Premium
Judicial Decision Making During Wartime
Author(s) -
Clark Tom S.
Publication year - 2006
Publication title -
journal of empirical legal studies
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.529
H-Index - 24
eISSN - 1740-1461
pISSN - 1740-1453
DOI - 10.1111/j.1740-1461.2006.00074.x
Subject(s) - deference , judicial deference , executive power , separation of powers , political science , law , power (physics) , preference , executive branch , judicial opinion , judicial review , set (abstract data type) , state (computer science) , law and economics , sociology , economics , legislature , programming language , physics , quantum mechanics , politics , computer science , microeconomics , algorithm
The separation of powers becomes increasingly stressed during wartime, as power is traditionally accumulated by and consolidated in the executive. This article asks to what degree the separation of powers collapses by examining judicial deference to the executive during wartime. By analyzing a set of cases in the courts of appeals from a 100‐year time period, this article demonstrates that while judicial preferences undergo a fundamental shift with respect to criminal cases, there is no evidence of heightened deference to the executive during wartime. These findings suggest that a state of war has a preference‐altering effect on judicial treatment of criminal defendants. They further suggest that concerns about judicial deference to the executive during times of war may not be as serious as conventional wisdom suggests.