Petition for Cert. Granted in Hamdan

Volokh, Eugene VOLOKH at law.ucla.edu
Mon Nov 7 10:45:00 PST 2005


    Indeed, yet I take it that Hamdan's lawyers are supposed to care
just about what maximizes Hamdan's chances, no?
 
    Eugene

-----Original Message-----
From: Janet Alexander [mailto:jca at stanford.edu] 
Sent: Monday, November 07, 2005 10:35 AM
To: Volokh, Eugene; conlawprof at lists.ucla.edu
Subject: RE: Petition for Cert. Granted in Hamdan


A 5-4 loss is as bad for Hamdan as a 4-4 loss, but worse for David Hicks
and everyone else who faces trial by military commission since a 4-4
summary affirmance would not have precedential effect.  Of course
Roberts would not have to recuse himself in a subsequent case even
though the DC Circuit would decide it on the basis of the Hamdan
precedent.  Is it possible that the chance that Justice O'Connor will
still be sitting when the case is decided figures into the calculus?
        Janet Alexander


At 10:12 AM 11/7/2005 -0800, Volokh, Eugene wrote:


        Wouldn't that be quite risky?  True, a 5-4 loss is just as bad
for them as a 4-4 loss, and there's a chance that Roberts will change
his views (for instance, because he's no longer bound by the precedents
that the D.C. Circuit panel was bound by).  But isn't there also a
chance that Roberts will change the others' views, and turn a 5-3 win
for Hamdan into a 5-4 loss for him?

        Eugene

> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of 
> Conkle, Daniel O.
> Sent: Monday, November 07, 2005 9:20 AM
> To: Marty Lederman; conlawprof at lists.ucla.edu
> Subject: RE: Petition for Cert. Granted in Hamdan
> 
> 
> Although Roberts voted against Hamdan in the court of 
> appeals, the NY Times reports that "Hamdan's attorneys may 
> ask Roberts to participate in the case to avoid a 4-4 tie."
> 
> Dan Conkle
> 
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu 
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Marty Lederman
> Sent: Monday, November 07, 2005 10:25 AM
> To: conlawprof at lists.ucla.edu
> Subject: Petition for Cert. Granted in Hamdan
> 
> 
> The Court granted certiorari this morning in Hamdan. It will 
> likely be 
> argued this Term, and the Chief Justice (who was on the panel 
> below) has
> 
> recused himself from the case.
> 
> _______________________________________________
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_______________________________________________
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Please note that messages sent to this large list cannot be viewed as
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Janet Cooper Alexander
Frederick I. Richman Professor of Law
Stanford Law School
Stanford CA 94301-8610
650.723.2892


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