Volume 6, Fall 2008, Issue 1

  • Roger S. Clark

    My thesis is that the Military Commissions Act represents a total failure of Congress to pay attention to some basic propositions of international treaty and customary law and a failure to exercise its powers under the Constitution. The Congress that passed the legislation was led by Republicans, but I have not seen the Democrats rushing to correct the errors. In short, a plague on both their houses! A quotation from Justice Robert Jackson, concurring in the Steel Seizure Case, will set the stage  View More

     

  • A. Hays Butler

    The writ of habeas corpus is perhaps the most fundamental guarantee of liberty in a democracy. The United States’ federal habeas corpus statute was first enacted as part of the Judiciary Act of 1789. As Justice Stevens has noted, habeas corpus is “however, ‘a writ antecedent to statute . . . throwing its root deep into the genius of our common law.’ The writ appeared in English law several centuries ago, became ‘an integral part of our common-law heritage’ by the time the Colonies achieved independence . . . .” One of the most significant features of the Military Commissions Act (“MCA”) is its elimination of jurisdiction by any court over habeas corpus applications filed on behalf of an alien detained by the United States who has been “determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” In Boumediene II, the Supreme Court decided that the MCA’s elimination of habeas corpus rights violates the Suspension Clause of the U.S. Constitution. This case note will evaluate some of the potential impacts of the decision. View More

     

  • Elizabeth A. Wilson

    U.S. federal courts have held as a matter of law that torture is within the “scope of employment” of federal officials. Under the current absolute immunity doctrine, such a determination results in the automatic substitution of the United States as defendant. Since the United States is immune from torture liability because of sovereign immunity and various exceptions to the Federal Tort Claims Act (FTCA), victims of torture by U.S. officials are left without a remedy. The law currently used to make the scope of employment determination is state respondeat superior law. This Article argues that federal common law should be used when the torts at issue are violations of international law, especially jus cogens norms, because state law should not be used to decide matters involving international law and because, where possible, U.S. statutes should always be interpreted to be consistent with international law. View More

     

  • Wayne Batchis

    This essay is a polemic. As an attorney turned political scientist, it reflects my reaction to a pervasive theme that permeates much of the political science literature, particularly within the subfield of law and politics. It is intended to air concerns that will likely resonate with many in the legal community. Legal professionals who have had the opportunity to study political science scholarship are no doubt shocked by the wide gulf that appears to exist between assumptions of some political scientists and the professional norms of the legal profession. Political science has produced a significant body of scholarship that portrays judges as mere political actors, intent on carrying forth a primarily ideological agenda. This is a troubling distortion of what judges and other legal professionals are explicitly trained to do – interpret the law objectively. It is my genuine hope that this essay will help shed light on this contradiction. View More

     

  • Marc Edelman

    On February 21, 2008, the thirteen commissioners of Miami- Dade County approved a plan to spend $347 million in taxpayer money to build a new 37,000-seat retractable-roof ballpark for the Florida Marlins baseball club. The plan requires the county to contribute roughly two thirds of the cost for the new ballpark, with the city of Miami contributing three percent ($10 million) and the team owner, Jeffrey Loria, contributing the remaining thirty percent ($155 million). Loria would then defray most, if not all, of his costs by selling stadium naming rights to a third party. View More