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Law and War in the 20th Century

In the 21st century, war seems to lack its expected boundaries in time and space, raising important questions about how law should respond to the national security threat of a “war on terror.” But the experience of the “new kind of war” of the 21st century has roots in the nation’s past. This course will take up the experience of war during the 20th century, and the impact of war on American law, particularly the relationship between national security and individual rights. The course will not focus on the law of war (legal doctrine related to the use of military force), although that is a topic of interest. Instead the course will explore the way the practice of war and ideas about warfare affected American law, including the scope of government power and the protection of individual rights. The course will draw upon historical experience to examine questions such as:

• Amidst continuous global conflict, what is a war, and what is a “wartime”?
• How is national security conceptualized, and how does security affect rights?
• How has war affected the American state, including territorial expansion and the growth of government?

We will take up these and other questions in the course of rethinking Supreme Court cases (e.g. Korematsu v. United States and In re Quirin) and other legal developments affected by war, such as free speech and equality rights. Readings will consist of cases and other legal sources, primary historical sources, and secondary works in history. The following books are required:

• Louis Fisher, Presidential War Power (University Press of Kansas, 2nd revised edition, 2004).
• Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (New York: Norton, 2007).

The class will principally involve critical reading and discussion of course materials. Students are required to write four reaction papers about course readings.

Students will write a paper of at least 20 pages, due at the end of the semester. In addition there will be two related assignments: a 2 page paper topic essay and a first draft. One class session will be devoted to discussion of student papers.

Please note that course organization and content may vary substantially from semester to semester and descriptions are not necessarily professor specific. Please contact the instructor directly if you have particular course-related questions.


Mary L. Dudziak
Law and War in the 20th Century 711.01
Fall 2011
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