Cohen on "Undead" Wartime Cases: Stare Decisis and the Lessons of History

'Undead' Wartime Cases: Stare Decisis and the Lessons of History is a new article by Harlan Grant Cohen, University of Georgia School of Law. It is forthcoming in the Tulane Law Review (2010). Here's the abstract:

References to the “lessons of history” are ubiquitous in law. Nowhere has this been more apparent than in recent debates over U.S. counterterrorism policy. In response to the Bush Administration’s reliance on World War II-era decisions - Johnson v. Eisentrager, Ex Parte Quirin, Hirota v. MacArthur, and In re Yamashita - opponents have argued that these decisions have been rejected by the “lessons of history.” They argue that the history of wartime cases is one marked by executive aggrandizement, panic-driven attacks on civil liberties, and overly quiescent courts - none of which should be repeated.

But what does it really mean to invoke the lessons of history? Is it merely a rhetorical device or should it have some role in determining the stare decisis effect of these old wartime cases? The fact that each of the four cases cited by the Bush Administration has since been set aside by the Supreme Court raises questions about whether stare decisis ever applied to them at all. Can the lessons of history answer those questions?

This Article explores the potential legal meanings of the “lessons of history.” It distinguishes and weighs a number of possible models for how history might be used: (1) history as facts complicating or undermining prior decisions; (2) history as precedent-replacement, with the judgments of Congress, the Executive, or others taking the place of that of judges; and (3) history as a vehicle for constitutional principles, like a fear of Executive aggrandizement in wartime or a belief that “the Constitution is not a suicide pact.” Using the four key cases here as examples - Quirin, Eisentrager, Yamashita, and Hirota - the Article examines the benefits and pitfalls of allowing courts to engage in each of these types of analysis. The result is a clearer understanding not only of how history should affect the fate of old wartime cases, but of the roles history can play more generally.