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Brief Of Eleven Law Professors And Aarp As Amici Curiae In Support Of Respondent, Bilski V. Kappos, 130 S. Ct. 3218 (2010) (No. 08-964), Joshua Sarnoff, Lori Andrews, Andrew Chin, Ralph Clifford, Christine Farley, Sean Flynn, Debra Greenfield, Peter Jaszi, Charles Mcmanis, Lateef Mtima, Malla Pollack

Amicus Briefs

This is the brief filed by Joshua Sarnoff and Barbara Jones on behalf of various law professors and AARP in the Bilski v. Kappos case, discussing constitutional limits to the Patent power.

Review Of The Constitution’S Text In Foreign Affairs, Daniel Marcus

Book Reviews

American constitutional historians and jurists have debated for decades what to make of the Constitution's relative silence about foreign affairs. The framers said a good deal about one aspect of foreign affairs—war powers. However, there are only a few provisions dealing with diplomacy and foreign affairs more generally, empowering the President to make treaties and name ambassadors, but only with the advice and consent of the Senate. Nonetheless, the lesson of American history and constitutional law, at least since the early twentieth century, is that the President has the preeminent if not exclusive role in shaping and conducting U.S. foreign …

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 …

Reforming The State Secrets Privilege, Amanda Frost

Newsletters & Other Publications

Since September 11, 2001, President George W. Bush’s Administration has repeatedly asserted the state secrets privilege as grounds for the dismissal of civil cases challenging the legality of its conduct in the war on terror. Specifically, the Administration has sought dismissal of all cases challenging two different government practices: (1) its use of “extraordinary rendition,” under which the Executive removes suspected terrorists to foreign countries for interrogation; and (2) the National Security Agency’s (NSA’s) warrantless wiretapping of electronic communications. The government argues that the plaintiffs’ claims in these cases can neither be proven nor defended against without disclosure of information …

Aedpa, Saucier, And The Stronger Case For Rights-First Constitutional Adjudication, Stephen I. Vladeck

Articles in Law Reviews & Other Academic Journals

As part of a symposium on new affirmative visions of the judicial role, this essay takes on the Supreme Court's increasing unwillingness to resolve constitutional questions in post-conviction habeas cases under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), as seen in decisions such as Wright v. Van Patten, 128 S. Ct. 743 (2008). In most cases in which AEDPA applies, a petitioner is only eligible for relief if a state court's constitutional error was unreasonable based on prior Supreme Court decisions (and not dicta). As a result, the Court has repeatedly concluded that a state court did …

A Long, Strange Trip: Guantanamo And The Scarcity Of International Law, Richard J. Wilson

Working Papers

From June of 2004, through June of 2007, I represented Omar Khadr, a detainee at Guantanamo Bay, Cuba. Omar, a Canadian citizen, was 15 years old when captured, and he was - and is - one of the very few detainees facing trial by a military commission. President Obama's decision to close Guantanamo and to put the commission trials on hold leaves us all with questions as to what will happen. This reflection was written in 2007, just about when I stopped representing Omar. The lower federal courts have not, in my view, used international law in any meaningful way …

Substance Or Illusion - The Dangers Of Imposing A Standing Threshold, Amanda Leiter

Articles in Law Reviews & Other Academic Journals

No abstract provided.

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 …

Brief Of Law Professors As Amici Curiae In Support Of Petitioner, Kucana V. United States, Stephen I. Vladeck

Amicus Briefs

This brief argues for the fundamental separation of powers to avoid setting a dangerous precedent with regard to agency control over judicial review of administrative action.

Brief Of Law Professors As Amici Curiae In Support Of Respondent, Denedo V. United States, Stephen I. Vladeck

Amicus Briefs

The significant issues raised by this case include (1) the ability of courts with criminal jurisdiction to provide remedies for constitutional errors at trial; (2) the role played by Article III courts in providing collateral relief for convictions obtained in state courts, and in Article III and non-Article III federal courts; (3) the specific interaction between Article I military courts and Article III courts; and (4) the applicability of the canon of statutory interpretation disfavoring repeals of jurisdiction by implication.

Amici curiae, professors teaching the law of federal jurisdiction, criminal procedure, and post-conviction remedies, join together to provide the Court …

Brief Of Aarp, The National Legislative Association On Prescription Drug Prices, Community Catalyst, And Prescription Policy Choices, As Amici Curiae In Support Of Appellees, Ims Health Inc. V. Sorrell, Sean Flynn

Amicus Briefs

This brief supports protecting the confidentiality of prescription records in the state of Vermont from commercial uses by pharmeceutical companies to market new drugs to physicians directly.

The Appropriations Power And Sovereign Immunity, Paul F. Figley

Articles in Law Reviews & Other Academic Journals

Discussions of sovereign immunity assume that the Constitution contains no explicit text regarding sovereign immunity. As a result, arguments about the existence - or nonexistence - of sovereign immunity begin with the English and American common-law doctrines. Exploring political, fiscal, and legal developments in England and the American colonies in the seventeenth and eighteenth centuries, this Article shows that focusing on common-law developments is misguided. The common-law approach to sovereign immunity ended in the early 1700s. The Bankers’ Case (1690–1700), which is often regarded as the first modern common-law treatment of sovereign immunity, is in fact the last in the …

Reforming The State Secrets Privilege, Amanda Frost

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Rights, Remedies And Facial Challenges, Maya Manian

Articles in Law Reviews & Other Academic Journals

In a few short years, the Roberts Court has managed to severely restrict the use of facial challenges across substantive areas of constitutional law. Caitlin Borgmann's article, Holding Legislatures Constitutionally Accountable Through Facial Challenges, provides a compelling analysis of the vexing distinction between as applied and facial challenges in constitutional litigation and the impact that limiting facial challenges has on constitutional rights. Borgmann argues that facial challenges are necessary to keep legislatures in check, particularly when legislatures "deliberately or recklessly infringe individual rights" of those who lack political power. Facial challenges are needed in this context not only to protect …

Constitutional Borrowing, Robert L. Tsai

Articles in Law Reviews & Other Academic Journals

Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains underanalyzed. This Article seeks to bring greater theoretical attention to the matter. It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of borrowing, and identifies some of the risks involved. The authors' examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law …