Emergencies and Democratic Failure

Article — Volume 92, Issue 6

92 Va. L. Rev. 1091
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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 Productsframework 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.

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  Volume 92 / Issue 6  

Emergencies and Democratic Failure

By Eric A. Posner & Adrian Vermeule
92 Va. L. Rev. 1091

Two Models of Tort (and Takings)

By Scott Hershovitz
92 Va. L. Rev. 1147

European Corporate Choice of Law

By Benjamin Angelette
92 Va. L. Rev. 1189

“True Threats” and the Issue of Intent

By Paul Crane
92 Va. L. Rev. 1225