Open Access. Powered by Scholars. Published by Universities.®
- Publication
- Publication Type
Articles 1 - 2 of 2
Full-Text Articles in Jurisprudence
The Long War, The Federal Courts, And The Necessity / Legality Paradox, Stephen I. Vladeck
The Long War, The Federal Courts, And The Necessity / Legality Paradox, Stephen I. Vladeck
Book Reviews
This paper is a solicited review of Ben Wittes's book "Law and the Long War: The Future of Justice in the Age of Terror," which rightly suggests that there would be far less legal uncertainty today vis-a-vis the conduct of the war on terrorism had the Bush Administration sought - and had Congress provided - framework legislation governing issues ranging from the detention of "enemy combatants" to surveillance and even interrogation.
Nevertheless, the review takes issue with Wittes's critique of the role of the courts thus far, especially his contention that the Supreme Court's decisions to date may be seen …
Deliberative Democracy And Weak Courts: Constitutional Design In Nascent Democracies, Edsel F. Tupaz
Deliberative Democracy And Weak Courts: Constitutional Design In Nascent Democracies, Edsel F. Tupaz
Edsel F Tupaz
This Article addresses the question of constitutional design in young and transitional democracies. It argues for the adoption of a “weak” form of judicial review, as opposed to “strong” review which typifies much of contemporary adjudication. It briefly describes how the dialogical strain of deliberative democratic theory might well constitute the normative predicate for systems of weak review. In doing so, the Article draws from various judicial practices, from European supranational tribunals to Canadian courts and even Indian jurisprudence. The Article concludes with the suggestion that no judicial apparatus other than the weak structure of judicial review can better incite …