Search: Affective Justice: Book Symposium: A Response

27 Jun Morrison and the Effects Test

the fraudulent conduct is irrelevant; what matters is whether the conduct affects transactions within the United States. Moreover, Judge Bork’s opinion in Zoelsch questioning the conduct test but endorsing the effects test is virtually the only lower court opinion for which Justice Scalia has a kind word in Morrison. Slip Op. 10-11. I agree with and applaud this understanding of the presumption against extraterritoriality. (Ironically, my article was cited not by Scalia’s majority opinion but by Justice Stevens’s concurrence.) But Morrison sits uncomfortably alongside other opinions written by Justice Scalia...

22 Feb Justice Scalia on Foreign Law and the Constitution

In a speech at the American Enterprise Institute on Tuesday, Justice Scalia took aim once again at the use of foreign law to interpret the Constitution. While freely admitting that 18th Century English law is relevant to that exercise, he denied that modern foreign legal materials ever are. And in response to a question from Professor Julian Ku, he extended his position to reject the relevance of international law as well. As he did at the 2004 annual meeting of the American Society of International Law, Justice Scalia pointed out...

22 May Battlefield Robots as a Technological Response to ‘Lawfare’, and the Limits to Technological Counters to Bad Behavior

...reprisal against enemy violations of the laws of war.” He is quite correct about this, of course, and it makes me realize that I wasn’t as clear as I should have been above. So let me add this response: Correct, no one considers reprisal as a response today, and certainly not against categories of protected persons under the Geneva Conventions. Nor should we, let me be completely clear. But that is the point – in the contemporary period, because we have given up reprisal as a behavioral response to violations,...

07 May Has the Obama Justice Department Adopted the Bybee/Yoo Interpretation of the Torture Statute?

...takes us” (emphasis added), the Obama Justice Department is relying on the very same legal analysis in order to urge a federal appeals court to reject torture claims. In fact, as the Obama Justice Department argued to that appeals court a little over a week ago, the torture law analysis in question has already been adopted by another federal appeals court. I am sympathetic to Deborah’s criticsm of McCarthy’s recent somewhat over-the-top letter rejecting an offer to participate in deliberations on detention policy with the Justice Department. But his legal...

08 Aug Justice Kennedy’s Mystery Speech

...religion gaining a stronghold in governments now is the time for American lawyers to herald the American system of law and governance. (link). So which is it? Roger Alford Dean C. Rowan Sounds like Justice Kennedy is fashioning himself for a career shift, either to writing pulp fiction, greeting cards, advertising copy, or sermons. It's unmitigated malarkey. "Liberating force"...that's a good one. Time to reread Robert Cover's Violence and the Word. Charles Gittings Roger, I don't think I'm finding anything more than what Justice Kennedy said, though perhaps 4.5 years...

19 Aug An Opportunity for Judicial Review of the Existence of Armed Conflict?

...an armed conflict. It is has been reported that the Justice Department’s Office of Legal Counsel (OLC) issued an opinion in which it found the U.S. to be in an “armed conflict” with al Qaeda in 1998. On the other hand, the U.S. has prosecuted alleged participants in the bombings in a federal, not a military court. Given the very indistinct nature of the executive’s response and the lack of any action by Congress, it would be difficult to find these bombings and the U.S. response anything more than limited...