Current Issue

  • Volume 29,
  • Number 1 -
  • Fall 2018


What Makes for More or Less Powerful Constitutional Courts?
Stephen Gardbaum

It is sometimes suggested that one or another constitutional or supreme court (for example, the U.S., Indian, or German) is the “most powerful in the world.” And yet it is often far from clear what the measure of power is or should be, what the sources of judicial power are under the given measure, and what explains why some courts are more powerful than others. Is strength mostly a function of formal powers, so that, for example, a court with the authority to invalidate a constitutional amendment on substantive grounds is ipso facto more powerful than one that may only invalidate statutes, which in turn is more powerful than a court that can do neither? Yet, both the U.S. and Japanese supreme courts are in this middle category; indeed they have roughly similar sets of legal powers overall, but while the former is often considered among the most powerful courts in the world, the latter is often considered among the weakest. Thus, it seems clear that formal powers do not tell the whole story, but what part do they play, if any, and what else helps to fill in the picture? Although looking to how courts actually use their legal powers is obviously also relevant, it too falls short. For what we are additionally in search of are factors that help to explain why, for example, the U.S. and Japanese courts use their powers in such different ways.

This Article seeks to shed light on all three parts of the uncertainty: the measure; sources; and explanation of judicial power. It begins by proposing that the proper measure of the power of a constitutional court is its consequential nature as an institutional actor in terms of affecting the outcomes of important constitutional and political issues. Although more diffuse and harder to quantify, this conception of judicial power is more inclusive and realistically nuanced than commonly employed uni-dimensional alternatives, such as international influence or strike-down rate. The Article next argues that the consequential nature of a constitutional court is a function of three broad variables: formal rules and powers, legal and judicial practice, and the immediate electoral and political context in which it operates. Through a process of mutual interaction, each of these three helps to shape and constitute the more specific components of a court’s institutional power, which include the nature, scope, and content of the constitution it enforces, the jurisdictional and remedial powers it has and employs, the ease or difficulty of constitutional amendment, and its composition and tenure. Moving from measuring to explaining the strength or weakness of constitutional courts, the Article next identifies and discusses three explanatory variables: deliberate constitutional design choices, legal culture, and general or structural political context. The Article concludes with case studies of the supreme courts of India and Japan that illustrate the role and interaction of these multidimensional evidentiary and explanatory factors.

Interrogation or Experimentation? Assessing Non-Consensual Human Experimentation During the War on Terror
William J. Aceves

The prohibition against non-consensual human experimentation has long been considered sacrosanct. It traces its legal roots to the Nuremberg trials although the ethical foundations dig much deeper. It prohibits all forms of medical and scientific experimentation on non-consenting individuals. The prohibition against non-consensual human experimentation is now well established in both national and international law.

Despite its status as a fundamental and non-derogable norm, the prohibition against non-consensual human experimentation was called into question during the War on Terror by the CIA’s treatment of “high-value detainees.” Seeking to acquire actionable intelligence, the CIA tested the “theory of learned helplessness” on these detainees by subjecting them to a series of enhanced interrogation techniques.

This Article revisits the prohibition against non-consensual human experimentation to determine whether the CIA’s treatment of detainees violated international law. It examines the historical record that gave rise to the prohibition and its eventual codification in international law. It then considers the application of this norm to the CIA’s treatment of high-value detainees by examining Salim v. Mitchell , a lawsuit brought by detainees who were subjected to enhanced interrogation techniques. This Article concludes that the CIA breached the prohibition against non-consensual human experimentation when it conducted systematic studies on these detainees to validate the theory of learned helplessness.

Trends in Admissibility of Hearsay Evidence in War Crime Trials: Is Fairness Really Preserved?
Michaela Halpern

In the course of war, who determines what is just and fair? Fairness and justice are and should be universal constants; however, the paths to fairness and justice must be malleable and adapt to different circumstances.

The Nuremberg trials were marked by a conscious effort to avoid “victor’s justice” and provide a fair trial to the defendants who committed acts of atrocity. This paper examines whether this goal was achieved in the Nuremberg, Tokyo, and International Criminal Tribunal for the former Yugoslavia trials, as well as briefly touching upon the Guantanamo military commission trials, by looking particularly at the use of hearsay evidence. By placing greater weight on evidentiary criteria such as “relevance,” “probative value,” “reliability,” and “credibility” and developing a more uniform application of these terms rather than promoting a black and white dichotomy of the admissibility of hearsay evidence, judges can better perform the delicate balancing act of justice that takes place amidst the chaos and hostility of war.

War is not a normal circumstance and war crimes are not normal crimes as contemplated by national laws. The path to justice requires flexibility and attention to the precarious circumstances surrounding a world emerging from complete upheaval. The general admissibility of hearsay evidence, in itself, does not provide a great threat to the rights of the accused in the course of war crimes trials. Examination of these war crimes trials indicate that, contrary to common law perceptions, it is possible to allow typically inadmissible evidence and still preserve fairness.