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Judging National Security Post-9/11: An Empirical Investigation


Cass R. Sunstein


Harvard Law School

November 6, 2008

Harvard Law School Program on Risk Regulation Research Paper
Harvard Public Law Working No. 08-53
U of Chicago Law & Economics, Olin Working Paper No. 441
U of Chicago, Public Law Working Paper No. 245

Abstract:     
Many people believe that when national security is threatened, federal courts should defer to the government. Many other people believe that in times of crisis, citizens are vulnerable to a kind of "panic" that leads to unjustified intrusions on liberty. But to date, there is little information about what federal courts have actually done in this domain, especially in the period after the attacks of September 11, 2001. On the basis of a comprehensive study of relevant courts of appeals decisions in the aftermath of those attacks, this essay offers four findings. First, the invalidation rate is about 15 percent - low, but not so low as to suggest that federal courts have applied a broad rule of deference to government action. Second, the division between Republican and Democratic appointees is comparable to what is found in other areas of the law; contrary to reasonable expectations, there is no significant "compression" of ideological divisions in this domain. Third, and perhaps most strikingly, no panel effects are apparent here. Unlike in the vast majority of other areas, Republican and Democratic appointees do not appear to vote differently if they are sitting with Republican or Democratic appointees. Finally, judicial behavior cannot be shown to have changed over time. The invalidation rate is not higher in recent years than it was in the years immediately following the 9/11 attacks. Explanations are ventured for these various findings, with particular reference to the absence of discernible panel effects.

Number of Pages in PDF File: 21

Keywords: national security, conformity, group polarization

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Date posted: November 7, 2008 ; Last revised: July 10, 2009

Suggested Citation

Sunstein, Cass R., Judging National Security Post-9/11: An Empirical Investigation (November 6, 2008). Harvard Law School Program on Risk Regulation Research Paper; Harvard Public Law Working No. 08-53; U of Chicago Law & Economics, Olin Working Paper No. 441; U of Chicago, Public Law Working Paper No. 245. Available at SSRN: http://ssrn.com/abstract=1297287 or http://dx.doi.org/10.2139/ssrn.1297287

Contact Information

Cass R. Sunstein (Contact Author)
Harvard Law School ( email )
1575 Massachusetts Ave
Areeda Hall 225
Cambridge, MA 02138
United States
617-496-2291 (Phone)
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