Associations in Prison

Incarcerated people create, lead, and participate in a variety of associations in prison. These associations educate and advocate for members, serve the broader prison population, cultivate social bonds, and promote the individual growth that happens in relationship with others. The associations do so in the face of byzantine regulations that burden their formation, membership, and operations. These rules go unchecked because the constitutional right of association is under protected in prisons. The deferential Turner v. Safley test for rights violations in prison prizes ease of prison administration over rights protection. Thus, though the right of association is a fundamental constitutional right, in prison it does not enjoy the level of protection of a fundamental right. This Article builds a conceptual framework of associations in prison. It provides a typology of the organizations that exist in prisons today. Most of these operate as they would on the outside, as part of civil society, which fills gaps in government provision. The Article also explores the kinds of effects the associations have on members, which are democracyenhancing in nature as well as communitarian and liberal. The Article then maps the types of limitations imposed on the groups by regulations and rules. By examining the unique challenges produced by and faced by these associations, the Article shows that broader associational jurisprudence can better protect fundamental aspects of associations by grappling with issues that arise in the unique context of incarceration

Carrie Menkel-Meadow

Carrie Menkel-Meadow at the Annual Celebration of Books, March 27, 2023.https://scholarship.law.uci.edu/celebration_of_books_2022-2023_photos/1003/thumbnail.jp

Erwin Chemerinsky

Erwin Chemerinsky at the First Annual Celebration of Books, Spring 2010.https://scholarship.law.uci.edu/celebration_of_books_2010_photos/1006/thumbnail.jp

Christopher Leslie

Christopher Leslie at the First Annual Celebration of Books, Spring 2010.https://scholarship.law.uci.edu/celebration_of_books_2010_photos/1004/thumbnail.jp

Erwin Chemerinsky and Beatrice Tice

Erwin Chemerinsky and Beatrice Tice at the Second Annual Celebration of Books, April 21, 2011.https://scholarship.law.uci.edu/celebration_of_books_2011_photos/1003/thumbnail.jp

Transnational Legal Order Through Rule of Law? Appraising the United Nations Security Council, 1990-2022

Utilizing the theoretical framework of transnational legal orders (TLOs), this article treats two master questions in global governance: what are the limits to the power of the UN Security Council? Can norms of rule-of-law constrain UNSC powers? First, we outline a research design with emphasis on its documentary and unique internal empirical sources. Second, we sketch an interpretive narrative of UNSC engagement from the early 1990s to the present with ROL in three areas of UNSC action: peacekeeping, sanctions, and force. Third, we offer a new conceptual approach by proposing that ROL in the UNSC manifests itself in three dimensions: discourse; procedure (or rules); and structures. These dimensions come into play both internally, within the UNSC itself, and externally, to ROL institution-building in and between states, as well as in post-conflict zones, with a rather gray area between (e.g., when the UN peacekeeping missions are themselves subject to ROL oversight for the behavior of their personnel). Fourth, we examine the emergence of micro-TLOs under construction within the UNSC itself. We conclude with reflections on the potential for empowering elected members of the UNSC and weaker states in the UN to press ROL norms on the UNSC as a springboard for ROL global governance via the UNSC

Fractional Sovereignty

The axiomatic beginning of every conflict of laws case is that a court must choose the law of one sovereign and disregard the law of all other sovereigns. One wins, gets to set the rules and regulate behavior, all others lose. This all-or-nothing scenario is the result of enshrining an old view of indivisible sovereignty into conflict of laws rules. The Article begins by explaining how this happened. Despite the importance of this assumption of indivisibility, no articles have examined why and how it became enshrined in conflict of laws doctrine. All too often it is treated as a truism without need for explanation or examination. The explanation, it turns out, is not compelling and has more to do with inertia and historical conditions hundreds of years ago than present concerns. Next, the Article critiques undivided sovereignty as outdated, descriptively misleading, and beholden to normative claims that are incompatible with modern conditions and sensibilities. It also explains the harm that adherence to indivisible sovereignty creates within the currently dominant conflict of laws methodologies. In its place, the Article proposes that we reimagine conflict scholarship based on a fractional conceptualization of sovereignty. Instead of asking which sovereign gets to set all the rules, we should ask how to equitably share governance power and responsibility. The guiding insight of this proposal is that when conduct, assets, and litigants are distributed across multiple sovereigns, picking a single victor to provide governing law necessarily leads to a windfall of sovereignty for some and an undue denial of sovereignty for others. Instead of such a binary model of sovereignty, a fractional model of shared authority distributes the power to regulate conduct according to the fraction of the conduct that touches and concerns the sovereign. Sovereigns share responsibility over cross-border conduct. A deeper relationship to one sovereign leads to that sovereign having a greater fraction of influence, while a more fleeting relationship leads to a sovereign having a smaller fraction of influence. Each conflict of laws case would thus present a spectrum of influence to be divided into fractions among relevant sovereigns. Governing law in any given case is the mix of those fractions of influence. All concerned sovereigns would be able to regulate conduct but in a shared and mediated manner. Sovereignty becomes fractional

Katherine Porter

Katherine Porter at the Sixth Annual Celebration of Books, March 19, 2015.https://scholarship.law.uci.edu/celebration_of_books_2015_photos/1010/thumbnail.jp