Did anyone else notice the cite to Halliday & White’s forthcoming Suspension Clause piece in today’s blockbuster opinion in Boumediene? This marks the second time this year (and the second time ever, I think) that the Court has cited an unpublished SSRN manuscript. The first, in Justice Steven’s concurring opinion in Baze v. Rees, was to Alper’s Lethal Injection and Animal Euthanasia. Interesting, the Halliday & White cite is deployed to suggest a way of thinking about a lack of historical certainty – a result urged on the Court by an amicus brief by professional historians.

[Update: Orin had the same thought, though he missed the Baze citation]

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