Constitutional Torts and the War on Terror examines the judicial response to human rights claims arising from the Bush Administration's war on terror. Despite widespread agreement that the Administration's program of extraordinary rendition, prolonged detention, and "enhanced" interrogation was torture by another name, not a single federal appellate court has confirmed an award of damages to the program's victims. The silence of the federal courts leaves victims without redress and the constitutional limits on government action undefined. Many of the suits seeking redress have been based on the landmark 1971 Supreme Court decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. This book traces the history of common law accountability, the rise of Bivens claims, and the post-Bivens history of constitutional tort litigation. After evaluating the failure of Bivens litigation arising from the war on terror, the book considers and rejects the arguments that have been put forward to explain and justify judicial silence. The book provides the Supreme Court with the tools needed to rethink its Bivens jurisprudence. Rather than treating the overseas national security context as disabling, modern federal courts should take a page from the nineteenth century, presume the viability of tort litigation, and proceed to the merits. Only by doing so can the federal courts ensure redress for victims and prevent future Administrations from using torture as an instrument of official policy.

Constitutional Torts and the War on Terror

Pfander, James E.

Foreign & International Law

Oxford University Press

Despite over two hundred years of experience with constitutional government, much remains unclear about the power of the political branches to curtail or re-define the judicial power of the United States. Uncertainty persists about the basis on which state courts and federal agencies may hear federal claims and the degree to which federal courts must review their decisions. Scholars approach these questions from a range of vantage points and have arrived at widely varying conclusions about the relationship between congressional and judicial power. Deploying familiar forms of legal analysis, and relying upon a new account of the Court's supremacy in relation to lower courts and tribunals, James Pfander advances a departmental conception of the judiciary. He argues that Congress can enlist the state courts, lower federal courts, and administrative agencies to hear federal claims in the first instance, but all of these tribunals must operate within a hierarchical framework over which the "one supreme Court" identified in the Constitution exercises ultimate supervisory authority. In offering the first general account of the Court as department head, Pfander takes up such important debates in the federal courts' literature as Congress's power to strip the federal courts of jurisdiction to review state court decisions, its authority to assign decision-making authority to state courts and non-Article III tribunals, its control over the doctrine of vertical stare decisis, and its ability to craft rules of practice for the federal system.

One Supreme Court: Supremacy, Inferiority, and the Judicial Department of the United States

Reference

Words, Language & Grammar

This book offers a new account of the power of federal courts in the United States to hear and determine uncontested applications to assert or register a claim of right. Familiar to lawyers in civil law countries as forms of voluntary or non-contentious jurisdiction, these uncontested applications fit uneasily with the commitment to adversary legalism in the United States. Indeed, modern accounts of federal judicial power often urge that the language of the Article III of the U.S. Constitution limits federal courts to the adjudication of concrete disputes between adverse parties, thereby ruling out all forms of non-contentious jurisdiction. Said to rest on the so-called "case-or-controversy" requirement of Article III, this requirement of party contestation threatens the power of federal courts to conduct a range of familiar proceedings, such as the oversight of bankruptcy proceedings, the issuance of warrants, and the adjudication of applications for mandamus and habeas corpus relief. By recounting the tradition of naturalization and other uncontested litigation in antebellum America and coupling that tradition with an account of the important difference between cases and controversies, this book challenges the prevailing understanding of Article III. In addition to defending the power of federal courts to hear uncontested matters of federal law, the book examines the way the Constitution's meaning has changed over time and suggests a constructive interpretive methodology that would allow the Supreme Court to take account of the old and the new in defining the contours of federal judicial power.

Cases Without Controversies: Uncontested Adjudication in Article III Courts

Administrative Law

Aimed at students in advanced courses, this book provides an up-to-date explanation of the leading principles of federal jurisdiction. Coverage includes such landmarks of jurisdictional law as Marbury v. Madison, Erie R. Co. v. Tompkins, and Ex parte Young, and the rules that govern original and appellate jurisdiction, justiciability and abstention, federal habeas corpus for both state and federal prisoners, and sovereign immunity and government accountability. Current as of January 2006, the book discusses the enemy combatant cases and recent Supreme Court decisions on such diverse issues as the AEDPA, federal ingredient jurisdiction, complete preemption removal, and supplemental jurisdiction. In addition to its discussion of leading principles, the book provides students with a sense of the argumentative possibilities available to lawyers and jurists working within the federal courts' tradition.

Principles of Federal Jurisdiction (Concise Hornbook)

Rules & Procedures

West Group

The sixth edition of this successful casebook continues the authors' commitment to providing professors and their students with the tools to address both foundational questions and cutting edge procedural issues in a practical way that is attuned to today's legal practice. It contains an expanded treatment of the increasingly important topic of pleading practice, and additional emphasis on electronic discovery issues. It also offers carefully edited versions of recent Supreme Court cases like Ashcroft v. Iqbal and J. McIntyre Machinery, Ltd. v. Nicastro, along with textual and note material to identify and highlight the critical issues. The class-action section contains presentations on Wal- Mart v. Dukes and the key issues raised by the Court's decisions on class-action waivers in arbitration clauses that are appropriate for first-year students. Throughout, the material has been updated and revised to focus on the critical issues of 21st century practice.

Civil Procedure, A Modern Approach, 6th (American Casebook Series)

Redish, Martin H.

Marcus, Richard L.

Sherman, Edward F.

West Academic Publishing

This Federal Courts outline discusses Article III courts, the "case or controversy" requirement, justiciability, advisory opinions, political questions, and ripeness. It also includes mootness, standing, congressional power over federal court jurisdiction, Supreme Court jurisdiction, district court subject matter jurisdiction (including federal question jurisdiction and diversity jurisdiction), and pendent and ancillary jurisdiction. Other topics include removal jurisdiction, venue, forum non conveniens, law applied in the federal courts (including Erie Doctrine), federal law in the state courts, abstention, habeas corpus for state prisoners, federal injunctions against state court proceedings, and Eleventh Amendment.

Gilbert Law Summaries on Federal Courts

Fletcher, William A.

Gilbert

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