Articles, notes, and symposia pieces published in CLR’s print volumes.
Print Edition
Constitutional Remedies in Federalism’s Forgotten Shadow
“[F]ollowing our decision in Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), federal courts are generally no longer permitted to promulgate new federal common law causes of action . . . .” “When a party seeks to assert an implied cause of action under the Constitution itself . . . separation-of-powers principles are or should be central to the analysis. The…
Speaking with a Different Voice: Why the Military Trial of Civilians and the Enemy is Constitutional
The Constitution declares that the “Privilege of the Writ of Habeas Corpus” can be suspended by the federal government only “in Cases of Rebellion or Invasion [when] the public Safety may require it.” Because some regard this Habeas Clause as the Constitution’s only “emergency” provision, the Clause looms large in treatments of the Constitution’s…
Constructive Constitutional History and Habeas Corpus Today
In her book, Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay, Professor Amanda Tyler has written a definitive constitutional history of the habeas privilege in the United States. Rather than rehearsing the book’s many virtues, I propose to devote this short Essay to the familiar yet intractable problem of historical translation…
Symposium Introduction
I am honored to write an introduction to the Symposium on Professor Amanda Tyler’s brilliant historical study, Habeas Corpus in Wartime: From the Tower of London to Guantanamo Bay. Professor Tyler has unearthed and examined the details of an important but only partially understood aspect of the British and American experience. She scrupulously traces the evolution of the writ of…
The United Nations Mechanism on Syria: Will the Syrian Crimes Evidence be Admissible in European Courts?
This Note explores potential admissibility challenges that may arise when European courts use evidence of Syrian crimes collected by the newly-established International, Impartial and Independent Mechanism for Syria (“the IIIM”). The Note examines the evidentiary rules of four European countries—France, Germany, the Netherlands, and Sweden––where Syrian cases are currently…
Regulating the “Most Accessible Marketplace of Ideas in History”: Disclosure Requirements in Online Political Advertisements After the 2016 Election
The libertarian regulatory environment of online political advertising has come under scrutiny again, as news reports continue to come out describing the extent of Russian interference with the 2016 presidential election. For years, Silicon Valley has resisted Washington, D.C.’s efforts to regulate online political advertising. Tech companies feared regulation would threaten not only their…
Bidding Farewell to Constitutional Torts
The Supreme Court displays increasing hostility to constitutional tort claims. Although the Justices sometimes cast their stance as deferential to Congress, recent cases exhibit aggressive judicial lawmaking with respect to official immunity. Among the causes of turbulence in constitutional tort doctrine and the surrounding literature is a failure—not only among the Justices, but also among…
Courts and the Executive in Wartime: A Comparative Study of the American and British Approaches to the Internment of Citizens during World War II and Their Lessons for Today
This Article compares and contrasts the legal and political treatment of the detention of citizens during World War II in Great Britain and the United States. Specifically, it explores the detentions as they unfolded, the very different positions that President Franklin D. Roosevelt and Prime Minister Winston Churchill took with respect to the detention of…
Citizenship, National Security Detention, and the Habeas Remedy
Four months into the convulsive aftermath of the September 11 attacks, the first George W. Bush Administration began to detain “enemy combatant” designees at the American military base in Guantanamo Bay, Cuba (GTMO). With the exception of Yaser Hamdi, a man born in Louisiana but raised in Saudi Arabia, GTMO received only noncitizens…
Dicey’s Nightmare: An Essay on The Rule of Law
The British constitutional lawyer A.V. Dicey argued in the nineteenth century that the common law, as administered by superior courts, better ensured government accountability than did written constitutions. Dicey taught us to focus less on constitutional promises and more on the practical effectiveness of judicial remedies. This Article builds on Dicey by offering a comparative…