Deborah Pearlstein and Michael Newton wonder what’s left of judicial deference in the wake of Boumediene. It’s a good question: certainly if you listen to the Boumediene dissenters, the answer is “not much.” Chief Justice Roberts rails against “unelected, politically unaccountable judges” and “the rule of lawyers” in concluding that “this decision is not really about the...
I see that my alma mater, Stanford, is set to formally eliminate letter grades. Beginning perhaps as early as fall, students will receive one of four marks for their work: honors, pass, restricted credit, and no credit. Stanford will be the third major law school to eliminate grades, joining Berkeley and Yale. I have nothing against the change, notwithstanding...
After posting my initial comments, I remained troubled by Julian's criticism of the majority's treatment of Johnson v. Eisenstrager. I'd like to offer a few more reflections on that decision here. The Eisenstrager opinion was certainly based largely on territoriality and citizenship, as Julian points out. However, practical considerations were not irrelevant to the Eisenstrager majority's decision, or else the majority...
Did the Supreme Court decide anything else last week besides Boumediene and Munaf? Well, there was that important case involving foreign sovereign immunity, Philippines v. Pimentel. Luckily for us, Vincent Vitowsky of Edwards Angell Palmer & Dodge LLP in New York offers this summary and analysis via a Federalist Society podcast. In Philippines v. Pimentel, the Supreme Court...
While I fully agree with Justice Kennedy’s majority opinion and Justice Souter’s concurring opinion in Boumediene v. Bush, I found it significant that neither those opinions nor the two dissenting opinions of Chief Justice Roberts and Justice Scalia found it necessary or desirable to refer to international law despite the relevance of that body of law to the earlier Guantanamo...
In what can only be described as a stunning development, Trial Chamber I has stayed Thomas Lubanga Dyilo's trial because of the Prosecutor's failure to disclose exculpatory evidence to the defense. Indeed, the decision seems to indicate that unless the Prosecutor reverses course and agrees to disclose the evidence, the Trial Chamber is prepared to dismiss the charges and...
A confession: except for the basketball, I don't watch the Summer Olympics. In part, that's because I'm not particularly interested in the medal sports. The more significant reason, though, is that I simply can't stomach the rampant jingoism that inevitably accompanies the Games. Case in point — the reaction to Becky Hammon's decision to play basketball for...
Many thanks to the Opinio Juris team for hosting this conversation, and to colleagues who have already offered such interesting and insightful posts. In this spirit of exchange, I've crafted comments that I hope will challenge and extend some of their observations, as we all continue to digest this momentous opinion on- and off-line. The benefit of continued reflection will...
Last week, the states parties to the U.N. Convention on the Law of the Sea (UNCLOS) held elections for seven of the 21 seats on the International Tribunal for the Law of the Sea (ITLOS). Here are the results: Among those seven members, Judge Wolfrum (Germany), Judge Akl(Lebanon), Judge Marotta Rangel (Brazil), Judge Chandrasekhara Rao (India) and Judge...
I regret that my post is delayed somewhat by travel. I am at present writing from Venice, en route to which I had occasion to do more thinking about the implications of Boumediene than I did for detailed dissection of its precise phraseology. The fortuity of my presence overseas allows me to report the prevailing media spin that...
I want to return to the issue of the Court’s discussion of de facto sovereignty, which has the potential to be one of the most important holdings of Boumediene. The reason it is so important is that the Court’s articulation of de facto sovereignty has the potential to be the new test for the application of constitutional guarantees to...
I also would like to begin by expressing my thanks to the Opinio Juris team for giving me the opportunity to share some thoughts on the Boumediene decision. My post is a bit tardy due to the fact that I have been in Israel staying in some places with limited internet access. More on some perspective judicial review...
