FROM MILLIGAN TO BOUMEDIENE: THREE MODELS OF EMERGENCY JURISPRUDENCE IN THE AMERICAN SUPREME COURT

Abstract

This article aims to bring philosophical and legal aspects of the discussions of the problem of emergency together by employing classic philosophical views on the problem of emergency to categorize dominating paradigms of legal interpretation in the American Supreme Court.
In the first part of the article I review the American Supreme Court‟s case-history and single out three dominating legal paradigms for interpreting the problem of emergency: the rights model, the extra-legal model and the procedural model. I argue that the procedural model has been by far the most influential.
In the second part of the article I ask how this precedence has played out in the context of terrorism cases. I argue that the first four cases that were brought against the government confirmed the procedural model as the Court‟s primary model for evaluating legal problems related to emergencies. But I also argue that the Court‟s latest decision on this issue, Boumediene v. Bush from 2008, introduces a shift from the previous general tendency to rely primarily on a procedural model towards including substantial rights concerns.