'Risk Society' and the Precautionary Approach in Recent Australian, Canadian and UK Judicial Decision Making

After the terrorist attacks of 11 September 2001 terrorism was added to the list of potentially catastrophic global events, such as global warming or nuclear explosions, which characterise Ulrich Beck's risk society. Operating in an atmosphere of fear, executive governments and parliaments around the world take precautionary measures to prevent future terrorist acts - governments accumulate information, detain terrorism suspects, freeze funds and so on. International Relations scholars see the judiciary as a guardian of human rights that can stop or at least curb the excesses of the other two branches of government. The article argues that this view is naive. The first section includes a brief historical overview of the judiciary's tendency to go to war together with the executive in times of crisis, a tendency which goes back to the 19th century and well precedes risk society. To put the same idea in Foucauldian terms the judiciary governs itself through the prevailing regime of truth, whether the emergency is the war on terrorism or a different war. In the second section, the focus is on six sets of recent cases, two from Australia, Canada and the UK each. In almost all the cases the judiciary shows a willingness to defer to the executive on questions of national security. Based on the limited number of cases analysed, it is argued that in some respects the regime of truth of the war on terror is nothing new, while in other ways the reasoning of the judiciary post 9/11 has certain distinctive characteristics.

Federalism at the 'Cathedral': Property Rules, Liability Rules, and Inalienability Rules in Tenth Amendment Infrastructure

As the climate crisis, war in the Middle East, and the price of oil focus American determination to move beyond fossil fuels, nuclear power has resurfaced as a possible alternative. But heady plans for energy reform may be stalled by an unlikely policy deadlock stemming from a structural technicality in an aging Supreme Court decision: New York v. United States, which set forth the Tenth Amendment anti-commandeering rule in 1992. The same dry technicality has also threatened the effective management of storm water pollution, contributed to the failed response to Hurricane Katrina, and poses ongoing regulatory obstacles in such critical interjurisdictional contexts as national security and counter-terrorism efforts. Such is the enormous power hidden in the infrastructure of legal rules, parts of which we know better as property, liability, and inalienability remedy rules. Federalism at the Cathedral explores the consequences for good governance of poorly constructed legal infrastructure in the Tenth Amendment context, and recommends a simple jurisprudential fix: exchanging a property rule for the inalienability remedy rule that the Court used to protect the anti-commandeering entitlement. Grounded in a values-based theory of American federalism, it shows how the New York inalienability rule unnecessarily removes tools for resolving interjurisdictional quagmires - exemplified by the radioactive waste capacity problem at the heart of the New York litigation - by prohibiting novel forms of state-federal bargaining. In New York, the Court held that Congress lacked the authority to bind a state's participation in a regulatory scheme even if state officials had effectively waived Tenth Amendment-based objections during consensual negotiations with the federal government. In so doing, the Court articulated a reasonable entitlement to federal noninterference protected by an unreasonable inalienability rule. It is an inalienability rule, because any number of collective action problems would prevent the negotiated transfer of the entitlement except through elected representation. It is unreasonable, because the intergovernmental partnerships thus thwarted would help resolve pressing interjurisdictional problems without offending the constitution. Indeed, underlying values of federalism that give meaning to the Tenth Amendment would be better served by allowing a state to decide for itself whether to hold or trade its entitlement. Focusing on the facts and legacy of the New York decision, the Article concludes that although its inalienability rule is defensible in exclusively state or federal jurisdictional contexts, it is dubious in contexts that require regulatory attention at both the local and national level. A property rule that would enable states to bargain with their anti-commandeering entitlement would not offend the touchstone of Tenth Amendment jurisprudence, which has always been the prevention of federal "coercion" of the states. A pro-bargaining property rule would be more consistent with the rest of the Court's federalism jurisprudence, more faithful to the full panoply of values that under gird American federalism, and better for state and federal governance in difficult interjurisdictional contexts.

Did British Women Achieve Long-Term Economic Benefits from Working in Essential WWII Industries?

On the Limits of Supremacy: Medical Marijuana and the States' Overlooked Power to Legalize Federal Crime

Using the conflict over medical marijuana as a timely case study, this Article explores the overlooked and underappreciated power of states to legalize conduct Congress bans. Though Congress has banned marijuana outright, and though that ban has survived constitutional scrutiny, state laws legalizing medical use of marijuana constitute the de facto governing law in thirteen states. This Article argues that these state laws and (most) related regulations have not been, and, more interestingly, cannot be preempted by Congress, given constraints imposed on Congress's preemption power by the anti-commandeering rule, properly understood. Just as importantly, these state laws matter, in a practical sense; by legalizing medical use of marijuana under state law, states have removed the most significant barriers inhibiting the practice, including not only state legal sanctions, but also the personal, moral, and social disapproval that once discouraged medicinal uses of the drug. As a result, medical use of marijuana has survived and indeed, thrived in the shadow of the federal ban. The war over medical marijuana may be largely over, as commentators suggest, but contrary to conventional wisdom, it is the states, and not the federal government, that have emerged the victors in this struggle. Although the Article focuses on medical marijuana, the framework developed herein could be applied to conflicts pitting permissive state laws against harsh federal bans across a wide range of issues, including certain abortion procedures, possession of various types of firearms, and many other activities.

Men, Women, and the Ballot - Woman Suffrage in the United States

Woman suffrage led to the greatest enfranchisement in the history of the United States. Before World War I, however, suffrage states remained almost exclusively confined to the American West. The reasons for this pioneering role of the West are still unclear. Studying the timing of woman suffrage adop- tion at state level, we find that states in which women were scarce (the West) enfranchised their women much earlier than states in which the sex ratio was more balanced (the rest of the country). High sex ratios in the West, that is high ratios of grantors to grantees, reduced the political costs and risks to male electorates and legislators of extending the franchise. They are also likely to have enhanced female bargaining power and may have made woman suffrage more attractive in the eyes of western legislators that sought to attract more women to their states. Our finding of a reduced-form inverse relationship be- tween the relative size of a group and its success in securing the ballot may be of use also for the study of other franchise extensions and for inquieries into the dynamics of political power sharing more generally.

The Effects of the War in Iraq on Nutrition and Health: An Analysis Using Anthropometric Outcomes of Children

The war in Iraq initiated in March 2003 triggered a wave of violence and turmoil in the country, exposing households to insecurity and to instability in daily life. The level of violence has varied across provinces, the south and centre areas being the most affected. Using the different intensities of the conflict across areas and the age at exposure to the war among cohorts, I analyze a possible causal effect of the war on nutritional outcomes of children. I use two empirical strategies, leading to very similar results. Estimates indicate that children born in areas affected by high levels of violence are 0.8 cm shorter than children born in low violence provinces. These results are robust to several specifications. Furthermore, the paper also addresses the channels through which the conflict has affected health and nutrition. The results have not only short-term policy implications, but also, given the empirical evidence of the impact of early child malnutrition on later education, labour and productivity outcomes, the results are of great importance for the future.

Applied Legal History: Demystifying the Doctrine of Odious Debts

"Odious debts" have been the subject of debate in academic, activist, and policymaking circles in recent years. The term refers to the debts of a nation that a despotic leader incurs against the interests of the populace. When the despot is overthrown, the new government — understandably — does not wish to repay creditors who helped prop up the despot. One argument has focused on whether customary international law supports a "doctrine" of odious debts that justifies the nonpayment of sovereign debts when three conditions are met: (1) the debts were incurred by a despotic ruler (without the consent of the populace); (2) the funds were used in ways that did not benefit the populace; and (3) the creditors were aware of the likely illegality of the loans. Advocates of this doctrine, which was synthesized by Alexander Sack in 1927, typically cite two examples of U.S. state practice for support: the negotiations between the United States and Spain following the Spanish-American War, in which the United States repudiated Cuba’s colonial debt, and the Tinoco arbitration, which repudiated certain debts of the deposed Costa Rican dictator, Frederico Tinoco. Those historical precedents do not support the first condition of Sack’s doctrine of odious debts, but do support the second two requirements. In addition to these two instances, United States history is rich with examples of debt repudiation by states. Those examples suggest a doctrine of odious debts that is broader and more flexible than the one written by Sack. Indeed, it may be appropriate to speak of the doctrines (not just doctrine) of odious debts.

A Fresh Look at Global Governance: Exploring Objective Criteria for Representation

The geopolitical world of the 21st century is very different than that of the post- World War II era. In this new world order, what constitutes a system of global governance? We argue that it has to balance representation, which is made credible by the inclusion of key parts of the global community, and effectiveness, which means involving as small a number of actors as possible while having access to the resources—and clout—to turn decisions/intentions into action/results. In this paper, we propose simple, fundamental criteria—based on global shares of GDP and population—around which global governance might be organized. We analyze the role that these criteria would assign to different countries and compare them with some of the key components of the system of governance currently in place—the Bretton Woods institutions and the United Nations. We also examine the implications of our analysis for membership in the G-20 and the OECD. We find major disparities, which suggest the need for fundamental changes in sharp contrast to the incremental changes that are currently being considered. Overall, our analysis points to the need for a more comprehensive approach, and for much more than incremental solutions.

Above and Beyond the Call: Long-Term Real Earnings Effects of British Male Military Conscription During WWII and the Post-War Years

Contested Cornerstones of Nonviolent National Self-Perception in Costa Rica: A Historical Approach

Crime, violence, and insecurity are perceived as society's biggest problems in contemporary Costa Rica. This degree of priority is especially remarkable because the country has always been considered the peaceful exception in the violent Central American region. In this paper I analyze four cornerstones of the nonviolent national self-perception in the 1940s and 1980s as the fundamental basis for the current talk of crime: the civil war, the abolition of the military, the proclamation of neutrality, and the peace plan for Central America and the subsequent granting of the Nobel Peace Prize. The result of the analysis is the determination that these historical cornerstones were not publicly discussed as expressions of the nonviolent identity for which they are today cited as evidence.