Globalization and Distrust, Yale Law Journal

There was a time when the critics of international law denounced it for its irrelevance, its masquerade of power. Now in the post-ontological era of international law, the critique has shifted. Today, international law is denounced not for its weakness, but for its vigor, specifically its transfer of authority from local to international tribunals. Critics find a democratic deficit in almost all international institutions - from the World Trade Organization, to the International Criminal Court, to even the World Health Organization. Critics also denounce U.S. courts for serving as vassals of international law through the jurisdictional grant of the Alien Tort Statute. Three decades ago, the Warren Court's constitutional pronouncements overruling the judgments of the American people were similarly decried as judicial usurpation. John Hart Ely's magisterial intervention in his legal process classic, Democracy and Distrust, rescued the judiciary from illegitimacy.