114 Yale L.J. 1193 (2005)

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. International law is denounced not for its weakness but for its vigor, specifically its transfer of authority from local to international bodies. 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 legal process classic, Democracy and Distrust, rescued the judiciary from illegitimacy.

Today's democratic deficit is yesterday's countermajoritarian difficulty. This article tests the transnational legal process against Ely's vision of democracy. Three case studies anchor the inquiry: (1) Sosa v. Alvarez-Machain, the Supreme Court's recent decision regarding the application of international law in U.S. courts; (2) the online gambling claim brought by Antigua and Barbuda against the United States in the World Trade Organization; and (3) the International Monetary Fund's intervention in Indonesia at the height of the Asian financial crisis. Through these studies, I demonstrate that the transnational legal process operates through (and is consistent with) national democratic processes, permitting review, revision, and rejection through such processes. Furthermore, the part of international law that purports to be superconstitutional--jus cogens--can be seen as representation reinforcing, supplying minority protections in a world that has sadly come to see the need for them.

114 Yale L.J. 1279 (2005)

John Hart Ely argued that judicial review is most appropriate when democratic politics has broken down. Professor Eskridge argues that judicial review is also appropriate to lower the stakes of pluralist politics. Stakes get high when the system becomes embroiled in bitter disputes that drive salient, productive groups away from political engagement. Groups disengage when they believe that participation in the system is pointless due to their permanent defeat on fundamental issues or their perception that the process is stacked against them, or when politics imposes burdens threatening their group identity. At the Founding, religion was the best example of high-stakes politics, and the Religion Clauses of the First Amendment were designed to lower the stakes of religion-based politics. Pluralism-facilitating judicial review generalizes the stakes-managing principles of the Religion Clauses to suggest applications of the Free Speech, Due Process, and Equal Protection Clauses to issues ranging from abortion protests and same-sex marriage to English-only laws and the war on terrorism.

114 Yale L.J. 1353 (2005)

More than ever, urban school systems are segregated by race and class. While a chief cause of this segregation is the flight of white and upper-middle-class black families from predominantly black public schools, there is little discussion of white flight in contemporary education policy debates. Instead, our conversations frame the causes of and remedies for educational inequality in terms of racially neutral private choices. Describing this phenomenon as the "privatization of concern" for our children, this article critiques a narrow view of parental responsibility and care that justifies segregation by invoking the liberty of familial privacy. Employing narratives from his experience as a D.C. school board member and parent, Charles Lawrence calls for an expanded understanding of John Hart Ely's process-defect theory that recognizes the continuing influence of racism on school choice. He argues that our silence on the subject of race undermines the democratic process, and he suggests that breaking the taboo against candid conversation about race and racism is a prerequisite to the creation of the community of care envisioned by Brown v. Board of Education.

114 Yale L.J. 1419 (2005)

In War and Responsibility, John Hart Ely sought to answer a question that has bedeviled constitutional scholars since the beginning of the Republic: What meaningful checks should be placed on the power of the Executive in wartime? For Ely, the answer was a new and improved version of the War Powers Resolution, a solution entirely in keeping with his support for theories of legal process more generally. Yet in light of the open-ended congressional resolutions authorizing the United States's military engagements in Afghanistan and Iraq, the viability of such legal process approaches to checking executive power in the area of national security is open to question.

This article contends that a reinvigorated version of the independent investigatory commission may represent an effective supplemental check on the power of the Executive. To this end, it examines the experience of the 9/11 Commission and attempts to explain its remarkable successes by reference to a concept known as parrhesia. Celebrated in ancient Greece, parrhesia occurs when a speaker with a personal knowledge of the folly of choices made by his leaders confronts them with evidence of their failures. Whereas past investigatory commissions engaged solely in what can be called an analytics of truth--determining the objective facts of what happened--the 9/11 Commission also opened itself to the parrhesiastic truth telling of those who had experienced the consequences of what happened. This truth moved Congress to act and imposed a measure of accountability on the executive branch.

114 Yale L.J. 1489 (2005)

Through the lens of history and doctrine, combining personal narrative, memoir, and stump speech, Barbara Babcock recalls John Ely's contributions to criminal defense.