Document Type

Article

Publication Title

Oregon Law Review

Publication Date

2008

Abstract

Offering a cautionary lesson of contemporary significance, the Article suggests that judicial power is not in and of itself the solution to executive infringements on due process rights in wartime. It examines the response of the British judiciary to serious threats to its institutional power during the First World War. To facilitate prosecution of the war, the government narrowed the jurisdiction of the traditional courts by eliminating jury trial, subjecting civilians to court-martial, and establishing new administrative tribunals to displace the traditional courts. Rather than remaining passive and deferential to the executive, as scholars have generally assumed, the judges moved forcefully to assert control over rival executive and military bodies. Even more critically, they used their enlarged power to shape the legal process in accordance with a distinctive moral ideology. Judicial wartime decisions reflected not a neutral rule of procedural propriety but a moral calculus that enhanced procedural rights for litigants who advanced the war effort and curtailed them for those who obstructed it. Thus, the Article generally argues that during the war the judiciary aggressively pursued its institutional self- interest and employed its resulting power to allocate procedural entitlements in a manner that undermined the rule of law. Understanding the role of the judiciary in this earlier conflict may encourage the heightened vigilance necessary to secure a full and fair judicial process to all litigants in times of war.

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