Abstract

http://ssrn.com/abstract=1351584
 


 



Square Peg in a Round Hole: Government Contractor Battlefield Tort Liability and the Political Question Doctrine


Chris Jenks


SMU Dedman School of Law

March 1, 2009

Berkley Journal of International Law (BJIL), Vol. 28, p. 178, 2010

Abstract:     
Recent assertions of the political question doctrine by battlefield contractor defendants in tort litigation have brought new life to the doctrine while raising new questions. The lawsuits stem from incidents in both Iraq and Afghanistan and include plaintiffs ranging from local nationals suing contract interrogators and interpreters, to contract employees suing another contractor following insurgent attacks, to U.S. service members suing contractors after vehicle and airplane crashes. The lawsuits involve tort claims, which on their face do not conjure up images of a constitutional power struggle, but in at least fifteen cases thus far contractor defendants have asserted the political question doctrine as a defense. The political question doctrine addresses whether the judiciary should review government action or decisions and yet contractors are asserting the doctrine in cases where the government is not a named party and has remained conspicuously silent. This article analyzes the confused application of the political question doctrine to battlefield related contractor tort litigation and proposes a methodology to bring clarity to future decisions. Absent a more rigid analytical approach by the judiciary and a change in the government's attitude, the confusion surrounding the political question doctrine and the inconsistency of its application to the inevitable future contractor cases will only grow.

Number of Pages in PDF File: 38

Keywords: political question doctrine, contractor, iraq, afghanistan, litigation, tort, Constitution, separation of powers

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Date posted: March 2, 2009 ; Last revised: March 12, 2010

Suggested Citation

Jenks, Chris, Square Peg in a Round Hole: Government Contractor Battlefield Tort Liability and the Political Question Doctrine (March 1, 2009). Berkley Journal of International Law (BJIL), Vol. 28, p. 178, 2010. Available at SSRN: http://ssrn.com/abstract=1351584 or http://dx.doi.org/10.2139/ssrn.1351584

Contact Information

Chris Jenks (Contact Author)
SMU Dedman School of Law ( email )
P.O. Box 750116
Dallas, TX 75275
United States
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