New York University Public Law and Legal Theory Working Papers

Document Type



Houston Law Review, 2010


This lecture honors the centenary of the birth of Judge John R. Brown, one of the legendary “four horsemen” of the heroic period of the Fifth Circuit during the height of the civil rights era. The lecture explores the role of the judge in extraordinary times, defined as a crisis of confidence in the integrity of the core institutions of the society. Examples are drawn not only from the Fifth Circuit during the assault on segregation, but from the judicial responses to the electoral fiasco in Florida in 2000, and to the unresolved use of emergency powers following September 11. The last part of this lecture deals with a topic of current controversy. Here the discussion turns to a critical assessment of the decision to try Khalid Sheikh Mohammed in civilian courts. The lecture examines some of the doctrinal and practical hurdles facing an attempt to try a non-citizen military captive in civilian courts.

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