Topic
Hamdan
About: Hamdan is a research topic. Over the lifetime, 171 publications have been published within this topic receiving 953 citations.
Papers published on a yearly basis
Papers
Journal Article•
TL;DR: For instance, this article argued that the U.S. Supreme Court does not exhibit ideological change over the course of their tenures, contrary to the commonly held belief that the Justices themselves do not exhibit ideology change over time.
Abstract: I. INTRODUCTION When the U.S. Supreme Court invalidated the use of military commissions for enemy combatants in Hamdan v. Rumsfeld? the decision fueled more than a national debate over the powers of the President. It also generated commentary about the ideological composition of the Court. Conservatives proclaimed that they were just one Justice, just one vacancy, away from victory in Hamdan2 and a handful of other recent decisions that worked against their interests.3 Liberals worried about it just as much.4 The commentary over Hamdan reflects a widely shared belief among journalists, politicians, scholars, and even judges: alterations in the Court's jurisprudence are unlikely in the absence of membership change. That is because of an underlying belief that the Justices themselves do not exhibit ideological change over the course of their tenures.5 To paraphrase the old proverb: once a conservative, always a conservative. Likewise for liberals.6 Why the assumption of stable preferences is so deeply held is open to speculation. Some analysts suggest it would defy logic to expect mature persons, with years of experience in the legal world, to revisit their jurisprudential views. Would a John G. Roberts Jr.-a Justice who has studied, litigated, or adjudicated court cases for over half his life-alter his ideological preferences? The answer, according to Professor David A. Strauss, is that he would not: As Americans try to figure out what Judge John G. Roberts Jr. will be like as a U.S. Supreme Court [JJustice, one idea seems to [be] that whatever Judge Roberts is now, once he is on the [CJourt he might develop into something different. In particular, the thinking goes, even if he is the intense conservative suggested by his Reagan-era memoranda, he may become more moderate as a [J]ustice. Don't believe it.7 Shoring up intuitions about the implausibility of preference change is empirical support in the form of a William H. Rehnquist on the right and a Thurgood Marshall on the left-Justices who never seemed to veer from their preferred ideological courses. When President Richard Nixon appointed Rehnquist to the Court, virtually all observers of the day deemed the nominee a reliable conservative.8 Likewise, at the time of his appointment, the press declared Justice Marshall a probable addition to the Court's "liberal bloc."9 That these initial ideological labels well characterized the Justices' future behavior only serves to confirm Professor Strauss's claim about the unlikelihood of change. Or so the argument goes. And yet, despite the commonplace nature of the claim, it is not without its share of skeptics. Whether pointing to anecdotes or more systematic evidence, several analysts now contend that ideological drift is not just possible but likely.10 Exhibit A, they say, is Justice Harry A. Blackmun. While the Justice himself maintained that it was the Court, not he, that moved-"I don't believe I'm any more liberal, as such, now than I was before," Justice Blackmun once told a reporter"-many scholars disagree.12 To them, it is hard to believe that the same Justice who dissented from the Court's 1972 decision to strike down existing death penalty statutes13 wrote, in 1994, "[f]rom this day forward, I no longer shall tinker with the machinery of death."14 But is Justice Blackmun the rule or the rare exception? Do most Justices remain committed to a particular doctrinal course throughout their careers, as Strauss and others contend, or do the skeptics have the better case? After reviewing the relevant commentary in Part II, we deploy state-of-theart methods to address these questions. The results, as it turns out, could not be clearer: contrary to the received wisdom, virtually every Justice serving since the 1930s has moved to the left or right or, in some cases, has switched directions several times. Finding that ideological drift is pervasive, in Part IV we develop the implications of our results for two moments in the Justices' career cycle: the events surrounding their appointments to the Court and the doctrine they develop once confirmed. …
171 citations
TL;DR: Eskridge and Baer as discussed by the authors conducted an empirical study of all 1014 Supreme Court cases between Chevron (1983) and Hamdan (2006) in which an agency interpretation of a statute was at issue.
Abstract: Dozens of law review authors and judges have proclaimed a Chevron Revolution in the Supreme Court's willingness to defer to agency interpretations, but few authors have examined this claim in a systematic empirical manner. Seeking a more factually grounded understanding, Professor William N. Eskridge, Jr. and Lauren Baer, Esq., conducted an empirical study of all 1014 Supreme Court cases between Chevron (1983) and Hamdan (2006) in which an agency interpretation of a statute was at issue. Eskridge and Baer conclude that there has not been a Chevron revolution, at the Supreme Court level anyway. The new deference regime associated with the Chevron decision continues to exist alongside older deference regimes, including Skidmore, Seminole Rock, Beth Israel, and Curtiss-Wright. Indeed, from the time it was handed down until the end of the 2005 term, Chevron was applied in only 8.3 percent of Supreme Court cases evaluating agency statutory interpretations. Instead, the Court has employed a continuum of deference regimes. This continuum is more complicated than the literature or the Court's own opinions suggest, and it is a continuum in which Chevron plays a modest, perhaps even minor, role. Perhaps the authors' most striking finding is that in the majority of cases - 53.6 percent of them - the Court does not apply any deference regime at all. Instead it relies on ad hoc judicial reasoning of the sort that typifies the Court's methodology in regular statutory interpretation cases. Eskridge and Baer find that neither Chevron nor the other deference regimes is applied consistently by the Supreme Court. The authors find some functional regularities, however. The Court is most likely to defer to agency interpretations when they are consistent with norms recognized by the Justices, reflect the application of genuine expertise to a statutory problem, and are pursuant to delegated lawmaking authority. Eskridge and Baer also find that almost all of the Justices vote ideologically; that is, conservative Justices are significantly more likely to agree with conservative agency interpretations, and liberal Justices are significantly more likely to agree with liberal ones. The last portion of the article applies the empirical findings to address normative questions. Based upon an examination of constitutional structure and legitimacy; the rule of law and the regnant super-statute, the APA; and institutional competence, Eskridge and Baer argue against proposals that either significantly expand or jettison the special Chevron two-step framework. The authors' main prescriptions are friendly amendments to the Court's practice and recommendations that judges rethink basic doctrines of statutory interpretation in light of the modern administrative state.
102 citations
Posted Content•
TL;DR: In this paper, the authors examine and compare two recent judgments which provide some of the most valuable examples of the difficulties surrounding the application of international humanitarian law to the phenomenon of terrorism: the Hamdan judgment of the Supreme Court of the United States, and the Targeted Killings judgment of Israel, and present the lessons for the future that these two decisions might bring to ongoing debates on the impact of global terrorism on the law of armed conflict.
Abstract: The article examines and compares two recent judgments which provide some of the most valuable examples of the difficulties surrounding the application of international humanitarian law to the phenomenon of terrorism: the Hamdan judgment of the Supreme Court of the United States, and the Targeted Killings judgment of the Supreme Court of Israel. Both judgments deal with the thresholds of applicability of the law of armed conflict, as well as with the concept of unlawful combatancy and the relationship between human rights law and humanitarian law. Both judgments are at times inconsistent and lacking in analysis, with the Hamdan judgment in particular misinterpreting the relevant international authorities, including the Commentaries on the Geneva Conventions. Despite these flaws, or because of them, both of these judgments remain instructive. The purpose of this article is to present the lessons for the future that these two decisions might bring to ongoing debates on the impact of global terrorism on the law of armed conflict.
55 citations
Book•
1 Mar 2001
TL;DR: The Oxford Companion to the United States Supreme Court as discussed by the authors contains more than 450 entries on major Supreme Court cases, including 53 new entries on the latest landmark rulings, including United States v. Armstrong (selective prosecution), Atkins v. Virginia (executing the mentally retarded violates the Eighth Amendment's ban on cruel and unusual punishments).
Abstract: This compact reference book contains the case articles from the prize-winning Oxford Companion to the United States Supreme Court. This new edition of the Guide will contain more than 450 entries on major Supreme Court cases, including 53 new entries on the latest landmark rulings. Among the new entries are United States v. American Library Association (censorship of internet content), United States v. Armstrong (selective prosecution), Atkins v. Virginia (executing the mentally retarded violates the Eighth Amendment's ban on cruel and unusual punishments), Boy Scouts v. Dale (freedom of association), Bush v. Gore (equal protection and recount), Nixon v. United States (political questions inappropriate for judicial resolution), , Gonzales v. Carhart and Gonzales v. Planned Parenthood Federation of America (abortion), Gonzales v. Raich, (Congress can proscribe all use of marijuana under commerce power), Morse v. Frederick (student's free speech), and Rumsfeld v. Forum for Academic and Institutional Rights (First Amendment and Solomon Amendment). Four decisions-Hamdi v. Bush, Hamdan v. Rumsfeld, Rasu v. Bush, and Rumsfeld v. Padila-will be considered in a single essay entitled "Enemy Combatant Cases." In addition to these new cases, both front and backmatter materials have been revised, including the Introduction, the Directory of Contributors, Case Index, Topical Index, and Appendix Two has been revised to note changes in the Supreme Court, including the death of Chief Justice Rehnquist and the retirement of Justice O'Connor, and their replacement by Chief Justice Roberts and Justice Alito.
54 citations
Posted Content•
TL;DR: For more than fifty years following the 1949 revision of the Geneva Conventions, the articles that defined when the protections of these treaties came into force - Common Articles 2 and 3 - were understood as the exclusive standard for determining application of the laws of war as discussed by the authors.
Abstract: For more than fifty years following the 1949 revision of the Geneva Conventions, the articles that defined when the protections of these treaties came into force - Common Articles 2 and 3 - were understood as the exclusive standard for determining application of the laws of war. From these two articles emerged an "either/or" law-applicability paradigm: inter-state, or international, armed conflicts triggered the full corpus of the laws of war; intra-state, or internal, armed conflicts triggered the limited humanitarian protection reflected in the terms of Common Article 3. The military response to the terrorist attacks of September 11, 2001 threw this paradigm into disarray. These events exposed the gap in legal regulation of armed conflict. Although the U.S. Supreme Court decision in Hamdan v. Rumsfeld rejected the Bush administration's reliance on this "either/or" law-triggering paradigm as a basis to deny the applicability of the humane treatment mandate to captured al Qaeda personnel, that decision did not address regulation of hostilities. It was, instead, the conflict between Israel and Hezbollah that exposed the unacceptable consequences of this gap in legal regulation. While numerous voices from the international community invoked law of war as a basis to condemn both parties, there was virtually no consideration of the reality that, like the global war on terror, the conflict defied traditional categorization under the Common Article 2/3 paradigm. This Article asserts that the changing nature of warfare necessitates recognition of a hybrid category of "transnational armed conflict." This category is based on the de facto existence of armed conflict, regardless of geographic scope. The such armed conflicts trigger for application of the foundational principles of the laws of war, and how such application is derived from the history of regulating warfare, the purposes of the Geneva Conventions, and the pragmatic logic that animated the adoption of national military policies mandating application of these principles to all military operations.
45 citations
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Performance Metrics
| Year | Papers |
|---|---|
| 2021 | 2 |
| 2020 | 2 |
| 2019 | 1 |
| 2018 | 2 |
| 2016 | 3 |
| 2015 | 6 |