Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 2 of 2
Full-Text Articles in Law
"Sociological Legitimacy" In Supreme Court Opinions, Michael Wells
"Sociological Legitimacy" In Supreme Court Opinions, Michael Wells
Scholarly Works
Analysis of a Supreme Court opinion ordinarily begins from the premise that the opinion is a transparent window into the Court's thinking, such that the reasons offered by the Court are, or ought to be, the reasons that account for the holding. Scholars debate the strength of the Court's reasoning, question or defend the Court's candor, and propose alternative ways of justifying the ruling. This Article takes issue with the transparency premise, on both descriptive and normative grounds. Especially in controversial cases, the Court is at least as much concerned with presenting its holding in a way that will win …
The State Secrets Privilege And Separation Of Powers, Amanda Frost
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 …