The Libya Intervention: Legality and Lessons (Part I)

With the NATO action in Libya winding down, now seems to be a good time to take stock of the debate over the legality and practical implications of the intervention. What are the merits of the major legal arguments? What are the lessons for the future?

With respect to legality, the debate continues and has both international and domestic features, but I’ll focus exclusively on the former in this post. Here, Security Council Resolution 1973 has been the focal point because it authorized “all necessary measures” to protect civilians and civilian-populated areas under threat of attack from Gaddafi’s forces, and was the asserted basis for NATO’s intervention. The argument in favor of legality basically goes like this: Resolution 1973 was a permissible use of the Security Council’s powers under the U.N. Charter to “take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security,” and NATO acted in accordance with the Resolution by using only “necessary measures” to protect civilians from Gaddafi. I think the argument is pretty good. If NATO had acted without Security Council approval, as it did in Kosovo in the late 1990s, the international legal questions would be far more problematic. But even with Resolution 1973, legality is debatable. First, it’s not entirely clear that Libya’s internal conflict necessitated military action to maintain or restore “international” peace and security within the meaning of the Charter. Perhaps the fight between Gaddafi and the rebels would have spread across borders or sent an internationally destabilizing message of impunity if NATO had not intervened. Yet Libya was not a threat to international peace and security in the classic form of an armed conflict between states. Insofar as the U.N. Charter envisions that type of conflict as the basis for Security Council action, NATO’s action was problematic. Second, it is not entirely clear that NATO always honored the limits of Resolution 1973—some have reported that NATO bombings included military targets that were far removed from civilian populations and unlikely to present any direct threat to them. Whether eliminating those targets was “necessary” to protecting Libyan civilians is also debatable.

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On Dazzling Topic Sentences

[Editor’s Note:  This month faculty members share their favorite brief writing or oral argument tip.  This is the second entry in the series.]  In the theme of the Faculty Blog’s topic of the month, the best brief-writing tip I have received is to spend a lot of time crafting excellent topic sentences.

We all know that topic sentences are extremely important. Together, they comprise a brief’s skeleton, without which the lawyer’s argument cannot take shape. They reflect the brief’s essential points, and clarify the relationships between its paragraphs. A reader should be able to understand the basic contours of the brief’s argument by reading nothing more than the topic sentence of each paragraph.

There are a couple of easy ways to improve the quality of topic sentences. First, make sure that all of your most important arguments make their way into one of them. Doing so improves clarity by enhancing the visibility of the key arguments. Second, reading only the topic sentences, ask whether they logically fit together, and make changes to the extent that they do not. This technique helps to ensure that the brief is well-organized and flows smoothly. Finally, as with all aspects of legal writing, prioritize simplicity. Focus on clarity and directness so that the topic sentences can effectively communicate your most important points.

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Severability and the Erie Doctrine

“Severability” doctrine holds that where a statute is partially unconstitutional, a reviewing court can excise the unconstitutional part rather than declare the entire statute invalid, if consistent with legislative intent. The doctrine figures centrally in a broad array of constitutional litigation, including ongoing litigation over the “individual mandate” provision of the Patient Protection and Affordable Care Act. And the doctrine is powerful because the viability of large statutory schemes can hinge entirely on whether an unconstitutional component is severable.

But while important, severability is in many ways perplexing and underexplored. No one has come up with a fully satisfying test for determining when severance is appropriate. And no one, as far as I can tell, has critically examined choice-of-law rules pertaining to the doctrine’s application.

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