Monday, November 16, 2009
After an original death sentence for Magwood was overturned in 1986, he was again given a death sentence following a new proceeding in state court. After state courts rejected his challenge to the new sentence, Magwood’s lawyers filed for federal habeas, contending that he had had no notice that a state court ruling adverse to his case would be applied retroactively, and thus to his case. A federal judge ruled in his favor, but the Eleventh Circuit Court overturned that result. The Circuit Court ruled that the claim of a lack of fair warning was a second or successive habeas claim, and thus was barred. The claim could have been raised at Magwood’s initial sentencing, that court decided.
This paper is a chapter for a forthcoming book, Prosecuting the Bush Administration: What Does the Rule of Law Require? The book does not debate whether the Bush administration violated the law in the course of the War on Terror and the wars in Afghanistan and Iraq through such actions as torture. Rather, it assumes for purposes of debate that violations of the law occurred, and asks, if that is so, whether the rule law requires prosecution.
This contribution takes this question as an occasion to examine the tangled relationship between three essentially contested concepts: democracy, the rule of law, and transitional justice. It proceeds fairly unsentimentally, assuming that these concepts are not especially helpful as simple invocations and that they should be viewed as pragmatic rather than metaphysical goods. It makes two main arguments. The first, which many other critics share, is that transitional justice consists largely if not entirely of a pragmatic and political balance between democracy and the rule of law. It requires a consideration of what I call the “costs of settlement” - a balancing of past investments in and future costs to the stability and viability of both democracy and the rule of law. As such, both transitional justice and the “rule of law” itself, despite the latter term’s usual assumption of universality, may require different approaches and different compromises in different societies.
CrimProf posts you may have missed over the weekend:
- Adcock on Executions in North Carolina
- Symposium: What Criminal Law and Procedure Can Learn From Criminology
- Really Starting Over with a Clean Slate
- Hodgson on Pre-Trial Procedure in England and Wales
- "Accused 9/11 Mastermind to Face Civilian Trial in N.Y."
- The Single-Juror Veto and the Federal Death Penalty
- "America's Prison Spree Has Brutal Impact"
- "9/11 Trial Poses Unparalleled Legal Obstacles"
- Top-Ten Recent SSRN Downloads
- Silverglate on "Three Felonies a Day"
- "The Best Way to Try Terrorists"
- "Louis Brandeis’ Influence on Shaping Protection of Privacy Rights"
Sunday, November 15, 2009
I recently co-authored a study of the experience of federal courts in adjudicating terrorism cases. The data we collected shows that federal-court terrorism prosecutions have generally yielded just, reliable outcomes that have not undermined our national security.
The list of convictions includes not only the trial of Omar Abdel Rahman in 1995, but also of Ramzi Yousef, Zacarias Moussaoui, Jose Padilla, John Walker Lindh and Richard Reid, to name just a few. Not all cases have been perfect, but the outcomes, by and large, have been accepted around the world and have consigned the convicted terrorists to spend many decades or the rest of their lives in the obscurity of federal prison.
|1||280||The Emerging Criminal War on Sex Offenders |
Corey Rayburn Yung,
The John Marshall Law School,
Date posted to database: August 18, 2009
|2||228||The Torture Lawyers |
Jens David Ohlin,
Cornell Law School,
Date posted to database: September 10, 2009
|3||221||Blaming the Brain |
Steven K. Erickson,
University of Missouri at Columbia - School of Law,
Date posted to database: September 12, 2009
|4||197||The Increased Level of EU Antitrust Fines, Judicial Review, and the European Convention on Human Rights |
Wouter P. J. Wils,
European Commission Legal Service,
Date posted to database: October 24, 2009 [new to top ten]
|5||171||Can Bad Science Be Good Evidence: Lie Detection, Neuroscience, and the Mistaken Conflation of Legal and Scientific Norms |
University of Virginia School of Law,
Date posted to database: August 13, 2009 [6th last week]
|6||166||Debacle: How the Supreme Court Has Mangled American Sentencing Law And How It Might Yet Be Mended |
Frank O. Bowman III,
University of Missouri School of Law,
Date posted to database: September 10, 2009 [4th last week]
|7||164||Finding Bernie Madoff: Predicting Fraud by Investment Managers |
Stephen G. Dimmock, William Christopher Gerken,
Michigan State University - Department of Finance, Auburn University - Department of Finance,
Date posted to database: September 11, 2009 [5th last week]
|8||153||Stranger Than Dictum: Why Arizona v. Gant Compels the Conclusion that Suspicionless Buie Searches Incident to Lawful Arrests are Unconstitutional |
John Marshall Law School,
Date posted to database: August 18, 2009 [7th last week]
|9||134||The Experiential Future of the Law |
Adam J. Kolber,
University of San Diego School of Law,
Date posted to database: October 13, 2009 [new to top ten]
|10||133||Competing Theories of Blackmail: An Empirical Research Critique of Criminal Law Theory |
Paul H. Robinson, Michael T. Cahill, Daniel M. Bartels,
University of Pennsylvania Law School, Brooklyn Law School, Center for Decision Research, University of Chicago GSB,
Date posted to database: September 23, 2009 [8th last week]