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Volume 64, Issue 2


Article

National Security Federalism in the Age of Terror

by  Matthew C. Waxman

National security law scholarship tends to focus on the balancing of security and liberty, and the overwhelming bulk of that scholarship is about such balancing on the horizontal axis among branches at the federal level. This Article challenges that standard focus by supplementing it with an account of the vertical axis and the emergent, post-9/11…

Article

Incriminating Thoughts

by  Nita A. Farahany

The neuroscience revolution poses profound challenges to current self-incrimination doctrine and exposes a deep conceptual confusion at the heart of the doctrine. In Schmerber v. California, the Court held that under the Self-Incrimination Clause of the Fifth Amendment, no person shall be compelled to “prove a charge [from] his own mouth,” but a person may…

Article

Elective Shareholder Liability

by  Peter Conti-Brown

Government bailouts are expensive, unjust, and unpopular, and they usually represent dramatic deviations from the rule of law. They are also, in some cases, necessary. The problem that bailouts pose, then, is that they are almost always inimical to the interests of society, except when they are not. This complexity is ignored under the recent…

Note

Harrington’s Wake

Unanswered Questions on AEDPA’s Application to Summary Dispositions
by  Matthew Seligman

In this Note, I propose a new solution to the problem of the Antiterrorism and Effective Death Penalty Act’s application to state court summary dispositions. The “reasonableness” standard of review in AEDPA seems to presuppose a written opinion memorializing the state court’s reasoning, which the federal court can subsequently analyze—and so it is unclear whether,…

Comment

Boumediene Applied Badly

The Extraterritorial Constitution After Al Maqaleh v. Gates
by  Saurav Ghosh

Since 2001, the United States has detained hundreds of foreign nationals at overseas facilities, raising the question of whether the Constitution applies extraterritorially to these detainees. The Supreme Court’s decision in Boumediene v. Bush provided detainees being held at Guantanamo Bay, Cuba, the right to petition for a writ of habeas corpus in federal court.…