Abstract

http://ssrn.com/abstract=873646
 


 



Going Toe to Toe: President Barak's and Chief Justice Rehnquist's Theories of Judicial Activism


Amos N. Guiora


University of Utah - S.J. Quinney College of Law

Erin M. Page


Case Western Reserve University - School of Law


Hastings International and Comparative Law Review, Vol. 29, No. 1, p. 51, 2005
Case Legal Studies Research Paper No. 06-01

Abstract:     
A critical component of counterterrorism is the role of a nation's judiciary. The concept of an unfettered executive, unrestrained by courts and legislatures alike is detrimental to liberal democracies attempting to balance national security and individual rights. In examining the role of the judiciary in the U.S. and Israel, it is incumbent to understand that different political regimes have differing systems. Nevertheless, there is a common thread to this article: an examination of the willingness of a judiciary to actively review and, if need be, criticize and intervene in the decisions and actions of the executive during armed conflict. The article analyzes decisions of the two Supreme Courts and writings both of the Chief Justice of the U.S. Supreme Court, the late Chief Justice William Rehnquist, and the President of the Supreme Court of Israel, President Aharon Barak. It is suggested, as a point of reference, that the judicial activism advocated both intellectually and in practice by President Barak represents one end of the judicial review scale and that the position suggested by the late Chief Justice Rehnquist represents if not the extreme other end, then at least an opposite.

Number of Pages in PDF File: 19

Keywords: Counterterrorism, Judiciary, National Security, Individual Rights, Civil Liberties, Executive Power, Executive Action, Judicial Review, Judicial Activism, Comparative Law, Rule of Law, Constitutional Law, International Law, President Barak, Chief Justice Rehnquist

JEL Classification: K14, K39, K49

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Date posted: January 5, 2006 ; Last revised: February 6, 2013

Suggested Citation

Guiora, Amos N. and Page, Erin M., Going Toe to Toe: President Barak's and Chief Justice Rehnquist's Theories of Judicial Activism. Hastings International and Comparative Law Review, Vol. 29, No. 1, p. 51, 2005; Case Legal Studies Research Paper No. 06-01. Available at SSRN: http://ssrn.com/abstract=873646

Contact Information

Amos N. Guiora (Contact Author)
University of Utah - S.J. Quinney College of Law ( email )
332 S. 1400 East Front
Salt Lake City, UT 84112-0730
United States
801-581-4295 (Phone)
801-581-6897 (Fax)
HOME PAGE: http://www.law.utah.edu/profiles/default.asp?PersonID=6581&name=Guiora,Amos..

Erin M. Page
Case Western Reserve University - School of Law ( email )
11075 East Boulevard
Cleveland, OH 44106-7148
United States
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