Law Commons^™

Presumed Imminence: Judicial Risk Assessment In The Post-9/11 World, Avidan Cover

Avidan Cover

Court opinions in the terrorism context are often distinguished by fact finding that relates to risk assessment. These risk assessments‑inherently policy decisions‑are influenced by cultural cognition and by cognitive errors common to probability determinations, particularly those made regarding highly dangerous and emotional events. In a post-9/11 world, in which prevention and intelligence are prioritized over prosecution, courts are more likely to overstate the potential harm, neglect the probability, and presume the imminence of terrorist attacks. As a result courts apt to defer to the government and require less evidence in support of measures that curtail civil liberties. This Article takes …

Supervisory Responsibility For The Office Of Legal Counsel, Avidan Cover

Avidan Cover

No abstract provided.

Supervisory Responsibility For The Office Of Legal Counsel, Avidan Cover

Avidan Cover

In the wake of the notorious Justice Department Office of Legal Counsel (OLC) torture memoranda, various reforms have been proposed to prevent future erroneous and poorly reasoned legal opinions on matters of the utmost national importance. The need for reform is all the more pressing in a post-9/11 world in which the Executive branch will continue to arrogate, often in secret, various national security-related powers. None of the proposals, however, addresses the supervisory role that Justice Department and other Executive branch lawyers play in the formation of OLC opinions.

This Article argues that the failure to hold more senior government …