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 narrowly on “the law of war” (legal doctrine related to the use of military force), although that is one 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.
Class discussion will continue beyond class meetings on a class blog. Access to the blog will be restricted to class members, and participation in the blog will be optional. The blog will enable students to share links and resources related to class with each other.
The class will be a combination of lecture and discussion. Students will be required to write four reaction papers about course readings, which will be turned in before class. There will be a take-home exam. A limited number of students can sign up for an additional academic credit and write a paper for the course rather than taking the exam. Class participation is important, and participation points will be awarded.
• Unit Value: 2 or 3 (3 units for those writing papers)
• Grading Option: CR/D/F grading is available
• Exam: Choice of 48-hour take-home exam or paper (30 pages or more)
• Graduation Writing Requirement: Yes (with paper option)
• Graduation Skills Requirement: No
• Participation: Points will be awarded
• Prerequisites: For non-law students: Constitutional Law I or permission of instructor
• Enrollment Limitations: Enrollment is not limited, however only 12 students may write papers