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Judicial Review under a British War Powers Act

PDF · David Jenkins · Jul-6-2012 · 43 VAND. J. TRANSNAT'L L. 611 (2010)

This Article considers how U.K. courts might exercise review under a hypothetical British “war powers act,” in the event that the current Labour Government or an incoming Tory one responds to calls to reform the Royal War Prerogative and Parliament passes such a statute.  The Article undertakes a comparative study, analyzing how U.S. courts apply the political question doctrine in war powers cases.  It suggests that they apply the doctrine in a way that assesses the justiciability of the particular subject matter of a case, thereby supporting deference to the political branches in most war powers cases without foreclosing review altogether.  Explaining how and why U.S. courts show such deference despite the Constitution’s “declare war” clause and a strong form of judicial review, the Article concludes that a future British “war powers act” would likely not invite the kind of inappropriate judicial activism that some inside and outside of government have feared in avoiding statutory prerogative reform.

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