Note Idea

In their second and third years of law school, law students often write long papers about the law--called notes or comments--for publication in student-edited law journals. I'm starting to think about topic ideas for a potential note next year.

Here's one idea: I want to explore the extent to which the doctrine of stare decisis does and/or should apply to wartime cases.

I stumbled on the idea while reading the recent Supreme Court decision in Hamdan v. Rumsfeld. In that case, the Supreme Court was faced with a lot of previously decided cases about what procedural guarantees the military must give enemy combatants during wartime. In a nutshell, the cases from the Civil War era said that the government owes enemy combatants a lot of procedural safeguards, while the cases from WWII said that the government owes few procedural safeguards to enemy combatants. The Supreme Court in Hamdan eventually followed the Civil War cases.

I want to look at the reasoning in the joint opinion of Justices Souter, O'Connor, and Kennedy in Planned Parenthood v. Casey, a 1992 case in which the Court upheld Roe v. Wade not because it was rightly decided in the first place, but because "[l]iberty finds no refuge in a jurisprudence of doubt." The opinion discusses some factors that affect when stare decisis should apply to a precedent of questionable persuasiveness. So I want to look at the extent to which those factors in Casey apply to wartime cases.

One initial thought: The factual underpinnings of wartime cases change greatly over time. The Civil War cases were unique because we were dealing with enemy combatants who were also American citizens. Today, we're fighting a war against stateless enemy combatants. Plus, pursuant to Justice Jackson's famous concurring opinion in Youngstown, Congress has taken different stands with respect to treatment of enemy combatants in wartime, thereby altering how the president can constitutionally treat them. So perhaps the fluidity of the factual underpinnings is a reason against a rigid application of stare decisis in wartime cases.

Other thoughts?

Living Vicariously

I wonder whether anyone else has noticed this phenomenon: It seems to me that, through a certain age, kids focus primarily on personal achievement. Then, as they get older, something happens, and they start to settle. Their aspirations shift from personal achievement to setting their kids (or others) up for greatness. Almost all grandparents I know are in this latter stage; most parents are, too. When was the last time you saw a 65-year-old running marathons? It seems to me that the casual conversations of most parents and grandparents revolve around their children and grandchildren. "My grandson scored 3 goals in his soccer game last night." "Well, my granddaughter is going to Michigan next fall."

What is that something? Maybe the world is too rough. Maybe humans aren't good at dealing with failure when they've made an effort to succeed, so after so many disappointments, they have to lower their expectations; no more shooting for the stars.

Am I right about the existence of this phenomenon? If so, anybody have any thoughts on explanations for it?

Faux Cosmopolitanism

If you need more evidence that Americans don't care about all people equally (and of course not just Americans are guilty of this practice), today's New York Times reports that more than 3,000 Iraqi civilians died in the month of June. That number is higher than the number of casualties from 9/11. And the victims are just as innocent. But people aren't glued to their TVs in shock and horror, are they?

I'm about a third of the way through Martha Nussbaum's new book, Frontiers of Justice (reviewed here). She argues that Rawls's social contract theory doesn't provide adequately for justice to the disabled, to non-human animals, and, most importantly for purposes of this post, to people across international borders. The fictitious "original position" assumes that the parties to the social contract are in roughly equal positions of power (after all, the hallmark of a contract is a quid pro quo, and if you don't have anything, you have nothing to trade away). But there are remarkable disparities of power across people in different countries.

I'll post a fuller review of Nussbaum's book shortly.

Market Failures?

My Wednesday evening flight from Newark to Ohio got cancelled due to weather, but I didn't learn of the cancellation until I arrived at the airport. Continental never notified me of the cancellation (via e-mail or phone), yet refused to pay for my cab fare back to the City or to an alternative flight out of LaGuardia; their "weather policy" doesn't "permit" such an accommodation.

Why isn't there a market for travel weather insurance? I'm risk averse, so I think I'd be willing to pay a few extra bucks for a guarantee that the airline will do everything in its power to get me to my destination on time come hell or high water. But it's not even a choice available to me.

We're looking at a market with very few large firms. Is the problem I described an example of one of those large firms flexing its market power?

Now, market advocates might say that we're not necessarily witnessing market power. Perhaps the transaction costs of negotiating the terms of such a contract would outweigh whatever consumer and producer surpluses it created. Or maybe such terms are--in most passengers' eyes--advantageous, because they save passengers a few bucks.

Thoughts?

Wow

Two of my friends and I just finished watching an A&E documentary on a neo-Nazi skinhead group outside Birmingham, Alabama. The group gave A&E unfettered access to their compound and meetings. The group's leader was a fairly charismatic, avuncular thirtysomething who owned a house (?) in some backcountry Alabama woodlands. Guys in their teens and early 20s composed the rest of the group. The show provoked a few thoughts:

1. Much of the show was comic to us; the independent thought and airtight logic filled the capacious hour. A few parts were less surreal and thus more disturbing. Obviously the group leader wasn't winning these kids to his group with his well-reasoned ethical arguments; I think the draw of the group was its freedom and its ability to fulfill the "Boy Scouts" gap in their lives. They spent their time shooting rifles and shotguns in the woods, drinking beer, saluting the Nazi flag, denouncing the way our country has been overrun by non-whites, and talking smack about what they would like to do to the Jews and blacks in the US.

2. The group held a few demonstrations and marches on the streets of Birmingham. Birmingham police officers were present in large numbers to ensure riots did not break out. Many of the officers were black. What must it be like to be a black cop defending a group of screaming skinhead yoohoos? If I were in that position, I seriously wonder whether I wouldn't have occasional security "lapses."

3. Four kids in the group were arrested for the murder of a black homeless Birmingham man. Now, I don't know whether those kids actually committed the crime, but if they did, I think it's a pretty damn good example of how excessively individualistic American law is. The group leader clearly provides the fuel for the kids' fiery bigotry, yet the law imputes to the kids the ability to evaluate competing ethical arguments and imposes responsibility on them when they act upon those evaluations. Where, praytell, are these kids supposed to learn such evaluative skills? What would be the consequences of our taking a more comprehensive view of the causes of the situation? Would we become more conscious of social interconnectedness if our law permitted the prosecutor to charge the neo-Nazi leader with the murder?

Thoughts?