West Law Report

Fixing Failed States

Posted in Afghanistan Constitution, Authors@Google, International Law, UN by mrkooenglish on June 27, 2008

Jun 2008

(1 hr)

Former U.N. advisers to Afghanistan Ashraf Ghani and Clare Lockhart discusses their latest book, “Fixing Failed States: A Framework for Rebuilding our Fractured World.”
In the talk:

In Fixing Failed States, the authors describe the effort to save failed states–vividly and convincingly–offering an on-the-ground picture of why past efforts have not worked and advancing a groundbreaking new solution to this most pressing of global crises. Military force, while certainly necessary on occasion, cannot solve the fundamental problems, and humanitarian interventions cost billions yet do not leave capable states in their wake. Ghani and Lockhart argue that only an integrated state-building approach can heal these failing countries. As they explain, many of these countries already have the resources they need, if only we knew how to connect them to global knowledge and put them to work in the right way. Their state-building strategy, which assigns responsibility equally among the international community, national leaders, and citizens, maps out a clear path to political and economic stability.

The bio of the speakers:

Ashraf Ghani played a central role in the design and implementation of the post-Taliban settlement in Afghanistan, serving as UN adviser to the Bonn process and as Finance Minister during Afghanistan’s Transitional Administration. He has worked at the World Bank and taught at Johns Hopkins and Berkeley universities. He has been nominated for the job of Secretary General of the United Nations and considered for the job of President of the World Bank. He chairs the Institute for State Effectiveness.

Clare Lockhart is Director for the Institute for State Effectiveness. She has worked for the World Bank, the United Nations and advised the Government of Afghanistan government in Kabul on its strategy and programs from 2002 to 2005. She advises countries and international organizations on state-building and has written widely on the topic.

http://www.effectivestates.org

THE CORE OF AN UNEASY CASE FOR JUDICIAL REVIEW

Posted in Harvard Law Review (Article), judicial review, Richard Fallon by mrkooenglish on June 11, 2008

Richard H. Fallon, Jr.’s article in Harvard Law Review (May 2008) (.pdf) (44 pages):

The best case for judicial review in politically and morally healthy societies does not depend (as is commonly believed) on the idea that courts are more likely than legislatures to define vague rights correctly. It rests instead on the subtly different ground that legislatures and courts should both be enlisted to protect fundamental rights and, accordingly, that both should have veto powers over legislation that might reasonably be thought to violate such rights.

In developing this case for judicial review, Professor Fallon proceeds by confronting recent, influential, philosophically probing arguments against judicial review by Professor Jeremy Waldron. Professor Fallon concedes arguendo that, as Professor Waldron argues, courts are no better than legislatures at defining rights correctly, but maintains that the crucial question is not whether courts or legislatures are less likely to err, but which kinds of errors are most important to avoid ?those that result in rights being overprotected or those that result in rights being infringed. Insofar as judicial review can be designed to prevent errors in just one direction, involving failures to protect rights adequately, then judicial review may be supportable even if courts are no better than legislatures at identifying rights correctly. Professor Fallon also argues, contra Professor Waldron, that judicial review can actually contribute to the political legitimacy of an otherwise democratic scheme of government when the demands of political legitimacy are understood correctly.

Professor Fallon revised justification for judicial review, which does not presume courts to be better than legislatures at identifying fundamental rights, has important implications for how judicial review should be practiced. It implies a diminished role for courts in cases in which fundamental rights are pitted against one another, such that the overenforcement of one entails the underenforcement of the other. It also implies that courts should withhold review when legislatures conscientiously seek to protect one fundamental right without plausibly threatening another.

HABEAS CORPUS JURISDICTION, SUBSTANTIVE RIGHTS, AND THE WAR ON TERROR

An article of Richard H. Fallon, Jr. and Daniel J. Meltzer in Harvard Law Review (Jun 2007) (.pdf) (84 pages):

This Article provides a broad-lens, synoptic perspective on war-on-terrorism questions arising within the habeas corpus jurisdiction of the federal courts. Analytically, it develops a clear framework for sorting out the tangle of jurisdictional, substantive, procedural, and scope-of-review issues that habeas cases often present. Methodologically, it champions a common lawike approach to habeas adjudication under which courts must exercise responsible judgment in adapting both statutory and constitutional language to unforeseen exigencies.
The Article also takes substantive positions on a number of important issues. In the jurisdictional domain, it defends the Supreme Court controversial decision in Rasul v. Bush, which interpreted the habeas statute as it then stood to authorize inquiry into the lawfulness of detentions at Guantanamo Bay. The Article also argues, however, that a court would overstep if it read the Constitution as mandating review of detentions of aliens in such wholly foreign locales as Afghanistan or Iraq. Scrutinizing post-Rasul legislation that eliminates habeas for alien detainees and substitutes more limited review in the D.C. Circuit, the Article argues that the resulting scheme is constitutionally valid as applied to most cases in which the D.C. Circuit can exercise review, but invalid insofar as it entirely precludes detainees in the United States or at Guantanamo Bay from challenging their detention or conditions of confinement before a civilian court.

With respect to substantive rights, the Article argues that American citizens seized outside of battlefield conditions have a right not to be detained indefinitely without civilian trial. It explains why the constitutional rights of noncitizens are more limited, but argues that existing statutes should not be read to authorize aliens?detention as enemy combatants when they are seized in the United States, away from any theater of combat. Finally, the Article analyzes some of the most important procedural and scope-of-review questions likely to come before habeas courts.

Judicially manageable standards and constitutional meaning

Posted in Harvard Law Review (Article), original meaning, Richard Fallon by mrkooenglish on June 11, 2008

Richard H. Fallon, Jr.’s article in Harvard Law Review (Mar 2006) (.pdf) (59 pages):

The Supreme Court has long held that disputes that do not lend themselves to resolution under udicially manageable standards?present nonjusticiable political questions. Filling several gaps in the literature, this Article begins by exploring what the Court means by judicial manageability. Professor Fallon identifies a series of criteria that anchor the Court analysis, but he also argues that in determining that no proposed test for implementing a constitutional guarantee is judicially manageable, the Court must often make an ultimate, all-things-considered assessment of whether the costs of allowing adjudication to proceed would exceed the benefits. This determination is so discretionary, Professor Fallon argues, that if the requirement of judicial manageability applied to the Court own decisionmaking process (as it does not), the criteria by which the Court identifies judicially unmanageable standards might themselves be disqualified as judicially unmanageable.

Although the demand for judicially manageable standards is most prominent in the political question doctrine, Professor Fallon argues that the concern to develop judicially manageable tests pervades constitutional adjudication. Until glossed by judicially formulated tests, most constitutional provisions would not pass muster as judicially manageable standards. Moreover, some of the tests that courts adopt largely for reasons of judicial manageability underenforce, whereas others overenforce, the underlying constitutional guarantees. Linking the phenomena of constitutional underenforcement and overenforcement to the demand for judicially manageable standards, Professor Fallon propounds he permissible disparity thesis?that there can be acceptable gaps between the Constitution meaning and the doctrinal tests applied by courts. He then deploys the permissible disparity thesis to cast new light on the nature and significance of both constitutional theories and constitutional rights, many of which should be viewed as partly aspirational, not necessarily requiring full, immediate enforcement.

Judge Posner: A Political Court

Judge Richard A. Posner’s FOREWORD: A POLITICAL COURT in Harvard Law Review (Nov 2005) (.pdf) (78 pages):

Scholars discuss the work of the Supreme Court in two different ways. The less common is that of social science, with its emphasis on positive rather than normative analysis, its refusal to take at face value the fficial?explanations for judicial phenomena proffered by insiders ?in a word, its realism. To a social scientist, or to a law professor or other jurist who is imbued with the social-scientific approach, the Supreme Court is an object of observation rather than of veneration or condemnation. The social scientist asks, without preconceptions drawn from the professional legal culture, why the Court decides cases as it does and in the form in which it does (long, cholarly?opinions, etc.), and what the consequences of the decisions are. The inquiry delves into such matters as the ideology and temperament of particular Justices; the appointments process; the Court caseload, procedures, and strategic interactions with Congress and other parts of government; behavioral models of judges; the influence of the Zeitgeist on judicial decisions; and ?critically ?the nature and strength of the constraints that operate on the Justices. The goal is not only to under-stand judicial behavior at the Supreme Court level, but also to understand the consequences of that behavior ?for example, to estimate how the crime rate, the number of people in prison, and the incidence of error in the criminal process would be different had the Supreme Court decided landmark criminal cases, such as Gideon v. Wainwright or Miranda v. Arizona, in favor of the government, or how our politics would differ if the Court had not entered the legislative reapportionment thicket in cases such as Baker v. Carr and Wesberry v. Sanders. An interesting recent literature, written from a diversity of political perspectives ?surprisingly, mainly from the Left ?asks the disquieting question whether the net benefits of federal constitutional law are positive, including the subsumed question whether constitutional law has really made much of a difference in the nation policies, values, and practices.

The other way in which to discuss the Court work ?and the way more familiar to lawyers, law professors, and judges ?is to subject it to normative analysis conducted from within the professional culture. The analyst praises or condemns particular doctrines or decisions, or the reasons offered for them by the Court (textual, historical, pragmatic, and so forth) ?more often condemns them, arguing that they are mistaken, unsound ?more precisely, that they are mistakes of law, that the Court simply got the law wrong. This type of Supreme Court scholarship is a branch of rhetoric or advocacy ?a continuation of brief writing and opinion writing by other means ?but it is not wholly unrelated to the first type, the social-scientific study of constitutional law. The behaviors and consequences that a nondoctrinal perspective brings to light can be, or can explain, things the normative analyst deplores (more rarely approves). So if, like Professor Henry Hart in his famous Foreword, you thought the Court was making frequent legal errors, you might attribute this to structural conditions ?to the overuse of summary reversals or, as Hart himself believed, to an excessive workload (the excess being due in part to the Court proclivity for granting certiorari in unimportant cases).
My aim in this Foreword is to be realistic, though without hewing closely to any particular social-scientific methodology; indeed, I shall perforce rely to a degree on that most dubious of methodologies, introspection ?specifically, on the impressions that I have gleaned from being a federal appellate judge for the last twenty-four years. I shall argue that, viewed realistically, the Supreme Court, at least most of the time, when it is deciding constitutional cases is a political organ, and (confining myself to constitutional law) I shall develop some implications of this view, drawing in part on earlier Forewords, such as Hart.

Part I presents statistics that bear on two issues: the tendency of the Court to behave egislatively?and the perception of the Court as an increasingly constitutional court. Part II presents my main thesis, which is that to the extent the Court is a constitutional court, it is a political body. I distinguish there between two forms of political judging, the ggressive?and the odest? my preference is for the latter. Part III examines several alternatives to the political conception of the Court: the Court as expert administrator, the Court as institutionally constrained to behave in a lawlike manner, the Court as moral vanguard, and the Court as a cosmopolitan court searching for international legal consensus. The first two alternatives are descriptively inaccurate; the latter two are aggressively political approaches covered by a veneer of legal reasoning. Part IV discusses, with reference to several recent cases, the Court potential to be a pragmatic decision maker of the odest?kind introduced in Part II.

Spy and Terrorist

Posted in Lawrence Wright, Terrorist Surveillance Program by mrkooenglish on May 25, 2008

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(Photo: John Ritter / New Yorker)

Read Lawrence Wright’s two articles in New Yorker about spy and terrorist. The Spymaster: Can Mike McConnell fix America’s intelligence community? (21 Jan 2008) and The Rebellion Within: An Al Qaeda mastermind questions terrorism (2 Jun 2008).

Judge Posner: Privacy, Surveillance, and Law

Judge Richard Posner in Surveillance Symposium of University of Chicago Law Review (Feb 2008) (.pdf) (16 pages):

“Privacy” is a word of many meanings. The meaning that is most relevant to this essay is secrecy—the interest in concealing personal information about oneself. But I need to distinguish between a per-son’s pure interest in concealment of personal information and his instrumental interest, which is based on fear that the information will be used against him.

In many cultures, including our own, there is a nudity taboo. Except in the sex industry (prostitution, striptease, por-nography, and so forth), nudist colonies, and locker rooms, people generally are embarrassed to be seen naked by strangers, particularly of the opposite sex, even when there are no practical consequences. Why this is so is unclear; but it is a brute fact about the psychology of most people in our society. A woman (an occasional man as well) might be disturbed to learn that nude photographs taken surrepti-tiously of her had been seen by a stranger in a remote country before being destroyed. That invasion of privacy would not have harmed her in any practical sense. Yet it might cause her at least transitory emo-tional distress, and that is a harm even if it seems to have no rational basis (in that respect it is no different from having nightmares after watching a horror movie—another emotional reaction that is real de-spite being irrational from an instrumental standpoint). But if the stranger used the photos to blackmail her, or, in an effort to destroy her budding career as an anchorwoman for the Christian Broadcasting System, published the photos in Hustler magazine, she would have a different and stronger grievance.

In many cases of instrumental concealment of personal informa-tion, the motive is disreputable (deceptive, manipulative): a person might want to conceal his age, or a serious health problem, from a pro-spective spouse or his criminal record from a prospective employer. But the motive is not disreputable in all cases; the blackmailed woman in my example was not trying to mislead anyone in resisting the publi-cation of the photos.

Roberts v. the Future

Posted in Jeffrey Rosen, Justice John G. Roberts Jr by mrkooenglish on May 24, 2008

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(Photo: NY Times)

An interview of Chief Justice Robets in 2005 by the law professor Jeffrey Rosen. Required reading of the MIT course 17.245. And read his 49 opinions and his conservative philosophy.

The Next President and the Courts

Posted in John Yoo, Separation of power, US Supreme Court by mrkooenglish on May 21, 2008

An UC Berkely event
Feb 2008

(1 hr 30 min)

Panelist/Discussants:

  • Jesse Choper, Professor of Law, School of Law – Boalt Hall;
  • Susan Estrich, Professor of Law, USC Gould School of Law;
  • William K. Kelley, Associate Professor of Law, University of Notre Dame School of Law

Moderator:

  • John Yoo, Professor of Law, School of Law – Boalt Hall

The Counselor

Posted in Writer by mrkooenglish on May 21, 2008

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(Photo: Joe Ciardiello / NY Times)

Just read the NY Times magazine interview of Ted Sorensen, JFK’s counselor, adviser and speechwriter. But the questions are usually longer than the answers…

Read also the first chapter and NY Times book review.

John Yoo: Talk with Harry Kreisler

Posted in Anti-terrorism law (US), International Law, John Yoo, President's Authority, Torture by mrkooenglish on May 19, 2008

Conversations With History
Jan 2008

(60 min)

John Yoo, the law professor, discussed Presidential war powers. Professor Yoo analyzed the situation confronting the United States after the 911 attack and explained the development of the legal justifications for the Bush’s administration’s response. Topics addressed include the memorandum on torture, the interface between law and politics, secrecy and democracy, and the Bush legacy.

Justice Breyer: Justice for all

Posted in Jeffrey Toobin, Justice Stephen Breyer by mrkooenglish on May 19, 2008

Watched Toobin interviewed the Juctice (16 Oct 2006); read Toobin reviewed the Justice’s book, Active Liberty (31 Oct 2005).