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Professor Katherine Beckett | Author: Rasan Cherala
LSJ 200
STORMING THE COURT: JUST OUTCOMES AND
THE DEGREE OF ADHERENCE TO THE COMMON
LAW SYSTEM

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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 deliverthem 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 seenas acceptable and fair.
The issue of determiningwhether 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 effecton 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 implementedcorrectly 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

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the Coast Guard was allowed to repatriate Haitians intercepted at sea without givingthem the
opportunity to seekasylum, demonstrates the idea that legal actors do conform to the adversarial
model. The book describes how a group of lawyers from Florida had, “hastily fileda lawsuit against
the Bush administration to halt repatriations…A lower court had issued an emergency ruling in their
favor but Kurzban had to defendit 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 seekersfaced 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 detainedrefugees

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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 illustratesthe 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
listenedto 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 effectivelyat 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 filingfor appeal. This system allowsfor 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 filingfor
Rule 11 sanctions. The government filedthese sanctions under Rule 11 of the Federal Rules of Civil
Procedure, which allows the impositionof fineson lawyers from both parties for filingfrivolous
lawsuits. The Department of Justice demanded that the feesfor 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 seeksto 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 decisionof the Haitian Center

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Council, Inc., et al v. McNary, the Bush administration simply created a blockade in the ocean and
returned refugeesto 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 simplybecause 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 outlinedunder 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 violationof 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 effectuntil it had been
retried in the Supreme Court. During the time period that elapsed betweenthe 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 repeatedlyto 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 redefinedthe definitionof torture,
despite the fact that it has been legallydefinedin various human rights laws such as the Torture Act
of 1994. In addition, the War Crimes Act specificallysets out to protect people from these acts of

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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-theyneedto 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 litigatedthis 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 limiteddue 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
nullifiedby 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 detaineescould not ask any “court,
justice, or judge to stop their torture” (Mayerfeld 2007: 107). How can one eventake 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 abilityto 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

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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 abilityto 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 betweenlaw 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 decisionwas 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 illuminatingboth sides of the argument
and enables decisionmaking that takes evidence from both sides into account.

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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.