Judging the Next Emergency: Judicial Review and Individual Rights in Times of Crisis

Cole, David

doi:10.2307/3595389

Cited by 45 publications

(30 citation statements)

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“…Campbell and Connolly, in their thought-provoking analysis of the operation of antiterrorism powers in Northern Ireland and elsewhere, suggest that law can play a 'dampening' role on the often repressive application of emergency measures (Campbell and Connolly, 2006, 942-45). 25 In line with 22 See Cole, 2004. However, the aspirations inherent in legal systems to protect rights, ensure fair procedures and uphold certain normative values mean that some space may open up within these systems to challenge the abuse of state powers, even in times of crisis and repression.…”

Section: The ôDampeningõ Effect Of Law In Times Of Emergencymentioning

confidence: 99%

Controlling the ‘Gorgon’ of state power in the state of exception: a reply to Professor Tushnet

O’Cinneíde

2007

International Journal of Law in Context

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Mark Tushnet's paper is an interesting extension of his recent work on how constitutional democracies can control the use of emergency powers. His analysis is useful in drawing attention to the oftenoverlooked impact of political dynamics in times of emergency. However, Tushnet is too ready to accept that political processes will be able to control the grant and use of emergency powers. He also is too quick to draw a sharp dichotomy between effective political and ineffective legal processes. Political processes can be active and useful in reining in the excesses of emergency powers, but usually only if they play out against the backdrop of a vibrant constitutional culture where the potential for abuse of emergency powers is recognised. The impact of legal and supranational controls plays an important role in shaping this constitutional culture, in particular by 'dampening' down the abuse of emergency powers and limiting the scope of action available to the executive. Focusing upon the potential of political means alone to control the application of state power in emergency states of exception is to underestimate the capacity of wider constitutional dynamics to play a key role, even if the political arena may be where the ultimate battles are fought out.

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Section: The ôDampeningõ Effect Of Law In Times Of Emergencymentioning

confidence: 99%

Controlling the ‘Gorgon’ of state power in the state of exception: a reply to Professor Tushnet

O’Cinneíde

2007

International Journal of Law in Context

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“…Judges are particularly inclined to defer to governmental agencies in charge of security matters because the price of erroneous intervention is particularly high (Davidov 2001; Stone 2006, 1315; Posner and Vermeule 2007). When a decision could have life‐or‐death consequences—and likely on a large scale—a prudent court might conclude that such a decision is better left to the elected branches, if only because the elected branches enjoy a more direct base of public accountability (Cole 2003, 2570).…”

Section: Background and Hypotheses: Five Determinants Of Deferencementioning

confidence: 99%

“…3 3 There is some controversy over the impact of wartime deference on future crises and peacetime jurisprudence—whether it brings about a dilution of standards or rather creates new legal constraints (see Cole 2003; Tushnet 2003). However, this has no bearing on the practice of deference during the emergencies themselves. …”

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confidence: 99%

Prolonged Armed Conflict and Diminished Deference to the Military: Lessons from Israel

Davidov¹,

Reichman²

2010

Law soc. inq.

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We examine whether the level of deference shown by the Israeli Supreme Court to military decisions has changed over time by empirically analyzing the entire body of Supreme Court decisions in petitions against the military commander between 1990 and 2005. Setting forth a number of different factors that might generally affect the degree of deference to state agencies, we hypothesized that there would be a decrease in deference in the relationship between the Court and the military commander during the examined period. Our findings show that deference to the military commander has indeed diminished significantly. We argue that this is best explained by the continuation of the armed conflict (and its aftermath, namely, the routinization and increase in the number of petitions by the civilian population) and also—to some extent—by the rise of a substantive rule‐of‐law legal consciousness, central to which is the importance of human rights.

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“…To what extent should executive decisions regarding national security-whether to undertake military action, employ coercive interrogation techniques, authorize wiretaps, and the like-be subject to procedural safeguards or other forms of congressional or judicial oversight? Many have argued that oversight of executive decisions is essential to preserving meaningful checks and balances and to preventing abuses of power (Cole 2003(Cole , 2004. Others have countered that because the executive has greater expertise and access to relevant information, and must often act quickly and decisively in times of war or emergency, burdensome procedures or intrusive oversight can endanger national security Vermeule 2003, 2005;Sunstein 2005).…”

Section: Other Public Law Applicationsmentioning

confidence: 99%

Bureaucratic Decision Costs and Endogenous Agency Expertise

Stephenson¹

2006

SSRN Journal

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Judging the Next Emergency: Judicial Review and Individual Rights in Times of Crisis

Cited by 45 publications

References 1 publication

Controlling the ‘Gorgon’ of state power in the state of exception: a reply to Professor Tushnet

Controlling the ‘Gorgon’ of state power in the state of exception: a reply to Professor Tushnet

Prolonged Armed Conflict and Diminished Deference to the Military: Lessons from Israel

Bureaucratic Decision Costs and Endogenous Agency Expertise

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