April 18, 2004

Law - Two important national law stories today

The NY Times has two really outstanding legal writers, Adam Liptak, and of course Linda Greenhouse. Liptak has a front-page story today in the Times on how Nafta has changed the accepted legal review process:

After the highest court in Massachusetts ruled against a Canadian real estate company and after the United State Supreme Court declined to hear its appeal, the company's day in court was over.

Or so thought Chief Justice Margaret H. Marshall of the Massachusetts court, until she learned of yet another layer of judicial review, by an international tribunal.

"I was at a dinner party," Chief Justice Marshall said in a recent telephone interview. "To say I was surprised to hear that a judgment of this court was being subjected to further review would be an understatement."

Tribunals like the one that ruled on the Massachusetts case were created by the North American Free Trade Agreement, and they have heard two challenges to American court judgments. In the other, the tribunal declared a Mississippi court's judgment at odds with international law, leaving the United States government potentially liable for hundreds of millions of dollars.

Linda Greenhouse has a comprehensive piece titled "Cases Before Supreme Court Will Test Limits of Presidential Power." The lead:
Three Supreme Court cases generated by the Bush administration's detention of those it deems "enemy combatants" will be argued over the next 10 days, framing a debate of historic dimension not only about the rights of citizens and noncitizens alike, but also or perhaps principally about the boundaries of presidential power.

It was always evident that these cases would invite the justices to re-examine the balance between individual liberty and national security, and perhaps to recalibrate that always delicate balance for the modern age of terrorism. But the full extent to which the arguments turn on competing visions of presidential authority became clear only after the dozens of briefs filed in the three cases began to arrive at the court after the first of the year.

The story is accompanied by an excellent graphic previewing the three cases, plus a link to the Findlaw.com site where the briefs for these cases may be accessed. In addition, Greenhouse has a piece in the Week in Review section of today's Times titled "The Imperial Presidency and the Constraints of the Law," where she presents quotes from some of the briefs, with this intro:
The administration's lawyers argue for a view of executive authority that leaves no room for "second-guessing" by the federal courts. On the other side, briefs from across the political spectrum have expressed alarm about that view. The Cato Institute, the libertarian research organization, has filed a brief asserting that the government's argument "strikes at the heart of habeas corpus,'' which, the brief calls "a right to judicial protection against lawless incarceration by executive authorities.'' Following is a sample of voices from the dozens of briefs received by the court.

Posted by Marcia Oddi at April 18, 2004 04:48 PM