Peter Margulies (Roger Williams University School of Law) has posted Beyond Absolutism: Legal Institutions in the War on Terror (University of Miami Law Review, Vol. 60, p. 309, 2006) on SSRN. Here is the abstract:
Absolutist positions make for enticing rhetoric, but no real solutions, on the law and terrorism front. This review essay stakes out a more contextual approach to issues involving torture, executive power, and mercy toward terrorism defendants. Considering recent collections edited by Sanford Levinson and Mark Tushnet, respectively, as well as a new book by Richard Delgado and Jean Stefancic, the essay argues that careful attention to institutions will produce better results than absolutist sentiments. With regard to executive power, for example, the essay argues that seeking congressional ratification of executive action does not always produce outcomes that benefit civil liberties. As the new Military Commissions Act passed after the Supreme Court's decision in Hamdan v. Rumsfeld illustrates, sometimes the results of such ratification may be substantively worse than the status quo. The essay concludes that legislative action cannot replace a robust, ongoing approach by the courts.
