forthcoming scholarship

["forthcoming scholarship" is a regular feature of my listserv, and I intend to make it a regular part of the blog as well. For various reasons, however, the copying and pasting for these SSRN and web-based sources turns out to present a number of complications. Please forgive the aesthetic problems that result as I continue to work out the logistics of cross-posting without messing up such things]

"Kosovo: The Legitimization of an Unauthorized War" 

The Icfai Journal of International Relations, Vol. 2, No. 2, pp. 24-45, April 2008

STEPHANIE WILSON, Department for Strategic Foresight, Center for Transformation of the German Armed Forces (Bundeswehr)
Email: stephaniewilson@bundeswehr.org

Does a lack of legality doom any chance for legitimacy? Using the legal arguments, NATO employed in defense of the war in Kosovo of 1999 (Operation Allied Force), this paper examines how the war, which was widely perceived as illegal, came to be seen as a legitimate humanitarian intervention. Although "Allied Force" took place without the express authorization of the United Nations Security Council (UNSC) and was labeled as an act of aggression by Russia and China, NATO governments garnered international support and recognition for the humanitarian motives of the operation. This paper focuses on the justifications of the United States, Britain, Germany, and other NATO governments in the debates before the UNSC and the International Court of Justice. NATO members moored their legal and legal-political defense on the concept of implied authorization and emphasized the primarily humanitarian motivation of the operation. At the end of the air campaign, the UNSC embraced the consequences of NATO's war and adopted a central role in restoring normality to Kosovo, which constituted a crucial step in bridging the gap between legality and legitimacy.

_____________________

Geneva 2.0

The National Interest (July 2008)

Charli Carpenter

http://www.nationalinterest.org/General.aspx?id=92&id2=18752 (subscribers only)

IN JANUARY 2002, then–White House legal counsel Alberto Gonzales wrote a memorandum to President Bush in which he argued that "the current paradigm renders quaint" many of the provisions of the 1949 Geneva Conventions. This remark set the stage for a series of efforts by the Bush administration to claim that the Geneva Conventions did not apply to the global war on terror, that they applied to some detainees but not others or, at a minimum, that the president is entitled to interpret the treaty's "grave breaches" clauses as he pleases.

These and subsequent actions have set off what some have called a crisis in the laws of war, ironically pitting the U.S. government (perhaps the most Geneva-compliant superpower in history) against human-rights-minded elites whose admirable goal is to promote the very principles for which American political culture has long stood. The arguments of the Bush administration when it comes to torture, prisoner-of-war status and extraordinary rendition have been met with outrage by the international community, constitutional scholars and human-rights organizations like Amnesty International, which has referred to Guantánamo Bay as the "gulag of our times."

But the polarization of these two camps obscures the broad middle ground that exists between them. Both have forgotten that the laws of war always represented a compromise between humanitarian principles and security needs. Advocates for applying current international humanitarian law to all detainees in the global war on terror may hold the moral high ground, but they often misconstrue the political logic of the Geneva regime and its historical context. Those who argue the conventions can and should be disregarded at great powers' discretion gravely underestimate the importance of the regime to securing U.S. interests in the new century.

__________

"The Riddle of the One-Way Ratchet: Habeas Corpus and the District of Columbia" 

Green Bag 2d, Vol. 11, Summer 2008

STEPHEN I. VLADECK, American University Washington College of Law
Email: svladeck@wcl.american.edu

In his dissent in INS v. St. Cyr, Justice Scalia raised what remains perhaps the most perplexing question concerning Congress's power over the habeas corpus jurisdiction of the federal courts: if Congress never had to create a statutory cause of action for habeas corpus in the first place, how could a statute purporting to divest the federal courts of jurisdiction over certain habeas petitions violate the Constitution's Suspension Clause? As Scalia suggested, "[i]f . . . the writ could not be suspended within the meaning of the Suspension Clause until Congress affirmatively provided for habeas by statute, then surely Congress may subsequently alter what it had initially provided for, lest the Clause become a one-way ratchet."

In drawing parallels between the Supreme Court's mandamus and habeas jurisprudence, this short essay explains how Justice Scalia's one-way ratchet is actually a misnomer, and is instead the result of a trap Congress unknowingly set for itself. To give away the punch-line, a series of early nineteenth-century cases concerning the common-law writ of mandamus illustrates a point lost on conventional courts and commentators alike: the constitutional problem raised by habeas-stripping statutes does not arise from their constriction of the jurisdiction of the Article III courts. The problem is that a separate (and completely neglected) Act of Congress constrains the power of the one court that would otherwise be left to hear a federal detainee's habeas petition absent Article III review: the Superior Court of the District of Columbia. And although the analysis contained herein might strike the reader as pedantic (if not entirely semantic), such a conclusion has significant implications for sorting out the competing viewpoints in the continuing debate over Congress's power to restrict access to the writ of habeas corpus.

_____________________________

[clipped from Larry Solum's Legal Theory blog]

Kent Roach (University of Toronto - Faculty of Law) has posted Better Late than Never: The Canadian Parliamentary Review of the Anti-Terrorism Act (IRPP Choices, Vol. 13, No. 5, 2007) on SSRN.  Here is the abstract:

This paper assesses the policy-making process behind the Canadian Parliament's mandated review of the Anti-terrorism Act (ATA) and the expiry of preventive arrests and investigative hearings in the ATA. As such, it provides a preliminary glimpse into the complexities of national security policy-making. Policy-makers in this area must grapple with difficult issues that involve liberty, security, equality, privacy and Canada's international relationships. In addition, they must also respond to a seemingly overwhelming array of policy drivers including United Nations edicts, varying assessments of the threat environment, predictions about the restraints that will be imposed by courts under the Canadian Charter of Rights and Freedoms, recommendations by public inquiries, rights watchdogs and parliamentary committees, the experience of other countries and input from interest groups. The paper examines both the delayed three year review of the Anti-Terrorism Act and outlines the major issues left to be resolved by either Parliament or the courts.

______________________________

"The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan" 

WILLIAM N. ESKRIDGE, Yale Law School
Email: william.eskridge@yale.edu
LAUREN BAER, affiliation not provided to SSRN
Email: lauren.baer@aya.yale.edu

Dozens of law review authors and judges have proclaimed a Chevron Revolution in the Supreme Court's willingness to defer to agency interpretations, but few authors have examined this claim in a systematic empirical manner. Seeking a more factually grounded understanding, Professor William N. Eskridge, Jr. and Lauren Baer, Esq., conducted an empirical study of all 1014 Supreme Court cases between Chevron (1983) and Hamdan (2006) in which an agency interpretation of a statute was at issue.

Eskridge and Baer conclude that there has not been a Chevron revolution, at the Supreme Court level anyway. The new deference regime associated with the Chevron decision continues to exist alongside older deference regimes, including Skidmore, Seminole Rock, Beth Israel, and Curtiss-Wright. Indeed, from the time it was handed down until the end of the 2005 term, Chevron was applied in only 8.3 percent of Supreme Court cases evaluating agency statutory interpretations. Instead, the Court has employed a continuum of deference regimes. This continuum is more complicated than the literature or the Court's own opinions suggest, and it is a continuum in which Chevron plays a modest, perhaps even minor, role. Perhaps the authors' most striking finding is that in the majority of cases - 53.6 percent of them - the Court does not apply any deference regime at all. Instead it relies on ad hoc judicial reasoning of the sort that typifies the Court's methodology in regular statutory interpretation cases.

Eskridge and Baer find that neither Chevron nor the other deference regimes is applied consistently by the Supreme Court. The authors find some functional regularities, however. The Court is most likely to defer to agency interpretations when they are consistent with norms recognized by the Justices, reflect the application of genuine expertise to a statutory problem, and are pursuant to delegated lawmaking authority. Eskridge and Baer also find that almost all of the Justices vote ideologically; that is, conservative Justices are significantly more likely to agree with conservative agency interpretations, and liberal Justices are significantly more likely to agree with liberal ones.

The last portion of the article applies the empirical findings to address normative questions. Based upon an examination of constitutional structure and legitimacy; the rule of law and the regnant super-statute, the APA; and institutional competence, Eskridge and Baer argue against proposals that either significantly expand or jettison the special Chevron two-step framework. The authors' main prescriptions are friendly amendments to the Court's practice and recommendations that judges rethink basic doctrines of statutory interpretation in light of the modern administrative state.

________________________________

"Terror/Torture" 

Berkeley Journal of International Law (BJIL), Vol. 26, No. 1, pp. 1-61, 2008

KARIMA BENNOUNE, University of Michigan Law School
Email: Kbennoun@andromeda.rutgers.edu

In the face of terrorism, human rights law's requirement that states "respect and ensure" rights necessitates that states take active steps to safeguard their populations from violent attack, but in so doing do not violate rights. Security experts usually emphasize the aspect of ensuring rights while human rights advocates largely focus on respecting rights. The trick, which neither side in the debate has adequately referenced, is that states have to do both at the same time. In contrast to these largely one-sided approaches, adopting a radical universalist stance, this Article argues that both contemporary human rights and security discourses on terrorism must be broadened and renewed. This renewal must be informed by the understanding that international human rights law protects the individual both from terrorism and the excesses of counter-terrorism, like torture. To develop this thesis, the Article explores the philosophical overlap between both terrorism and torture and their normative prohibitions. By postulating new discourses around the paradigm of terror/torture, it begins the project of creating a new human rights approach to terrorism.

______________________________

"Judicial Power and Moral Ideology in Wartime: Shaping the Legal Process in Britain During World War I" 

Oregon Law Review, Vol. 87, 2008

RACHEL VORSPAN, Fordham University - School of Law
Email: rvorspan@law.fordham.edu

Offering a cautionary lesson of contemporary significance, the Article suggests that judicial power is not in and of itself necessarily the solution to executive infringements on due process rights in wartime. The Article examines the response of the British judiciary to serious threats to its institutional power during the First World War. To facilitate prosecution of the war, the government narrowed the jurisdiction of the traditional courts by eliminating jury trial, subjecting civilians to court-martial, and establishing new administrative tribunals to displace the traditional courts. Rather than remaining passive and deferential to the executive, as scholars have generally assumed, the judges moved forcefully to assert control over rival executive and military bodies. Even more critically, they used their enlarged power to shape the legal process in accordance with a distinctive moral ideology. Judicial wartime decisions reflected not a neutral rule of procedural propriety but a moral calculus that enhanced procedural rights for litigants who advanced the war effort and curtailed them for those who obstructed it. Thus, the Article generally argues that during the war the judiciary aggressively pursued its institutional self-interest and employed its resulting power to allocate procedural entitlements in a manner that undermined the rule of law itself.

____________________

Symposium: "Left Out in the Cold?  The Chilling of Speech, Association and the Press in Post-9/11 America"

57 American University Law Review (June 2008)

This annual symposium edition features articles from the symposium held September 20-21, 2007, at the Washington College of Law, American University. The syposium was sponsored by the American University Law Review and the American Civil Liberties Union. Last year's symposium focused on low income workers and the federal tax system.

 FOREWORD

Welcome Remarks [pdf] [webcast]
Nadine Strossen

SYMPOSIUM TRANSCRIPTS

Transcript of all Panels [pdf]

Panel	Speaker(s)	Webcast
Constitutional Overview of Post-9/11 Barriers	Nadine Strossen	[webcast]
Restrictions on Freedom of Association Through Material Support Prohibitions and Visa Denials	David Cole	[webcast]
Censoring and Prosecuting the Press— An Assessment of Reporter's Shield Legislation	Steven D. Clymer	[webcast]
Surveillance and its Impact on First Amendment Rights	Jameel Jaffer	[webcast]
Secrecy and Barriers to Open Government	Glenn M. Sulmasy Erwin Chemerinsky David M. Hardy	[webcast]
The Role of Whistleblowers to Facilitate Government Accountability	Valerie Caproni	[webcast]
Setting a Positive Legislative Agenda for the First Amendment	Congressman Robert C. "Bobby" Scott Congressman Mike Pence	[webcast part i] [webcast part ii]

   

ARTICLES

Resolved, Or Is It? The First Amendment and Giving Money to Terrorists [pdf]
Jeff Breinholt

Enacting a Reasonable Federal Shield Law: A Reply to Professors Clymer and Eliason [pdf]
James Thomas Tucker
Stephen Wermiel

The Problems with the Reporter's Privilege [pdf]
Randall D. Eliason

Reforming Fourth Amendment Privacy Doctrine [pdf]
Jim Harper

Extraordinary Rendition: The Price of Secrecy [pdf]
Louis Fisher

Deep Background: Journalists, Sources, and the Perils of Leaking [pdf]
William E. Lee

The Espionage Act and National Security Whistleblowing After Garcetti [pdf]
Stephen I. Vladeck