MalcolmM Feeley | University of California, Berkeley (original) (raw)
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Papers by MalcolmM Feeley
Indiana Law Journal, 2014
In 2009, the Israeli High Court of Justice held that private prisons are unconstitutional. This w... more In 2009, the Israeli High Court of Justice held that private prisons are unconstitutional. This was more than a domestic constitutional issue. The court anchored its decision in a carefully reasoned opinion arguing that the state has a monopoly on the administration of punishment, and thus private prisons violate basic principles of modern democratic governance. This position was immediately elaborated upon by a number of leading legal philosophers, and the expanded argument has reverberated among legal philosophers, global constitutionalists, and public officials around the world. Private prisons are a global phenomenon, and this argument now stands as the definitive principled statement opposing them. In this Article, I argue that the state monopoly theory against privatization is fundamentally flawed. The Article challenges the historical record and philosophy of the state on which the theory is based, and then explores two other issues the theory wholly ignores: private custodial arrangements in other settings that are widely regarded as acceptable if not exemplary and third-party state arrangements that are universally hailed as exemplary. The Article presents first-of-its-kind empirical data on private prisons in Australia, discusses the implications of readily available information on juvenile facilities, and explores interstate compacts on prisoner transfers. The Article maintains that the state monopoly theory erroneously asserts that privatization is inconsistent with the modern state, and concludes with a call for policymakers and judges to imbue their future privatization decisions with local knowledge and time-honored pragmatism.
In Book: Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism
Fights for political liberalism are not dead. Nations that have never sought or accomplished a li... more Fights for political liberalism are not dead. Nations that have never sought or accomplished a liberal political society are constrained or inspired to do so by international financial and governance institu- tions, international NGOs, and geopolitically influential states (Elster, Offe and Preuss, 1998). Nations that have advanced towards and then retreated from political liberalism are pressed to regain lost ground (Miller, 2003; Schmitter, 1995). Nations that have recently shifted from authoritarian to liberal political systems are encouraged to lock in the transition through institutions and constitutions (Ackerman, 1999; Ahdieh, 1997; Ahn, 1998; Gross, 2004). And nations that seemed to be mature democracies are being encouraged to recover diminished freedoms in the face of terrorism and domestic conflict. Across the world political liberalism is being fought for, consolidated and defended. In reaction to formerly one-party or developmental states (eg, Indonesia, Taiwan, South Ko...
he first article I read by Elliott Currie might have been the first thing he ever published-"Crim... more he first article I read by Elliott Currie might have been the first thing he ever published-"Crimes without criminals: Witchcraft and its control in Renaissance Europe," published in the Law & Society Review (Currie, 1968). It fascinated me then, and it continues to fascinate me now. It is impressive for many reasons; erudition-a study of witchcraft in the Renaissance; scope-a comparative historical study that covers changes in two locations, which span more than three centuries; acknowledgments
Law & Society Review, 1979
Law & Society Review, 1989
Law <html_ent glyph="@amp;" ascii="&"/> Social Inquiry, 1992
In 1871 the Virginia Supreme Court could dismiss the complaint of a prisoner challenging the leng... more In 1871 the Virginia Supreme Court could dismiss the complaint of a prisoner challenging the length of his sentence with the following observations: A convicted fellow whom the law in its humanity punishes by confinement in a penitentiary instead of with death, is subject while undergoing that punishment, to all the laws which the Legislature in its wisdom may enact for the government of that institution and the con-Malcolm M. Feeley and Edward Rubin are professors in the School of Law,
Indiana Law Journal, 2014
In 2009, the Israeli High Court of Justice held that private prisons are unconstitutional. This w... more In 2009, the Israeli High Court of Justice held that private prisons are unconstitutional. This was more than a domestic constitutional issue. The court anchored its decision in a carefully reasoned opinion arguing that the state has a monopoly on the administration of punishment, and thus private prisons violate basic principles of modern democratic governance. This position was immediately elaborated upon by a number of leading legal philosophers, and the expanded argument has reverberated among legal philosophers, global constitutionalists, and public officials around the world. Private prisons are a global phenomenon, and this argument now stands as the definitive principled statement opposing them. In this Article, I argue that the state monopoly theory against privatization is fundamentally flawed. The Article challenges the historical record and philosophy of the state on which the theory is based, and then explores two other issues the theory wholly ignores: private custodial arrangements in other settings that are widely regarded as acceptable if not exemplary and third-party state arrangements that are universally hailed as exemplary. The Article presents first-of-its-kind empirical data on private prisons in Australia, discusses the implications of readily available information on juvenile facilities, and explores interstate compacts on prisoner transfers. The Article maintains that the state monopoly theory erroneously asserts that privatization is inconsistent with the modern state, and concludes with a call for policymakers and judges to imbue their future privatization decisions with local knowledge and time-honored pragmatism.
In Book: Fighting for Political Freedom: Comparative Studies of the Legal Complex and Political Liberalism
Fights for political liberalism are not dead. Nations that have never sought or accomplished a li... more Fights for political liberalism are not dead. Nations that have never sought or accomplished a liberal political society are constrained or inspired to do so by international financial and governance institu- tions, international NGOs, and geopolitically influential states (Elster, Offe and Preuss, 1998). Nations that have advanced towards and then retreated from political liberalism are pressed to regain lost ground (Miller, 2003; Schmitter, 1995). Nations that have recently shifted from authoritarian to liberal political systems are encouraged to lock in the transition through institutions and constitutions (Ackerman, 1999; Ahdieh, 1997; Ahn, 1998; Gross, 2004). And nations that seemed to be mature democracies are being encouraged to recover diminished freedoms in the face of terrorism and domestic conflict. Across the world political liberalism is being fought for, consolidated and defended. In reaction to formerly one-party or developmental states (eg, Indonesia, Taiwan, South Ko...
he first article I read by Elliott Currie might have been the first thing he ever published-"Crim... more he first article I read by Elliott Currie might have been the first thing he ever published-"Crimes without criminals: Witchcraft and its control in Renaissance Europe," published in the Law & Society Review (Currie, 1968). It fascinated me then, and it continues to fascinate me now. It is impressive for many reasons; erudition-a study of witchcraft in the Renaissance; scope-a comparative historical study that covers changes in two locations, which span more than three centuries; acknowledgments
Law & Society Review, 1979
Law & Society Review, 1989
Law <html_ent glyph="@amp;" ascii="&"/> Social Inquiry, 1992
In 1871 the Virginia Supreme Court could dismiss the complaint of a prisoner challenging the leng... more In 1871 the Virginia Supreme Court could dismiss the complaint of a prisoner challenging the length of his sentence with the following observations: A convicted fellow whom the law in its humanity punishes by confinement in a penitentiary instead of with death, is subject while undergoing that punishment, to all the laws which the Legislature in its wisdom may enact for the government of that institution and the con-Malcolm M. Feeley and Edward Rubin are professors in the School of Law,