Chapter Elections

Tennessee Federalist Society will hold its chapter elections Wednesday, March 1, 2006. Yes, that's just over a week from now, so start your political scheming now! We will elect eight new officers under the new Constitution: President, Vice President of Membership, Vice President of Logistics, Vice President of Programming, Treasurer, Media Relations Chair, and Social Chair. You may view descriptions of the elected positions here. If you already know what you want to run for, you may submit a Statement of Intent (download available at our TWEN site) and even have information published about your candicacy on our website. Workload for these positions is not very heavy, but we do need dedicated students to keep Federalist Society's renaissance on track. Remember, the more people we have to help out, the less workload is on any one person. If you have any questions, please don't hesitate to contact me.

Federalist Society Spring Schedule is Here!

The Tennessee Federalist Society hosts its first event of 2006 in just two weeks. Check out our provocative spring schedule:

“The Roper v. Simons Supreme Court Decisions and State Rights Concerning the Death Penalty”
Professor Dwight Aarons, UT College of Law
Wednesday, February 15, 2006
Room 237 during the Free Hour

“Libertarian Perspectives on Judicial Activism and Eminent Domain”
Ms. Alicia Mattson, Chairperson of the Tennessee Libertarian Party
Wednesday, February 22, 2006
Room 237 during the Free Hour

“The Incoherence of Judicial Conservatism at the Beginning of the Roberts Court”
Professor Eric Claeys, St. Louis University School of Law
Wednesday, March 15, 2006
Room 136 during the Free Hour

“Lawrence v. Texas: The Worst Supreme Court Decision Ever?”
Professor Nelson Lund, George Mason University School of Law
Wednesday, April 12, 2006
Room 237 during the Free Hour

Is Tort Reform Necessary?

For over a decade, debate has raged in Washington and across the country over the issue of tort reform. Supporters of reform argue that damage awards are grossly excessive, providing incentive to lawyers and laymen for even more lawsuits. Excessive awards also adversely affect the economy. Manufacturers and corporations forced to pay for damage awards, not to mention attorney fees, must find the money somewhere. This translates into higher prices for consumers and employee layoffs. For others, especially doctors, this also translates into higher insurance premiums for the entire profession, not just those who commit malpractice. Taken together, the cost of tort lawsuits creates an enormous burden on the economy calculated in the billions of dollars. Opponents of tort reform argue that limiting awards for damages is inappropriate. Tort law is the means by which citizens are compensated for injuries from defective products and medical malpractice. Moreover, the threat of suit provides a healthy incentive for companies and professionals to act responsibly.

On February 18, President Bush signed the Class Action Fairness Act of 2005 into law. Under the legislation, class-action suits seeking $5 million or more would be heard in state court only if the primary defendant and more than one-third of the plaintiffs are from the same state. But if fewer than one-third of the plaintiffs are from the same state as the primary defendant, and more than $5 million is at stake, the case would go to federal court.

Though seemingly as victory, the new law has been widely criticized by tort reform advocates. “The national government is not empowered to dictate substantive rules of state tort law under the guise of the Commerce Clause. And Republicans, who are supposedly devoted to fighting federal bloat, should be on the front line in stopping the central government from worming its way into an area that has been left to the states for two-and-a-quarter centuries,” said Robert Levy , a senior fellow of constitutional studies at the Cato Institute. “To justify federal tort reform under the Commerce Clause, Congress must show that the reforms are both ‘necessary’ and ‘proper’ to ensure the free flow of interstate trade. When it comes to tort reform, neither criterion has been met. Substantive federal reforms are not necessary because the states are enacting their own reforms. Substantive federal reforms are not proper because they cannot be harmonized with traditional concepts of federalism,” Levy added. Instead, Congress should enact “procedural” rules while leaving substantive issues of tort law in state hands, Levy argues.

The debate rages on, but now with two key questions. First is whether tort reform is necessary. If so, what is the proper measure that can both bring needed changes to tort litigation but also not offend federalist principles? Michael Krauss, a professor at the George Mason School of Law, will help answer these questions and more in a lecture to be given on Thursday, October 20 at 12:35 pm in Room 135. A question and answer session will follow.

Restoring the Boundary: Tort Law & the Right to Contract

Restoring the Boundary: Tort Law & the Right to Contract
by Michael Krauss

Today courts regularly resolve disputes by applying tort principles when they should apply the law of contracts. When parties have an opportunity to negotiate the terms of their relationship, the resultant contracts ought to be enforced. Tort law is an acceptable substitute only if parties have no opportunity to bargain.

Over the years the boundary between tort and contract has shifted sharply toward tort. For example, physicians serving rural areas are often not allowed to contract with patients for a lower price in return for diminished care. And courts have allowed consumers who buy cars without air bags to recover from manufacturers for injuries that only air bags would have prevented. Sometimes courts even ignore compulsory arbitration provisions that waive the usual judicial procedures for resolving disputes.

Even worse, rules have sprung up that prohibit ordinary commercial contracts. A person forbidden to sell certain products—because a government agency has determined they are too dangerous—may also be forbidden to sell his own labor—because the state has determined that the wages he would accept are too low. Contracts once freely negotiated, and subject to private suit in the event of fraud or failure to perform, are increasingly replaced by regulation. Unhappily, once government has advanced a plausible rationale for prohibiting consensual behavior in one area, its tentacles inevitably extend to other areas as well.

Today's torts "crisis" does not exist because corporations are oppressing individuals, or because we need federal legislation to replace state tort rules. The crisis exists because our rights have been given increasingly less respect by government. The crisis exists because we have not allowed tort to be tort, and contract to be contract. We need to restore the boundary between contract and tort.

Framers' Corner: James Madison

On Saturday, October 15, the people
of Iraq went to the polls to vote on a new constitution. As we witness the Iraqi achieve this monumental and historic milestone in the history of their nation, and indeed their entire region, it is important to reflect upon its connection with our own journey.
When our nation was first conceived in liberty, it too was looked upon both with skepticism and curiosity. Emperors and kings in distant Europe scoffed at the idea that the people could (and should) govern themselves. Today, many share the same skepticism for Iraq. They scoff at the idea that Arab Muslims can see beyond ethnic and religious differences and embrace democracy.
But let us reflect upon the words, spoken by many, but perhaps most eloquently stated by our chief framer, James Madison, in a letter dated 1831: “We owe it to ourselves, and to the world, to watch, to cherish, and as far as possible, to perfect a new modification of the powers of Government, which aims at the better security against external danger and internal disorder, a better provision for national strength and individual rights, than had been exemplified under any previous form.” If the Iraqis embrace this sentiment, it will not only affect their own destiny, but also the region and, indeed, the world.

Effects of Lawsuit Abuse

Effects of Lawsuit Abuse
Facts About Tort Liability And Its Impact On Consumers
Overall Impact: The United States Economy

- The cost of the U.S. tort system for 2003 was $246 billion, or $845 per citizen or $3,380 for a family of four.
- U.S. tort costs increased 35.4 percent from 2000 to 2003.
- U.S. tort costs have exceeded the Gross Domestic Product (GDP) by 2-3 percentage points in the past 50 years.
- The U.S. tort system is inefficient; it returns less than 50 cents on the dollar and less than 22 cents for actual economic loss to claimants.

Tillinghast-Towers Perrin. U.S. Tort Costs: 2004 Update, (New York, New York, 2005)

(Reprinted from the American Tort Reform Association)

Looney Lawsuits

The following are some examples of absurd lawsuits recently filed in the United States. These excerpts were provided by the American Tort Reform Association.

Woman Sues Phonebook Company Over Botched Liposuction
A jury awarded $1.6 million to a woman who claimed a phonebook company published fraudulent data that resulted in her disfigurement from liposuction surgery. The woman found an ad under the plastic surgery section that indicated a physician was “Board Certified.” The doctor, however, was board certified in dermatology and anatomic pathology.
Source: Oregonian, February 25, 2005

Startled Neighbor Successfully Sues Teens over Cookies and Won
Two teens thought they'd surprise neighbors with a nighttime cookie delivery, but a neighbor sued, claiming the good deed caused a severe anxiety attack.
Source: Denver Post, Feb. 4, 2005

Alcoholism Worsened by Train Crash
A train conductor settled for $8.5 million from a railroad after claiming a collision between his commuter train and a freight train worsened his alcoholism.
Source: Associated Press Feb 2, 2005

Student Stressed Over Summer Homework Sues School
A student whose vacation plans were spoiled has sued to end summer homework in Wisconsin, claiming it creates an unfair workload and unnecessary stress.
Source: Associated Press, January 21, 2005

Woman Walking Track Sues Railroad
A woman who suffered minor injuries when she was hit by a train while walking along railroad tracks is suing the railroad for more than $30,000 because she says the railroad didn't warn people that trains were likely to travel on the tracks she was walking along.
Source: Associated Press, November 5, 2004

Hands Off My Property!

Last summer, many citizens were enraged by the Supreme Court’s 5-4 decision in Kelo v. New London. The suit was brought by homeowners whose neighborhood was condemned by the city of New London (CT) to make way for economic redevelopment by other private entities. The homeowners argued that, under the Takings Clause of the Fifth Amendment, eminent domain is reserved for public uses only and not mere public purposes, such as creating jobs and economic growth. However, the Supreme Court ruled that “public purpose” is indeed encompassed under “public use” and thus held in favor of the city of New London. In her dissent, Justice Sandra Day O’Connor argued that “[a]ny property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.”

However, the public backlash against the Court’s ruling is having far-reaching effects in our nation’s legislatures as lawmakers react to the anger of the electorate. Several states have already banned the use of eminent domain for “public purpose.” In Tennessee, lawmakers such as Sen. Jamie Woodson (UT Law graduate) are currently reviewing the state’s eminent domain laws with an eye toward reform. In Washington, several bills have been submitted in Congress that would prohibit the federal government from taking land for “public purpose” and would restrain states from such takings through the use of federal funds. Some are now even calling for an amendment to the Constitution.

An important issue such as this warrants serious discussion, and the Federalist Society will not disappoint! On Wednesday, November 2 at 12:15 pm in Room 132, Professor Michael DeBow of the Cumberland School of Law will confront the future of eminent domain in the aftermath of Kelo.

John Lott, Jr. To Speak On Judicial Confirmations

Set to visit UT Law this Thursday
News & Information
Please join the Federalist Society on October 6 at 12:30 p.m. in Room 135 as the Federalist Society hosts John Lott, Jr. of the American Enterprise Institute. Mr. Lott will present a lecture entitled “The Judicial Confirmations Process” followed by a Q&A session.

Mr. Lott’s wide-ranging research has appeared in scores of articles in leading academic journals such as the Journal of Political Economy, the American Economic Review, the Journal of Law and Economics, and Public Choice. Mr. Lott also appears frequently on the opinion pages of leading national newspapers, on public affairs television programs, and at legislative and oversight hearings of committees of the U.S. Congress and state legislatures.

A counterpoint to Lott’s presentation will be hosted by ACS on Friday during the free hour.

Finally, A Supreme Court Nominee Who Understands Real People

Perspectives
The following was today's Featured Article on OpinionJournal.com, the online editorial page of the Wall Street Journal.

HARRIET MIERS
Finally, a Supreme Court nominee who understands real people.
By John Cornyn

Although the ink is still drying on her nomination, the president's selection Monday of Harriet Miers to replace Justice Sandra Day O'Connor has already been met with praise from senators on both sides of the aisle. As one would expect, her nomination has also been met with questions by those who do not yet know her. But those of us who do know and have worked with Ms. Miers think very highly of her, and we believe she will make a valuable contribution to the Supreme Court.

Nonetheless, some have criticized the president because he did not select an Ivy-League-credentialed federal appeals court judge for the open seat. I think this criticism is misplaced. For one thing, there is no evidence that service on the federal court of appeals is a prerequisite for distinguished service on the Supreme Court: 41 of the 109 justices who have served on the Supreme Court had no judicial experience at all when they were nominated. These include several luminaries from the school of judicial restraint, including the late Chief Justice William Rehnquist.

Furthermore, Harriet Miers's background as a legal practitioner is an asset, not a detriment. She has spent her career representing real people in courtrooms across America. This is precisely the type of experience that the Supreme Court needs. The court is full of justices who served as academics and court of appeals judges before they were nominated to the bench. What the court is missing is someone who understands the consequences of its decisions on the American people.

This experience gap is a real one. With the exception of the newly confirmed chief justice, John Roberts, no justice on the court has been an advocate in a court of law in the past 25 years, and Chief Justice Roberts was involved only at the appellate level.

Harriet Miers, by contrast, has a long and successful career as a lawyer representing corporate and individual clients in a variety of state and federal courts. I am confident that this background provides her with an understanding of the burdens of modern litigation, a recognition of the problems with frivolous lawsuits and an appreciation for tort reform.

Others have criticized the president because Ms. Miers is a close confidante, implying that she would not be qualified but for their relationship. I could not disagree more. Of course, the president is going to be inclined to nominate someone he knows, likes and has confidence in. He is not going to nominate someone he does not know or someone he does not like. So long as she is otherwise qualified to the Supreme Court, Ms. Miers's long and valuable service to the president should count in her favor, not against her.

And, moreover, there is little question that she is up to the job. She has been a true trailblazer for women in the law. She was the first woman hired by her law firm--one of the most prominent in Texas. She was the first woman to serve as president of her law firm. She was the first woman to serve as president of the Dallas Bar Association. She was the first woman to serve as president of the Texas Bar Association. And her accomplishments do not end at the Lone Star border.

For the past five years, she has worked at the highest levels in the White House, including serving as the president's closest legal adviser. Few lawyers in America have a more impressive resume. And none have more of the president's confidence.

It is true that she was not educated at East Coast universities and has not spent her entire career inside the Beltway. This, again, is a plus in my book, not a minus. Anyone who has followed the Supreme Court in recent years knows that what the institution needs most is a dose of life beyond Washington. Last year, the court permitted a public display of the Ten Commandments in Texas, but not in Kentucky. It took nine justices on the court 10 different opinions to explain why this was so. The court is dangerously out of touch with America. Ms. Miers will help bring it back down to earth.

Ultimately, I think some people are uneasy about Harriet Miers because they are unfamiliar with her.

To some extent, this is understandable. She has worked outside the limelight her entire career, always serving others. But it is important to take a deep breath and not rush to judgment. As the confirmation process unfolds, Americans will learn a great deal more about Ms. Miers, and they will like what they see.

I have been fortunate enough to know Harriet for much of her career. I know that she believes, as I do, that judges should not legislate from the bench. I know that she believes, as I do, that judges are not some sort of elite anointed to impose their preferences on the rest of us. I know that she understands that unelected judges who serve in a democracy have a limited role--to apply the law as it was written by the people's representatives. She aptly described her judicial philosophy on Monday when she said, "It is the responsibility of every generation to be true to the founders' vision of the proper role of the courts and our society." The courts, she continued, have "obligations to strictly apply the laws and the Constitution."

I am confident that when the American people get to know Ms. Miers as I have, they will be as supportive as I am of her nomination.

Mr. Cornyn is a Republican senator from Texas and a member of the Senate Judiciary Committee. He served previously as attorney general of Texas, as well as a justice on the state Supreme Court.

Framer's Corner: Alexander Hamilton

Perspectives
On Monday, October 3, President Bush nominated Harriet Miers to the Supreme Court. Many citizens immediately cried foul and made accusations of cronyism. Why? Harriet Miers is President Bush’s lawyer and longtime friend. In light of this charge, and with all the present controversy over the proper role of the Senate’s “advise and consent” powers, it seems fitting to consult the wisdom of the Framers.

In Federalist No. 76, Alexander Hamilton wrote: “To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. . . . He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.”

Have Hamilton’s worst fears been realized by President Bush’s recent actions? If so, the duty lies to the Senate to resist him.

Committee Leadership Announced

News & Information
At chapter meeting on September 28, President Ian Hennessey announced the new leadership of Tennessee Federalist Society's three committees. Each commitee serves as an umbrella committee for several smaller commitees with differing purposes.


Julie Miller (1L) was named chairman of the Madison Committee. The Madison Committee includes the Rules Committee, the Committee on Litigation & Tort Reform, the Committee on Free Speech & Election Law, and the Committee on Civil Rights.



Paul Forsyth (2L) was named chairman of the Hamilton Committee. The Hamilton Committee includes the Social Committee, the Committee on Federalism & Separation of Powers, the Committee on Criminal Law & Procedure, and the Committee on Law & Economics.



Keith Lowe (2L) was named chairman of the Jay Committee. The Jay Committee includes the Media Relations Committee, the Committee on International & National Security Law, the Committee on Environmental Law & Property Rights, and the Committee on Religious Liberties.


Congratulations to our new committee leadership. If you are interested in learning more about these committees, or are interested in joining, please contact Ian Hennessey.

Constitution Ratified!

News & Information
On September 28, the Tennessee Federalist Society unanimously adopted a new constitution to govern our chapter. The new constitution, in its entirety, may be found here. Now that ratification has taken place, the Madison Committee's duty as the Constitutional Committee has expired. In the future, the Madison will act as the Rules Committee to design chapter rules within the contemplation of Article IX.

Terror Detainees: A Civil Liberties Crisis?

News & Information

Imagine you’ve been captured by a foreign government. You’ve been detained, and it seems no court will hear your case. Welcome to Guantanamo Bay. Some call it “America’s Gulag.” Before you react, keep in mind: You’re not the only one. Other prisoners charged with terrorism face the same fate. Why? American courts refuse to hear cases brought by foreign citizens. Some fear this could make the detention of foreign detainees indefinite.

What is the real story behind the detention of foreign citizens? What else is America doing to ensure detainees a fair trial? Is it enough? On the other hand, could foreign detainee cases harm the American legal process? Why? How? Is there a middle ground?

Find out this Wednesday, September 21, as Ron Rotunda of George Mason University and UT’s own Otis H. Stephens debate this highly controversial topic in Room 132 at 12:15 p.m.

For more information about this event, contact either Ian Hennessey (ihenness@utk.edu) or Tony Bias (abias@utk.edu).

Supreme Court Battle

News & Information
On September 12, the Senate Judiciary Committee began its hearings to confirm Judge John Roberts at the seventeenth Chief Justice of the United States Supreme Court. If confirmed by the Senate, Roberts will replace former Chief Justice William Rehnquist, who died September 4, 2005.

Though it appears Roberts will be confirmed, the battle in the Senate is far from over. The seat left vacant by retiring Justice Sandra Day O’Connor remains open and President Bush has yet to announce his nomination for the seat. Many political commentators predict a more heated debate over the next nomination.

Should the next nominee be a woman? A centrist? A conservative? Should the nominee have a strict interpretation of the Constitution?

Please join us on October 6 at 12:30 p.m. in Room 135 as the Federalist Society hosts John Lott, Jr. of the American Enterprise Institute. Mr. Lott will present a lecture entitled “The Judicial Confirmations Process” followed by a Q&A session.

Federalist Society to Consider New Constitution

News & Information
In addition to taking roll, collecting dues and (not to mention) modern fashion, next week’s chapter meeting of the Tennessee Federalist Society may more closely resemble the Constitutional Convention. The reemergence of the chapter this fall has made a new chapter constitution more necessary than ever.

Members will consider ten proposed articles to establish an institutional foundation for the chapter for years to come. New members are welcome to participate.

The proposed constitution includes articles governing the chapter’s mission, membership, administration, officer positions, elections, committees and rules.

Earlier this month, the debate over the proposed constitution went online as a blog. Each article appears separately and members encouraged to post their comments, objections and other proposals.

If you wish to join the debate, please visit http://utfederalists.blogspot.com. The debate is open to all, but please be both serious and considerate.

Citizen Padilla: Dangerous Precedents

Perspectives
Citizen Padilla: Dangerous Precedents
by Robert A. Levy
Robert A. Levy is senior fellow in constitutional studies at the Cato Institute.
(Link to original article)

Jose Padilla, a.k.a. Abdullah al-Muhajir, supposedly plotted to build and detonate a radiological "dirty bomb." He is a U.S. citizen. Yet he's being detained by the military -- indefinitely, without seeing an attorney, even though he hasn't been charged with any crime. Yaser Esam Hamdi is also a U.S. citizen. He, too, is being detained by the military -- indefinitely, without seeing an attorney, even though he hasn't been charged with any crime. Meanwhile, Zacarias Moussaoui, purportedly the 20th hijacker, is not a U.S. citizen. Neither is Richard Reid, the alleged shoe bomber. Both have attorneys. Both have been charged before federal civilian courts.

What gives? Four men: two citizens and two non-citizens. Is it possible that constitutional rights -- like habeas corpus, which requires the government to justify continued detentions, and the Sixth Amendment, which assures a speedy and public jury trial with assistance of counsel -- can be denied to citizens yet extended to non-citizens? That's what the Bush administration would have us believe. Citizen Padilla's treatment is perfectly legitimate, insists Attorney General John Ashcroft, because Padilla is an "enemy combatant" and there is "clear Supreme Court precedent" to handle those persons differently, even if they are citizens.

Ashcroft's so-called clear precedent is a 1942 Supreme Court case, Ex Parte Quirin, which dealt with Nazi saboteurs, at least one of whom was a U.S. citizen. "Enemy combatants," said the Court, are either lawful -- for example, the regular army of a belligerent country -- or unlawful -- for example, terrorists. When lawful combatants are captured, they are POWs. As POWs, they cannot be tried (except for war crimes), they must be repatriated after hostilities are over, and they only have to provide their name, rank, and serial number if interrogated. Clearly, that's not what the Justice Department has in mind for Padilla.

Unlawful combatants are different. When unlawful combatants are captured, they can be tried by a military tribunal. That's what happened to the Nazi saboteurs in Quirin. But Padilla has not been charged much less tried. Indeed, the president's executive order of November 2001 excludes U.S. citizens from the purview of military tribunals. If the president were to modify his order, the Quirin decision might provide legal authority for the military to try Padilla. But the decision provides no legal authority for detaining a citizen without an attorney solely for purposes of aggressive interrogation.

Moreover, the Constitution does not distinguish between the protections extended to ordinary citizens on one hand and unlawful-combatant citizens on the other. Nor does the Constitution distinguish between the crimes covered by the Fifth and Sixth Amendments and the terrorist acts Padilla is suspected of planning. Still, the Quirin Court justified those distinctions -- noting that Congress had formally declared war and thereby invoked articles of war that expressly authorized the trial of unlawful combatants by military tribunal. Today, the situation is very different. We've had virtually no input from Congress: no declaration of war, no authorization of tribunals, and no suspension of habeas corpus.

Yet those functions are explicitly assigned to Congress by Article I of the Constitution. It is Congress, not the executive branch, which has the power "To declare War" and "To constitute Tribunals inferior to the supreme Court." Only Congress can suspend the "Privilege of the Writ of Habeas Corpus ... when in Cases of Rebellion or Invasion the public Safety may require it." Congress has not spoken -- except by enacting the USA Patriot Act. And there, we do find authorization for detention of persons suspected of terrorism -- but only non-citizens and only for seven days, after which they must be released unless criminal charges are filed or deportation proceedings commenced.

Without either constitutional or statutory authority, the administration has decided that it will set the rules, prosecute infractions, determine guilt or innocence, then review the results of its own actions. That's too much unchecked power in the hands of the executive branch -- making a mockery of the doctrine of separation of powers that has been a cornerstone of our Constitution for two-and-a-quarter centuries. Even persons convinced that President Bush cherishes civil liberties and understands that the Constitution is not mere scrap paper, must be unsettled by the prospect that an unknown and less honorable successor could exploit some of the dangerous precedents that the Bush administration has put in place.

In a nutshell, we cannot permit the executive branch to declare unilaterally that a U.S. citizen may be characterized as an enemy combatant, whisked away, detained indefinitely without charges, denied legal counsel, and prevented from arguing to a judge that he is wholly innocent.

That does not mean the Justice Department must set people free to unleash weapons of mass destruction. But it does mean, at a minimum, that Congress must get involved, exercising its responsibility to enact a new legal regimen for citizen-detainees in time of national emergency. That regimen must respect citizens' rights under the Constitution, including the right to judicial review of executive branch decisions. Constitutional rights are not absolute. But they do establish a strong presumption of liberty, which can be overridden only if government demonstrates, first, that its restrictions are essential and, second, that the goals it seeks to accomplish cannot be accomplished in a less invasive manner. When the executive, legislative, and judicial branches agree on the framework, the potential for abuse is significantly diminished. When only the executive has acted, the foundation of a free society can too easily erode.

This article was first published in National Review Online, June 24, 2002.

No POWs

Perspectives
No POWs
Unlawful combatants, American law, and the Geneva Convention.
By Ronald D. Rotunda
Robert D. Rotunda is professor at George Mason School of Law
(Link to original article)

The United States says that the prisoners held in Cuba are "unlawful combatants," not prisoners of war. Some critics treat this as all word play. There is a war, they became prisoners, and that makes them POWs, right? Wrong. Whatever one thinks of the way we treat detainees (the news has reported that some have no complaints while others repeatedly threaten to kill their guards), one cannot argue that they are POWs under international or American law.

First, let's turn to American constitutional law. In Ex Parte Quirin (1942), the Supreme Court upheld the jurisdiction of a military commission that convicted German saboteurs who landed in the United States to commit acts of war. The Germans trained them in the use of explosives and other sabotage techniques. They buried their German Marine Infantry uniforms immediately upon landing. The Supreme Court said that the soldiers thereby became "unlawful combatants . . . subject to trial and punishment by military commission for acts which render their belligerency unlawful."

Seven of the eight soldiers were born in Germany while one was a United States citizen. All eight, who had lived in the United States, returned to Germany between 1933 and 1941. The United States did not treat the saboteurs as POWs. Instead, it treated them as "unlawful combatants," tried them by military tribunal, and executed most of them.

The end of World War II saw more military tribunals. There was, of course, the multinational Nuremberg war-crimes tribunal, but there were many more national war-crimes tribunals. Nuremberg handled about 200 cases but the United States Army Judge Advocate prosecuted another 1,600 war-crimes defendants. French and British tribunals had their own military tribunals.

Now, let's turn to international law. Both Afghanistan and the United States ratified the third Geneva Convention of 1949, which sets out basic protections for POWs, but they must be "lawful combatants" for the treaty to apply.

The Geneva Convention sets out four key preconditions. First, the soldiers must be part of an organized command structure, so that leaders can be held responsible. Second, the soldiers must wear fixed distinctive emblems visible from afar — so that the other side can avoid killing civilians without fearing attack from disguised fighters. Third, the soldiers must carry arms openly. Fourth, the other side must respect for the laws of war, for example, by not taking hostages.

Al Qaeda repeatedly violated these preconditions before, after, and during the Sept. 11 attacks. The al Qaeda terrorists target civilians; they do not wear uniforms; they do not carry arms openly; they take hostages (such as the hostages they took when they hijacked the four airplanes on Sept. 11). The Taliban leadership harbored, aided, and abetted Osama bin Laden and al Qaeda in their violations of the laws of war, and al Qaeda, in return, financed the Taliban. The Taliban soldiers, or many of them, committed war crimes, such as hiding weapons in mosques, and using their own people as human shields.

The Geneva Protocol allows non-state belligerents to secure protected treatment under the protocol. They just have to file a declaration with the Swiss government accepting the obligations of the protocol. When al Qaeda does that, then it will receive the benefits of POW status.

Some people argue that we should treat war criminals as POWs so that terrorists will be nicer to our citizens. Or will al Qaeda see this as more weakness by a paper tiger? Does al Qaeda respect strength or weakness? However you answer these questions, realize that if we treat the Cuban prisoners as POWs we will be giving them something to which they are not entitled under international or American law.

Of course, whether or not we treat the detainees as POWs, they should have trials and these trials should be fair. If the government cannot prove that a defendant has violated the Geneva Convention or the laws of war, he should be set free. In deciding these issues, there are those who say that it is crucial that the United States has not "declared" war. Not so.

The Constitution gives to Congress the sole power to "declare" war. The Founders specifically rejected a proposal that only Congress could "make war." The last declared war that the U.S. fought was WWII. The Korean War, the Vietnam War, etc., were never declared. The Civil War, the bloodiest war in U.S. history, was never declared.

The framers — and international law at the time — understood that one does not need to "declare" war in order to fight in a war of self-defense. Only aggressive war need be declared, and the U.N. treaty outlaws that. Under the historical view of the war power, there was no need to declare WW II (although we did so). Nor was there any need to declare the Gulf War, because a state, like Kuwait, always has the right of self-defense, and it can ask other states for assistance. Under the U.N. Charter, we could assist Kuwait because we had no intention of waging an aggressive war. And under the U.N. Charter we also have the right to defend ourselves when subjected to acts of war, like the attacks of September 11th.

Meet the Speakers: Ron Rotunda

News & Information
RON ROTUNDA. Ron Rotunda is a George Mason University Foundation Professor of Law, and a graduate of both Harvard College and Harvard Law School. Mr. Rotunda clerked for Judge Walter R. Mansfield of the United States Court of Appeals for the Second Circuit, and practiced law in Washington, D.C. He also served as assistant majority counsel for the Watergate Committee. Mr. Rotunda is the author of numerous books, over 200 articles, and helped write Cambodia’s first democratic constitution. He was on the Panel of Contributing Editors that produced, Black's Law Dictionary (Thompson-West, 8th ed. 2004), among other prestigious accomplishments.

Meet the Speakers: Otis Stephens

News & Information
OTIS STEPHENS. Professor Otis H. Stephens is UT College of Law’s Resident Scholar of Constitutional Law. Dr. Stephens was a post-doctoral fellow at Harvard Law School and UT, and was a member of UT’s political science faculty from 1967-2000. He is the author of numerous books and publications including “Presidential Power, Judicial Deference and the Status of Detainees in an Age of Terrorism,” in American National Security and Civil Liberties in an Era of Terrorism.

First Chapter Meeting

News & Information
The first chapter meeting will be held Wednesday, September 7 at 12:15 in Room 136. If you cannot make it for some reason, please try to come to our Kickoff Party on Friday, September 9 at 9:00 at Preservation Pub on Market Square.

We’re looking forward to seeing all of you on Wednesday! Besides getting free pizza, you will be introduced to the board and given an updated calendar (including times and rooms). We will be briefly talking about committees — what they are, what they do, how you can join them and how you could lead them. We will also start discussing our draft constitution, which we plan to ratify this fall. As always, we will field any questions you may have. I promise we’ll keep it pithy – we’re law students too! See you then!

Job Opportunity for Federalist Society 3Ls

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Pacific Legal Foundation, the oldest and largest conservative public interest law foundation in the country, will be offering three fellowships to begin in September, 2006. The materials shortly will be available on their website: www.pacificlegal.org. Please submit applications to attyjobs@pacificlegal.org by October 31. For more information, email Ian Hennessey at ihenness@utk.edu.

The Federalist Society is Back!

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The Federalist Society is back, and promises a year packed with interesting speakers, lively debates, and great socials. Ian Hennessey, President, and George Maifair, Vice President for Programming, worked tirelessly over the summer to organize an impressive schedule of events. The fall program will include a debate on terror detainees, a lecture on judicial confirmations, a debate on tort reform, a lecture on libertarianism in Tennessee, and a panel on eminent domain. To take on these highly controversial subjects, the Federalist Society has solicited keen minds from both sides of the issues. This semester’s speakers include John Lott, Jr., Ronald Rotunda, Bob Levy, William Krauss, Steven Eagle, and Michael DeBow. Noel Halpin, Social Chairman, and Alex Johnson, Vice President for Recruitment, have organized an impressive schedule of social events, including a Kickoff Party this Friday, Sept. 9, at Preservation Pub at 9 pm.

In addition to our local events, our chapter will also organize the first ever statewide Tennessee Federalist Convention, tentatively scheduled for early next year at Vanderbilt University in Nashville. At this convention, various speakers will take on controversial Tennessean legal and political topics.

We hope you will find the time to stop by one of our meetings, events or parties. If you are interested, please contact: Alex Johnson (alex61081@hotmail.com) or Ian Hennessey (ihenness@utk.edu).

Calling All Liberals!

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Are you a bleeding heart liberal? Rabid socialist? Proud independent? Apathetic? On the fence? We want you to participate!

While we are committed to promoting an awareness of conservative and libertarian ideas and principles, the Federalist Society is not an echo chamber. Good ideas always need a challenge! Both sides of the issue will be fairly represented in our debates. Challenging speakers work best with challenging audiences.

Maybe we will convince you. Maybe we will not. Either way, you are guaranteed to enjoy yourself in the process.

What is the Federalist Society?

News & Information
What is the Federalist Society? The answer may surprise you. Many students enter law school never having heard of the Federalist Society. Others know it simply as “that conservative group.” If you find yourself in one of these categories, you are not alone.

The Federalist Society is a group of conservatives and libertarians interested in the current state of the legal order. It is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be. The Federalist Society seeks both to promote an awareness of these principles and to further their application through its activities. This entails reordering priorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law. It also requires restoring the recognition of the importance of these norms among lawyers, judges, and law students and professors. In working to achieve these goals, the Federalist Society has created a conservative network that extends to all levels of the legal community.

Here at the University of Tennessee College of Law, the Federalist Society hosts a number of events throughout the year, including intellectual pursuits such as debates and lectures, as well as social gatherings.

Members will have the opportunity to travel to the annual National Lawyers Convention held in Washington, D.C. in November, which will include addresses by U.S. Attorney General Alberto Gonzales, Governor of Massachusetts Mitt Romney, and Former U.S. Solicitor General Theodore Olsen, among many others. Members will also have the opportunity to travel to the annual Federalist Society Student Symposium, held this year at Columbia University. In addition, members will be given the opportunity to help organize and attend the first ever Tennessee Federalist Convention, tentatively slated for early 2006 in Nashville.

Opportunities in the Federalist Society

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A whole new experience for the members of the Federalist Society begins this year. In the past, members who did not occupy officer positions were relegated to the role of observers. Not anymore!

This year will inaugurate the introduction of a committee system. These committees will have diverse tasks, including helping to prepare for speaker events, organizing parties, and writing articles for the Gazette introducing the issues of upcoming events to the student body. Committees will have a great degree of autonomy to grow our Society in any number of directions.

This fall, we will also consider adopting a new constitution. The officers have worked hard over the summer to write, edit and debate the draft constitution. Now that the school year has begun, it is time for the members to join the discussion. We welcome and encourage new members to take part as well. James Madison authored our nation’s Constitution. Why not add your name to the list of those who will author our chapter’s?

In February, the national Federalist Society will hold its annual Student Symposium at Columbia University. We will send a contingent from Tennessee to attend the conference. This will be a great opportunity to meet fellow Federalists from across the nation!

The Federalist Society and the Legal Community

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The Federalist Society has created a conservative intellectual network that extends to all levels of the legal community nationwide. Though Knoxville does not currently have a Lawyers Division, local attorneys will be invited to join our events and share their insights.