The Law Clerk Who Wrote Rasul v. Bush

This article uncovers the deep doctrinal and personal roots of Rasul v. Bush, the landmark Supreme Court decision holding that federal courts have jurisdiction to hear challenges to the detention at Guantanamo Bay Naval Base, Cuba, of foreign nationals captured abroad in the war on terror. Under entrenched views of precedent, shared by lower courts, commentators, and the parties alike in Rasul, the Court could only reach that result by either distinguishing or overruling Johnson v. Eisentrager, a case arising from World War II which had arrived at the opposite conclusion regarding other habeas petitioners captured and detained abroad. However, Justice Stevens’ opinion for the Court took a more peculiar tack: it declared the case already overruled. Even stranger, the opinion did so by relying, pivotally, on an obscure dissent from an earlier case ignored by everyone else as irrelevant precedent concerning venue rather than jurisdiction. That dissent, in Ahrens v. Clark, was drafted in critical parts by a law clerk for Justice Rutledge named John Paul Stevens. 

The story of how Justice Stevens ingeniously related Eisentrager to the Ahrens dissent, and thereby reversed their precedential worth in Rasul, is a remarkable one in Supreme Court history. As told in this article, the story reveals the intriguing extent to which Stevens’ work in Ahrens over fifty years ago influenced the reasoning if not the result in Rasul. This telling, in turn, supplies insight into Rasul’s ramifications on the ability of another important class of captives in the war on terror – those confined abroad outside of Guantanamo Bay – to challenge their detention in federal court. While other articles have examined Rasul on a doctrinal or theoretical level, none have traced the decision back to Stevens’ work in Ahrens. That archaeology is essential for a full understanding of Rasul, and for an appreciation of its place in the history of the Supreme Court and the jurisprudence of Justice Stevens. 

Rule-Based Dispute Resolution in International Law

This Essay examines why the United States government demanded a more rule-based dispute settlement system in the World Trade Organization (“WTO”). American support for a trade court limiting its international bargaining power is puzzling, particularly given the United States’ general resistance to international courts and obvious advantage in a negotiation-based system. Access to the United States’ market is one of the primary benefits of membership in the WTO and, by limiting access to its market, the United States can resolve trading disputes on favorable terms. Why would the United States give up this flexibility in favor of a strong international court?

This Essay addresses both the puzzle of the United States’ preference for rule-based dispute resolution and the broader implications for international law. It argues that the WTO system strengthens the President’s hand in trade policy negotiations with Congress. The United States’ preference – or more specifically, the President’s preference – for a rule-based system derives, in part, from the President’s efforts to gain greater control over trade policy at the national level. A trade court imposes an international constraint that actually increases the President’s power over lawmaking at home. The Essay then turns to the broader implications for international law. It shows how domestic actors, such as the President, may use international law to try to change domestic politics. International law influences state interests by shifting bargaining power among different players within the government and thereby changing the outcome of domestic politics.