Thursday, September 17, 2009

Mulligan on Boumediene's second holding

Lumen Mulligan (Michigan State) has posted on SSRN his essay, Boumediene v. Bush: Would Justice Story Concur? (N.Y.U. L. Rev., forthcoming). Here's the abstract:

In this essay, I take up the Court's less heralded second holding in Boumediene v. Bush - that a federal habeas court must have the institutional capacity to find facts, which in Boumediene itself meant that a federal district court must be available to the petitioners. Although this has gone largely unnoticed, I contend that this holding is inconsistent with the Madisonian Compromise - the standard view that the Constitution does not require jurisdiction in any federal court, except the Supreme Court. In fact, it appears that the Court adopted Justice Story's position that the Constitution requires vesting of jurisdiction in the lower federal courts to hear executive-detention habeas corpus cases sub silentio. In considering alternatives to this bold conclusion, I deploy newly uncovered opinions from Supreme Court justices to consider whether justices acting in chambers remain a viable habeas forum of last resort post-Boumediene, why the Boumediene Court failed to address these issues directly, and, finally, whether the need for an independent finder of fact is well grounded in constitutional doctrine. I conclude with the prediction that Boumediene’s rejection of the Madisonian Compromise in the factfinding holding, not its scope of the habeas writ decision, will come to be Boumediene's longest lived legacy for federal-courts law.


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