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Abstract: This article is a much revised and expanded version of a working paper that I posted a year or so ago. This revised version argues that the war on terror has accelerated the development of a new criminal process and that this new process has increasingly displaced traditional methods of investigating, prosecuting, and punishing people who have engaged in conduct that is subject to criminal penalties - whether or not that conduct is considered terrorist or not. I also contend that this new process is largely consistent with constitutional norms that are changing under the same pressures that drive the development of the new criminal process. Those pressures, in turn, derive not just from specific events but also from the perception of emergency and rapid change that characterizes modern society and political life. Throughout the article, I treat the indefinite detention and trial by military commission of suspected terrorists as emblematic but not exhaustive of the new criminal process. Not only have these efforts been central to the Bush administration's anti-terror efforts, but they have also resulted in Supreme Court opinions - most recently the decision in Hamdan v. Rumsfeld - that bear on and to some degree constrain the development of the new criminal process. Despite their importance, however, these cases risk diverting attention from the ways in which the new criminal process has already expanded executive power, licensed state violence, and transformed the citizen-state relationship. My analysis is indebted to Michael Hardt and Antonio Negri's influential books, "Empire and Multitude," as well as to the pathbreaking work of Giorgio Agamben, whose "Homo Sacer" and "State of Exception" pose important challenges for liberal theory. Few U.S. legal scholars have made serious efforts to engage with this work. Nonetheless, these theorists say much that is useful about the nature and functions of law in modern states, and one of the goals of this article is to integrate their work with more familiar forms of legal analysis. Part II of the article describes executive and congressional actions in the war on terror to illustrate the ways in which anti-terror efforts have changed since 9/11. These aspects of the new criminal process provide a legal structure for implementing the idea that everything has changed. They codify a state of emergency, but the perception of emergency should not be equated with panic. Many of these new processes were carefully planned. And, although executive power has expanded, Congress has shown some willingness to second guess executive power claims and substitute its own judgment. The new criminal process is thus a deliberate, sturdy, and evolving construct for what are arguably exceptional times. The last section of part II considers the Supreme Court's response to some of these actions - a response that seeks with varying success to accommodate emergency claims with rule of law and due process values, but which in so doing also ratifies the idea of a war on terror. Part III makes a short detour by presenting a more policy oriented assessment of the strengths and weaknesses of the new criminal process as compared to traditional processes. It also suggests that the ability to choose between the two is becoming increasingly difficult. Part IV explains why that is through an examination of everyday constitutional criminal procedure doctrine, which reveals that doctrinal change has already brought us well down the road of the new criminal process. Part V concludes by discussing the relationship between the new criminal process and the idea of emergency power and suggesting that the new criminal process is simply part of a larger shift in state power and the practice of governing.
criminal law, constitutional law, civil rights, jurisprudence
Abstract: Executive and legislative actions after 9/11 demonstrate a shift in the way the federal government combats terrorism. Traditional law enforcement entities have been given new powers, and military and intelligence personnel have taken on a new prominence. Criminal prosecutions are still being brought against persons suspected of terrorist activity, but the government seems less willing to accord criminal trials a central role in anti-terror efforts. In short, we are seeing the creation of a "new criminal process" for terrorism, a process that in many cases bypasses federal courts and operates wholly outside the territorial boundaries of the United States. All of these actions, moreover, react to the perceived emergency created by the 9/11 attacks. Government officials have argued that a state of emergency exists and - critically - that it is unclear when the emergency will end. Other public figures and the media have largely agreed. "Everything has changed" has became the common theme, and the new criminal process provides a legal ratification of that change - a legal structure for a state of emergency. This essay considers the new criminal process and the perception of emergency out of which it grows from a variety of angles. Although I think the federal government has shifted too far in favor of military and other solutions to terrorism at the expense of traditional criminal processes, my position rests upon a chain of reasoning and a baseline that the new criminal process contests. That deeper contest and its implications are the focus of this essay. To that end, I describe the attributes for the new criminal process, and provide the arguments for and against the traditional and new criminal processes. I also consider the legality of the new criminal process and conclude that it comports with constitutional norms (which may say more about the malleability of constitutional norms than anything else). The underlying assertion of this essay is that the new criminal process may not be so new. Rather, it may be the latest step in a broad shift in our approach to governing, where pervasive authority is increasingly valued over the constraints of law. This change brings with it modification and dilution of rights, but also the possibility of their expansion within the context of also-expanded state power. Nor is this change occurring without justification. Terrorism is a real policy issue, and rational, liberal-minded people support increased state power to counter the threat. Be that as it may, the critical point is that we are experiencing the modification of the processes by which our government investigates and imposes punishment on people, and the fact that some of these processes arise in the context of the war on terror means, not that those processes are about fighting terrorism, but rather that those processes - the new criminal process - inevitably will and have already begun to generalize.
Terrorism, criminal law, constitutional law, international law
Abstract: My goal in this essay is to combine two ways of thinking about torture and related forms of coercive treatment and interrogation. The first way is a legal analysis of some of the issues surrounding torture, with particular reference to the practice of extraordinary rendition (the use of force rather than legal process to take suspected "terrorists" from one country to another for purposes of detention and interrogation) and the existence of so-called "ghost detainees" (people who are secretly held and interrogated by the U.S or its allies in undisclosed locations and who are outside the protections of domestic or international law in any practical sense). Although some of my arguments and conclusions on these issues may be surprising or at least debatable, they will be set largely within a familiar context of legal argument and analysis. The second is an effort to think more conceptually or theoretically, albeit sketchily, about what torture is and how it operates within and as a part of modern societies. By "modern," I mean simply societies governed as centralized, often democratic nation states and the social and psychological dynamics associated with them - such things as "bureaucracies and corporations, the nuclear family with its bourgeois mores, human and social sciences and the institutions that support them." Although we often think of these things positively, as reflecting the progress of enlightenment values, the experience of modernity also generates concerns about the ways in which these structures can "ingrain destructive patterns of thinking and acting" that result in a level of dehumanization or subjection of people that is different in degree and kind from what is arguably inherent in the relationship between individual and society. My point in undertaking this second type of analysis is to get a broader perspective on the reasons that torture and its close equivalents are practiced by countries such as the U.S., and at the ways in which they are practiced - including the ways in which law makes room for these practices. As I hope will become clear in this essay, one of the most important aspects of modern torture is the creation of doubt as to whether torture has happened at all. Extraordinary rendition and the creation of ghost detainees serve this function well.
criminal law, jurisprudence, constitutional law
Abstract: This document, which is a draft chapter (completed in December 2005) from an ongoing book project, discusses and analyzes the use of torture by modern democracies. The chapter surveys the conduct primarily of England, France, Israel, and Spain, but also to some degree of Canada, Italy, and Sweden. (I address the conduct of the United States in other parts of the book.) With the exception of a brief discussion of British practices in India, I focus on post-World War II conduct. For example, Kenya and Northern Ireland (England), Vietnam and Algeria (France), the Basque insurgency (Spain), and the treatment of Palestinians (Israel). I discuss specific allegations about the use of torture and related forms of mistreatment, as well as legal and political responses, including recent decisions of the Supreme Courts of Canada and Israel and of Britain's House of Lords. At the end of the chapter, I also discuss the issue of extraordinary rendition. Throughout the chapter, I make three claims. First, torture is not aberrational conduct in modern democratic societies but is instead pervasive. Second, the practice of torture in such societies reflects common ideas of racism, colonialism, emergency, exception, and necessity. Third, torture in modern democracies is almost always "hidden" and therefore always capable of being denied or explained away as exceptional. My hope is that readers of this draft will provide comments (or corrections) that will strengthen the analysis (or put me on notice of deficiencies). Perhaps, too, this draft will be helpful to the increasing number of people writing on torture.
constitutional law, criminal law, international law, jurisprudence, law and humanities
Abstract: This essay seeks to accomplish two things. First, I consider the problems of defining torture and the law's response to torture. I begin by considering ways not to talk about torture, which leads to the conclusion that we should not seek to limit the category torture in the ways that international and domestic law currently limit it. In part because of the limited legal definition of torture, law in fact fails to regulate it. More precisely, I argue that law provides less of a constraint on torture, properly defined, than most people probably assume. Second, I use those claims as the launching point for a more open-ended exploration of torture and the more general problem of state violence. To that end, the last section of this essay considers with broad strokes some of the possible reasons for law's failure to regulate torture adequately.
Torture, constitutional law, international law, human rights
Abstract: The Supreme Court's fractured, six-opinion decision two terms ago in Chavez v. Martinez raises critical questions about the meaning of the self-incrimination clause and the status of Miranda v. Arizona. A majority of the Court ruled that violations of Miranda will never support a claim for damages and violations of the privilege against self-incrimination will almost never do so. Four justices would have gone further, to hold that damages are never available for violations of the privilege, that the privilege against self-incrimination is merely a trial right, and that large parts of self-incrimination doctrine are non-constitutional prophylactic rules. The Court's decision means that civil rights actions over coercive interrogation practices will now fall largely within the domain of substantive due process, most likely under the notoriously vague shocks the conscience test. And, critically, at least three justices were prepared to hold in Chavez that there is no substantive due process right to be free of coercive interrogations if government interests in obtaining information are sufficiently strong. This article takes Chavez as the point of departure for considering a series of issues relating to constitutional interpretation, criminal procedure, and civil rights litigation. Part II describes the facts and proceedings in Chavez, highlights the central features of the various opinions - as well as relevant portions of last Term's Seibert and Patane decisions - and begins the task of analyzing their implications for self-incrimination doctrine, due process protections, and civil rights litigation. Part III explains how the plurality opinions in Chavez and Patane would undermine core aspects of self-incrimination doctrine, including Miranda but also - and more significantly - the doctrine of requiring immunity as a remedy for violations of the privilege. Because the plurality opinion described much of privilege doctrine as prophylactic, moreover, Part IV turns to the ongoing debate over the legitimacy of prophylactic rules in criminal procedure and constitutional law. Chavez may be more important on this issue than Dickerson, and it is at least the necessary pendent to Dickerson. Together with Seibert and Patane, the cases reveal a majority of the Court's intention to preserve Miranda while carefully limiting its scope and effectiveness. Chavez is critical to this effort because it highlights a pervasive flaw in constitutional interpretation: although remedies are fundamental to the definition of constitutional rights, the Court rarely acts as if remedies were a meaningful part of constitutional doctrine. Until it extricates itself from the debate over prophylactic rules, the Court will not be able to take remedies seriously as an aspect of constitutional law. Indeed, after Chavez, we should seriously consider jettisoning the idea of prophylactic rules entirely. This discussion also provides insight into the Supreme Court's Fourteenth Amendment jurisprudence. If we abandon the flawed idea of sub-constitutional prophylactic rules, then we have to recognize that Congress's power to enforce the Fourteenth Amendment gives it a real and inevitable role in defining the boundaries of constitutional rights. Part V returns to the issue of coercive interrogation. I first provide an account of the privilege against self-incrimination that is true to the remedies available for its violation, and I pay particular attention to the context of civil rights claims for damages. Text, history, and policy support, on balance, a broad privilege, including a slightly narrower Miranda doctrine. Without a damages remedy, however, the right remains weak. Drawing on Justice Harlan's admonishment that self-incrimination issues reflect broader issues of constitutional policy, I turn to the role of due process doctrines within the constitutional protection against coercive interrogation. Violations of the due process voluntariness test will not support a damages claim under current doctrine, and substantive due process damages claims provide inadequate protection on their own. In the process, I also consider what Chavez tells us about the Court's substantive due process jurisprudence more generally - in brief, that the Court remains sharply divided over the definition of substantive due process rights, and rights claims may have to yield to law enforcement needs, perhaps especially in the war on terror. Indeed, under the plurality's analysis, the Constitution can easily be read to permit torture. With these concerns in mind, I propose a broad damages remedy for violations of the privilege and the due process voluntariness test.
Constitutional law, criminal law and procedure, litigation and procedure, civil rights
Abstract: This essay is drawn from a keynote address delivered at a conference on Evil, Law, and the State, held at Mansfield College, Oxford in July 2004. The essay has two overlapping goals. First, I provide an overview of the complex and incomplete ways in which law responds to state violence, with a focus on the problem of enforcement. Law cannot constrain the violence of the state if it cannot be enforced, yet courts depend upon state power to enforce their decisions. The predictable result is that law often fails to confront or manage state violence. Second, I make these issues concrete through a discussion of the law of torture. I contend that international and domestic laws (using the law of the United States as an example) fail to control or prevent - or even to outlaw - torture, despite the widespread view that torture is absolutely forbidden. The critical move here is the recognition that legal meanings are often intentionally cramped, so that the forbidden category of "torture" fails to cover large areas of violent state action.
constitutional law, criminal law, jurisprudence, law and humanities
Abstract: U.S. law plainly forbids something called "torture." Some writers even contend the ban on torture is foundational to the idea of the United States as a liberal democratic state committed to individual rights and the rule of law. The revelations of torture and other forms of mistreatment by U.S. forces at places such as Abu Ghraib thus undermine what these writers characterize as American leadership on human rights and call the nation's identity into question.
Most readers will sympathize with these claims. This essay, by contrast, suggests that torture may be compatible with American values in practice and with the legal system we have constructed to serve those values. Put another way, many fear that the revelations of abuses committed in the war on terror put the U.S. at risk of becoming a torture nation. This essay explores the ways in which the U.S. is already a torture nation and suggests that being a torture nation could be as important a part of the U.S. legal and political system as the ban on torture.
To guide that exploration, I illustrate some of the ways in which past practice and mainstream legal doctrine provide a solid foundation for the abuses of the war on terror. The first part of this essay traces some of the history of torture and related forms of abuse in U.S. foreign policy, followed by a description of the law and practice of police and prison violence, and concluding with immigration. Part Two examines the interaction of U.S. and international law in the context of torture, primarily through a detailed examination of U.S. ratification of the Convention Against Torture and the International Covenant on Civil and Political Rights. Part Three concludes the essay by drawing explicit connections between these precedents and the perceived excesses of the war on terror.
My goal is not to make a normative argument about the condition of U.S. law and practice. Nor am I suggesting that they are pernicious or evil. At most, I am arguing that the U.S. is an entirely typical modern state in its use of torture. I seek primarily to fix the distorted picture sketched by rhetorical responses to the abuses of the war on terror. The examples I offer are not themselves a complete picture, of course, but no account of U.S. law and practice relating to torture can be complete without them. Grappling with a more complex representation of how violence colors U.S. law and politics is difficult, but scholarly analysis of these issues requires the effort. What, if anything, readers do with the resulting picture is a question beyond the scope of this essay.
torture, constitutional law, treaties
Abstract: This essay derives from a paper presented in Spring 2006 at a conference on the work of Alan Dershowitz. The essay considers Dershowitz's much-criticized suggestion for the use of torture warrants for the interrogation of suspected terrorists. Rather than address the merits of the torture warrant proposal -- something which many other writers already have done -- "Torture Warrants and the Rule of Law" seeks to understand the virulence of the reaction against the proposal in terms of debates about the rule of law. Relying primarily on Jeremy Waldron's essay, "Torture and Positive Law," as representative of the academic reaction, the essay suggests that Dershowitz's proposal not only brings to the surface the extent to which typical conceptions of the rule of law tend to ignore law's reliance on violence but also destabilizees the efforts of writers like Waldron to control or divert that reliance. Thus, while Dershowitz extols familiar rule of law virtues such as accountability and transparency -- and seeks to bring emergency or exceptional measures within the rule of law framework -- Waldron insists that the rule of law must rest on fundamental substantive commitments that make no room for the exception. The essay makes no effort to resolve the specific Dershowtiz-Waldron debate. Instead, drawing on Giorgio Agamben and Thomas Mann, it seeks to clarify what is at stake in the debate, sympathizes with writers who suggest that violence is foundational to law, and suggests that, as a result, violence is necessary to any plausible theory of the rule of law.
torture, rule of law, violence, exception
Abstract: Despite the fact that six years have passed since 9/11, the Pentagon's recent decision to try six Guantanamo detainees for capital crimes such as terrorism and support of terrorism made national headlines. William Glaberson, "U.S. Charges 6 With Key Roles in 9/11 Attacks", N.Y. Times, Feb. 11, 2008, at A1. In this Debate, Professors Amos N. Guiora, of the University of Utah, and John T. Parry, of Lewis & Clark Law School, attempt to settle the question of what sort of forum is most appropriate to try the thousands of individuals in U.S. custody who are suspected of terrorism. Professor Guiora considers three forum options: treaty-based international terror courts, traditional Article III courts, and a hybrid option he calls domestic terror courts. Ultimately, Professor Guiora argues in favor of domestic terror courts, which he describes as being able to balance the legitimate rights of the individual with the equally legitimate national security rights of the state. He considers this option to be the most practical and expedient policy solution, necessitated by an untenable tension between the understanding that some of the detainees present a genuine threat to American national security, and an awareness that indefinite detention violates constitutional principles and fundamental concepts of morality. Professor Parry agrees that current U.S. policy toward detainees has been misguided, but does not believe that innovations of the sort proposed by Professor Guiora are necessary. Rather, he suggests that policymakers should choose Article III courts rather than hybrid courts for trials of suspected terrorists, with military courts as a fallback option. Professor Parry points to research that shows that the federal government is often able to prosecute suspected terrorists in federal court, and therefore considers alternative proposals to Article III courts to be solution[s] in search of a problem. Professor Parry realizes that trial in federal court will not be possible for every suspected terrorist, and concludes that, [f]or people who pose a risk but whose conduct may not violate federal criminal law, prolonged preventive detention is the best choice.
where to try terrorists, domestic terror court, Article III court, Military Commission, Military Tribunal, Guantanamo, detainees, individual rights, national security, constitutional rights, preventative detention
Abstract: The topic of evil means different things depending upon context. For some, it is an archaic term, while others view it as a central problem of ethics, psychology, or politics. Coupled with state power, the problem of evil takes on a special salience for most observers. When governments do evil - in whatever way we define the term - the scale of harm increases, sometimes exponentially. The evils of state violence, then, demand our attention and concern. Yet the linkage of evil with state power does not resolve the underlying question of how to understand the concepts that we invoke when we use the term. Instead, the question becomes what evil means in the context of and in relation to state power. One approach to this question is to invoke the law. Governments, one might argue, can be constrained in their use of violence by law. When these constraints seem to work, we often describe the result as the rule of law. But the rule of law is not an abstract, apolitical, and neutral thing. It results from a complex interaction of forces, so that rule of law ideals and claims that the rule of law actually exists can take a variety of forms. Indeed, under some approaches, one can assert with confidence that repressive regimes are consistent with the rule of law precisely because their policies follow legal forms. Law, then, does not solve the problems of state violence and evil; it merely provides another arena for inquiry, and another set of questions. The fifteen essays in this book share a concern for these issues. Drawn from a broad array of papers presented at a conference on "Evil, Law, and the State," held at Mansfield College, Oxford in July 2004, they bring multiple perspectives to bear on the problems of state-sponsored evil and violence, and on the ways in which law enables or responds to them. The approaches and conclusions articulated by the various contributors sometimes complement and sometimes stand in tension with each other, but as a whole they contribute to our ongoing effort to understand the characteristics and workings of state power, and our need to grapple with the harm it causes. The table of contents, introduction (which describes each contribution), and notes on contributors are available for download.
Abstract: This article discusses the law of treaty implementation in the early United States, with particular reference to whether and when treaties are self-executing and the legitimacy of the last in time rule for conflicts between treaties and federal statutes. Other writers have used historical materials to support a variety of claims about these topics. Relying on the most comprehensive analysis of the historical materials to date, this article takes issue with nearly all of these writers. Most importantly, I do not contend that historical materials provide conclusive answers to the problems of treaty implementation. Rather, my historical narrative demonstrates a far greater degree of ambiguity during the founding period on critical issues than other writers have admitted. The lack of clear original intentions was particularly true at the separation of powers level, which meant that the role of the House in treaty-making and implementation remained unclear. Solutions to this problem emerged only through a series of debates in Congress. Subsequent Supreme Court decisions effectively ratified the most broad-based of those solutions. Indeed, the congressional debates shed important light on the interpretation of those decisions - an issue on which, once again, I depart from most commentators. Seen in this light, the law of treaty implementation emerges as an area in which original understandings provide little help. Nor can the solutions reached in the early nineteenth century claim the status of immutable rules. Rather, the congressional debates provide an example for our own time. The ideas and issues that came to Congress provide a framework and context for a debate that is necessarily ongoing and open-ended. To that end, I suggest that the general terms of Congress's solution should continue to guide doctrine - not because of their pedigree, but because they accommodate the relevant interests in an appropriate manner. Finally, I use these conclusions to sketch an assessment of the Supreme Court's recent decision in Medellin v. Texas.
treaties, international law, constitutional law, supremacy clause, treaty power
Abstract: This article - part of a symposium on the recent Gonzales v. Raich decision - makes three points about the case. First, it suggests that Raich complicates the effort to define commerce clause doctrine. Although Raich employed the doctrinal structure created by the Lopez and Morrison decisions, the emphasis was entirely different, and perhaps the only clear doctrinal result of the decision is that pieces of comprehensive regulatory programs will be upheld precisely because they are part of a larger program. Put bluntly, the more Congress regulates, the more it can regulate. Second, this article contends that Raich exemplifies an idea of government power that assumes the rationality and desirability of regulation and that this assumption dovetails with Michel Foucault's theory of biopolitics, in which the power of the modern state turns on its ability to make live or let die. Specifically, this article explores what it means for constitutional law to accept the biopolitical nature of contemporary government power, particularly in the context of end of life decisions, as well as pain management. The third, concluding section briefly considers the possibility that biopolitics, while usually described in negative terms, has more complex normative implications.
constitutional law, jurisprudence, law and humanities
Abstract: This article examines the notorious mid-nineteenth-century American trial of Amelia Norman, who was acquitted - very much against the weight of the evidence - of attempting to kill the man who seduced her. In particular, we explore the role in the trial and its aftermath of the affective energies and cultural expectations set in motion by best-selling American sentimental novels like Hannah Foster's "The Coquette" and Susanna Rowson's "Charlotte Temple." In Norman's case, once newspapers, defense lawyers, and reformers such as Lydia Maria Child recast the defendant as a sentimental heroine, the trial became about seduction, not attempted murder. The sentimental emplotment of Norman's life marshaled a powerful set of emotional responses and moral judgments on her behalf. For example, Norman claimed insanity. And since sentimental heroines are supposed to go mad when they are seduced and abandoned, the jury was prepared to interpret her symptoms according to her lawyers' very strategy for establishing her innocence. Ultimately, however, Norman embodied the plight of the sentimental heroine at the same time that she contested her fictional counterpart's fate. In this way, her trial spectacularized the disparity which the sentimental novel conjures up and displaces but never resolves. Going further, the common law theory of coverture, which severely limited the legal personhood of married women, has received a great deal of scholarly attention. Cases like Norman's remind us that unmarried women were also subject to draconian constraints on their legal personhood. The tort of seduction is a key example. Legal historians trace the development of the seduction tort from its common-law origins, when men's property interest in women's bodies formed the basis of the cause of action, to 1851, when Field Code authors (including Norman's lawyer, David Graham) persuaded several states to grant seduced women standing to bring their own cause of action. Consequently, courts were forced to reckon with the seduced woman as a moral agent capable of consenting to sex. As trials like Norman's demonstrate, sentimental novels helped lay the groundwork for this shift in the law by elucidating a subjectivity for the seduced woman. Yet the doctrinal implications of Norman's precedent-setting trial had a second, more ambiguous strain. Other women facing similar charges used the same legal strategy to gain acquittals in a substantial number of cases. Indeed, Norman's sentimental strategy proved so powerful that men on trial for killing their wives' seducers appropriated it to bring their own stories before juries and to reinforce male sexual norms through the so-called honor defense. In the end, then, Norman's trial fostered legal reform, but it also suggested - as Lydia Maria Child's fictionalization of the case in "Rosenglory" recognized - that only sustained and multifaceted efforts to change cultural as well as legal norms could improve the sexual status of women. In addition to its legal, literary, and historical insights that it provides, we also intend this article to contribute to debates on the nature of scholarship in law and literature. Scholars such as Wai Chee Dimock have argued for a focus on the historical and historically shifting relations between law and literature - a view we endorse. Where we differ from Dimock is in our diversion of attention away from abstract ideas of law laid out by treatise writers and philosophers in favor of law experienced and manipulated by individuals. So, too, we are interested less in representations of concepts such as justice in legal and literary texts than we are in the ways in which literature (broadly conceived) can create provisional and fragile opportunities for concrete instantiations of justice and even generate legal change (for good or ill). We would argue that to the extent legal change motivates rather than simply mirrors cultural change, it needs literature to be effective. This project, then, responds to Gregg Crane's call for attention to the complex and slippery historical interactions of law and literature that shape and are shaped by an ever changing cultural idiom of justice. The extended story of Amelia Norman, in short, not only constitutes a case study in the inescapable interaction between the overlapping and interdependent discourses of law and literature, but also reveals the literary and legal consequences of that interaction.
criminal law, jurisprudence, law and the humanities, law and literature
Abstract: This essay for a symposium on "The New Exceptionalism: Law and Literature after 9/11" explores some of the conflicts at the core of liberal rights by comparing Ian McEwan's recent novel "Saturday" with Jeffrie Murphy's 1972 article, "Moral Death: A Kantian Essay on Psychopathy." Read together, these texts describe the role of rights in the "war on terror," particularly the way in which the terrorist (or person analogous to a terrorist) is easily defined within a liberal state as the person without rights. At the same time, however, the terrorist can also be described as a person who has different, more intrusive and amorphous rights. In contrast to the more familiar but elusive right to be let alone, these different rights - which in other contexts might be called welfare rights - include rights to be treated, cared for, and, if necessary, dominated and controlled. They are also rights that generalize beyond the context of terrorism.
torture, civil rights, constitutional law, law and literature
Abstract: This contribution to a symposium in honor of Lawrence Friedman explores the relationship between ideas of justification and progress in American criminal law. With respect to justification, I focus - perhaps counterintuitively - on provocation and the law of torture. I suggest not only that justification arguments pull against and undermine the ideal of a rational and progressive criminal law, but also that the resulting mess is something we should accept and consider celebrating. With respect to progress, my concern is to bring out the anxiety produced by the tension between liberalism and concrete progress in the area of criminal justice, to consider the relationship between progress and authoritarian government, and to question the very idea of progress in criminal law and in law generally.
Abstract: This article -- part of a symposium on the Supreme Court's 2008 decision in Medellin v. Texas -- addresses the impact of that decision on the ability of plaintiffs to bring section 1983 claims against state actors for violations of treaties. Because to my knowledge there has been no comprehensive assessment of whether section 1983 applies to treaties at all, the article first considers the textual, precedential and policy-based arguments on that question. I conclude that although the question is close, section 1983 should include treaty-based claims. Turning to Medellin, the article highlights several statements in the majority opinion to the effect that treaties are not equal to federal statutes and that courts should presume that treaties do not create private rights. The article assesses the extent to which these statements will create problems for treaty claims. Notwithstanding those problems, I argue that treaties and statutes should receive similar treatment under section 1983.
civil rights litigation, treaties, enforcement of treaties
Abstract: The law of international extradition in the United States rests on a series of myths that have hardened into doctrine. Perhaps the most significant is the frequent claim that by its nature, extradition is “an executive function, rather than a judicial one.” This claim, in turn, supports additional rules, such as the “rule of non-inquiry,” under which courts hearing extradition cases may not inquire into the procedures or treatment, including possible physical abuse, that await the extraditee in the requesting state. In its 2008 decision in Munaf v. Geren, for example, the Supreme Court applied this rule to the transfer of two U.S. citizens from U.S. military custody to Iraqi custody for trial in Iraqi courts. In response to their claim that they were likely to be tortured in Iraqi custody, the Court stated that “it is for the political branches, not the judiciary, to assess practices in foreign countries and to determine national policy in light of those assessments.” This article uses the rule of non-inquiry to assess the current state of extradition law and the theories that support it. I focus first on the doctrinal status of the rule, with the goal of demonstrating that it is more flexible than courts often purport to believe and that a more explicitly functional approach would better serve the issues that the non-inquiry doctrine encompasses and implicates. Throughout my doctrinal discussion, I also consider the proper scope of habeas corpus review of extradition decisions. This article also has broader ambitions. First, my discussion of non-inquiry and the scope of habeas review seeks to historicize these doctrines. Second, I argue for unfreezing extradition law and putting it back into the overall structure of federal law and the current of legal change. Third, my suggestions for the rule of non-inquiry also work within and seek to incorporate some of the many changes in international law that have taken place since the rule was first announced. Fourth, I contest the notion that foreign affairs concerns require courts to refuse to inquire into constitutional or human rights claims. Finally, I explore the rule of non-inquiry’s reliance on a traditional notion of national, territorial sovereignty. Some writers have pointed to the Supreme Court’s decision in Boumediene v. Bush as an example of changing conceptions of sovereignty. By contrast, the Munaf majority repeatedly stressed and relied upon Iraq’s “sovereign right” or “prerogative” to punish offenses “committed on its soil.” Thus, on the same day in June 2008, the Supreme Court declared both that sovereignty has changed, and that it remains the same. This article asks whether Munaf’s conception of sovereignty was already outdated or whether it gives the lie to claims that sovereignty has eroded. I also consider a third option, that both conceptions can exist and be consistent with each other in U.S. law, and the article ends by exploring what that coexistence might mean.
Abstract: This essay is the introduction to a Lewis & Clark Law Review symposium on the Supreme Court's decision last term in Sanchez-Llamas v. Oregon, which concerned the rights under Article 36 of the Vienna Convention on Consular Relations of foreign nationals arrested in the United States. It also raised federalism questions about the manner in which state courts should interact with public international law, as well as whether or how the Supreme Court should mandate state court engagement or compliance with international law. Further, because the debate over Article 36 turns in part on whether prisoners have enforceable rights under the VCCR, the case required the Court to consider the relationship among a host of overlapping issues concerning the domestic status of public international law and the role of federal courts in ensuring that status, whatever it may be. Finally, Sanchez-Llamas marked the Court's fourth encounter with the VCCR in less than a decade. During the same period the International Court of Justice has issued three decisions about U.S. non-compliance with the VCCR. One of the critical issues in Sanchez-Llamas was how the Supreme Court would react to the ICJ decisions, a reaction that has broader implications for the relationship between U.S. courts and the proliferating number of international courts. Although Sanchez-Llamas takes a large step toward resolving the questions raised by individual claims under Article 36, it does not end the debate over the meaning and application of that provision. Not surprisingly, the decision also fails to provide definitive answers to the larger questions that hovered around the litigation. The essays in this symposium address many of these questions by analyzing the Sanchez-Llamas opinions, teasing out the implications of the decision, and identifying issues that remain unresolved (and, of course, suggesting resolutions). This essay briefly describes the history of Article 36 litigation, notes the ways in which the VCCR interacted with the state court proceedings below, and discusses the Sanchez-Llamas opinions. The entire symposium, with contributions by Julian Ku, Janet Levit, Margaret McGuinness, Paul Stephan, and Melissa Waters, is available at the Lewis & Clark Law Review web site.
international law, remedies, civil rights, criminal procedure
Abstract: The premise of this essay is that the modern administrative state's need for discretion and flexibility and its tendency to govern through emergency have a discernable impact on the structure of criminal procedure doctrine in the United States. The current War on Terror that fully emerged after September 11, 2001 increases the desire for discretion and flexibility and influences the course of doctrine, but it has not changed doctrine in any fundamental way. Building on that premise, my goal is to explore how the development of criminal procedure doctrines over the last three decades or so reflects and assists a way of governing a state and its citizens, a process that responds to but also transcends particular events such as the War on Drugs or the War on Terror. In the approach to criminal procedure doctrine that I sketch, flexible but meaningful rights are integrated into flexible but professional police practices, with the goal of allowing careful calibration by private individuals and government officials of the various interests that are at play in a modern, liberal, administrative state.
criminal procedure, constitutional law
Abstract: Our paper explores how the affective energies and cultural expectations set in motion by best-selling American sentimental novels like Hannah Foster's The Coquette and Susanna Rowson's Charlotte Temple informed the notorious mid-nineteenth-century American trial of Amelia Norman, who attempted to kill the man who seduced her. Once newspapers, defense lawyers, and reformers such as Lydia Maria Child recast the defendant as a sentimental heroine, the trial became about seduction, and Norman was acquitted against the weight of the evidence. Sentimental novels turn on the contrast between the passive victim status of the heroine and the active libidinal quest of the rake-villain. As Cathy Davidson points out, this fiction is "about silence, subservience, stasis (the accepted attributes of women as traditionally defined) in contradistinction to conflicting impulses toward independence, action, and self expression (the ideals of the new American nation)." The seduction plot diverts attention from this disparity by establishing an affective solidarity between heroine and reader and elevating the ruined woman to a tragic status. The sentimental emplotment of Norman's life marshaled a powerful set of emotional responses and moral judgements on her behalf. Norman claimed insanity. And since sentimental heroines are supposed to go mad when they are seduced and abandoned, the jury was prepared to interpret her symptoms according to her lawyers' very strategy for establishing her innocence. Ultimately, however, Norman embodied the plight of the sentimental heroine at the same time that she contested her fictional counterpart's fate. In this way, her trial spectacularized the disparity which the sentimental novel conjures up and displaces but never resolves. The common law theory of coverture, which severely limited the legal personhood of married women, has received a great deal of scholarly attention. Cases like Norman's remind us that unmarried women were also subject to draconian constraints on their legal personhood. The tort of seduction is a key example. Legal historians trace the development of the seduction tort from its common-law origins, when men's property interest in women's bodies formed the basis of the cause of action, to 1851, when Field Code authors (including Norman's lawyer David Graham) persuaded several states to grant seduced women standing to bring their own cause of action. Consequently, courts were forced to reckon with the seduced woman as a moral agent capable of consenting to sex. As trials like Norman's demonstrate, sentimental novels helped lay the groundwork for this shift in the law by elucidating a subjectivity for the seduced woman. Yet the doctrinal implications of Norman's precedent-setting trial had a second, more ambiguous strain. Norman's sentimental strategy proved so powerful that men on trial for killing their wive's seducers appropriated it to bring their own stories before juries and to reinforce male sexual norms. In the end, then, Norman's trial fostered legal reform, but it also suggested - as Child's fictionalization of the case in "Rosenglory" recognized - that only sustained and multifaceted efforts to change cultural as well as legal norms could improve the sexual status of women. Scholars such as Wai Chee Dimock have argued for a focus "on the historical and historically shifting relations between law and literature" - a view we endorse. Where we differ from Dimock is in our diversion of attention away from abstract ideas of law laid out by treatise writers and philosophers in favor of law experienced and manipulated by individuals. So, too, we are interested less in representations of concepts such as justice in legal and literary texts than we are in the ways in which literature (broadly conceived) can create provisional and fragile opportunities for concrete instantiations of justice and even generate legal change (for good or ill). Going further, we would argue that to the extent legal change motivates rather than simply mirrors cultural change, it needs literature to be effective. Thus, we see no need to characterize - and indeed reject the depiction of - law as "a limited arena" in which ideas of morality have little place. This project, then, responds to Gregg Crane's call for attention to "the complex and slippery historical interactions of law and literature that shape and are shaped by an ever changing cultural idiom of justice." The extended story of Amelia Norman not only constitutes a case study in the inescapable interaction between the overlapping and interdependent discourses of law and literature, but also reveals the literary and legal consequences of that interaction.
Criminal law, procedure, legal history, law and literature
Abstract: The prevailing rationale for the necessity defense is consequentialist: a defendant should be acquitted if his or her conduct increased net social welfare. Courts mouth this rhetoric but also erect high barriers in front of defendants who have strong balance of harms arguments ? for example defendants in civil disobedience cases (it?s hard to deny that the benefit of stopping an immoral or potential dangerous activity outweighs the harm of, say, trespass on government property). As a result, juries rarely see the defense. This article explains and attempts to resolve the tension between the net social welfare doctrine of necessity and the results in actual cases, and does so in a manner that has implications for our approaches to culpability and the rule of law generally. Necessity claims create anxiety for courts because they seem to allow ad hoc acquittals, thereby undermining the rule of law-based values such as consistency that we associate with the criminal law. The consequentialist formulation of the defense addresses this anxiety by treating necessity as if it were a simple mechanical inquiry into the relative weights of social harms and benefits. Yet when it comes time to decide a case, courts base their decisions not on net social welfare but on whether or not the defendant acted appropriately under the circumstances. This evaluation includes an assessment of harms, but it also sweeps more broadly to include normative issues that are too often masked or not easily contained by consequentialist analysis. This broader evaluation is nothing more or less than an inquiry into the personal moral culpability of the defendant. It turns out, in other words, that necessity claims can be restated as culpability claims, and any analysis of necessity must explain the defense?s relationship to principles of culpability. There is no real alternative to a culpability-based approach. Efforts to fit necessity within the confines of consequentialism, or the common alternatives of voluntarism and character theories, simply don?t work because all of those approaches mask important normative questions and make untenable assumptions about human character and experience. Rather than push necessity and culpability into one or the other of these theories, courts and commentators should reconsider their approach. Culpability and necessity should be reconceived as frameworks for the broader moral inquiry that ranges across harm, choice, and issues of character ? and whatever other issues the decisionmaker chooses to consider ? to determine whether the defendant?s conduct was appropriate and desirable under the circumstances and in light of community values. This is the point at which rule of law theorists begin to complain that case-by-case adjudication threatens the predictability that is essential to the criminal law. But predictability is an illusion even in the definition of offenses, and any effort to impose it on a defense threatens to do more harm than good to the overall structure of the criminal law. The key to the rule of law is not so much the application of clear and consistent rules in particular cases as it is the legitimacy of the system over time. And legitimacy, in turn, depends to a strong degree upon the attitude of citizens. If they believe that they can present their own explanatory narrative of their conduct, and that their narrative will be taken seriously (and that others will have the same opportunity), then they are more likely to believe the law is legitimate. Defenses such as necessity allow the presentation of these alternate narratives, and thus are crucial to maintaining the legitimacy of the criminal law. The importance of legitimacy and the need for a moral evaluation also explain why necessity claims ? and issues of culpability generally ? should be entrusted to the jury. If culpability and necessity are frameworks within which the decisionmaker employs a shifting mix of factors to determine whether the defendant?s conduct was appropriate and desirable under the circumstances, then that decision cannot be left solely to the discretion of a judge. The normative evaluation of the defendant?s conduct should be made by the entity best situated to make a community moral judgment (not to mention the entity whose judgments are most likely to be accepted within a community). Entrusting the decision to the jury also promotes moral dialogue within the community and between the community and the criminal justice system, which is a central function of the criminal law.
Abstract: Criminal defendants have a due process right to raise the excuse of reliance on a reasonable interpretation of the criminal law provided by a government official. Yet the due process basis for this defense rests upon murky invocations of fundamental fairness that provide little content. Moreover, at common law, courts consistently (though not exclusively) rejected the defense, which would appear to undermine the due process rationale. This article seeks to retrieve and rehabilitate the common law version of the reliance defense. A brief examination of the early common law cases indicates a narrowly instrumental view of the criminal law, typified by reflexive invocations of the maxim that ignorance is no excuse. By reopening the debate, I am able to apply contemporary moral and utilitarian theories of culpability to the defense. I show that, under moral theories, it is indefensible to hold a defendant criminally responsible for conduct undertaken in reasonable and good faith reliance on an official interpretation of law, with the proviso that the reasonableness inquiry requires careful consideration of whether the defendant ought to have known her actions were culpable regardless of what the state told her (for example, for crimes commonly considered mala in se). Under deterrence theories, there is simply nothing to deter when a defendant reasonably and in good faith relies on an official statement of law, while the risks of overdeterrence are large. Moreover, allowing the defense permits more targeted deterrence of state officials who provide bad advice. This theorizing, in turn, helps to give content to the Supreme Court's fundamental fairness claims for the defense. I also consider other due process rationales based in principles of notice and the prevention of arbitrary conduct. I conclude that the Due Process Clause provides a core protection to individuals seeking government advice about the criminal law, but that the common law is the proper place for the case-by-case development of the defense, because common law courts have greater ability to apply the defense flexibly, to advance and retreat, and to self-consciously consider the issues of moral culpability that are central to the defense. In the last section, I turn to the implication of the defense for mistake of law and other aspects of estoppel. With respect to mistake of law, I argue that the kind of explicit culpability-based reasoning that supports the reliance defense also supports jettisoning the ignorance maxim in favor of a more nuanced approach to mistake of law claims generally. Under this approach, claims of reliance on a statute, advice of counsel, or even pure ignorance might support a defense in limited circumstances. Finally, I consider the impact of this analysis on the rule against estopping the government in civil cases. I argue that, regardless of the label placed on the government's actions, the government may not impose penalties on those who violated the law while reasonably and in good faith relying on an official interpretation of that law.
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