Coase-Sandor Working Paper Series in Law and Economics
Publication Date
2005
Publication Title
Law & Economics Working Papers
Abstract
Critics of emergency measures such as the U.S. government's response to 9/11 invoke the Carolene Products framework, which directs courts to apply strict scrutiny to laws and executive actions that target political or ethnic minorities. The critics suggest that such laws and actions are usually the product of democratic failure, and are especially likely to be so during emergencies. However, the application of the Carolene Products framework to emergencies is questionable. Democratic failure is no more likely during emergencies than during normal times, and courts are in a worse position to correct democratic failures during emergencies than during normal times. The related arguments that during emergencies courts should protect aliens, and should be more skeptical of unilateral executive actions than of actions that are authorized by statutes, are also of doubtful validity.
Number
258
Recommended Citation
Eric Posner & Adrian Vermeule, "Emergencies and Democratic Failure" (John M. Olin Program in Law and Economics Working Paper No. 258, 2005).
Additional Information
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