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86 Wash. U. L. Rev. 769 (2008-2009)
Double Jeopardy and Multiple Sovereigns: A Jurisdictional Theory

handle is hein.journals/walq86 and id is 777 raw text is: Washington University Law Review VOLUME 86 NUMBER 4 2009 DOUBLE JEOPARDY AND MULTIPLE SOVEREIGNS: A JURISDICTIONAL THEORY ANTHONY J. COLANGELO ABSTRACT This Article offers a coherent way of thinking about double jeopardy rules among sovereigns. Its theory has strong explanatory power for current double jeopardy law and practice in both U.S. federal and international legal systems, recommends adjustments to double jeopardy doctrine in both systems, and sharpens normative assessment of that doctrine. The Article develops a jurisdictional theory of double jeopardy under which sovereignty signifies independent jurisdiction to make and apply law. Using this theory, the Article recasts the history of the U.S. Supreme Court's dual sovereignty doctrine entirely in terms of jurisdiction, penetrating the opacity of the term sovereign as it is often deployed by the Court and supplying a useful analytical predictor for future extension of the doctrine. The Article then applies the theory to the international legal system to explain the confused and seemingly dissonant body of modern international law and practice on double jeopardy, including the * Assistant Professor of Law, Southern Methodist University, Dedman School of Law. I would like to thank Harold Hongju Koh for his comments at the 2008 Stanford/Yale Junior Faculty Forum, as well as the forum participants. I also thank Jose Alvarez, George Bermann, Harlan Cohen, Caroline Mala Corbin, Evan Criddle, Julian Ku, Debra Livingston, Michael O'Hear, Robert D. Sloane, Beth Thornburg and Jenia Iontcheva Turner for their comments on previous drafts. I am grateful to Bill Bridge, Jeffrey Kahn, Leila Nadya Sadat and Rose Cuison Villazor for helpful conversations, and to audiences at the Law, Culture and Humanities Conference at Boalt Hall, SMU Law School, and Marquette Law School. I owe a tremendous debt of gratitude to Kristina Kiik for outstanding research and editing assistance. As always, special thanks go to my wife, Carrie Rief.