Revisiting Judicial Review in Foreign Affairs
43 Fordham International Law Journal 1263 (2020) Annual Symposium on Judicial Power and US Foreign Affairs
22 Pages Posted: 16 Jun 2020
Date Written: May 21, 2020
Professor Martin Flaherty’s book "Restoring the Global Judiciary" revisits a debate that has become stagnant: whether courts should weigh in on foreign affairs and national security matters. The book advances this debate by looking beyond traditional arguments and drawing on other disciplines.
Similarly, this Essay invites scholars to think creatively about judicial review in the foreign and security space and pursue underexplored avenues for assessing and challenging the conventional wisdom in this area. In particular, it calls for more careful empirical evaluation of the functional arguments against judicial intervention in foreign and security matters, and building on administrative law to approach such matters in light of developments in the nature of US foreign and security policy in the 21st century.
Pursuing these research agendas would broaden our perspective and allow us to move beyond the traditional constitutional vocabulary that both skeptics and supporters of judicial review in foreign affairs and national security have long framed their arguments around. It would also provide courts with more sophisticated doctrinal tools with which to address related cases—and perhaps cast foreign policy and national security in a slightly less mythical light.
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