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The Conflict of Laws and Boumediene V. Bush

27 Pages Posted: 24 Apr 2009  

Patrick Joseph Borchers

Creighton University School of Law

Date Written: December 1, 2008


The Supreme Court's 2008 decision extending the constitutional right of habeas corpus to non-citizen detainees held at Guantanamo Bay is a remarkable decision on many levels. Although the Supreme Court had previously held to a mostly sovereignty based, territorial methodology for determining whether U.S. constitutional rights would be extended extraterritorially, latent in the Court's jurisprudence had long been a strain of the "personal law" principle. That personal law principle was the analytical basis for reorientation of U.S. conflicts law away from territoriality to interest analysis. In Boumediene v. Bush, the Court was required to confront the competing territoriality and personal law strands of its jurisprudence. Its attempt to reconcile the two into a "functional" test mimics the same struggle that U.S. courts have had for the last four decades trying to accommodate those competing concerns on conflict of laws. Thus, this article argues that the Supreme Court's decision is best understood as a conflict-of-laws decision.

Keywords: Guantanamo Bay, Cuba, habeas corpus, conflict of laws, extraterritoriality, interbushnational law, constitutional law, war on terror, boumediene

JEL Classification: K10, K33, K14, K40, K41, K42

Suggested Citation

Borchers, Patrick Joseph, The Conflict of Laws and Boumediene V. Bush (December 1, 2008). Creighton Law Review, Vol. 42, No. 1, 2008. Available at SSRN:

Patrick Borchers (Contact Author)

Creighton University School of Law ( email )

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