storming the courrt paper

2/21/2012

Professor Katherine Beckett | Author: Rasan Cherala

LSJ 200 Storming the Court: Just Outcomes and the Degree of Adherence to the Common Law System

Rasan Cherala2/21/2012

He walks into the courtroom dressed in a charcoal suit and sits down, as his client the

defendant, is brought in. On the other half of the courtroom sits the plaintiff and her attorney, who

have accused his client of a certain injurious act. Both parties examine their opening statements as

they prepare to deliver them to the judge, who will ultimately decide which party wins the case.

This scenario illustrates the manner in which a case typically plays out in the common law, or

adversarial system in the U.S. Two parties present their evidence and each side argues a position

until the judge has enough information and evidence to reach a satisfactory conclusion along with

the assistance of the jury.

One may wonder whether the outcomes of cases resolved in this manner result in just

decisions which still adhere to the letter of the law. In effect, these are decisions that align with

what the law states and are in accordance with social norms that are seen as acceptable and fair.

The issue of determining whether cases in the book Storming the Court by Brandt Goldstein follow

the adversarial system is a complicated one. The idea of legal realism states that interplay occurs

between law and society which has an altering effect on both realms of life. In accordance with the

principle of legal realism, reaching a just decision does not necessarily guarantee that said decision

will be implemented correctly and lead to fair outcomes in the real world. The cases in this book for

the most part did conform to the idea of the adversarial model, but did not necessarily produce just

outcomes. In addition to cases presented in Storming the Court, cases such as those presented in

the articles Playing by Our Own Rules and Interpreting after the Largest ICE Raid in US History

written by Jamie Mayerfeld and Erik Camayd-Freixas respectively, repeatedly illustrate the fact that

the adversarial system of law does not produce just outcomes.

In this book, several cases demonstrate the extent to which legal actors conformed to the

adversarial system. The first case of the book, HRC v. Baker III, which concerned itself with whether


the Coast Guard was allowed to repatriate Haitians intercepted at sea without giving them the

opportunity to seek asylum, demonstrates the idea that legal actors do conform to the adversarial

model. The book describes how a group of lawyers from Florida had, “hastily filed a lawsuit against

the Bush administration to halt repatriations…A lower court had issued an emergency ruling in their

favor but Kurzban had to defend it the next day on a fast-track appeal.” (Goldstein 2005: 15) This

illustrates that the two parties had to make arguments for positions that each side respectively

held, and one side- in this case the government- eventually emerged as victorious. Once an initial

decision had been made by the lower court, the government appealed to a higher appellate court,

in which both sides presented their arguments. The court found that Haitians were considered

outside of the U.S., and therefore outside the scope of American law. Essentially, the ruling stated

that Haitians had no rights at all despite international conventions contrary to that idea.

International treaties such as the Geneva Convention enumerated rights for prisoners of

war, and the rights given to humans. In addition, international conventions such as the Universal

Declaration of Human Rights proscribe the ethical treatment and certain rights (ideas of things that

are owed to humans or non-human entities) that people possess. How can a court declare that a

certain group of people has no rights whatsoever?

The judge stated that no matter what kind of mistreatment the asylum seekers faced at the

hands of the INS, U.S. military, or conditions they might face if returned to Haiti, they could not

appeal for aid or a lawyer. This illustrates that despite the fact that the legal players adhered to the

adversarial system, this adherence did not result in a just outcome.

In order to correct the perceived wrongdoings of the appellate court from the Baker case,

Yale law students set out to argue the cause on new grounds. The new argument presented in

Haitian Center Council, Inc., et al v. McNary, dealt with whether all attorneys of detained refugees


possessed First Amendment Rights to speak to their clients on Guantanamo in person. This litigation

of the case in a new light allowed for an alternative decision, which enabled lawyers to bypass the

first decision and aid their clients. The introduction to the second case in which Judge Johnson

begins by questioning Professor Koh as he presents his case illustrates the role of the opening

statement in this system. It helps the lawyer present evidence and make an argument succinctly so

that the judge can reach a just decision. The judge, after having heard Koh’s argument, then

listened to the argument of the government attorney and made a decision to ask for written case

briefs based off of those statements. This shows how the system can work effectively at certain

times in order to reach a just outcome. At most other instances in the book, however, the

adversarial system obstructs justice because the government has the ability to stop proceedings at

every step by filing for appeal. This system allows for the equal representation of claims on both

sides, but a malicious party can abuse the system and run the other party low on resources.

Outside of the adversarial system, the government sought to resolve the dispute by filing for

Rule 11 sanctions. The government filed these sanctions under Rule 11 of the Federal Rules of Civil

Procedure, which allows the imposition of fines on lawyers from both parties for filing frivolous

lawsuits. The Department of Justice demanded that the fees for their government lawyers and

court costs needed compensation and that Yale provide it. The efforts of the Yale lawyers to fight

for a just outcome and a humanitarian cause could have been prevented by the success of this

motion. Thus, in this case the law seeks to ensure that the system is free of unnecessary cases but

in doing so, enables parties to misuse the system by giving them the capacity to term any potential

lawsuit as frivolous.

In addition, legal actors in the book did not always conform to the adversarial system in

order to face new legal challenges. For example, to circumvent the decision of the Haitian Center


Council, Inc., et al v. McNary, the Bush administration simply created a blockade in the ocean and

returned refugees to Port Au Prince. The judge had ruled that asylum seekers were protected and

had rights because Guantanamo Bay fell under the American territory. Thus the U.S. government

concluded those human rights standards would not be violated if they did not allow more refugees

onto Guantanamo. This executive action quickly overcame the obstacles put in place by the courts

and demonstrates how justice may not necessarily be achieved simply because of a decision

reached through the adversarial system.

The third case of the book reiterates the idea that using the adversarial system does not

produce just results. This case concerns whether or not Bush’s immediate return policy violated the

rights of refugees outlined under Article 33 of Refugee Convention and in the 1980 Refugee Act.

The Second Circuit Court of appeals, after much debate between government lawyers and Yale

lawyers, ruled that Bush’s direct return policy was in violation of the rights afforded to the refugees

under those laws. Despite the fact that the court arrived at the just outcome, the government

managed to stay the decision- a judge ordered the decision to not take effect until it had been

retried in the Supreme Court. During the time period that elapsed between the stay and the new

hearing date, the U.S. government repatriated Haitian refugees at faster rates than before. In this

manner, the adversarial system was used repeatedly to simultaneously champion and block justice.

Moreover, examples presented in the article Playing by Our Own Rules by Jamie Mayerfeld

demonstrate how players in the legal system can manipulate the adversarial system in order to

reach unjust outcomes. In this article, procedures have been specifically outlined for circumventing

the law as shown by actions of the Office of Legal Counsel. They redefined the definition of torture,

despite the fact that it has been legally defined in various human rights laws such as the Torture Act

of 1994. In addition, the War Crimes Act specifically sets out to protect people from these acts of


Torture. The Office of Legal Counsel managed to twist the law in such convoluted ways due to the

concept of Reservations, Understandings and Declarations (RUDs). In certain countries, such as the

U.S., treaties are non-self-executing-they need to be approved by the Senate before they can be

implemented. In the process of this implementation, the senators have certain RUDs that water

down the provisions of a law and enable the marginalization of international human rights law.

Lawyers have litigated this issue successfully in court using the adversarial system and this

produced just outcomes in theory. The implementation of case law protecting human rights,

however, is limited due to lack of willingness of the U.S. government to do so, as exemplified by

Hamdan vs. Rumsfeld. Does a case such as this have any real consequences if it can be easily

nullified by new legislation?

The passage of the Military Commissions Act of 2006 quickly undercut case law set forth by

Hamdan vs. Rumsfeld. This act rewrote the War Crimes Act so that only “grave violations” of the

Geneva Convention could be sanctioned and ignored the court’s ruling that even members of

terrorist organizations had protection under the Geneva Rights Convention. In addition, the law

made it so that the Geneva Convention could not be invoked as a source of rights and it also

eliminated Habeas corpus rights for foreign detainees suspected or confirmed as enemy

combatants. The most troubling aspect may be that foreign detainees could not ask any “court,

justice, or judge to stop their torture” (Mayerfeld 2007: 107). How can one even take advantage of

the adversarial system in the first place if by definition one has no rights? A fair, just outcome

cannot occur if a defendant has no ability to prove his or her innocence in the first place.

Interpreting after the Largest ICE Raid in US History demonstrates that the adversarial

system can fail if an entity such as an administration oversteps its boundaries. This article describes

the proceedings that occurred after a raid that the Immigration and Customs Enforcement


administration had conducted. The administration criminalized the immigrants by accusing them of

aggravated identity theft and social security fraud. This in turn forced the immigrants to accept a

101 (c) plea agreement because the administration processed as many people as possible before

the three day Habeas corpus period. Consequently, defendants had no ability to argue a case in an

adversarial system because immigration lawyers were not present to assist them and inform them

because it was a “criminal” trial. ICE officials coerced the plea agreement and the judges did not

have any discretion in the matter because of the previously determined conditions of the bargain.

There was no real adherence to the adversarial system. This fast-tracking of innocent workers

clearly was unjust and did nothing but inflate the statistics of the ICE. This similarly relates to the

situation in Storming the Court, where asylum seekers were returned to Port Au Prince before they

had a chance to seek asylum and did not have access to immigration lawyers.

As can be seen through the cases in Storming the Court, Interpreting after the Largest ICE

Raid in US History, and Playing by Our Own Rules, the adversarial system of the United States plays

a complex and important role in the interaction between law and society. In Storming the Court, the

legal actors worked within the adversarial system to a large extent, but many of the outcomes that

occurred as a result of the decisions were unjust. Even when the decision was just, actors took steps

to circumvent the new case law. Since the judicial system cannot enforce the law it sets forth, the

executive branch must do so. However, the executive branch in this situation remained opposed to

the just goals, and consequently the government did not enforce or follow many of the laws and

declarations, or it created convoluted arguments to get around the law. The other cases similarly

demonstrated the failure of the adversarial system to produce just outcomes. Although there are

many issues with this system, it does perform the role of illuminating both sides of the argument

and enables decision making that takes evidence from both sides into account.


Works Cited

Camayd-Freixas, Erik. "Interpreting after the Largest ICE Raid in US History:." New York Times 13

June 2008. Print.

Goldstein, Brandt. Storming the Court: How a Band of Yale Law Students Sued the President-- and

Won. New York: Scribner, 2005. Print.

Mayerfeld, Jamie. "Playing by Our Own Rules: How U.S. Marginalization of International Human

Rights Law Led to Torture." Harvard Human Rights Journal 20.Spring (2007): 89-140. Web.

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