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12 October 2005



Sadly, I believe you are right. But just curious--could the Court not grant cert and require the briefs to change their approach regarding the Art. 3 arguments? I (like you) am not convinced that the Court wants to deal with these issues. Nevertheless, perhaps what Luban should be saying is that the Court *should* want to deal with these issues and so should grant cert with a heavy hand towards the Art. 3 interpretation.

I do not see this happening. Just idle musings.


The biggest problem is, I think, that however the briefs may be, the issues precedent to the Common Article 3 issues must as a logical matter get reversals of the D.C. Circuit. I think that Luban would love for the Supreme Court to find favorably to the petitioners on the precedent issues to get to Common Article 3. But, alas.

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