November 2013 Vol. 112 No. 2 THE REVIEW
ARTICLES

Beyond the Battlefield, Beyond Al Qaeda: The Destabilizing Legal Architecture of Counterterrorism

Robert M. Chesney

By the end of the first post-9/11 decade, the legal architecture associated with the U.S. government's use of military detention and lethal force in the counterterrorism setting had come to seem relatively stable, supported by a remarkable degree of cross-branch and cross-party consensus (manifested by legislation, judicial decisions, and consistency of policy across two very different presidential administrations). That stability is certain to collapse during the second post-9/11 decade, however, thanks to the rapid erosion of two factors that have played a critical role in generating the recent appearance of consensus: the existence of an undisputed armed conflict in Afghanistan, as to which the law of armed conflict clearly applies, and the existence of a relatively identifiable enemy in the form of the original al Qaeda organization.

Several long-term trends contribute to the erosion of these stabilizing factors. Most obviously, the overt phase of the war in Afghanistan is ending. At the same time, the U.S. government for a host of reasons places ever more emphasis on what we might call the "shadow war" model (i.e., the use of low-visibility or even deniable means to capture, disrupt, or kill terrorism-related targets in an array of locations around the world). The original al Qaeda organization, meanwhile, is undergoing an extraordinary process of simultaneous decimation, diffusion, and fragmentation; one upshot of this transformation has been the proliferation of loosely related regional groups that have varying degrees of connection to the remaining core al Qaeda leadership.

These shifts in the strategic posture of both the United States and al Qaeda profoundly disrupt the stability of the current legal architecture on which military detention and lethal force rest. Specifically, these developments make it far more difficult (though not impossible) to establish the relevance of the law of armed conflict to U.S. counterterrorism activities, and they raise exceedingly difficult questions regarding whom these activities lawfully may be directed against. Critically, they also all but guarantee that there will be a new wave of judicial intervention to consider those very questions. Bearing that in mind, I conclude this Article by outlining steps that could be taken now to better align the legal architecture with the trends described above.

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Employment Law and Social Equality

Samuel R. Bagenstos
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NOTES

An Implausible Standard for Affirmative Defenses

Stephen Mayer

In the wake of Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the federal district courts split over whether to apply Twombly's plausibility standard to the pleading of affirmative defenses. Initially, a majority of district courts extended Twombly to defense pleadings, but recently the courts that have declined to extend the plausibility standard have gained majority status. This Note provides a comprehensive analysis of each side of the plausibility split, identifying several hidden assumptions motivating the district courts' decisions. Drawing from its analysis of the two opposing positions, this Note responds to the courts that have applied plausibility pleading to affirmative defenses by identifying several fundamental flaws in their appeals to tradition, policy, and the text of Rule 8. Due to misguided reliance on historical pleading practices, an imprecise reading of Twombly, and an overestimation of the availability of discovery for unpled or stricken affirmative defenses, these courts fail to recognize that extending plausibility pleading beyond the complaint imposes an asymmetrical and unfairly onerous burden on defendants. This Note concludes that the courts that extend Twombly to affirmative defenses do so in violation of both the canons of statutory construction and the principles of the Rules Enabling Act.

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Misplaced Misrepresentations: Why Misrepresentation-of-Age Statutes Must Be Reinterpreted as They Apply to Children's Online Contracts

Michelle A. Sargent
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