Litigation
823 Articles
Abu Ghraib and the Perversion of the Political Question Doctrine
I’ve written extensively about the important and complex legal questions raised by state-law tort suits against private military contractors, many of which have arisen in…
Major Second Circuit Ruling Sides With Immigrants Subjected to Post-9/11 Roundup
I’ve written at some length in the past about judicial hostility to damages suits brought by victims of allegedly unlawful post-9/11 counterterrorism policies. I may have…
Why al Bahlul is Rightly Decided
Over at Lawfare, I have a pair of longer posts following up on Friday’s quick-and-dirty summary of the D.C. Circuit’s ruling in al Bahlul v. United States, in which…
Zivotofsky podcast
Jack Goldsmith and I break down the case, discussing many of the questions we’ve both been blogging about, here. * * * * My posts (and a podcast) on Zivotofsky:
Thoughts on Zivotofsky, Part Six: Why the majority’s surprising decision on executive exclusivity is unpersuasive
As I noted in my previous post, although it was unnecessary to the Court’s holding, the proposition that Zivotofsky will now stand for—in briefs, in articles, and in constitutional…
Thoughts on Zivotofsky, Part Five: Why did the majority choose to decide whether the President’s “recognition” power is exclusive?
“Congress may not enact a law that directly contradicts” the President’s “formal recognition determination.” That’s the constitutional proposition in Justice Kennedy’s…
What al Bahlul Says, and What It Means
It’s going to take some time to fully work through the lengthy opinions handed down by the D.C. Circuit this morning in al Bahlul v. United States. But at the risk of…
al-Bahlul decided: Court invalidates military commission conviction for domestic-law offense
The U.S. Court of Appeals for the District of Columbia Circuit by a 2-1 vote (Rogers and Tatel, Henderson dissenting) has overturned the conspiracy conviction on Article III grounds.…
Thoughts on Zivotofsky, Part Four: Justice Thomas as constitutional iconoclast (or, “What was so terrible about King George III, anyway?”)
In my previous post, I described the principles of constitutional foreign affairs authority on which almost all of the Justices agreed in Zivotofsky. In the posts that follow,…
The Ridiculous GTMO Counsel-Stripping Amendment: An Easy Vote
[UPDATE: The Amendment failed by a vote of 133-297.] Steve has already described the likely constitutional problems with the latest Guantanamo amendment designed to strip funding…
Why the Latest Ridiculous Guantánamo Amendment is Almost Certainly Unconstitutional
Later today, the House of Representatives appears set to vote on the following amendment to the Department of Defense appropriations bill, sponsored by Missouri Congressman Jason…
Thoughts on Zivotofsky, Part Three: The broad consensus on presidential and congressional foreign affairs authorities
The Justices were, of course, closely and sharply divided on the ultimate resolution of Zivotofsky (on which more shortly). One of the most striking things about the decision,…