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?
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?
posted by Garrett at 2:18 PM
1 Comments:
I'm writing about plaintiffs' class certification because that's what law firm S has been paying me to read about all summer. Is that ethical?
Your topics are fascinating, of course. You should ask Alex what he thinks though...he wrote about something really interesting and philosophically engaging and is having a harder time getting it published.
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