Scholarship by Mark Drumbl Cited in Fifth Circuit Opinion The case involved the floating barrier Texas deployed in the Rio Grande to deter illegal migration.

By Law Communications
August 15, 2024

The U.S. Court of Appeals for the Fifth Circuit ruled recently en banc that the floating barrier that Texas placed in the Rio Grande last year to thwart illegal immigration could remain pending a lawsuit to be argued soon in a lower court. The ruling reversed an earlier decision by a lower court and a Fifth Circuit panel that granted a preliminary injunction.

In a partial concurrence and partial dissent, Judge James Ho cited the scholarship of Washington and Lee law professor Mark Drumbl as part of an analysis on whether terrorism constitutes an act of war and whether criminal law and justice is the appropriate remedy rather than a military response. The article cited, “Victimhood in our Neighborhood: Terrorist Crime, Taliban Guilt, and the Aysmmetries of the International Legal Order,” was published in the North Carolina Law Review in 2002. In the article, Professor Drumbl examined whether the September 11 attacks should be viewed as armed attacks that would justify use of force by a sovereign state.

“The international community largely has characterized the attacks as armed attacks. This characterization evokes a legal basis for the use of force initiated by the United States and United Kingdom against Afghanistan on October 7, 2001. Notwithstanding the successes of the military campaign and the need for containment of terrorist activity, this Article suggests that there are important deontological, communitarian, and consequentialist reasons why the attacks-and terrorism in general-should be constructed as criminal attacks,” writes Drumbl.

After discussing Professor Drumbl’s approach, and those of other like-minded scholars, Judge Ho departed therefrom in his opinion.

The Fifth Circuit opinion in U.S. v. Greg Abbott is available here. The full article is available at the North Carolina Law Review website.

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