This Article examines a controversial national security measure: the use of the armed forces within domestic borders. Military policing blurs the boundaries between crime and war, and tends to entail greater use of force against individuals. It has received relatively little academic attention but deserves to be better understood. No democratic state has relied on military policing for longer than India. And within India, no region has been subject to military policing for as long as the northeastern state of Manipur. I analyze how military policing in Manipur has fostered abuse by the armed forces, which in turn has prompted litigation and judicial innovation. Based on my analysis, I critique dominant theories about the state’s exceptional security powers. I advance two main claims. First, exceptional powers rarely remain exceptional; they eventually become the norm. Once deployed, these powers persist, and the license they provide seeps into broader habits of governance. Second, once normalized, exceptional powers become more vulnerable to judicial intervention. Judges become unwilling to accept the government’s argument that these powers are always and only used to fight pressing threats. These powers eventually become a routine subject of judicial review. Even once judicial review becomes routine, however, judges tend to be more willing to help victims of abuse than to punish abusers.

Scholars now recognize life imprisonment without parole (LWOP) as a defining feature of contemporary American punishment. As LWOP becomes topical, it draws attention to a significant, more general phenomenon: the growth of state-sanctioned policies and practices by which prisoners face the remainder of their lives in prison. This article seeks to expand perspectives on contemporary punishment by looking closely at how lifetime incarceration took shape historically in different political projects and penal systems. Drawing from primary materials and a comprehensive review of secondary historical literature, I examine modes of perpetual penal confinement: combinations of sanctions and practices that result in holding people in state custody permanently. Interpreting classic penological paradigms anew, the article illuminates the significant role that perpetual confinement has played in influential theories of criminal justice and shows how it has proved a versatile tool for social control and prison administration across diverse penal schemes, largely because of its unique temporal character. The article concludes with a diagnosis of contemporary American punishment, suggesting that LWOP—beyond being a cruel and exclusionary penalty—is symptomatic of a system in which imprisonment until death has become uniquely ordinary.

In his path-breaking essay that investigates the rise of judicial review in democratic Taiwan and South Korea, Tom Ginsburg presents the distinctive style of judicial review practiced by both countries in terms of “Confucian constitutionalism,” at the core of which is the practice of constitutional review as remonstrance. This Article examines whether the model of Confucian constitutionalism is still relevant in Korea, especially in light of the Constitutional Court’s recent decision to uphold the motion to impeach the president rather than merely offering remonstrance or warning. By associating the Court’s jurisprudence characterized by highly moralistic language and style of reasoning with Confucian constitutionalism, this Article presents Confucian constitutionalism as indirect constitutionalism, a mode of constitutionalism that aims to shape the polity’s constitutional identity in a way that achieves a meaningful congruence between liberal constitutional principles and the underlying public culture that defines the polity as a distinctive moral community.

The expansion of immigration enforcement in the United States has increased the documentation requirements to which immigrants are subjected. A case in point is birth certificates, which are used to establish identity, nationality, age, and kin relationships in myriad US immigration cases. This development gives highly localized bureaucratic practices in immigrants’ countries of origin transnational implications. Based on fieldwork in a registry of vital records in El Salvador, interviews with Salvadoran officials, and legal work with immigrants in the United States, this article analyzes birth certificates’ use as immigration documents, focusing on the understandings of legality and authenticity that underpin their circulation. This analysis contributes to theorizing citizenship by detailing the ways that immigration enforcement practices in immigrants’ country of residence can make their relationship to their country of origin both more important (in that they need identity documents) and less accessible (due to distance).

Standard contract terms are “sticky”: they rarely change, even if change appears to be in the parties’ interest. Multiple theories to explain stickiness do not reach consensus on its causes. We investigate the role of stickiness in sovereign bond contracts, where it would be especially costly and therefore puzzling. In our interviews with more than a 100 officials responsible for the bond contracts of twenty-eight countries, they linked reluctance to change non-financial contract terms and the imperative of following a “market standard” for such terms. When a term could be described as standard for the government’s debt stock or borrower cohort, its content often came across as secondary. Sovereign debt managers seemed willing to forgo some of the benefits of contract terms for dealing with contingencies and revealing private information to avoid negative signals and maintain the liquidity of primary and secondary debt markets. Interviews with investors suggested a similar focus on standard form and a limited engagement with contract substance.

This article demonstrates how civil liberties lawyers’ efforts to address the complaints of imprisoned people in the 1970s inadvertently helped provide state attorneys with tools they used to stymie prisoners’ organizing efforts. Using North Carolina as a case study, I explain why a diverse range of legal actors—including civil liberties lawyers, federal judges, and state attorneys—supported the creation of prison grievance procedures. I then reveal how state attorneys successfully used them, once implemented, to argue that because the procedures offered a seemingly fair, institutional avenue for imprisoned people to express their grievances, prison administrators could ban prison organizing without violating prisoners’ First Amendment rights to free speech and assembly. The history of prison grievance procedures, I suggest, highlights the limits of constitutional rights litigation for achieving social change, offers a new approach to the study of legal endogeneity, and helps explain the demise of the prisoners’ rights movement.

Since 2001, we have witnessed the development of a counterterrorism war paradigm built to advance claims about the post-9/11 scope and discretion of US executive power and to articulate specific interpretations of national security interests and strategic objectives in the “war on terror.” What makes this a paradigm rather than merely a conglomeration of evolving policies is the cohesiveness and mutual reinforcement of its underlying rationales about the rights of the US government to prosecute a territorially unbounded war against an evolving cast of enemies. Drawing on Bourdieu’s concept of a juridical field, the article focuses on how officials who constructed a legal framework for this paradigm, rather than disregarding international law wholesale, have engaged in interpretations and crafted rationales to evade some international humanitarian law (IHL) rules and norms while rejecting the underlying logic or applicability of others. This article traces the counterterrorism war paradigm’s development and explains how it now competes with and threatens to supersede the customary law principles enshrined in IHL.

This Article reveals the significance of a new and growing minority group within US law schools—international students in the Juris Doctor (JD) program. While international students have received some attention in legal education scholarship, it mostly has been focused on their participation in the context of programs specially designed for this demographic (e.g. postgraduate programs like the LLM and SJD). Drawing from interview data with fifty-eight international JD students across seventeen graduating US law schools, our research reveals the rising importance of international students as actors within a more mainstream institutional context. In examining the ways these students navigate their law school environments, we find that although international status often impacts identity and participation, not all students encounter its impact similarly. Particularly, while some students use the identity to their advantage, others cannot escape negative implications, even with effort. This is consistent with other scholarship on minority students, and adds to a growing literature that uses their socialization experiences to better understand professional stratification. To unpack these different ways of “being international,” we borrow from Goffman’s theorization of stigma to suggest illustrative variations in the ways international students experience their environments. In doing so, we offer an introductory landscape to better understand this growing population and hope this enables new insights to theorize about other kinds of minority experience.

Immigration federalism scholarship has established that state and local government policies can make federally defined immigration status more or less consequential. Drawing primarily on focus groups and interviews with 184 undocumented students attending the University of California, we suggest that institutional policies work alongside state and local efforts to mediate the consequences of illegality for undocumented students. We find that the Deferred Action for Childhood Arrivals program, state-funded financial aid policies, and university support programs all facilitate the integration of undocumented students by increasing access to higher education and enabling fuller participation. Although federal policies contribute to persistent barriers to academic engagement and professional development, we show that universities can intervene to improve educational experiences and opportunities. Ultimately, we argue that university policies are a key site for intervening in immigration policy and constructing immigrant illegality.

This Article treats the Indian National Army Trial of 1945 as a key moment in the elaboration of an anticolonial critique of international law in India. The trial was actually a court-martial of three Indian officers by the British colonial government on charges of high treason for defecting from the British Indian Army, joining up with Indian National Army forces in Singapore, and waging war in alliance with Imperial Japan against the British. In this trial, the defense made the radical claim that anticolonial wars fought in Asia against European powers were legitimate and just and should be recognized as such under international law. The aim of this Article is to draw attention to the understudied role of anticolonial movements in challenging the premises of international law in the aftermath of World War II.

In 1992 Peter Fitzpatrick published The Mythology of Modern Law, a work that exposed the constitutive relation between Europe’s racialized imperialism and its conception of modern law. In the three decades since, a renewed field of “law and development” has grown, this time in the name of “the rule of law.” This Article shows how the mythology of modern law endures in this field of rule-of-law development. To do this, Part I draws out the main threads from Mythology. These are then woven through the Article, beginning with the World Justice Project’s Rule of Law Index®, before turning to the United Nations’ rule-of-law assistance, and ending with the World Bank’s 2017 World Development Report. The analysis shows how the mythology of modern law, in its racialized imperial form, is integral to the work of international rule-of-law promotion. One consequence is the denial of “local” law by a rule of law that obtains its authority by purporting to be responsive to legal pluralism. But the Article also points to the mythological possibilities of decolonization, specifically the possibilities of a “mythological legal pluralism” that is attentive to the ways in which the world’s plurality of laws already rule.