows that the emerging genre of the novel refigured sexually profligate male characters, rendering them not only palatable but desirable to readers. Departing from eighteenth-century drama where the hypersexualized rake took center-stage, the novel purported to critique male sexual misconduct by juxtaposing minor rakish figures—such as Austen’s Henry Crawford or Burney’s Sir Clement Willoughby—against chaste male heroes in the mold of Richardson’s Sir Charles Grandison. Representations of male sexual conduct during this period, therefore, idealized male sexual discipline by upholding male protagonists who willingly rejected sexual promiscuity. My work explores two seemingly counterintuitive effects produced by this idealization of sexual restraint. First, the alignment of male chastity with moral worthiness restricted women to monogamous marital desire by creating worlds in which “good” men opted for the same conservative sexual restrictions that were expected of women. Secondly, a good man’s self-discipline was also paradoxically evidence of his natural virility: a learned practice of sexual restraint implied a biological proclivity towards a transgressive level of sexual conduct. By idealizing male chastity, I argue, the novel not only worked to undermine the possibility of autonomous female sexual desire but also naturalized male hypersexuality, promoting compassionate reactions to male misconduct that were not afforded to women.
Item Open Access Domestic Courts and Global Governance: the Politics of Private International Law(2007-12-04) Whytock, Christopher A.Since the mid-1980s, U.S. and foreign parties have filed more than 100,000 lawsuits in U.S. federal courts asking for adjudication of disputes arising from transnational activity. These lawsuits raise a fundamental question of global governance: Who governs? Should the United States assert its authority to adjudicate a transnational dispute, or should it defer to the adjudicative authority of a foreign state that also has connections with the underlying activity? Should the United States assert its authority to prescribe the rules governing that activity, or should it defer to foreign prescriptive authority? U.S. district courts routinely face these questions in transnational litigation, and by answering them they help allocate governance authority among states. To shed light on the role of domestic courts in global governance, this dissertation asks: How often and under what circumstances do U.S. district courts defer to foreign authority to govern transnational activity rather than asserting domestic authority? Drawing on private international law scholarship and theories of international relations, judicial behavior, and bounded rationality, I develop a series of hypotheses about the legal and political factors that influence judicial allocation of governance authority. I then statistically test these hypotheses using original data on U.S. district court decisionmaking in two transnational litigation settings: the allocation of adjudicative authority under the forum non conveniens doctrine, and the allocation of prescriptive authority under various choice-of-law methods. Contrary to the conventional wisdom that U.S. judges are reluctant to defer to foreign authority, I find that they defer at a rate of approximately 50% in both settings. And notwithstanding claims that legal doctrine does not significantly affect judicial decisionmaking, I present evidence suggesting that the forum non conveniens doctrine and choice-of-law doctrine both influence judicial allocation of governance authority. There is evidence of both direct doctrinal effects, as contemplated by legalist theory, and indirect doctrinal effects, resulting from the use of judicial heuristics which allow judges to conserve scarce decisionmaking resources while making decisions that achieve acceptable levels of legal quality. Significant political factors include whether the foreign state is a liberal democracy, the domestic political environment, and U.S. parties' preferences.Item Embargo Essays on the Application of Game Theory in International Relations and Law(2023) Hardison, KendrickThis dissertation employs game theoretic techniques to examine various topics in international relations and law. Chapter 2 uses a crisis bargaining model that accounts for prior bargaining agreements to study the conditions under which states choose to engage in multiple wars over different issues. I find that a proposing state is willing to risk war with multiple states when they are overly optimistic about the state they are currently bargaining with being weak.
Chapter 3 uses a game theory model of complete information to study the conditions under which a third-party state will intervene in a civil conflict when it must account for a potential retaliation by another external state. I find that when choosing to intervene or not, the potential intervening state must weigh the costs of military action by the retaliating state and the political ramifications of issuing an empty threat against each other.
Finally, Chapter 4 uses a game theory model of asymmetric information to analyze how a criminal defendant's ability to crowdfund legal fees can impact a prosecutor's plea bargaining decision. I find that a prosecutor will offer a relatively lenient plea deal to defendants whom they perceive to have a high ability and can make the trial costs high, or who they believe are low ability defendants while facing high political costs. On the other hand, they will offer relatively harsh plea deals to defendants whom they perceive to have a high ability and the trial cost is low, or who they believe have a low ability while facing low political costs.
Item Open Access Fictions of Consent: Contract and the Victorian Novel(2022) Davenport, EmmaThis project addresses how democratic regimes founded on ideals of individual agency and personal freedom systematically disadvantage groups and persons. I argue that (neo-)liberalism enacts this inequity not incidentally, but by design, creating an illusion of free choice and consensual contract while actively obscuring the coercive mechanisms that sustain inequality. As the era in which contractual agency was consolidated into a national political program, the Victorian period produced a plethora of legal and literary justifications for the injustices sanctioned by English liberalism. I aim to reveal the contradictions internal to these justifications, while also disclosing methodologies of resistance. Today, we remain Victorian in our reliance on a model of individual consent to rationalize our political system; my interest in Victorian novels lies in their ability to reimagine and critique the political conditions that we take for granted today.
"Fictions of Consent" starts with a puzzle: there are certain kinds of criminal behavior—murder, sexual deviance, cannibalism—that are exceptional rather than typical, yet nevertheless generated enormous concern in Victorian jurisprudence and popular culture. I contend that nineteenth-century law and literature seem to have allocated undue attention to exceptional crimes not because of their sensationalism per se—not because they’re extraordinary—but because they’re actually dangerously ordinary. There are behaviors, I argue, that the law is invested in expelling as criminal, but that the novel can help us see as contractual. When novelists translated outlandish criminal behavior into rational attempts of modern subjects to negotiate consensual relationships with one another, they transformed these ostensible anomalies into the predictable culmination of a liberal social order: these crimes now became part and parcel of a society based on freedom of contract. Novelists including George Eliot, Charles Dickens, Robert Louis Stevenson, Mona Caird, and Thomas Hardy suggest that the violent coercion apparently unique to the extreme situation in fact represents the ordinary logic of liberalism.
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