Author: Steve Vladeck


Making Sense Out of the Iraqi Detention Cases

As Lyle noted on Tuesday over at SCOTUSblog, the first Iraqi detention case has made its way to the Supreme Court, with the filing of the cert. petition in Munaf v. Geren. Given that the hypertechnical issues raised in the cases might make it somewhat difficult to appreciate the full scope of what is at stake, I thought I’d add my own two cents on why Munaf is such an important case, both with respect to clarifying the D.C. Circuit’s messy case law, and with respect to (finally) dealing with the Supreme Court’s 1948 decision in Hirota v. MacArthur, either by limiting it to its narrower holding, or by doing away with it altogether.

More below the fold…

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86 Pages Later, Some Early Reactions to al-Marri

Admittedly, this is after a very quick read, but here are my three big reactions to the Fourth Circuit’s decision today in al-Marri (on which, unsurprisingly, Lyle and Marty beat me to the punch):

1) This is, perhaps surprisingly, not a surprise. Given the panel, and given how the oral argument went, I’m surprised only that the court didn’t strike down the MCA…

2) The jurisdictional holding is sui generis, and almost completely unhelpful to the Guantanamo cases. Everything turns on the fact that al-Marri was “awaiting” a CSRT, and so nothing in the court’s analysis seems to apply to cases where petitioners have had a CSRT, thus triggering section 7 of the MCA.

2) The holding on the merits is perhaps the most important decision in any war on terrorism case to date, or at least on par with the Supreme Court’s decisions in Hamdi and Hamdan.

Let me try to explain why:

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The Pros and Cons of Mid-Semester Graded Work

It’s that wonderful, relaxing, peaceful, happy, copacetic time of year again — my grades are in.

And as I take a break from my celebratory revelry (and, more saliently, start working on my syllabi for my fall classes), I once again return to a question I’ve struggled with each of the four semesters that I’ve taught: Besides the final examination, how (if at all) should students be evaluated?

I’m one of those who gives a whole lot of graded work besides the final exam. For example, each of the previous times I’ve taught Federal Courts, I’ve given a take-home midterm. I also gave a separate writing assignment one of the two times, but not the second. When I’ve taught Civil Procedure to 1Ls, I’ve given two mid-semester graded assignments. And this semester, in my Constitutional Law class, I had every student write two response papers — for two different classes. Thus far, my final exam has never been worth more than 60% of the students’ grades, and usually it’s closer to 50%.

There’s an obvious downside to me of these additional assignments: More work writing and grading them. Sometimes, much more. But aside from that, I always find myself wondering at the end of the semester just how much students appreciate other opportunities to be evaluated, as opposed to a make-or-break, all-or-nothing final exam.

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Why Watters Matters: An Early Lesson from the First Circuit

Even in a quieter Term, the Supreme Court’s 5-3 decision in Watters v. Wachovia Bank, N.A. would hardly go down as one of the more significant, noteworthy, or even interesting rulings handed down, and that will certainly prove to be the case as the present Term races toward its (increasingly controversial) end. That’s not to say, though, that Watters won’t turn out to have a substantial impact on federal and state commercial regulation in a large class of cases, and we have a First Circuit decision from yesterday as proof of that. [Hat tip to How Appealing.]

First, Watters. I’ve blogged extensively about the issue and the decision before (see, e.g., here, here, and here), but the short of it is that the Office of the Comptroller of the Currency is entitled to preempt state consumer regulation of “national banking activities” even when those activities are conducted by entities other than “national” banks. In Watters itself, the issue was whether the OCC could preempt state regulation of national banks’ operating subsidiaries, and the Court affirmed decisions of the Second, Fourth, Sixth, and Ninth Circuits, all answering that question in the affirmative (although, as I noted at the time, the Court adopted the Ninth Circuit’s Chevron-free analysis, rather than the Chevron-laden views of the other three circuits).

The problem is that by focusing on the activity rather than the actor, the Court endorsed a broad understanding of the OCC’s preemptive authority, and one that could possibly extend to oust state regulation of all kinds of commercial actors, none of whom are actually “national banks,” and none of whom are therefore expressly protected by federal statute. Justice Stevens, in his eloquent dissent, raised the specter of such a possibility, and the First Circuit, yesterday, proved Justice Stevens prophetic. More about the decision below the fold…

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Quarantines (and Law?)

The news has, understandably, been saturated the last two days with the story of the U.S. citizen infected with a drug-resistant form of TB who has been quarantined by the federal government, the first time in over four decades that the feds have invoked such an important and exceptional authority.

Missing from nearly all of the accounts that I’ve read, though, is any discussion on the law of quarantine, an essential aspect of national security law, and yet one that has been largely neglected in the aftermath of 9/11. The seminal case, of course, is Jacobson v. Massachusetts, in which Justice Holmes held that the state’s compelling interest in protecting the public health outweighed an individual’s Fourteenth Amendment-based liberty interest. But Jacobson is over a century old, and there are lots of subsequent developments that suggest that Holmes’s open-ended reasoning may not be quite so limitless today.

All of this raises the question of why we seem indifferent to the legal implications. Don’t get me wrong — I’m not suggesting that the government lacks the authority to quarantine individuals infected with TB. 42 U.S.C. 264 seems to expressly provide to the contrary. But on the theory that every case is precedent (except Bush v. Gore, anyway), shouldn’t this case provoke at least some discussion of the current legal authorities vis-a-vis quarantine, and the constitutional issues that invocation of such a sweeping power to detain naturally raise?


The Law Reviews vs. the Courts

I’ve just posted to SSRN the near-final version of a short essay I wrote for “CONNtemplations,” the soon-to-debut online companion to the Connecticut Law Review, titled “The Law Reviews vs. the Courts: Two Views from the Ivory Tower.” The essay advances the (perhaps somewhat counterintuitive) claim that part of the reason why federal judges have found law reviews increasingly unhelpful is because their own discretion, both procedurally and substantively, has been substantially cabined in recent years…

I explain in somewhat more detail in the essay, which I (shamelessly) encourage you to check out — it’s a quick read, too. But I wanted to blog about it here to see if folks think there’s any possible connection. As Congress and the Supreme Court have narrowed the scope of review in all kinds of cases, as courts have relied that much more frequently on harmless error and the like, etc., is there something to be said for _that_ trend having an impact on the utility vel non of legal scholarship? Or, are we just, as Second Circuit Chief Judge Jacobs recently suggested, hopelessly out of touch?


Two Interesting AALS Paper Calls

First, my apologies for the two-week hiatus, something bad enough for a regular blogger, but perhaps inexcusable from a guest (as Stephanie would say on Full House, “how rude!”). As I noted over at Prawfs, I blame a combination of packing, grading, and moving (three of my least favorite activities), but, c’est la vie.

Anyway, while I was away, two of the AALS sections to which I belong — the Section on National Security Law and the Section on New Law Professors — issued interesting paper calls for the 2008 AALS Annual Meeting. By way of disclosure, I’m on the reviewing committee for the New Law Professors. The National Security Law section call is available here; the New Law Professors’ call is reprinted beneath the fold. Of course, I’m happy to answer questions about the topics.

It separately begs the question, though, of the role of paper calls in the annual meting… to me, it’s a great way to add fresh (or at least unpredictable) insights to an issue where the temptation may be to go with the “experts,” but I wonder if others have a different view.

More below the fold…

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Five Years On… How Significant is Padilla?

May 8 already has several claims to fame throughout history, including, perhaps most significantly, V-E Day — May 8, 1945, on which German forces unconditionally surrendered, ending World War II in Europe.

Today is also a slightly more dubious anniversary. Five years ago today, May 8, 2002, Jose Padilla was arrested at Chicago’s O’Hare Airport on a material witness warrant issued by the U.S. District Court for the Southern District of New York. In June 2002, Padilla was transferred to military custody, where he was detained as an “enemy combatant” until January 2006, at which time he was transferred to civilian authorities here in Miami pending trial on criminal charges.

Five years after his initial arrest, Padilla’s criminal trial appears finally destined to actually take place, with jury selection concluding today and opening arguments scheduled to begin next Monday, May 14. The beginning of Padilla’s criminal trial and the coincident anniversary leave me to wonder just how significant this trial actually will be, the ultimate result notwithstanding. I’m not nearly the criminal law or procedure expert that many of our readers are, and so won’t deign to speak with any authority as to the merits or the likely result here. Rather, there are two points that I think bear mentioning, even if together they may be somewhat irreconcilable.

1. It’s remarkable, in its own right, that the trial is actually happening–that Padilla got what, in effect, he had sought from the get-go, i.e., a meaningful day in court.

2. It’s a troubling reflection upon the law “after 9/11” that it’s taken five years to get to this point, without any final and determinative resolution of the merits of Padilla’s military detention, and with the almost summary rejection of the argument that such a delay violates Padilla’s right to a speedy trial. If Padilla is ultimately convicted, one could see this case as setting a dangerous precedent for the future, where the government can hold terrorism suspects in military custody up until the point that a court is set to rule on the merits of such detention, and then moot such a decision by indicting the individual in a civilian criminal court. [It is this reality against which Justice Kennedy was arguably inveighing in his opinion respecting the denial of certiorari in Padilla last January.]

Ultimately, I’m not sure these points are in as much tension as they might seem to be. The system is working the way it’s supposed to; it just took the better part of five years to get there, and much will turn on the extent to which this case becomes precedent over the next five years.

Until then, happy anniversary.


Law Clerks and Book Proposals

There’s a fairly disturbing (at least to me) book proposal making its way around the e-mail universe, disturbing not because of the subject (the current debate over habeas and the war on terrorism), but because of the occupation of the authors/editors — two current D.C. Circuit law clerks. Indeed, the proposal itself harps on this fact, suggesting that the two clerks “are uniquely suited to moderate this debate,” having “spent a year in the legal trenches, as it were; each serving as law clerks on the Court of Appeals for the District of Columbia Circuit during a year that saw several landmark detention decisions likely to end up before the Supreme Court.”

My initial reaction is that this rubs me totally the wrong way. Wholly separate from the prospect of law clerks speaking to reporters about their jobs after their clerkships are over is clerks using their position as a ground for a book deal. If I remember right, the relevant provision of the Code of Conduct for Judicial Employees is Canon 3D, which provides:

A judicial employee should avoid making public comment on the merits of a pending or impending action and should require similar restraint by personnel subject to the judicial employee’s direction and control. . . . A judicial employee should never disclose any confidential information received in the course of official duties except as required in the performance of such duties, nor should a judicial employee employ such information for personal gain. A former judicial employee should observe the same restrictions on disclosure of confidential information that apply to a current judicial employee, except as modified by the appointing authority.

So I guess there are three questions here: First, is using your current position as a law clerk to promote a book deal in effect (if not actually) employing “confidential information received in the course of official duties . . . for personal gain”? Second, even if not, aren’t we opening a can of worms if clerks start using their position to hawk book deals? Third, although we’ll probably have no sense of the answer, does their judge know, and if not, shouldn’t s/he?

UPDATE: I should be clear, as some have noted in the comments, that the proposal is for a volume of essays from multiple contributors, and that the clerks do not appear to be planning to write anything themselves. There also does not appear to be an actual book deal; the e-mail referenced in the post is effectively gauging interest for possible contributors. I’m not sure that changes the issue, but wanted to clarify the original content.