Judges Commons^™

Civil Military Relations Panel, Joshua E. Kastenberg

Faculty Scholarship

In the first week of this month, the nation was surprised to learn that retired general officers (generals and admirals) including James Mattis, Colin Powell, Michael Glenn Mullen, and William McRaven (to name a few) spoke out against President Donald Trump’s response to demonstrations across the United States. President Trump threatened to unilaterally invoke the 1807 Insurrection Act and federalize the National Guard as well as use the active duty Armed Forces of the United States as a “super police force.”

The conduct of the retired generals is not without detractors. The Constitution was constructed with the idea that a …

National Security And Judicial Ethics: The Exception To The Rule Of Keeping Judicial Conduct Judicial And The Politicization Of The Judiciary, Joshua E. Kastenberg

Faculty Scholarship

This article is divided into three sections, and it incorporates original research from the personal correspondences of several judges and justices. This article includes unpublished correspondences from various judicial collections at the Library of Congress, the Bentley Historical Library at the University of Michigan, the Washington and Lee School of Law’s special collections, the Richard Nixon and Ronald Reagan Presidential Libraries, the National Library of Australia in Canberra, and Canada’s National Archives in Ottawa. The first section analyzes the current framework governing judicial disqualification based on the separation of powers doctrine as well as the right to an impartial judiciary, …

Newsroom: Representing Private Manning 09-18-2017, Edward Fitzpatrick, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Newsroom: Margulies Cited On Military Commissions 11-04-2016, Peter S. Margulies

Life of the Law School (1993- )

No abstract provided.

Are Damages Different? Bivens And National Security, Andrew Kent

Faculty Scholarship

Litigation challenging the national security actions of the federal government has taken a seemingly paradoxical form in recent years. Prospective coercive remedies like injunctions and habeas corpus (a kind of injunction) are traditionally understood to involve much greater intrusions by the judiciary into government functioning than retrospective money damages awards. Yet federal courts have developed and strictly applied doctrines barring Bivens damages actions against federal officials because of an asserted need to preserve the prerogatives of the political branches in national security and foreign affairs. At the same time, the courts have been increasingly assertive in cases involving coercive remedies, …

Samantar And Executive Power, Peter B. Rutledge

Scholarly Works

This essay examines Samantar v. Yousuf in the context of broader debate about the relationship between federal common law and executive power. Samantar represents simply the latest effort by the Executive Branch to literally shape the meaning of law through a process referred to in the literature as “executive lawmaking.” While traditional accounts of executive lawmaking typically have treated the idea as a singular concept, Samantar demonstrates the need to bifurcate the concept into at least two different categories: acts of executive lawmaking decoupled from pending litigation and acts of executive lawmaking taken expressly in response to litigation. As Samantar …

Ditching "The Disposal Plan": Revisiting Miranda In An Age Of Terror, 20 St. Thomas L. Rev. 155 (2008), Kim D. Chanbonpin

UIC Law Open Access Faculty Scholarship

No abstract provided.

The State Secrets Privilege And Separation Of Powers, Amanda Frost

Articles in Law Reviews & Other Academic Journals

Since September 11, 2001, the Bush administration has repeatedly invoked the state secrets privilege in cases challenging executive conduct in the war on terror, arguing that the very subject matter of these cases must be kept secret to protect national security. The executive's recent assertion of the privilege is unusual, in that it is seeking dismissal, pre-discovery, of all challenges to the legality of specific executive branch programs, rather than asking for limits on discovery in individual cases. This essay contends that the executive's assertion of the privilege is therefore akin to a claim that the courts lack jurisdiction to …

Chief Justice Rehnquist's Appointments To The Fisa Court: An Empirical Perspective, Theodore Ruger

All Faculty Scholarship

No abstract provided.

Constitutional Dignity And The Criminal Law, James E. Baker

Georgetown Law Faculty Publications and Other Works

Criminal law is important because it helps to define who we are as a constitutional democracy. There is much that distinguishes our form of government from others, but certainly much of that distinction is found in the Bill of Rights and in two simple words: due process. All of which help to affirm the value and sanctity of the individual in our society. Broadly then, criminal law helps to define who we are as a nation that values both order and liberty.

That is what many of the greatest judicial debates are about, like those involving Holmes, Hand, Jackson, and …

My Lai: An American Tragedy, William G. Eckhardt

Faculty Works

No abstract provided.