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Judicial Decision Making During Wartime

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  • Tom S. Clark

Abstract

The separation of powers becomes increasingly stressed during wartime, as power is traditionally accumulated by and consolidated in the executive. This article asks to what degree the separation of powers collapses by examining judicial deference to the executive during wartime. By analyzing a set of cases in the courts of appeals from a 100‐year time period, this article demonstrates that while judicial preferences undergo a fundamental shift with respect to criminal cases, there is no evidence of heightened deference to the executive during wartime. These findings suggest that a state of war has a preference‐altering effect on judicial treatment of criminal defendants. They further suggest that concerns about judicial deference to the executive during times of war may not be as serious as conventional wisdom suggests.

Suggested Citation

  • Tom S. Clark, 2006. "Judicial Decision Making During Wartime," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 3(3), pages 397-419, November.
    • Handle: RePEc:wly:empleg:v:3:y:2006:i:3:p:397-419
    DOI: 10.1111/j.1740-1461.2006.00074.x
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    1. Mueller, John E., 1970. "Presidential Popularity from Truman to Johnson1," American Political Science Review, Cambridge University Press, vol. 64(1), pages 18-34, March.
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    Cited by:

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    2. Howell, William & Shepsle, Kenneth & Wolton, Stephane, 2020. "Executive Absolutism: A Model," MPRA Paper 98221, University Library of Munich, Germany.
    3. Paul M. Collins, Jr. & Wendy L. Martinek, 2011. "The Small Group Context: Designated District Court Judges in the U.S. Courts of Appeals," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 8(1), pages 177-205, March.

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