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Erwin Chemerinsky maintains that President George W. Bush took a historic opportunity to fill Supreme Court justice vacancies with ideologically right-of-center nominees. He explains that these justices will force the court to write opinions that break new ground in judicial activism. The areas that will be open to new adjudication include abortion rights, access to the courts, affirmative action, and presidential war powers. He describes the critical cases in each of these fields and the key points of contention. Professor Chemerinsky concludes that the incoming president may be able to offset the appointments of Justices Alito and Roberts with more centrist or center-left appointments if seats become open. John Yoo argues that presidents have historically resisted Supreme Court decisions especially strong presidents such as Jefferson, Jackson, Lincoln, and Franklin D. Roosevelt. Reagan changed this calculus by politicizing the courts further through the appointment of ideological allies. He maintains that the second Bush administration has not transcended constitutional limits in its actions. He supports his case by arguing that previous presidents have taken exceptional actions in times of war and that the "war on terror" has given the administration a mandate for its policies. He concludes that Bush administration is in much more conflict with the Congress than with the Court. The accompanying audio files provide the complete recording of the two talks.

Some international tribunals, such as the Iran-U.S. claims tribunal and the trade dispute panels set up under GATT, are dependent in the sense that the judges are appointed by the state parties for the purpose of resolving a particular dispute. If the judges do not please the state parties, they will not be used again. Other international tribunals, such as the International Court of Justice, the Inter-American Court of Human Rights, and the new International Criminal Court, are independent in the sense that the judges are appointed in advance of any particular dispute and serve fixed terms. The conventional wisdom, which is based mainly on the European experience, is that independent tribunals are more effective at resolving disputes than dependent tribunals are. We argue that the evidence does not support this view. We also argue that the evidence is more consistent with the contrary thesis: the most successful tribunals are dependent. However, selection effects and other methodological problems render a firm conclusion impossible. We support our argument through an examination of qualitative and quantitative evidence, and we argue that the European Court of Justice is not a good model for international tribunals because it owes its success to the high level of political and economic unification among European states. We conclude with pessimistic predictions about the International Criminal Court, the International Tribunal for the Law of the Sea, and the WTO dispute resolution mechanism, the newest international tribunals.

This year marks the 200th anniversary of Marbury v. Madison, the case which is often taught in law schools as establishing judicial review. Despite the absence of any broader political controversy over the role of the Supreme Court, akin to that which existed during the Civil War or the New Deal periods, academics from both ends of the political spectrum have attacked the legitimacy of judicial review. Recent critics have even argued that the Constitution, as originally understood, did not authorize courts to refuse to enforce unconstitutional legislation. In this paper, we discuss the textual, structural, and historical roots of judicial review. First, we show that the constitutional text permits judicial review and we describe the severe difficulties associated with the claim that the Constitution is not law to be applied in the courts. Second, we explain that the constitutional structure requires the judiciary refuse to enforce laws that violate the Constitution due to its status as a coordinate branch of government. Simply put, the text and structure demand that the judiciary interpret and give effect to the Constitution in the course of performing its function of deciding Article III cases or controversies. Third, we refute the notion that the Founders did not understand the Constitution to establish judicial review. We trace how historical developments leading up to the ratification had made judicial review a familiar institution to the Founders, and we demonstrate that all those who discussed judicial review during ratification (there were dozens) agreed that the Constitution authorized judicial review. We conclude that those who argue that the Founders originally understood the Constitution to preclude judicial review have misread the historical record.

This year marks the 200th anniversary of Marbury v. Madison, the case which is often taught in law schools as establishing judicial review. Despite the absence of any broader political controversy over the role of the Supreme Court, akin to that which existed during the Civil War or the New Deal periods, academics from both ends of the political spectrum have attacked the legitimacy of judicial review. Recent critics have even argued that the Constitution, as originally understood, did not authorize courts to refuse to enforce unconstitutional legislation. In this paper, we discuss the textual, structural, and historical roots of judicial review. First, we show that the constitutional text permits judicial review and we describe the severe difficulties associated with the claim that the Constitution is not law to be applied in the courts. Second, we explain that the constitutional structure requires the judiciary refuse to enforce laws that violate the Constitution due to its status as a coordinate branch of government. Simply put, the text and structure demand that the judiciary interpret and give effect to the Constitution in the course of performing its function of deciding Article III cases or controversies. Third, we refute the notion that the Founders did not understand the Constitution to establish judicial review. We trace how historical developments leading up to the ratification had made judicial review a familiar institution to the Founders, and we demonstrate that all those who discussed judicial review during ratification (there were dozens) agreed that the Constitution authorized judicial review. We conclude that those who argue that the Founders originally understood the Constitution to preclude judicial review have misread the historical record.

This paper identifies and analyzes two legal questions raised by the war against the al Qaeda terrorist organization. First, did the September 11, 2001 attacks initiate a war, or "international armed conflict," or was it only an act punishable under criminal law? Second, what legal rules govern the status and treatment of members of al Qaeda and the Taliban militia that harbored and supported them in Afghanistan? We argue that the United States is currently engaged in a state of armed conflict with al Qaeda, a multinational terrorist organization whose leadership declared war on the United States as early as 1996, and the Taliban militia, which harbors and supports that organization. This state of armed conflict justifies the use of military force by the United States to subdue and defeat the enemy, separate and apart from any ordinary law enforcement objectives that may also justify coercive government action against members of al Qaeda and the Taliban militia. To give legal recognition to the current armed conflict is not to confer upon members of al Qaeda or the Taliban militia the privileged status of lawful combatants. Neither group complies with the four traditional conditions of lawful combat long established under the laws of war and recognized by the Geneva Conventions. Members of al Qaeda and the Taliban militia have chosen to fight in blatant disregard for the laws of armed conflict and are, accordingly, unlawful combatants not entitled to the legal status of prisoners of war under the Geneva Conventions.