Harlan Grant Cohen

Munaf v. Geren - U.S. Supreme Court opinion on extraterritorial application of the writ of habeas corpus

In the final analysis, Boumediene is best understood as the latest installment in an awkward, ongoing process in which the executive branch, Congress, the courts, and other actors gradually are accommodating counterterrorism law and policy to the circumstances of the post9/11 world. It is a powerful assertion by the judiciary of a central and not particularly deferential role in that process, even if it is not quite the civil liberties t r iumph that some have claimed nor the national security disaster lamented by others.

International Precedent and the Practice of International Law

Why do international lawyers cite and argue from precedents? States, jealously guarding their authority to interpret international law, have usually denied the international courts they have created the power of precedent, at best remaining coy whether international courts should follow even their own prior decisions. And yet, arguments from precedent are everywhere; the decisions of international courts, tribunals, and expert bodies are regularly invoked as authority in arguments over what international law requires. International precedent is like the embarrassing family member who no one talks about but whose presence is impossible to ignore. Uninvited, it keeps coming anyway. This chapter, part of an edited volume on state and non-state law, suggests a different model of international law that can better explain the ubiquity of precedent in international law arguments. Shifting away from a state-centric model of international law focused on the formal instruments and formal institutions that states create, this chapter instead focuses on what Robert Cover has described as the “jurisgenerative process” through which “communities do create law and do give meaning to law through their narratives and precepts.” It develops a model of international law as the product of a series of overlapping “communities of practice,” in which a varied group of international actors continually interact, negotiate, and argue over the law’s meaning. It is in this practice, this chapter argues, that precedents are proffered, and it is in these communities that those precedents’ relative worth are hashed out.