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Law and Legal Studies

Are the Occupy settlements in various cities protected by the First Amendment ‘right of the people peaceably to assemble’?  Did Congress exceed its constitutional authority in enacting the Patient Protection and Affordable Care Act with the controversial individual mandate provision?  Should Saif Gaddafi be tried in the International Criminal Court or by a domestic court in Libya?  If you are interested in these types of questions, then you might want to consider the study of law and legal issues in the Department of Political Science.

The study of law and legal issues in the Department of Political Science was pioneered by Matthews Distinguished Professor Robert Cord in the 1970s.  A leading national authority on the Establishment Clause, Professor Cord for many years brought the fruits of his research and writing to the students who enrolled in his courses.  His work, titled Separation of Church and State: Historical Fact and Current Fiction (1982) was even  cited by then-Associate Justice William Rehnquist in his dissent in Wallace v. Jaffree (1985), a case in which the U.S. Supreme Court struck down Alabama’s ‘moment of silence’ law.

Today, Professor Michael Tolley continues Professor Cord’s tradition of informing his classroom teaching with the results of his research and scholarship.  The following are some excerpts from some of the writing projects dealing with American constitutional development, judicial process, legal globalization, and comparative judicial studies, that have been done by faculty in our department:

American Constitutional Development

“[W]e have found that one way to explain why the authors of Article III of the U.S. Constitution and Section 9 of the Judiciary Act of 1789 conferred on the newly created federal judiciary a jurisdiction, substantive law and procedure closely modeled on the colonial courts of vice admiralty is to take a skeptical view of the revolutionaries’ complaints against the admiralty. If the colonists, in the mounting struggle with the Crown after the Stamp Act controversy of 1765, had truly abhorred the vice admiralty courts, then the founders of the new republic certainly would have responded to the grievances and made an abrupt break with the past.”

From David R. Owen and Michael C. Tolley, Courts of Admiralty in Colonial America (Carolina Academic Press, 1995)

Judicial Process

“Judicial confirmation battles are not unusual. A historical view of the judicial appointments process suggests that intense, partisan struggles between the nominating President and rivals in the Senate have been fairly common.  What has been unusual in recent years is the use of new, norm-departing strategies in the struggle over judicial nominations at all levels of the federal court system.”

From Michael C. Tolley, “Legal Controversies Over Federal Judicial Selection in the United States” in Malleson and Russell, eds., Appointing Judges in an Age of Judicial Power: Critical Perspectives from Around the World  (University of Toronto Press, 2006)

Legal Globalization

“Arguably the forces of globalization have been at work for centuries, gradually shaping law and legal processes within sovereign nations….What is new today is the nature of the interconnections and extent of the interdependence among nation-states….How are the forces of globalization today, including the global spread of international human rights norms, the rice of universal criminal jurisdiction, and the pressure for the establishment of rule of law and good governance in the developing world, affecting domestic law, courts, and processes?”

From Donald Jackson, Michael Tolley, and Mary Volcansek, Globalizing Justice: Critical Perspectives on Transnational law and the Cross-Border Migration of Legal Norms (SUNY Press, 2010)

Comparative Judicial Studies

“The overreaching of the Bush administration and the U.S. Congress after 9/11 was not just an American problem….[P]arliaments in the United Kingdom and Australia enacted new antiterrorism measures with many of the same provisions allowing for control orders and preventive detention, electronic surveillance and invasions of privacy, and prohibitions of activities in connection with banned or listed terrorist organizations.”

Michael C. Tolley,” Australia’s Commonwealth Model and Terrorism,” in Volcansek and Stack, eds., Courts and Terrorism: Nine Nations Balance Rights and Security (Cambridge University Press, 2011)


The works of Professor Robert Gilbert on the American presidency, Denise Garcia on international law, and Eileen McDonagh on women’s rights and gender equality also figure prominently in the ‘Law and Legal Issues’ concentration.  Here are some of their fine works:

Presidential Studies

“In all, then, the Twenty-fifth Amendment probably does the best that can be expected in providing for situations of presidential inability. It does not, and cannot, resolve all problems, however. It does not guarantee that a specific instance of presidential disability will be handled smoothly or even that constitutional crises can always be averted. But it seems to be the best constitutional remedy at hand,…”

From Robert E. Gilbert, The Mortal Presidency:  Illness and Anguish in the White House (1998)

International Law

“This study is interested in a more recent development with the international norm-making process that came to be known as “soft” law, i.e., “emerging norms” that start to embed themselves in the practice of states…”

From Denise Garcia, Small Arms and Security: New Emerging International Norms (Routledge, 2006)

Gender Equality

“This book challenges how we think about organized sports, as participants, parents, and fans. Athletics are a visible part of American culture and it’s tempting to accept what is presented. That is why it’s critical to put sports into a legal, historical, and social context and to challenge the gut assumption that Title IX provided a fix and a level playing field for females in athletics.”

From Eileen McDonagh and Laura Pappano, Playing with the Boys: Why Separate is Not Equal in Sports (Oxford University Press, 2007)