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In the days and weeks immediately following the 9/11 attacks, “the law” offered little to lawyers or policy-makers looking for guidance. Indeed, for many the events of 9/11 became the legal equivalent of a Rorschach test: depending on the observer, the 9/11 attacks were variously construed as criminal acts, acts of war, or something in between, thus fitting into (or triggering) any of several radically different legal regimes.

Divergent interpretations of the law are common, of course. Legal rules often contain an element of ambiguity, and the “facts” to which law must be applied can frequently be construed in multiple ways. But in the wake of 9/11, lawyers and policy-makers faced an even more profound problem: different conceptualizations of what happened on 9/11 didn’t simply reflect or suggest a different interpretation of legal rules, but actually triggered radically different legal regimes. The “facts” could be described, with equal plausibility and honesty, in substantially different ways. As a result, there was no clear “legal” basis for choosing one legal regime over another, and law became not merely ambiguous, but effectively indeterminate.

Publication Citation

25 Stan. L. & Pol'y Rev. 301-316 (2014)