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This paper explores the international law governing the use of force in the wake of conflicts in Kosovo, Afghanistan, and Iraq. Developments since the conclusion of World War II, such as the emergence of international terrorism and rogue states and the easier availability of weapons of mass destruction, have placed enormous strain on the bright line rules of the UN Charter system. This paper argue that a more flexible standard should govern the use of force in self-defense, one that focuses less on temporal imminence and more on the magnitude of the potential harm and the probability of an attack. It further argues that the consensus academic view on self-defense - that force is justified only as a necessary response to an imminent attack - which was largely borrowed from the criminal law, makes little sense when transplanted to the international context. It concludes by questioning whether self-defense, grounded as it is in a vision of individual rights and liberties in relation to state action, is the proper lens through which to view the use of force in international politics. Rather than pursuing doctrinal or moral approaches, this paper addresses the rules governing the use of force from an instrumental perspective. It asks what goals the international system, and its most currently powerful actor - the United States - should seek to achieve with the use of force, and whether the current rules permit their pursuit. An approach that weighs costs and benefits to the stability of the international system, which could be seen as an international public good currently provided by the United States and its allies, might better explain recent conduct and provide a guide for future action.

This essay criticizes the Supreme Court's use of foreign legal precedents in constitutional cases. If these citations are no more than ornamental, or are no more than good ideas from another jurisdiction, then there is little about which to be concerned. If reliance on foreign precedents represents a more significant trend, however, several difficulties arise. First, if foreign courts are receiving deference, then they may well be exercising federal authority outside the bounds of our Constitution. Second, reliance on such decisions breaks the relationship between the people and their government as expressed in the Constitution, because foreign courts are interpreting a different document within a different constitutional and political context. Third, to the extent use of these precedents has focused on European decisions, it is unclear whether the United States should seek to coordinate its constitutional solutions to problems with those of Europe. Europe has suffered from serious political instability over the last two centuries brought about by sometimes extreme political ideologies, and since World War II has enjoyed a different tradeoff between rights and security thanks to an American security guarantee.

This essay criticizes the Supreme Court's use of foreign legal precedents in constitutional cases. If these citations are no more than ornamental, or are no more than good ideas from another jurisdiction, then there is little about which to be concerned. If reliance on foreign precedents represents a more significant trend, however, several difficulties arise. First, if foreign courts are receiving deference, then they may well be exercising federal authority outside the bounds of our Constitution. Second, reliance on such decisions breaks the relationship between the people and their government as expressed in the Constitution, because foreign courts are interpreting a different document within a different constitutional and political context. Third, to the extent use of these precedents has focused on European decisions, it is unclear whether the United States should seek to coordinate its constitutional solutions to problems with those of Europe. Europe has suffered from serious political instability over the last two centuries brought about by sometimes extreme political ideologies, and since World War II has enjoyed a different tradeoff between rights and security thanks to an American security guarantee.

Many international legal scholars and foreign governments have argued that the recent war in Iraq violated international law. This paper, published as part of an Agora in the American Journal of International Law, criticizes this view on two grounds. It explains that these scholars have failed to properly read existing United Nations Security Council resolutions that authorized the use of force against Iraq. Even putting the United Nations to one side, this paper explains that the use of force could have been justified, at the time of the invasion of Iraq in the spring of 2003, as an exercise of self-defense. It argues that traditional notions of self-defense, which permit the anticipatory use of force before an offensive attack occurs, have changed to take into account the greater magnitude of destruction of weapons of mass destruction and the behavior of rogue states.

This Essay, written as a response to a pro-Congress view in the war powers debate, presents a complete textual and structural theory of a flexible approach to war powers. Under this system, the President possesses the power to initiate and conduct hostilities as commander-in-chief and chief executive under Article II of the Constitution, checked by Congress's power of the purse. The Declare War Clause simply confers on Congress juridical power to both define the United States's legal relations with other countries and trigger domestic constitutional authorities during wartime. How the nation goes to war will result form the interaction of the political branches using these plenary constitutional powers. The Response critiques the most recent pro-Congress account, offered by Professor Ramsey, for not addressing the full context of the framing, and next argues that constitutional text and structure actually support the flexible war powers system. Critics of this approach fail to appreciate the textual significance of the authority independently granted to the President by the Commander-in-Chief and Executive Power Clauses and the "engage in war" language of Article I, Section 10. In addition, they do not appreciate the manner in which the Constitution structures the interaction of the executive and legislative branches by creating strict processes with carefully defined roles for the President and Congress, as with the enactment of legislation, in contrast to areas where it does not, as with warmaking. A more comprehensive reading of the text and structure demonstrates that the Constitution does not mandate a specific, legalistic process for waging war. Instead, the Constitution vests the executive and legislative branches with different powers involving war, which the president and Congress may use to cooperate or to compete for control over warmaking.

The theory of the political safeguards of federalism has made a recent comeback, appearing in Supreme Court dissents by Justices Breyer and Souter and in prominent articles by Professor Larry Kramer and Professor Brad Clark. We argue that the idea that the political process can wholly replace judicial review in policing the boundaries between federal and state power is inconsistent with the text, structure, and original understanding of the Constitution. None of these sources allows the federal courts to exercise judicial review while simultaneously excluding entire subject matters from its protections - especially one as central to the constitutional structure as federalism. The political-safeguards theory treats judicial review as purely functional and almost discretionary, while we believe that the constitutional text, structure, and history impose judicial review as a mandatory duty on the courts. We show that political safeguards theory creates severe distortions in the constitutional structure, as does Kramer's provocative theory that the extra-constitutional role of the national political parties can serve as a complete substitute for judicial review of federalism questions. Finally, we show that the original understanding of the Constitution cannot support any theory that insists that the national political process's presence as a possible safeguard permits the exclusion of judicial review over federalism questions.

Looks at the US Supreme Court's alleged loss of legitimacy as a result of Bush v. Gore to argue that such claims are greatly inflated. It is maintained that the Court's intervention in the 2000 presidential election did not involve substantive issues on a par with privacy rights or abortion. Rather, the "one-of-a-kind" decision was consistent with the Court's institutional role, ended the election dispute, & restored stability to the political system. Sociological, psychological, & legal meanings of the word legitimacy are explored by examining public attitudes toward the Court, historical periods in which the Court's authority was questioned, & theories of sources of the Court's authority. Bush v. Gore is compared to Planned Parenthood of Southeastern Pennsylvania v. Casey, in which the Court refused to reverse its precedent in Roe v. Wade on the ground that it would undermine the Court's legitimacy. Both cases involved a divisive national controversy; however, the election debate needed a final resolution, while the abortion debate remained an intensely controversial issue for decades without destroying the legitimacy of the Court. J. Lindroth

This essay argues that Crosby v. National Foreign Trade Council may not portend a more aggressive intervention by the federal courts in enforcing a federal common law of foreign relations. A significant concern that underlies foreign affairs preemption is concern that 50 states might undermine the sole voice of the federal government in representing the nation. This concern, however, applies equally to the federal courts, which are not structurally suited due to their slowness and decentralization for involvement in foreign affairs. Enhancing the effectiveness of foreign policy calls for a reduced role for the judiciary in favor of the concentration of authority in the political branches.

This article seeks to resolve the debate over the use of a statutory method for approving international agreements in place of the supermajority process required by the Constitution's Treaty Clause. These "congressional-executive agreements," which require only simple majorities in Congress and presidential signature, have become the instrument of choice for entry into some of the nation's most significant international obligations, such as the WTO and NAFTA. Some, such as Bruce Ackerman and David Golove argue that statutes and treaties are interchangeable because a "constitutional moment" occurred at the end of World War II (in which "We the People" non-textually amended the Constitution to allow this alternate process). Their critics, such as Laurence Tribe, suggest that the text and structure of the Constitution forbids the use of a statutory method to enter into significant international agreements. Standard foreign relations law doctrine, by contrast, consistently has defended interchangeability, but with little success at explaining how interchangeability is consistent with the constitutional text and structure. This Article provides a constitutional justification for the congressional-executive agreement, one consistent with the text, structure, and history of the Constitution. It shows a clear dividing line that demarcates the situations in which treaties must be the sole instrument of national policy, and those that can be dealt with by the congressional-executive agreement. This Article articulates a theory of treaties that explains the record of practice by the political branches, rather than making normative claims derived simply from different theories of constitutional interpretation. Practice suggests that complete interchangeability ought to be rejected because it creates severe distortions in the American public lawmaking system. Allowing statutes to completely replace treaties eliminates the restrictions upon Congress's enumerated powers and undermines the separation of powers in foreign affairs. Nonetheless, congressional-executive agreements still have a legitimate place in the constitutional conduct of foreign policy, because their use preserves Congress's constitutional powers over matters such as international commerce. Treaties still retain a vital role by allowing the nation to enter into agreements that regulate matters outside of Congress's enumerated powers. Congressional-executive agreements allow the political branches to maintain a separation between treatymaking and lawmaking at a time when the distinction between international and domestic is rapidly disappearing.

After six years in mothballs, the Supreme Court appointments process likely will be returning to active duty in relatively short order. This will not be an entirely welcome event, as scholars have failed to agree on how to improve the Supreme Court appointments process. This essay reviews two recent books that provide some order to our thinking about the appointments process, Terri Jennings Peretti's In Defense of A Political Court, and David Alistair Yalof's In Pursuit of Justices. While much of the legal literature, for example, has focused on the standards that the Senate ought to apply in confirming Justices, Yalof examines the more decisive process of presidential selection of Supreme Court nominees. Peretti, whose work aims at a wider-ranging discussion of the purposes of judicial review and the roots of the Court's legitimacy, approaches the question by first asking what ought to be the proper role of the Supreme Court in the American political system. This Essay maintains that neither the indeterminacy of constitutional decisionmaking, as Peretti would have it, nor the expansion of judicial review, as many of our leading scholars believe, provides the sole explanation for the politicization of the confirmation process. Rather, it observes that the emergence of judicial claims to supremacy in constitutional interpretation has much to do with the growing political attention to the ideology of Court nominees. For all of the concern about a conservative judicial counter-revolution, on the issue of judicial supremacy the Burger and Rehnquist Courts have fully embraced and even expanded upon the Warren Court's first steps in Cooper v. Aaron. Judicial supremacy changes the constitutional structure in a way that leads to the more political appointments process we have today. It removes legitimate methods using the coordinate political branches or the states to challenge the transfer of issues from the political to the legal sphere. By constitutionalizing more areas of life and by pursuing the notion of judicial supremacy, the Court itself has shunted normal political activity from the world of policy into the world of Court appointments.

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.