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Jack, I want to add a small addendum to your post.  There is a big difference between the president asking for a power and Congress granting it to him, and the president claiming a power for himself and Congress acquiescing.  Critics of the Bush administration argue that Bush shot himself in the foot by failing, in the immediate ...

Suppose you think that Congress should have more say over war-making, as James Baker, William Christopher, and their bipartisan commission do, and the president less.  Would your new War Powers Consultation Act do this? Our proposed statute would provide that the president must consult with Congress before ordering a ''significant armed ...

Marty says, echoing Phil: That is to say—and as Eric's closing swipe at Congress suggests—Eric believes that war should not be governed by legal standards at all.  Which is fine, I suppose. But as Phil has stressed, that's not the view of history and of all Western nations engaged in armed conflicts for centuries; .... It's not ...

David, you're right that the solution of my logic puzzle does not imply that courts should defer to the military; it's equally consistent with the proposition that the courts should make detention decisions and the military should defer to the courts. It's also consistent with the idea that you get to decide whom to detain, and I should defer to ...

An inventor has invented what he calls the M-Box. The M-Box is a lie detector and can be used to determine whether criminal suspects are lying or telling the truth. Unfortunately, the M-Box occasionally errs. Another inventor comes up with what he calls the C-Box. The C-Box is also a lie detector, and everyone understands that ...

Revolutionary ideologies always look good until they prevail; then their latent seeds of destruction sprout and conflagrate. Such is the case with originalism, and Heller provides an opportunity to see this process in action. To see why, imagine that, to the surprise of everyone, Clarence Thomas retires from the court next year and ...

Justice Samuel Alito, for example, who blew a cool $500 million for his fellow Exxon shareholders—at least, if conventional wisdom is correct that Alito would have broken a 4-4 tie and deprived the Exxon plaintiffs of punitive damages if he had not recused himself because of his Exxon stock holdings. You would think there would be room for a ...

Phil, we agree that there is a place for law in war, and the reasons you give are excellent ones; but there are a series of complicated line-drawing puzzles, and I'd like to hear where you draw the lines.  Let's consider two cases: 1.  a) A tank commander must decide whether to fire into a mosque where enemy soldiers have taken ...

Suppose that we simplify the court's Eighth Amendment jurisprudence greatly and pretend that a ''national consensus'' against a certain type of punishment exists when 10 states or fewer authorize that punishment and not otherwise; and that when a national consensus against a punishment comes into existence, the courts will strike down that ...

Deborah thinks that federal judges are in a better position than military officials to determine whether a person who has been detained on the battlefield should be released or not: For a long, uninterrupted period of time now, nonmilitary judges have been making daily decisions about, for example, whether an individual committed a bad act or ...