Law Commons^™

The Myth Of The Great Writ, Leah M. Litman

Articles

Habeas corpus is known as the “Great Writ” because it supposedly protects individual liberty against government overreach and guards against wrongful detentions. This idea shapes habeas doctrine, federal courts theories, and habeas-reform proposals.

It is also incomplete. While the writ has sometimes protected individual liberty, it has also served as a vehicle for the legitimation of excesses of governmental power. A more complete picture of the writ emerges when one considers traditionally neglected areas of public law that are often treated as distinct—the law of slavery and freedom, Native American affairs, and immigration. There, habeas has empowered abusive exercises of …

Appraising The U.S. Supreme Court’S Philipp Decision, Vivian Grosswald Curran

Articles

This article assesses the Foreign Sovereign Immunities Act (FSIA) after the Supreme Court’s recent decision in Germany v. Philipp. Philipp’s rejection of a genocide exception for a foreign state’s act of property expropriation comports with the absence of such an exception in the FSIA’s text. The article also suggests that the genocide exception as it had been developing was a detrimental development in FSIA interpretation, and was also harmful to international human rights law, inasmuch as it distorted the concept of genocide. The Philipp Court’s renewed focus on the international law of property, rather than of human rights, should …

From The Frying Pan To The Fire: Scotus’ Fsia Inaction As Further Permitting Executive Branch Intervention In “Takings Exception” Cases And Its Consequences In Forcing Holocaust Plaintiffs To Return To Europe, Richard H. Weisberg

Articles

The Supreme Court of the United States (“SCOTUS”) very recently punted and left wide a circuit split on a key question under the Foreign Sovereign Immunities Act (“FSIA”): Do plaintiff Holocaust victims need to return to the country that wronged them in order to proceed in a United States federal court that otherwise had jurisdiction over their claims? While sending down unresolved a conflict between the D.C. and Seventh Circuits, in a companion case also involving Holocaust victims, SCOTUS essentially ended an action against Germany by taking the strong suggestion of the Executive Branch through its Solicitor General that a …

Counterterrorism 2.0, Deborah Pearlstein

Articles

Are there any lessons to be gleaned for combatting the rising threat of white nationalist terrorism today from the U.S. response to the attacks of 9/11 twenty years on? This symposium reflection suggests that among the most important lessons may be in avoiding the conceptually defining characteristics of the early U.S. response in 2001. Detainee torture and abuse, the embrace of trial by newly formed military commission, and other misguided policies and practices whose effects are still felt today were set in motion in the first few weeks after the attacks, driven by the instinct to do something, bolstered by …

The Hague Judgments Convention In The United States: A “Game Changer” Or A New Path To The Old Game?, Ronald A. Brand

Articles

The Hague Judgments Convention, completed on July 2, 2019, is built on a list of “jurisdictional filters” in Article 5(1), and grounds for non-recognition in Article 7. If one of the thirteen jurisdictional tests in Article 5(1) is satisfied, the judgment may circulate under the Convention, subject to the grounds for non-recognition found in Article 7. This approach to Convention structure is especially significant for countries considering ratification and implementation. A different structure was suggested in the initial Working Group stage of the Convention’s preparation which would have avoided the complexity of multiple rules of indirect jurisdiction, each of which …

The Vulnerable Sovereign, Ronald A. Brand

Articles

The connection between sovereignty and law is fundamental for both domestic (internal sovereignty) and the international (external sovereignty) purposes. As the dominant forms of government have evolved over time, so has the way in which we think about sovereignty. Consideration of the historical evolution of the concept of sovereignty offers insight into how we think of sovereignty today. A term that was born to represent the relationship between the governor and the governed has become a term that is used to represent the relationships between and among states in the global legal order. This article traces the history of the …

A Hague Convention On Parallel Proceedings, Paul Herrup, Ronald A. Brand

Articles

The Hague Conference on Private International Law has engaged in a series of projects that, if successful, could provide the framework for critical aspects of trans-national litigation in the Twenty-first Century. Thus far, the work has resulted in the 2005 Hague Convention on Choice of Court Agreements and the 2019 Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters. Work now has begun to examine the need, desirability and feasibility of additional instruments in the area, with discussions of an instrument that would either require or prohibit the exercise of jurisdiction by national courts, and …