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    Did the Madisonian Compromise Survive Detention at Guantanamo?

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    Mulligan_85NewYorkUnivLRev535(2010).pdf (196.7Kb)
    Issue Date
    2010
    Author
    Mulligan, Lumen N.
    Publisher
    New York University School of Law
    Type
    Article
    Article Version
    Scholarly/refereed, publisher version
    Published Version
    http://www.law.nyu.edu/ecm_dlv3/groups/public/@nyu_law_website__journals__law_review/documents/documents/ecm_pro_066072.pdf
    Version
    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1456557
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    Abstract
    In this essay, I take up the Court’s less heralded second holding in Boumediene v. Bush - that a federal habeas court must have the institutional capacity to find facts, which in Boumediene itself meant that a federal district court must be available to the petitioners. Although this has gone largely unnoticed, I contend that this holding is inconsistent with the Madisonian Compromise - the standard view that the Constitution does not require jurisdiction in any federal court, except the Supreme Court. In fact, it appears that the Court adopted Justice Story’s position that the Constitution requires vesting of jurisdiction in the lower federal courts to hear executive-detention habeas corpus cases sub silentio. In considering alternatives to this bold conclusion, I deploy newly uncovered opinions from Supreme Court justices to consider whether justices acting in chambers remain a viable habeas forum of last resort post-Boumediene, why the Boumediene Court failed to address these issues directly, and, finally, whether the need for an independent finder of fact is well grounded in constitutional doctrine. I conclude with the prediction that Boumediene’s rejection of the Madisonian Compromise in the factfinding holding, not its scope of the habeas writ decision, will come to be Boumediene’s longest lived legacy for federal-courts law.
    URI
    http://hdl.handle.net/1808/7401
    ISSN
    0028-7881
    Collections
    • Law School Scholarly Works [621]
    Citation
    Lumen N. Mulligan, Did the Madisonian Compromise Survive Detention at Guantanamo?, 85 New York University Law Review 535-586 (2010).

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    Contact KU ScholarWorks
    785-864-8983
    KU Libraries
    1425 Jayhawk Blvd
    Lawrence, KS 66045
    785-864-8983

    KU Libraries
    1425 Jayhawk Blvd
    Lawrence, KS 66045
    Image Credits
     

     

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