Emergency and the Rule of Law
This is a class about the relationship between courts and the political branches during times of emergency. In both national security and immigration law, courts have created self-imposed doctrines that limit their ability to resolve substantive questions regarding the conflict between individual liberty and executive power. In this class, we explore questions of judicial deference by focusing on the past decade’s worth of cases in the areas of national security and immigration law. The first 60 percent of the course considers the 9/11 crisis and its aftermath, focusing on laws surrounding the detention and prosecution of terror suspects at Guantanamo Bay and the interpretation of those laws by the federal courts, exploring problems of jurisdiction, due process, and separation of powers. The balance of the semester takes up various immigration-law issues that include detention, effective assistance of counsel, and procedural due process. In both contexts, the past decade has witnessed a more involved judiciary than what standard deference doctrines would require. Do these cases establish a renewed “rule of law” perspective on such questions?
This class uses case law, statutes, and a rich law review literature to consider these questions. In addition to analyzing these questions from the position of legal doctrine and theory, we will employ the tools of courtroom litigators by reading a variety of court documents and pleadings – including habeas petitions, motions to dismiss, appellate briefs, and other devices used in the process of litigation. This latter, more granular inquiry will expose students to a number of features of complex litigation and the practical skills lawyers use in representing clients, including points of trial and appellate practice, litigation strategy, and legal ethics. Course has a take-home exam.
Does this course satisfy the writing requirement? No
Does this course satisfy the skills requirement? No
Is this course open to LL.M. students? No