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3 April 2026
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- Journal Article3 April 2026
The Troll on the Bridge: The Eleventh Circuit’s Ugly New Threshold Test Halts Substantive Due Process Claims in Their Tracks
The Bill of Rights established a series of fundamental American individual rights, from the freedom of speech to the right to a fair trial, that the federal government cannot violate. Yet, across a conceptual divide lies a landscape of other crucial rights the Framers never enumerated. Substantive due process is one legal mechanism that bridges that gap: extending the Constitution’s protection to these other fundamental rights. Grounded in the Fifth and Fourteenth Amendments, substantive due process enables plaintiffs to sue for government violations of rights that, though unenumerated in the Constitution, are long-recognized by common law and essential for American liberty. In Littlejohn v. School Board of Leon County, decided in March 2025, the United States Court of Appeals for the Eleventh Circuit erected a new obstacle for substantive due process plaintiffs. In that case, the Littlejohns asserted a substantive due process claim against a school for violating their parental rights. The Eleventh Circuit dismissed their claim, holding that the Littlejohns must allege facts that “shock the conscience” to sue the school. The Eleventh Circuit’s application of the “shocks-the-conscience” standard as a threshold barrier in Littlejohn jeopardizes fundamental rights protection. Typically, when a government action violates fundamental rights, that action must survive strict scrutiny review. Under strict scrutiny, the government has the burden to prove that its action was narrowly tailored to a compelling government interest. The Littlejohn ruling inserts a preliminary burden on plaintiffs: requiring them to show that the government’s conduct shocks the conscience. Under this framework, plaintiffs who cannot meet this initial burden automatically lose, even when the government’s action would not survive strict scrutiny review. This test even applies to fundamental rights claims, as it did in Littlejohn, effectively imposing a new hurdle for substantive due process plaintiffs seeking to vindicate their fundamental rights.
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- Journal Article3 April 2026
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Table of Contents
- Journal Article3 April 2026
Editor's Note
- Journal Article3 April 2026
Deliberately Silenced
The Prison Litigation Reform Act is celebrating its 30th birthday this year. It was designed to make it harder for incarcerated people to file lawsuits challenging the constitutionality of their conditions of confinement and to restrict their remedies even when they do so successfully. It has been wildly effective at achieving those objectives. It has also propped up mass incarceration and facilitated the persistence of dismal conditions of confinement in carceral facilities in the United States. The PLRA’s exhaustion requirement—arguably its most damaging provision—silences carceral voices without regard for the merit of their complaints. It does so by mandating dismissal of prisoner plaintiff complaints if the plaintiffs have not managed to navigate labyrinthine carceral grievance procedures before filing their lawsuits. It thereby violates the tenants of social psychology’s procedural justice theory. It also causes profound epistemic injustice, while compounding the epistemic injustices already relevant to carceral populations. This Article thus confronts the dual procedural justice and epistemic injustice harms of PLRA exhaustion. In this moment in the United States, where we are seeing a resurgence of tough-on-crime fearmongering (in spite of dropping crime rates), confronting the humanity of incarcerated people and the corrosive dehumanizing reality of carceral conditions is as essential as it has ever been. That means it’s beyond time to put a stop to the PLRA’s deliberate silencing of carceral voices, especially through its exhaustion requirement. The Prison Litigation Reform Act deserves no more birthdays. - Journal Article3 April 2026
Head Shot
The prohibition of cruel and unusual punishment in the Eighth Amendment of the U.S. Constitution requires that execution methods avoid “superadding pain.” The U.S. Supreme Court has held that the imposition of a death sentence should include no additional pain beyond that needed to kill. That means, for example, that while pain may be inherent in the method of killing, torture is prohibited. As concerns about the pain involved in lethal injections has increased, states have begun executions by shooting inmates in the heart and by suffocation through gas mask. These methods have been used despite evidence that they superadd pain. The only method that truly complies with the Supreme Court’s jurisprudence requiring that executions inflict no more pain than necessary to kill is execution by shooting the inmate in the back of the head. There is abundant evidence that shooting the condemned in the back of the head with a direct bullet into the brainstem would cause a faster, painless death than current methods. While a head shot avoids superadding pain to death, it raises the distressing images of a disfiguring and mutilating head wound, accompanied by blood and brain splatter, as well as the image of shooting an inmate from behind. Such images risk offending Supreme Court dicta requiring executions respect the ‘dignity of man.’ Because there is no execution method that both avoids superadding pain while also protecting the dignity of the executed, there is no possible way to execute without violating the Eighth Amendment to the United States Constitution. Accordingly, at least given current technology, the death penalty is unconstitutional. - Journal Article3 April 2026
Still Uncertain After All of These Years: Constitutional Rights of Guantanamo Detainees Tried By Military Commission
This article explores whether Guantanamo detainees are entitled to constitutional protections at military commission trials. In 2006, Congress passed the Military Commissions Act (“MCA”). Its goal was to establish a fair system to try foreign detainees accused of war crimes. The ensuing nineteen years have revealed that the system needs reform. The most important cases, such as the 9/11 and U.S.S. Cole prosecutions, are still bogged down in pre-trial litigation that has lasted over a decade. But before policy makers consider reforms, they should know what constitutional protections apply at a military commission. Federal courts have not answered that question. This article does. Relying on constitutional text, structure, and history, this article explains why Guantanamo detainees are not entitled to any constitutional protections at a military commission. - Journal Article3 April 2026
New York Times v. Sullivan Protects Freedom of the Press Against Seditious Libel, Not Against Personal Libel
Justice Clarence Thomas appears to be on a mission to reconsider the actual malice standard adopted sixty years ago by the Supreme Court of the United States in New York Times v. Sullivan. And Thomas has not been a lone voice crying in the wilderness—others also have questioned New York Times. While New York Times represents a big shift in the law for those cases to which it applies, the scope of its precise holding is relatively narrow—New York Times protects publications about the official conduct of public officials. Moreover, focusing on the precise facts in the New York Times case narrows the holding even more. The libelous advertisement published by the New York Times criticized the City of Montgomery’s official response to the local manifestation of the Civil Rights Movement. The publication never named the plaintiff J.B. Sullivan and was never proved to cause any specific harm. Thus, while plaintiff Sullivan’s civil suit against the New York Times masqueraded as a private libel suit, it was, in essence, a prosecution for seditious libel (libel against the government), and New York Times held essentially that such seditious libel prosecutions are unconstitutional. This Article argues that such prosecutions for seditious libel had always been distinguished in America from private libel actions. And the inverse also is true; unlike defamatory publications about individuals, criticisms of government have always been especially valued in America. Therefore, the core holding of New York Times is that the First Amendment protects personally harmless publications criticizing the government, works no great innovation in American defamation law. To demonstrate this point, the main body of this Article will show that many Anglo-American thought leaders throughout the Eighteenth and early Nineteenth centuries saw and emphasized this important distinction between libeling a human and libeling the government, with the latter’s being more worthy of more protection. After this brief introduction, this Article will first survey the holding in New York Times v. Sullivan. Then the Article will review the history leading up to and immediately following the adoption of the First Amendment with an eye to the important historical distinction between seditious libel and libel of a private party. Then the Supreme Court’s post-New York Times blurring of this important distinction will be noted before the Article concludes briefly. - Journal Article3 April 2026
The Varieties of Substantive Due Process Experience: Obergefell, Dobbs and a State Constitutional Alternative
As a guide to understanding—and applying—the doctrine of substantive due process under the Fourteenth Amendment, Obergefell v. Hodges seems to have enjoyed a relatively short reign. Less than ten years after the Supreme Court of the United States held that individuals enjoy a fundamental right under the Fourteenth Amendment to marry a person of the same sex, the Court in Dobbs v. Jackson Women’s Health Organization turned to a different approach to the task of identifying and enforcing unenumerated constitutional rights. Dobbs, like Obergefell, is not without its problems: where the substantive due process analysis articulated in Obergefell lacks rigor, the analysis in Dobbs lacks sufficient attention to context. Obergefell may glance too lightly at history and tradition, but Dobbs accords them a weight they cannot bear. There is another way to think about unenumerated constitutional rights—more than one, in fact. Alternative approaches lie within the reach of state constitutional law. They are illustrated in a post-Dobbs case from the Massachusetts Supreme Judicial Court (the “SJC”), interpreting the Declaration of Rights—the Commonwealth’s Bill of Rights-equivalent. The decision in Kligler v. Attorney General argues for thinking differently about unenumerated constitutional rights, as well as the judiciary’s relationship to constitutions and constitutional interpretation. The framework proposed in Kligler recognizes that there are circumstances in which the judicial recognition of unenumerated rights as fundamental is appropriate while, at the same time, it respects the limits of the judiciary’s role in a constitutional democracy. This Article proceeds, first, to unpack the majority’s approach in Obergefell to substantive due process. I turn next to Dobbs and the doctrinal analysis that the Supreme Court applied in the decision that overturned Roe v. Wade and Planned Parenthood v. Casey. Finally, I consider the recent attention the SJC in Kligler devoted to the development of a comprehensive substantive due process analysis that seeks both to cabin judicial discretion (which the Obergefell framework fails effectively to do) and appreciate the importance of creating an avenue for doctrinal evolution in constitutional law (which the Dobbs framework fails effectively to do). Kligler presents an alternative to the current federal substantive due process analysis—one rooted in a pluralist approach that considers history, precedent, ethical principles, and the practical consequences of recognizing unenumerated interests as fundamental. This framework provides both the analytical guardrails missing from Obergefell and the analytical flexibility missing from Dobbs. My aim throughout this Article is to examine the complexity of substantive due process problems from the perspective of those lawyers who initially will confront arguments about the metes and bounds of substantive due process and, especially, trial court judges, both state and federal. It is the judges on these courts, and not the relatively well-resourced justices of the Supreme Court, who must in the first instance answer questions about the existence and reach of unenumerated constitutional rights. Respecting the limits of their role, most of these judges will turn—like the advocates appearing before them—to the guidance provided them by the Supreme Court and their state’s highest court and attempt, as best they can, to wring meaning from the decisions of the highest court in the land (and its state counterparts). - Journal Article3 April 2026
The Constitution of 1787 Had No Bill of Rights: What Were the Framers Thinking?
In this Article, I recount the brief history from the Philadelphia Convention, during which scant attention was paid to a bill of rights, to the ratification of the Bill of Rights only four years later. Although the delegates to the convention made frequent reference to individual liberty as central to their mission, and several of the newly enacted state constitutions included bills of rights, there was no serious consideration given to including a bill of rights in the constitution proposed for ratification by the states. In response to the occasional suggestions during the convention for specific rights guarantees, most of the Framers argued there is no need for a bill of rights in the constitution of a government of enumerated and divided powers. The proposed constitution, they insisted, is in its nature a bill of rights. The Framers would not have expected those who have since exercised the powers of the national government to embrace their theory. They are the ones, after all, who are to be constrained. But the Framers would be disappointed that only rarely have the courts recognized the importance of the Constitution’s disbursement of power to the protection of individual rights. - Journal Article3 April 2026
Lyrics on Lockdown: An Analysis of the Admissibility of Rap Lyrics Under the Rules of Evidence and the First Amendment
“Freddy Mercury did not confess to having ‘just killed a man’ by putting ‘a gun against his head’ and ‘pulling the trigger.’ Bob Marley did not confess to having shot a sheriff. And Johnny Cash did not confess to shooting ‘a man in Reno, just to watch him die.’” However, a troubling trend in state and federal courts across the country is that rap lyrics are not being granted the same protections and latitudes that other forms of artistic expressions are afforded. In a movement that is shocking—yet formulaic—creators of rap music are seeing their lyrics used against them in court as autobiographical confessions instead of artistic expression. The longest trial in the history of Georgia, State v. Jeffery Williams (“YSL RICO case”), was a case that seemed to be written by a team of Hollywood’s greatest writers. The case commenced in 2022, when prosecutors indicted twenty-eight defendants on charges alleging violations of Georgia’s Racketeer Influenced and Corrupt Organizations (“RICO”) statute, along with multiple associated violent offenses. The scope of the case was extraordinary, as evidenced by the fifty-six count indictment. The charges included murder, assault, robbery, theft, gun possession, and illegal drug possession, arising from conduct in and around the Atlanta metropolitan area dating back to 2012. The trial itself was marked by a series of unusual and highly publicized incidents, including the inadvertent playing of pornographic material in open court, the stabbing of a co-defendant while in pretrial detention, allegations that another co-defendant engaged in a drug transaction inside the courtroom, the unintended livestreaming of jurors’ faces, and the incarceration of a defense attorney for contempt—an order that was subsequently stayed. However, the trial ultimately centered on the prosecution’s strategic and controversial use of Jeffrey Williams’s— professionally known as Young Thug—rap lyrics as evidence to implicate him and others in the alleged criminal conduct. This is an ever-growing evidentiary tactic that raises First Amendment concerns created by viewpoint-based discrimination against rap music and the culture it is connected to. - Journal Article3 April 2026
Pronouns on the Clock: The Eleventh Circuit’s Broad Limitation of Teacher Speech in Wood v. Florida Department of Education
Few settings test the limits of free speech more sharply than public schools, where questions of personal identity, government authority, and constitutional rights often intersect. Because the government has an interest in regulating what its employees do and say, First Amendment protections afforded to government employees are diluted in comparison to those afforded to private citizens. A contemporary example of this tension is the question of whether the government may regulate a public-school teacher’s use of pronouns or titles in their own classroom. In 2023, Florida enacted a statute forbidding teachers from using pronouns or titles that differ from the sex listed on their birth certificates. The statute directly affected Katie Wood, a transgender high school teacher who referred to herself as “Ms. Wood” and used “she/her” pronouns in her classroom. Wood sued, claiming the law violated her right to free speech. The United States Court of Appeals for the Eleventh Circuit ultimately disagreed. In Wood v. Florida Department of Education, the court held that when a teacher uses pronouns or titles while addressing students in the classroom, they speak as a government employee—not as a private citizen. Because the court classified such speech as occurring “on the clock,” the court concluded it is not afforded protection under the First Amendment, and as a result, Florida’s law could not be challenged on those grounds. As a matter of first impression in the Eleventh Circuit, the court defined the scope of a teacher’s official duties, and by doing so, became the first court in the United States to classify a teacher’s use of personal pronouns and title as government speech. Wood’s reach extends beyond Florida: by treating nearly all in-class communication as being made pursuant to official duties, the Eleventh Circuit gave public schools—and potentially other government employers—broad discretion to regulate their employees’ words. Accordingly, Wood has the potential to alter the environment of many public-school classrooms. - Journal Article3 April 2026
The Troll on the Bridge: The Eleventh Circuit’s Ugly New Threshold Test Halts Substantive Due Process Claims in Their Tracks
The Bill of Rights established a series of fundamental American individual rights, from the freedom of speech to the right to a fair trial, that the federal government cannot violate. Yet, across a conceptual divide lies a landscape of other crucial rights the Framers never enumerated. Substantive due process is one legal mechanism that bridges that gap: extending the Constitution’s protection to these other fundamental rights. Grounded in the Fifth and Fourteenth Amendments, substantive due process enables plaintiffs to sue for government violations of rights that, though unenumerated in the Constitution, are long-recognized by common law and essential for American liberty. In Littlejohn v. School Board of Leon County, decided in March 2025, the United States Court of Appeals for the Eleventh Circuit erected a new obstacle for substantive due process plaintiffs. In that case, the Littlejohns asserted a substantive due process claim against a school for violating their parental rights. The Eleventh Circuit dismissed their claim, holding that the Littlejohns must allege facts that “shock the conscience” to sue the school. The Eleventh Circuit’s application of the “shocks-the-conscience” standard as a threshold barrier in Littlejohn jeopardizes fundamental rights protection. Typically, when a government action violates fundamental rights, that action must survive strict scrutiny review. Under strict scrutiny, the government has the burden to prove that its action was narrowly tailored to a compelling government interest. The Littlejohn ruling inserts a preliminary burden on plaintiffs: requiring them to show that the government’s conduct shocks the conscience. Under this framework, plaintiffs who cannot meet this initial burden automatically lose, even when the government’s action would not survive strict scrutiny review. This test even applies to fundamental rights claims, as it did in Littlejohn, effectively imposing a new hurdle for substantive due process plaintiffs seeking to vindicate their fundamental rights. - Journal Article3 April 2026
Delusions of Judicial Grandeur: State v. Wierson and the Return to Statutory Sanity
Georgia’s insanity defenses have long reflected tension between accountability and mental illness. The State’s statutory framework, which preserves both a “mental incapacity” and “delusional compulsion” defense, reflects this tension. Yet for decades, the Supreme Court of Georgia’s decision in Bailey v. State imposed a judicial limitation: a defendant who “brought about” her own delusion through voluntary acts or omissions could not claim insanity. The court’s recent decision in State v. Wierson marks a turning point. In Wierson, the court considered whether noncompliance with psychiatric medication preempts the defendant from invoking statutory insanity defenses. Rejecting Bailey, the court reasserted the primacy of statutory text and clarified that insanity defenses hinge solely on the defendant’s mental state at the time of the offense, not the prior causes of that condition. Through its factual background, legal reasoning, and broader implications, Wierson marks a pivotal shift toward textualism in Georgia’s insanity defense jurisprudence, carrying significant consequences for mental-health law, evidentiary practice, and legislative authority.
Most Popular Articles
- Journal Article1 May 1998
Maryland v. Wilson: The Fading Fourth Amendment
In Maryland v. Wilson, the United States Supreme Court held that a police officer may order a passenger of a lawfully stepped car to exit the vehicle. This "bright-line rule" allows these intrusions as a matter of course and does not require case-by-case determination. - Journal Article1 July 1976
The Economic Effects of Monopoly: A Lawyer's Guide to Antitrust Economics
Four factors were influential in my decision to write this survey paper summarizing what economists believe theoretically and have found empirically to be the major economic (and noneconomic) effects of monopoly. First, in my work as an expert witness in antitrust cases representing both private parties and public bodies, I have found a glaring lacuna in the minds of some judges, a number of lawyers and most jurors in the area of antitrust economics. Second, this feeling has been fortified by my guest lectures in antitrust law courses; while the students are bright and the teacher dedicated, an acceptable level of competence in antitrust economics had successfully evaded its pursuers. Third, my reading of several law journals has convinced me that there are a large number of legally competent antitrust lawyers who are not very familiar with antitrust economics. Finally, I was motivated by the growing realization that people do not regard antitrust violations as very serious. The July 1974 issue of SCIENCE DIGEST reported a cross-section study of Baltimore residents in which the respondents were asked to rate the seriousness of crimes from 9 (most serious) to 1 (least serious). The highest mean score recorded was "planned killing of a policeman" (8.474), and the lowest mean score was "being drunk in public places" (2.849). Of the 140 crimes listed three were of an antitrust genus. "Fixing prices of a consumer product like gasoline" ranked 126 from the top (4.629), "fixing prices of machines sold to businesses" ranked 127 (4.619), and "false advertising of a headache remedy" ranked 132 (4.083). Offenses such as "breaking a plate glass window in a shop," "refusal to make essential repairs in rental property," "shoplifting a carton of cigarettes from a supermarket," "driving while license is suspended," "lending money at illegal interest rates," "joining a riot," and "using pep pills" are each regarded as more serious than the antitrust violations! In Part I we will explore in some detail the economic (and some noneconomic) effects of monopoly. In Part II we will examine briefly public policies toward monopoly. - Journal Article1 March 2022
The Protection of Freedom of Expression from Social Media Platforms
Social media platforms have overturned the previously known system of public communication. As predicted at the outset, the spread of the public Internet that started three decades ago has resulted in a paradigm shift in this field. Now, anyone can publish their opinion outside the legacy media, at no significant cost, and can become known and be discussed by others. Due to the technological characteristics of the Internet, it might also be expected that this kind of mass expression, with such an abundance of content, would necessitate the emergence of gatekeepers, similar in function to the ones that existed earlier for conventional media. The newsagent, post office, and cable or satellite services have been replaced by the Internet service provider, the server (host) provider and the like. However, no one could have foreseen that the new gatekeepers of online communication would not only be neutral transmitters or repositories but also active shapers of the communication process, deciding on which user content on the Internet they deemed undesirable and deciding which content, out of all the theoretically accessible content, is actually displayed to individual users. Content filtering, deleting, blocking, suspending, and ranking are all types of active interference with the exercise of users’ freedom of speech and practices which also affect the interests of other users in obtaining information. All this became an even greater and more difficult-to-manage issue when, in certain sub-markets of the Internet, certain giant tech companies’ services gained a monopoly or came close to doing so. This process has emerged in connection with gatekeepers of a specific type: the most important online platforms (social media, video sharing, search engines, web stores). In this way, a new, unexpected obstacle to the exercise of freedom of speech appeared, with the result that the earlier constitutional doctrines could no longer be applied without any change. The crux of the problem is that the platforms are privately owned. In formal terms, they are simply market players which are not bound by the guarantees of freedom of speech imposed on public bodies and which may enjoy the protection of freedom of speech themselves. - Journal Article1 December 2014
- Journal Article1 March 1992
Assassination and the Law of Armed Conflict
The availability of assassination of foreign leaders as a means of achieving United States foreign policy objectives is an issue that has proven in recent years to be a recurring one. However, it does not arise in isolation; instead it is almost always part of a larger political controversy over United States foreign policy objectives and whether force of any kind should be used to pursue them. Certainly this was true with regard to the controversies that surrounded United States policy, including alleged involvement in assassination plots toward Cuba, Vietnam, the Congo, and the Dominican Republic in the 1960s, and toward Chile in the early 1970s. It is also true, though to a lesser degree, of more recent debates concerning the United States air strike against Libya in April 1986 and the role of the United States in Panama prior to the December 1989 invasion. In each case there was, or later developed, significant disagreement over the appropriateness of United States policy toward the nation involved and over the use of force to induce changes in the nature or activities of its government. Inevitably, such disagreements have tended to distract attention from the manner in which force might be applied; if the chosen objective appears not to be a legitimate one or if the use of force seems unjustified, the relative merit of an -attack on a military installation, for example, as seriously or productively considered. The recent war in the Persian Gulf has again revived the controversy and provided a new opportunity for debate. This time, however, the issue appeared more starkly framed than previously. Public doubt as to the legitimacy of the immediate objective-the ejection of Iraq from Kuwait-was for the most part absent, and although there was disagreement about the timing and amount of coercion to be used, force was generally perceived as a legitimate option. The American public perceived Iraqi President Saddam Hussein, hardly a sympathetic image, as probably the least ambiguous villain of the second half of the twentieth century. Unchallenged by any significant political opposition prior to the war, he appeared as the sole instigator of Iraq's seizure of Kuwait, as well as the cause of its intransigence in the face of international insistence that it withdraw. - Journal Article1 May 1993
Article II Courts
It is understandable that a reader may be puzzled by the title of this study. American lawyers are undoubtedly familiar with the notion of "constitutional" courts established under Article III of the Constitution.1 They also are likely to recall another class of federal tribunals, created by virtue of the legislative authority vested in Congress by Article I of the Constitution.' However, few lawyers and scholars are aware that there exists a third class of courts created by the Constitution. These are executive courts that, from time to time in the Republic's history, have been formed to administer justice, in times of war or civil unrest, over territories occupied by American armed forces. There is no question that these tribunals have been considered anomalous, as aberrations of established constitutional order. Indeed, little intellectual effort has been expended in examining the constitutional place of presidential courts. In the midst of war or its aftermath, few were brave enough to criticize the President's establishment of courts of law. Fewer still were prepared to argue that his power should be limited by other provisions of the Constitution. Instead, a pattern of judicial deference begun with the establishment of the first such court in the Mexican War of 1846 has persisted to this day. Exceptions to this trend have been noted, and it may even be apparent that a new constitutional practice of Article II courts has evolved. Nonetheless, the President's power in this field has gone virtually unchallenged. This Article carefully examines the creation, operation, and jurisprudence of executive courts. As a first step, however, it is essential to accurately define what is meant when one refers to an Article II court. This inquiry places in sharp focus the traditional constitutional dichotomy between Article III "constitutional" courts and Article I legislative tribunals. Adding presidential courts to this matrix does not upset the analysis used heretofore; it merely places a greater premium on identifying the constitutional source of power for creating the court in question. Once this Article clarifies what is and what is not an executive court, it will introduce the historical examples of this institution. I have identified twelve tribunals that satisfy the definition propounded here. Although most date from the Civil War and before, four of them operated in this century, and one of them rendered a judgment no more than twelve years ago. Undoubtedly others exist that my research has not revealed. Each of these courts shared one thing in common: they were established by federal authorities occupying territory as a result of armed conflict. The constitutional problems raised by belligerent occupation, including the maintenance of law and order and the establishment of justice, will be considered since this provided the practical imperative for the exercise of the President's power to constitute judicial tribunals. How the President exercised and delegated this power is also significant. More important, however, is to understand how the power was limited, whether by the President's own restraint, judicial review, or the passage of time and the termination of hostilities.