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December 08, 2004

What is Law? The Holmesian "Bad Man"

Orin Kerr writes
First, the law. No one actually knows what kind of U.S. constitutional rights the detainees at Guantanamo have, or, to the extent that there may be other sources of rights for them such as the Geneva Convention, whether those rights are binding in federal court. We know from the Supreme Court's decision last summer in Rasul v. Bush that the federal courts have jurisdiction to consider the question, but we just don't know what the answer is. Why is that? It's because there are surprisingly few opinions on the constitutional rights of non-citizen detainees outside the United States as a general matter, and those opinions that shed any light at all on the issue here--cases that plausibly might include United States v. Verdugo-Urquidez, Reid v. Covert, and Johnson v. Eisentrager --- are generally too splintered, unsatisfying, factually different, and (in some cases) too dated to tell us a lot. No one really knows how the courts (and the Court) are going to answer these questions. If you take the Holmesian view that law consists of "prophecies of what the courts will do in fact", right now this area of law is a big question mark.
A law professor would say that the Holmesian "bad man" view of the law is the question of the law is as a prediction of what courts would do if they judged the case. I haven't looked back at Holmes's essay, but whatever he says, the logical extension of his idea is that the law is what will happen to the bad man who takes the action. If nobody will prosecute, the action is legal. If the executive branch would ignore whatever the courts say anyway, its actions are legal.

Still, Professor Kerr's approach is a useful one. There are three questions that are all worth answering:
1. What does the law say?
2. What will the courts do when confronted with a case (which can be different because of honest disagreements, corruption, or judicial arrogance)
3. What can a person do and not get punished for under this law? (because courts, prosecutors, or police won't go after him)

Posted by erasmuse at December 8, 2004 08:26 AM

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