Deference or Deception: Treaty Rights as Political Questions

University of Colorado Law Review, Vol. 70, Pp. 1439, 1999

Posted: 18 Nov 1999

Abstract

The political question doctrine remains one of the most obscure and troublesome features of current constitutional litigation. But even less understood are the systematic means by which judges defer to the substantive preferences and outcomes proposed by the political branches, particularly the Executive. This is nowhere better illustrated in the foreign relations area, and even more particularly, in the litigation of individual rights claimed under international agreements or treaties. By closely examining the large number of treaty rights cases, the article concludes that judges are much more likely to create rules or presumptions of substantive deference to Executive branch positions than they are to simply abstain from adjudicating the controversies.

Suggested Citation

Bederman, David J., Deference or Deception: Treaty Rights as Political Questions. University of Colorado Law Review, Vol. 70, Pp. 1439, 1999, Available at SSRN: https://ssrn.com/abstract=186933

David J. Bederman (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States
404-727-6822 (Phone)
404-727-6820 (Fax)

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