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Full-Text Articles in Law
Boumediene’S Quiet Theory: Access To Courts And The Separation Of Powers., Stephen I. Vladeck
Boumediene’S Quiet Theory: Access To Courts And The Separation Of Powers., Stephen I. Vladeck
Articles in Law Reviews & Other Academic Journals
At the core of Justice Kennedy's majority opinion in Boumediene v. Bush are his repeated suggestions that habeas corpus is an integral aspect of the separation of powers, and that, as such, the writ remains relevant even when the individual rights of those who would seek its protections are unclear. And whereas some might view these passages as little more than rhetorical flourishes, it is difficult to understand the crux of Kennedy's analysis - of why the review available to the Guantanamo detainees failed to provide an adequate alternative to habeas corpus - without understanding the significance of his separation-of-powers …
The Problem Of Jurisdictional Non-Precedent, Stephen I. Vladeck
The Problem Of Jurisdictional Non-Precedent, Stephen I. Vladeck
Articles in Law Reviews & Other Academic Journals
Most critiques of the Supreme Court's June 2008 decision in Boumediene v. Bush (including Justice Scalia's dissent in the same) have at their core the argument that Justice Kennedy's majority opinion is inconsistent with prior precedent, specifically the Supreme Court's 1950 decision in Johnson v. Eisentrager. A closer read of Eisentrager, though, reveals a surprisingly unclear opinion by Justice Jackson, that seems to go out of its way to reach various issues on the merits even after suggesting that the federal courts lacked jurisdiction over habeas petitions filed by 22 Germans convicted of war crimes by a U.S. military tribunal …