Of course a court may make new case law. However, that generally is done from existing case law, statutary law, common law, or the federal and state constitutions. Treaty obligations also have the force of law.
The notion that courts could take a law binding only on citizens of a foreign country and make that law binding on the citizens of this country without the assent of a legislative body is a relatively new and novel concept. I find it an undemocratic and a repugnant one, as well.
If you find a law pased by Burkina Faso to be the just and good one that would solve many of our problems, it wouldn’t be out of line to ask your representative to study the law and introduce similar legislation here. I don’t think it would be proper, though, for a judge to find in the constitution of Burkina Faso some right or obligation that must be respected here. That constitution is binding over in Burkina Faso only.
No one’s suggesting that – only that American courts should take account of foreign legal standards, as persuasive but not binding; just as, now, they take notice of other American states’ decisions.
That is incorrect. The term “judicial notice” generally pertains to the facts via evidence in a particular case, not to the application of either precedent case law or pursuasive materials. If it was material to the case, the Court could take judicial notice of the fact that George W. Bush is president in 2006, or of facts in a reference book about what the weather was like in a certain place on a given day. See Irving Younger’s book, The Advocates’s Deskbook: The Essentials of Trying a Case , pp 81-112
…with all due respect, I can’t understand opinions like this. You think the Nuremberg Tribunal and the Guantanemo Tribunals are comparable? I suggest you start reading some of the unclassified evidence against the remaining 517 detainees, and please explain to me how the two situations are remotely comparable. Show me how many deaths the detainees are responsible for. Show me the Taliban Leadership, like Mayors, Police Chiefs, or government officials that are currently detainees at Guantanemo. Please explain how the two situations compare. The evidence against the Nazi regime was overwhelming. The evidence against the detainees include such devestating allegations as the detainee fled from a bombed camp.
We are no longer guessing: we can read most of the evidence that the US government has on the detainees. There maybe thirty people at Guantanemo who could be called the "baddest of the bad. Only 5% of detainees were captured by US Forces on the battlefields of Afghanistan-the rest were “gifts.” If the US government or you think that the detainees are “unlawful combantants”, then I challenge you to a simple task: prove it.
Arguably, as a description. Not as a legal classification, determinative of their rights. Furthermore, it now appears that many of the detainees never were members of any military force, legitimate or otherwise, or terrorist underground; just poor schmucks their neighbors turned in for the reward.
The term “Unlawful combatant” presumes guilt in advance.
Many of us in Germany at the time of the Nuremburg Trials questioned them. There wasn’t much doubt that some sort of retribution was due the leaders, like Goering, but the further down the hierarchy it went the more the defandants resembled us.
In addition those trials were not the unilateral action of a single country acting on the unexamined word of the executive as to the procedure that would be used.
This is a strange incident. You’d think Scalia would simply refrain from this sort of thing until after the case has been heard and voted on, but he’s got a long record of being a bit of a nutter when it comes to inciting problems like this.
This case is arguably worse than the pledge case from which he recused himself, because at least in that he didn’t indicate outright how he was going to rule. The difference here is that if he recuses, it will be far more likely to affect the outcome, since one of the other conservatives has already had to recuse himself over prior involvement with this particular case in a different capacity than a SC judge. I suspect whether or not he does will have far more to do with politics than judicial ethics.
I would expect him, or anyone for that matter, to want a president who would appoint justices who would have the preferred slant on the law.
There were some constutional cases arose in 1901 as to whether or not the people in the territories aquired as a result of the Spanish-American War were entitled to the protection of the US Constitution. Some said the Constitution “follows the flag” and others said no.
Mr. Dooley (Finley Peter Dunne) wrote of the matter in his satirical column:
Was the 2000 Florida election decision taken away from the Florida court on a 100% legal basis?
A perhaps laudable goal, but entirely silly. People have political allegiances regardless of whether they stand to gain money or higher office, and payoffs in real life can be as personal as they are monetary. Scalia is a good chum of this administration, and very politically charged. Why would he recuse himself if the result is that they’d lose and the court might decide something against his politics?
The case is now pending before the Court, and raises some issues not previously addressed by the Court. IIRC, didn’t Scalia also refer to the fact that his son had served in the Army and had faced, on the battlefield, those allied with the Gitmo internees?
Come on. He should recuse himself to avoid even the appearance of impropriety. How could anyone doubt that he’d prejudged the case? No judge who publicly and unabashedly says that the arguments of one side are “crazy” should remain on the case.