Revisiting Judicial Review in Foreign Affairs
Professor Flaherty’s Restoring the Global Judiciary revisits a longstanding debate among legal scholars and practitioners: should courts intervene in foreign affairs and national security? Can they do so effectively? Roughly two diverging approaches to these questions have emerged over time. One camp has doubted the democratic legitimacy of judicial interference with foreign affairs. Judges are not elected, members of that camp point out. They are therefore unaccountable to the public. They should not opine on matters that implicate high diplomacy and core national interests—the kinds of issues that frequently arise in the foreign and security domain.
The book advances this debate by looking beyond traditional arguments and drawing on other disciplines. Similarly, this Essay invites scholars to think creatively about judicial review in the foreign and security space and pursue underexplored avenues for assessing and challenging the conventional wisdom in this area. In light of developments in the nature of US foreign and security policy in the 21st century it calls for more careful empirical evaluation of the functional arguments against judicial intervention in foreign and security matters.
Recommended Citation: Elena Chachko, Revisiting Judicial Review in Foreign Affairs, 43 Fordham Int'l L.J. 1263 (2020).