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Articles 1 - 20 of 20
Full-Text Articles in Entire DC Network
Like A Boss: Presidential Prerogative As A Means For National Security, Joshua E. Darichuk
Like A Boss: Presidential Prerogative As A Means For National Security, Joshua E. Darichuk
Honors Theses
Executive power in America is outlined by the U.S. Constitution, but presidents have made decisions which questionably violate the rights American citizens are guaranteed by the same document. How are we able to maintain sovereignty as “we the people,” if our most powerful elected official is able to overstep the rules during a national security threat? The answer is because the constitution would not exist without a state, therefore the union must always be preserved. Niccolo Machiavelli, John Locke, Alexander Hamilton, and Carl Schmitt share very different views on democracy, but their insistence on national security is universally present. The …
Liberty, Judicial Review, And The Rule Of Law At Guantanamo: A Battle Half Won, Doug Cassell
Liberty, Judicial Review, And The Rule Of Law At Guantanamo: A Battle Half Won, Doug Cassell
Douglass Cassel
In Boumediene v. Bush, 128 S. Ct. 2229 (2008), five members of the Supreme Court held that foreign prisoners at Guantanamo enjoy the constitutional privilege of habeas corpus; that their imprisonment had lasted too long for the Court to await completion of statutory review by lower courts of military tribunal findings that the prisoners were "enemy combatants"; and that the statutory judicial review was too deficient to substitute for the Great Writ. Four Justices vigorously dissented. On the surface they differed on the history of the reach of the common law writ of habeas corpus, and on the procedural guarantees …
¿Cómo Se Constituyen Las Denominadas Servidumbres Legales? Apuntes En Torno A Una Pregunta Nada Obvia, Fort Ninamancco Córdova
¿Cómo Se Constituyen Las Denominadas Servidumbres Legales? Apuntes En Torno A Una Pregunta Nada Obvia, Fort Ninamancco Córdova
Fort Ninamancco Cordova
No abstract provided.
Beyond Finality: How Making Criminal Judgments Less Final Can Further The Interests Of Finality, Andrew Chongseh Kim
Beyond Finality: How Making Criminal Judgments Less Final Can Further The Interests Of Finality, Andrew Chongseh Kim
Andrew Chongseh Kim
Courts and scholars commonly assume that granting convicted defendants more liberal rights to challenge their judgments would harm society’s interests in “finality.” According to conventional wisdom, finality in criminal judgments is necessary to conserve resources, encourage efficient behavior by defense counsel, and deter crime. Thus, under the common analysis, the extent to which convicted defendants should be allowed to challenge their judgments depends on how much society is willing to sacrifice to validate defendants’ rights. This Article argues that expanding defendants’ rights on post-conviction review does not always harm these interests. Rather, more liberal review can often conserve state resources, …
Reclaiming The Equitable Heritage Of Habeas, Erica J. Hashimoto
Reclaiming The Equitable Heritage Of Habeas, Erica J. Hashimoto
Scholarly Works
Equity runs through the law of habeas corpus. Throughout the seventeenth and eighteenth centuries, prisoners in England sought the Great Writ primarily from a common law court — the Court of King’s Bench — but that court’s exercise of power to issue the writ was built around equitable principles. Against this backdrop, it is hardly surprising that modern-day habeas law draws deeply on traditional equitable considerations. Criticism of current habeas doctrine centers on the risk that its rules — and particularly the five gatekeeping doctrines that preclude consideration of claims — produce unfair results. But in fact four of these …
Torturous Transfers: Examining Detainee Habeas Jurisdiction For Nonremoval Challenges And Deference To Diplomatic Assurances , Kristin E. Slawter
Torturous Transfers: Examining Detainee Habeas Jurisdiction For Nonremoval Challenges And Deference To Diplomatic Assurances , Kristin E. Slawter
Washington and Lee Law Review
No abstract provided.
Habeas Corpus Reform In El Salvador, Mary Holper
Habeas Corpus Reform In El Salvador, Mary Holper
Mary Holper
In this paper I compare the habeas corpus systems of El Salvador, the United States and Argentina. My purpose is to develop a general understanding of the procedure for bringing the writ in each country and analyze the substantive law governing the rights of habeas corpus petitioners in each country. I evaluate the systems against the backdrop of each country’s political and legal history with respect to the writ of habeas corpus. The ultimate aim of this paper is to reform the habeas corpus law of El Salvador by analyzing the Salvadoran system as compared to the Argentine and U.S. …
The Non-Waivability Of Aedpa Deference's Applicability, Andrew L. Adler
The Non-Waivability Of Aedpa Deference's Applicability, Andrew L. Adler
University of Miami Law Review
No abstract provided.
Legal Affairs: Dreyfus, Guantánamo, And The Foundation Of The Rule Of Law, David Cole
Legal Affairs: Dreyfus, Guantánamo, And The Foundation Of The Rule Of Law, David Cole
Touro Law Review
Analogous to the Dreyfus affair, America's reaction to the events of September 11, 2001, subverted the rule of law to impose penalties on those it viewed as a threat. There are lessons to be learned from both the Dreyfus affair and America's reaction to September 11, 2001.
The Unpredictable Writ - The Evolution Of Habeas Corpus, Brian Wade Uhl
The Unpredictable Writ - The Evolution Of Habeas Corpus, Brian Wade Uhl
Pepperdine Law Review
No abstract provided.
Clark V. Martinez: Striking A Balance Between United States Security And Due Process Rights Of Illegal Immigrants, Michelle Mitsuye Shimasaki
Clark V. Martinez: Striking A Balance Between United States Security And Due Process Rights Of Illegal Immigrants, Michelle Mitsuye Shimasaki
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
"Yes, We Can" Grant Guantánamo Detainees Habeas Corpus Rights, In Boumediene V. Bush, Sarah Christian
"Yes, We Can" Grant Guantánamo Detainees Habeas Corpus Rights, In Boumediene V. Bush, Sarah Christian
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Bringing Comfort To The Enemy: The Past, Present, And Future Of Habeas Corpus Petitions In Light Of The Formalistic Application Of Boumediene, E. Carlisle Overbey
Bringing Comfort To The Enemy: The Past, Present, And Future Of Habeas Corpus Petitions In Light Of The Formalistic Application Of Boumediene, E. Carlisle Overbey
Cornell International Law Journal
Such trials would hamper the war effort and bring aid and comfort to the enemy. effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States.(1)
The Constitution And National Security, Erwin Chemerinsky
The Constitution And National Security, Erwin Chemerinsky
Touro Law Review
No abstract provided.
A Constitutional Theory Of Habeas Power, Lee B. Kovarsky
A Constitutional Theory Of Habeas Power, Lee B. Kovarsky
Faculty Scholarship
Modern habeas corpus law generally favors an idiom of individual rights, but the Great Writ’s central feature is judicial power. Throughout the seventeenth-century English Civil Wars, the Glorious Revolution, and the war in the American colonies, the habeas writ was a means by which judges consolidated authority over the question of what counted as 'lawful' custody. Of course, the American Framers did not simply copy the English writ—they embedded it in a Constitutional system of separated powers and dual sovereignty. 'A Constitutional Theory of Habeas Power' is an inquiry into the newly minted principle that the federal Constitution guarantees some …
Judicial Review For Enemy Fighters: The Court's Fateful Turn In "Ex Parte Quirin", The Nazi Saboteur Case, Andrew Kent
Judicial Review For Enemy Fighters: The Court's Fateful Turn In "Ex Parte Quirin", The Nazi Saboteur Case, Andrew Kent
Vanderbilt Law Review
The last decade has seen intense disputes about whether alleged terrorists captured during the nontraditional post- 9/11 conflict with al Qaeda and affiliated groups may use habeas corpus to challenge their military detention or military trials. It is time to take a step back from 9/11 and begin to evaluate the enemy combatant legal regime on a broader, more systemic basis, and to understand its application to future conflicts. A leading precedent ripe for reconsideration is Ex parte Quirin, a World War II-era case in which the Supreme Court held that saboteurs admittedly employed by an enemy nation's military had …
Habeas Corpus In Early Nineteenth-Century Mormonism: Joseph Smith's Legal Bulwark For Personal Freedom, Jeffrey N. Walker
Habeas Corpus In Early Nineteenth-Century Mormonism: Joseph Smith's Legal Bulwark For Personal Freedom, Jeffrey N. Walker
BYU Studies Quarterly
Habeas corpus has been referred to as the cornerstone of the common law. Indeed, it is the “Great Writ of Liberty.” Chief Justice John Marshall confirmed this singular status given to the writ of habeas corpus in 1807 when he called it the “great constitutional privilege.” This article explores the use of this most famous writ during the early nineteenth century and specifically how Joseph Smith used it against those who sought his incarceration.
Death And Rehabilitation, Meghan J. Ryan
Death And Rehabilitation, Meghan J. Ryan
Faculty Journal Articles and Book Chapters
While rehabilitation is reemerging as an important penological goal, the Supreme Court is eroding the long-revered divide between capital and non-capital sentences. This raises the question of whether and how rehabilitation applies in the capital context. Courts and scholars have long concluded that it does not — that death is completely irrelevant to rehabilitation. Yet, historically, the death penalty in this country has been imposed in large part to induce the rehabilitation of offenders’ characters. Additionally, there are tales of the worst offenders transforming their characters when they are facing death, and several legal doctrines are based on the idea …
Judicial Review For Enemy Fighters: The Court’S Fateful Turn In Ex Parte Quirin, The Nazi Saboteur Case, Andrew Kent
Judicial Review For Enemy Fighters: The Court’S Fateful Turn In Ex Parte Quirin, The Nazi Saboteur Case, Andrew Kent
Faculty Scholarship
The emerging conventional wisdom in the legal academy is that individual rights under the U.S. Constitution should be extended to noncitizens outside the United States. This claim - called globalism in my article - has been advanced with increasing vigor in recent years, most notably in response to legal positions taken by the Bush administration during the war on terror. Against a Global Constitution challenges the textual and historical grounds advanced to support the globalist conventional wisdom and demonstrates that they have remarkably little support. At the same time, the article adduces textual and historical evidence that noncitizens were among …
Effective Trial Counsel After Martinez V. Ryan: Focusing On The Adequacy Of State Procedures, Eve Brensike Primus
Effective Trial Counsel After Martinez V. Ryan: Focusing On The Adequacy Of State Procedures, Eve Brensike Primus
Articles
Everyone knows that excessive caseloads, poor funding, and a lack of training plague indigent defense delivery systems throughout the states, such that the promise of Gideon v. Wainwright is largely unfulfilled. Commentators have disagreed about how best to breathe life into Gideon . Many disclaim any possibility that federal habeas corpus review of state criminal cases could catalyze reform give n the many procedural obstacle s that currently prevent state prisoners from getting into federal court. But the Supreme Court has recently taken a renewed interest in using federal habeas review to address the problem of ineffective attorneys in state …