Reflections on Today’s Tragedy

I imagine that I may not be the only one in legal academia who feels frustrated and a bit adrift today. Here’s what I plan on saying to my Civil Procedure class in several minutes after observing a moment of silence. — Aaron

In moments like this, it often feels that the process we’re engaged in – the study of law – is a waste of time. After all, one of our country’s greatest cities has come under attack. Over 100 people are injured. SWAT teams are deployed up and down the Eastern Seaboard. And we’re about to spend the next 1.5 hours discussing issue preclusion and res judicata.

But I like to think that what we’re doing here is worthwhile. Because while we don’t know who attacked us today, we do know what separates us from them: a belief in human rights and the rule of law.

And even in civil procedure, these values shine through. In fact, some might say especially in civil procedure, where we consistently grapple with values like due process and individual rights.

When the President said earlier tonight that those who carried out this attack would be held “accountable” and would feel the “full weight of justice,” he was invoking the central ideals of our country and our legal system. And those ideals are reflected in what we are studying here.

Because while Rule 1 of the Federal Rules of Civil Procedure states that it applies only to “civil actions,” it’s actually a bit wrong. Rule 1 tells us that the law that follows must be “construed and administered to secure the just [and] speedy . . . determination of every action and proceeding.” But this is true of so much more than just civil procedure. We’re talking about more than contract disputes or slip-and-falls.

Rule 1’s exhortation is about how to construe law generally — to reflect our fundamental values — and tells us a little bit about ourselves as a people and a nation. We are committed to a “just and speedy” determination of “every action and proceeding” – in that order. “Just and speedy.” And as in our nation, so in civil procedure: we don’t always get it right, but we always try to meet our noblest ideals.

So tonight, I hope we play some small part in what makes our country so special — as we do our tiny bit in moving forward the “full weight of Justice.”

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26 Responses

  1. PrometheeFeu says:

    “When the President said earlier tonight that those who carried out this attack would be held “accountable” and would feel the “full weight of justice,” he was invoking the central ideals of our country and our legal system. And those ideals are reflected in what we are studying here.”

    You’re assuming facts not in evidence. That is one possible interpretation. Another possible interpretation is that he will have them killed after internally discussing the matter with military and intelligence officials without letting the judicial branch have its say. If I sounds cynical and bitter, that’s because I am.

  2. Orin Kerr says:

    Aaron writes; “Because while we don’t know who attacked us today, we do know what separates us from them: a belief in human rights and the rule of law.”

    I’m not sure that’s true. My sense is that enemies of the United States see themselves as the real believers in human rights and the rule of law, while they see the U.S. as a tyrannical regime that grossly violates human rights and crushes the rule of law.

    Take the so-called Patriot movement, members of which are at least one possible source of the attacks. Here’s how Wikipedia describes the movement:

    The patriot movement is a collection of various conservative, independent, largely rural, small-government, social movements in the United States that include organized militia members, tax protesters, sovereign or state citizens, quasi-Christian apocalypticists, or combinations thereof.Adherents describe the movement as centered on a belief that individual liberties are in jeopardy due to unconstitutional actions taken by elected government officials, appointed bureaucrats, and some special interest groups outside of government, to illegally accumulate power.

    In their view, they are the ones who believe in the Constitution, the rule of law, and individual liberties, while illegal dictators like Barack Hussein Obama crush law and freedom at every turn.

  3. Terrorism is wrong, plain and simple. And no doubt those security and police agencies entrusted with finding those responsible for what happened in Boston will perform their job with no little amount of zeal. I suspect they will be successful and bring to justice those responsible. However, the self-congratulatory posture and Manichaean tone of this piece is a bit much to stomach. It is our country, with the British, that perfected the dark art of “strategic” area bombing of German cities during World War II. The destruction of Dresden, for example, involved “a historic cultural center with no significant military industry or bases. By conservative estimate, 35,000 people were incinerated in a single raid.” Recall that ours is the country that destroyed more than sixty Japanese cities prior to the atomic bombing of Hiroshima and Nagasaki. Our country pioneered the scale and scope of area firebombing of noncombatants as part of the destruction of entire cities in a manner that was to set the stage for what followed in Korea and Southeast Asia: Vietnam, Cambodia, and Laos in particular. One link in all these campaigns was one Curtis LeMay, “the primary architect, a strategic innovator, and most quotable spokesman for U.S. policies of putting enemy cities, and later villages and forests, to the torch, from Japan to Korea to Vietnam. In this he was emblematic of the American way of war that emerged from World War II.” I’m puzzled as to how this exemplifies our “belief in human rights and the rule of law.” (In saying this, one need hardly ignore or forget the Nazi genocide, the German invasion of the Soviet Union, or the Japanese slaughter of rural Asians or the war crimes and atrocities they committed in China. But as our parents taught us, two wrongs do not make a right.) I believe it was our country that became experts in the production and of ever-more technologically sophisticated and lethal weaponry, in the words of Marilyn B. Young:

    “Korea and Vietnam were, so to speak, living laboratories for the development of new weapons: the 1,200 pound radio-guided Tarzon bomb…; white-phosphorous-enhanced napalm; cluster bombs (CBUs) carrying up to 700 bomblets, each bomblet containing 200 to 300 tiny steel balls or fiberglass fléchettes; delay-fused cluster bombs; airburst cluster bombs; toxic defoliants; varieties of nerve gas; sets of dix B 52s operating at altitudes too high to be heard on the ground, capable of delivering up to thirty tons of explosive each.”

    In Korea: U.S./UN forces flew 1,040,708 sorties and dropped 386,037 tons of bombs and 32,357 tons of napalm. In Indochina, we dwarfed the tonnage dropped on all sectors throughout WW II, with 8 million tons dropped, “an explosive power equivalent to 640 Hiroshima-size bombs.” The tonnage dropped on Laos, yes, Laos, exceeded the total for Germany and Japan by both the U.S. and Great Britain:

    “For nine years, an average of one planeload of bombs fell on Laos every eight minutes. In addition, 150,000 acres of forest were destroyed through the chemical warfare known as defoliation. For South Vietnam, the figure is 19 million gallons of defoliant dropped on an area comprising 20 percent of South Vietnam—some 6 million acres. In an even briefer period, between 1969 and 1973, 539,129 tons of bombs were dropped in Cambodia, largely by B-52s, of which 257,465 tons fell in the last six months of the war (as compared to 160,771 tons on Japan from 1942-1945). The estimated toll of the dead, the majority civilian, is equally difficult to absorb: 2 to 3 million in Korea; 2 to 4 million in Vietnam.”

    One notorious war criminal, Henry Kissinger, has never been brought to justice, indeed, the esteem in which he is held in elite circles is, to say the least, morally repugnant.

    Belief in human rights and the rule of law is about the last thing that comes to mind in recounting our nation’s behavior during this period. The latest account of our military conduct during the Vietnam War, namely, Nick Turse’s aptly titled, Kill Anything That Moves: The Real American War in Vietnam (2013) documents the sort of disturbing (to put it feebly) facts which were and are known to quite a few Vietnam veterans and others of us with any sustained interest in the subject, suggesting, in turn, the surreal nature of our nation’s putative fidelity to human rights and the rule of law. Were it that we were even remotely as concerned with state terrorism (practiced by us and other countries) as we are by the terrorist acts of non-state actors.

    I’ll skip more than a few examples of neo-imperialist adventurist behavior around the globe (most notoriously, perhaps, in Central and South America) in the intervening period between the Vietnam War and the current “war on terror” that makes mincemeat of any claim to upholding the rule of law generally and respecting humanitarian law and human rights in particular. With the war on terror have come all manner and number of violations of due process, habeas corpus, and human rights. I’m all for celebrating our ideals, the value of rights enshrined in our constitution, and so forth. But let’s not forget that “they” are often closer to “us” than we care to imagine or admit. In other words, it would seem prudent if not wise to refrain from self-congratulatory posturing and moral distancing on this and similar occasions.

    For the record, I’m not a member of the Patriot movement (my worldview, rather a hodgepodge, is roughly equal parts Marxist and Buddhist).

  4. Brett Bellmore says:

    Seriously, Orin, do you have ANY evidence at all, aside from the date, (And if the target was the marathon, how could they have chosen a different date?) to link this to a right wing cause? I think we have roughly as much reason to suspect that NARAL committed it to get the Gosnell trial back out of MSM coverage.

    I mean, to the extent that that sort of group has any record at all of committing violence, it has been targeted in a way which at least makes some kind of sense from an anti-government perspective, such as blowing up a government office building. Attacking the general public during events like this isn’t part of the MO even of that tiny minority of right-wing groups that actually do engage in violence.

    There are, of course, terrorist movements known for doing this sort of thing, but media politics preclude jumping to the conclusion THEY are responsible.

    At times like this we need to remember that ignorance actually IS ignorance, not an excuse to speculate in the utter absence of evidence. We’ll likely find out in time who did this, and hopefully the media will bother informing as many people as to the real guilty party, as they did exposing to the baseless speculation.

  5. Lawrence Cunningham says:

    For a contrast, I recall on 9/11, when most of us at Boston College Law School cancelled classes to watch in awful mourning the fall of the WTC, Victor Brudney held his class as usual at 10:00 am, teaching in his rigorous Socratic method. Sally forth.

  6. A friend of mine posted a very apt quote from A Man for All Seasons that I think captures your point nicely.

  7. Rodger Lodger says:

    Firstly, Walter Gellhorn held a voluntary review of practice exam hour which began 30 minutes after JFK was shot. He didn’t cancel it…after all, he was Walter Gellhorn.

    Secondly, for POTUS to threaten “the full weight of justice” doesn’t sound like the voice of the leader of the most powerful nation in the history of the world. Why make threats at all? I guess if he hadn’t he’d be seen as an eccentric president, but really, does a tough guy have to show he’s tough? And most cliches be wheeled out every occasion?

  8. Orin Kerr says:


    You don’t need to be outraged, as it is only your misunderstanding of my comment that is creating the argument you find outrageous. If you follow the thread, Aaron said that we could be sure that whoever did this had a particular set of views. I disagreed, pointing out that there was “at least one possible source of the attacks” that did not share that set of views. My point was not to suggest that this set of groups was the actual source of the attack, but only to point out that Aaron’s certainty was misplaced.

  9. A.J. Sutter says:

    Due to the rapid unfolding of events in Boston, this item quickly disappeared from the front page of the NY Times website: “U.S. Engaged in Torture After 9/11, Review Concludes”. Will those responsible ever be held “accountable,” and feel the “full weight of justice”? Or are they exempt because our country is “so special”?

    I agree with Patrick and PromotheeFeu that there is far too much self-congratulation in your post. Myopia isn’t usually contagious, but as teachers we should be more aware that we are among the rare few who can transmit it.

  10. Brett Bellmore says:

    Sorry, Orin, I was reacting to your comment in the context of numerous people seriously proposing that some “patriot group” or other was the likely perpetrator. Which is absurd as a matter of typical MO, even setting aside the way non-violent groups are typically conflated with violent groups in such screeds.

  11. Joe says:

    “will have them killed after internally discussing the matter with military and intelligence officials without letting the judicial branch have its say”

    As he has the power to do if the person in question fits w/i certain limited criteria. The actual people who place the bombs would not likely fit them, particularly since they would likely still be on U.S. soil.

  12. PrometheeFeu says:


    I may be wrong, but my understanding has always been that the arguments which justify this administration’s extra-judicial killing program (usually referred to as the drone strikes) are grounded in the AUMF which followed 9/11 and the President’s war powers. If that is so, it would be a strange war power indeed which would end when the enemy lands on your shores. No. If the President can kill Al-Qaeda commanders in Afghanistan, Yemen and Pakistan, he surely can kill them when they are here on US soil, presenting the greatest threat to American lives.

    Regardless of whether this will happen or not, the OP spoke of the rule of law. The rule of law is exactly what this administration has been ignoring when the President decides who lives and who dies after secret debates within the executive branch. You can argue that it is necessary in a time of war or that it is allowed by our laws. But the fact remains that when a man’s faith is sealed, in secret, based upon secret evidence, without possibility of appeal and without the intervention of a neutral arbiter, that flies in the face of the rule of law. And so, when Mr. Obama speaks of justice, I have my doubts that he is referring to the rule of law with all the basic guarantees that he unilaterally denied hundreds of people before sentencing them to death.

  13. Douglas Levene says:

    I concur with Prof. Zelinsky’s determination to carry on and his belief that what he is “doing here is worthwhile.” We do not yet know who perpetrated this attack. We do not know if it was an Islamist terror attack planned and financed by foreign enemies or if it was a right-wing Weatherman-type bombing or if it was just a fruitcake like Adam Lanza. We do not know if we will ever know. In the meantime, carrying on is all we can do.

    I confess that I found Mr. O’Donnell’s rant about America’s conduct of war incomprehensible. America at war is ferocious indeed. From Sherman’s March to the Sea to the firebombing of Tokyo, America does not fight wars with Marquis of Queensbury rules, with few exceptions (we treat enemy POWs nicely so that our POWs will be treated nicely). What this has to do with the bombing in Boston, however, eludes me.

  14. Mr. Levene, it was Professor Zelinsky who wrote: “we do know what separates us from them: a belief in human rights and the rule of law.” The manner in which we’ve conducted war has often been very close to, when not identical with, what is meant by “terrorism,” a point made by not a few ethicists and experts in international law, including those who’ve written about just war ethics (jus ad bellum and jus in bello). This involves an ability to appreciate what constitutes “state terrorism,” which has long been recognized in the requisite literature on the topic, and dwarfs in scope and scale the deaths and harms caused by the terrorist acts of non-state actors. It is a direct consequence of perverse political ideologies that we tend to focus far more (self-righteous, smug, and indignant) attention on the latter than the former (I of course do not intend by that that we should neglect the former). Humanitarian law or the laws of war have to do with the rule of law, and since the Geneva Conventions at least, our country has often failed to live up to the “rule of law” when it comes to the conduct of war (prior to this, we can speak of largely of egregious ethical or moral violations of the kind later the subject of legal rules). Your characterization of my comment as a “rant” does indeed speak more to your capacity for comprehension than it does to the substance of my remarks.

  15. Douglas Levene says:

    Mr. O’Donnell,

    Thank you for your response. If I understand you correctly, your point is that the American way of war amounts to state terrorism and therefore America has no business complaining about non-state enemies who plant bombs in order to kill civilians and terrorize the US into acceding to their demands. You make this argument in reaction to what you perceive is Prof. Zelinsky’s point that we should assert American ideals of rule of law as a response to such non-state terrorism. Suffice it to say, I don’t accept your premises or your conclusions.

  16. Mr. Levene,

    Again you fail to read what I have written without even the barest or minimal amount of attention and care due an interlocutor in such a discussion. Nowhere did I make the claim, directly, by implication or insinuation, that “America has no business complaining about non-state enemies who plant bombs in order to kill civilians and terrorize the US into acceding to their demands.” You need to read my first comment and the second in response to yours once again, this time with the aim in mind to endeavor to understand, in good faith, what I have actually argued. Incidentally, we can assert American ideals of rule of law (which we have no monopoly on, hence they are not simply ‘American,’ the virtues and ideals of such rule in large measure intrinsic to law itself, as a Lon Fuller, Nigel Simmonds, or Jeremy Waldron make plain) until hell freezes over and it will do little or (more likely) no good whatsoever if we can’t exhibit or exemplify in our municipal and foreign legal practice, that is, by our deeds, precisely what such rule of law entails. There are any number of books, for example, that amply document our failure to meaningfully, significantly, and consistently adhere to rule of law ideals and virtues in conducting the “war on terror.” I have a collection of such titles in both my bibliography for “terrorism” and the compilation on “torture,” early drafts of which are available online at Ratio Juris (both have since been updated).

  17. PrometheeFeu says:

    @Douglas Levene,

    “we treat enemy POWs nicely so that our POWs will be treated nicely”

    Except when they are declared illegal combatants and we treat them in ways which we call unacceptable and torture when done by others.

    We clearly all have a right to live free of terrorism and nobody here is suggesting that anyone “deserved” to be bombed or that we had no right to complain about being bombed. But it is far from clear that as the OP said, belief in the rule of law is what separates us from the bombers because the United States’ actions in many circumstances has not demonstrated much respect for the rule of law.

  18. Joe says:

    “If that is so, it would be a strange war power indeed which would end when the enemy lands on your shores.”

    The war power is not the only argument and either way things do change once the force is being used domestically, particularly an argument in part based on the inability to otherwise obtain the person. An isolated place in Yemen being different here than let’s say some house in Boston.

    “You can argue that it is necessary in a time of war or that it is allowed by our laws.”

    If it is “allowed by our law” how this violates the “rule of law” is unclear. In wartime, the President repeatedly, without going to court first, has the military kill people. The President at times does this “secretly.” The President didn’t release plans to the public before bombing during WWII or something. Congress authorized the President to use force specifically for certain purposes.

    If this is not supposed to mean something, fine, but when Congress authorizes use of force, “duly” allows the taking of “life,” yes “rule of law” is involved. As is when certain criteria are followed before drone attacks. The legal memoranda explaining this should be public, but the “rule of law” is involved here.

  19. Joe says:

    Basically, since — pardon me for not being shocked — in times of armed conflict, the executive (helped by Congress and the courts, who here at times do less that the President is willing to do — see D.C. Circuit as to habeas) stretches his power. Excesses noted and opposed.

    This is translated as not really much respecting the rule of law at all, in part (so I see repeatedly) by not following what the law should be in the mind of certain people as compared to what it is. [all this talk about not going to court, as if this is somehow illegal in various cases]

  20. PrometheeFeu says:


    The rule of law is more than merely the existence of laws and those laws being followed. For instance, if a Constitutional amendment was passed which authorized the President to condemn any person to death, seize any property he desires or dispose of any United States citizen however he pleases, doing those things would be allowed by the law. But one could not possibly say that doing those things would be consistent with the rule of law.

    The rule of law is not opposed to anarchy but to the rule of men. The rule of law implies principles such as the right to not be executed at the discretion of an executive officer.

    You mention armed conflicts. But armed conflicts are exactly an example where the rule of law is routinely violated. In armed conflicts, all that matters is who triumphs in battle. For instance, while German officers were tried and convicted of war crimes for killing the inhabitants of small villages, nobody was even charged for killing tens of thousands in Dresden, Hiroshima or Nagasaki. As I said, you can argue that those actions are necessary or desirable, but no reasonable argument can be made that they are compatible with the rule of law.

  21. Calvino says:

    So what’d you say at the beginning of class today, Aaron?

    Was it similarly self-indulgent?

  22. Joe says:


    There are various limitations in modern warfare that were significant improvements but are ignored by those who act like the President can do whatever the heck he wants and does so. Saying that the rules are broken too much is cliche. The allegation is that there was something specific about Obama, something noteworthy how he has ignored the rule of law, including the rules of war, a subset.

    The rules of war have “principles” too. You come off as specifying. You raised the specter of not going to court. But, as I said, that is part of the rules of war. There are limits there. Various criteria are set, criteria that cite legal rules and precedents. Just killing some drug lord in LA is not allowed under them.

  23. Joe says:

    spell check fail: speechifying

  24. Douglas Levene says:

    PrometheeFeu-I am no expert on the laws of war, but even I can see a distinction between the deliberate, mass murder of civilians in an area that has been captured and is under the control of military forces, and bombing enemy cities to destroy the will to fight of an enemy that commenced a war of aggression to conquer the world and that is continuing to fight. Perhaps your analogy would be more apt if American forces had rounded up villagers in Japanese cities during the Occupation and slaughtered them.

  25. Apart from being a spine-chilling comment, that’s a distinction without a significant moral and legal difference: both are war crimes, indeed, crimes against humanity as well (the substance of the Nuremberg indictment would be applicable here). The second case is based on an untenable notion of shared intentions and collective responsibility and is an exemplary instance of state terrorism (non-state terrorists employ similar kinds of reasoning in the attempt to justify the killing of civilians). Moreover, it is based on a dubious moral logic: any means, however otherwise morally heinous, despicable, repugnant, are justified in achieving what we perceive as morally worthy ends. It provides a nice illustration of how in the battle against evil, wrongdoing, injustice, and so on, it is all too easy to descend to the level of one’s opponents and subvert any meaningful distinction between the putative superiority of one’s values over one’s opponents (indeed, it helps efface any prior meaningful distinction between ‘us’ and ‘them’). You might take a moment to imagine yourself as a civilian in war-time Japan, attempting to live as normal a life as possible, perhaps taking care of a family, persisting dutifully and lovingly as best you can in the context of war-time conditions in which you you had no hand whatsoever in creating….

  26. PrometheeFeu says:

    @Douglas Levene:

    I for one consider the moral failing (and I’m pretty sure that is also the legal issue) to be the wholesale slaughter of civilians. If you think, that killing tens of thousands of civilians is acceptable as long as your military doesn’t control the area, I’m not sure what moral argument I could give you…


    “The allegation is that there was something specific about Obama, something noteworthy how he has ignored the rule of law, including the rules of war, a subset.”

    Not at all. He is just one in a long line of people who ignore the rule of law when it doesn’t suit their purposes. I focused on Obama’s specific failings because he was the one mentioned in the OP. But his predecessors were roughly on par with him.

    My point is merely that when somebody is allowed to independently and unreviewably have people executed according to vague standards, that flies in the face of the rule of law. The Camera Stellata also had rules that it had to follow. But given the fact that it deliberated in secret, provided no meaningful right of appeal, those rules were effectively meaningless and so today, it stands as an example of what the rule of law is not. What Obama does with his terrorist baseball cards is nothing more than a modern version of the Star Chamber and so to say he practices respect for the rule of law is stunningly absurd.