International Law
Combatant Status Review Tribunals: Flawed Answers to the Wrong Question
116 Yale L.J. 667 (2006) Read Geoffrey Corn, Eric Talbot Jensen, and Sean Watts's Response, Understanding the Distinct Function of the Combatant Status Review Tribunals: A Response to Blocher.
Inherent Executive Power: A Comparative Perspective
115 Yale L.J. 2480 (2006) In light of recent debates regarding the scope and basis of inherent executive power, particularly with regard to foreign affairs and national security, this Essay examines different conceptions of executive power in five modern democracies. The Essay's study of British and German parliamentary systems, the semi-presidential French system, and the presidential Mexican and South Korean systems suggests that executive power is highly contingent and shaped by political context. The Essay identifies the common features of all these governmental structures, including the fluid line between executive and legislative power, and emphasizes that all of these nations have recognized the importance of placing limits on executive power, including in the spheres of foreign affairs and national security. These comparative examples thus provide a counterweight to recent arguments that executive power inherently requires unchecked authority in these spheres.
Law's Migration: American Exceptionalism, Silent Dialogues, and Federalism's Multiple Ports of Entry
115 Yale L.J. 1564 (2006) Legal theorists are engaged in understanding the legitimacy of techniques by which principles of rights-holding travel across borders. Sovereigntists in the United States object to that migration. The history of both protest about and the incorporation of "foreign" law provides important lessons for contemporary debates. Through examples from conflicts about slavery, the rights of women, and the creation of the United Nations, I chart the anxiety occasioned when American law interacts with human rights movements. At times, through silent absorption rather than express citation, some of the "foreign" sources become lost in translation, and the new rights become constitutive elements of "American" identity. To conceive of these debates as engaging only questions of national boundaries is, however, to miss the reliance on federalism as a justification for declining to participate in transnational rights work. Yet America's federalist structure also serves as a path for the movement of international rights across borders. As illustrated by the adoption by mayors, city councils, state legislatures, and state judges of transnational rights stemming from the U.N. Charter, the Convention to Eliminate All Forms of Discrimination Against Women (CEDAW), and the Kyoto Protocol on global warming, the debate about transnationalism is deeply democratic, with significant popular engagement reframing American norms. Such local government actions require revisiting legal doctrines that presume the exclusivity of national power in foreign affairs--as that which is "foreign" is domesticated through several routes.
Kilburn v. Libya: Cause for Alarm?
115 Yale L.J. 1177 (2006) In Kilburn v. Libya, the D.C. Circuit held that a plaintiff may turn to United States courts to seek recovery from a foreign nation for injuries suffered at the hands of a terrorist organization with which the foreign nation was affiliated--if actions taken by that foreign nation were a proximate cause of the plaintiff's injury. Kilburn is part of an emerging pattern. Over the past ten years, Congress and the courts have made it increasingly easy for plaintiffs to secure compensation from foreign nations for injuries arising out of terrorist acts. In particular, courts have liberally interpreted the state sponsor of terrorism amendment to the Foreign Sovereign Immunities Act of 1976 (FSIA), which permits plaintiffs to sue those nations designated as state sponsors of terrorism for damages in U.S. courts. Yet Kilburn also broke with prior cases. Kilburn involved an unusual set of facts and resolved the questions they presented in atypical fashion. Prior to Kilburn, most cases brought pursuant to the terrorism amendment had involved terrorist acts committed directly by a foreign nation or instigated by a foreign nation and committed by that nation's agent. Kilburn, by contrast, involved damage done by a nonstate actor who received material support and resources from the defendant nation but who was not its agent. Moreover, prior to Kilburn, courts had seldom permitted plaintiffs to seek relief for injuries foreign nations had not specifically intended to cause. Indeed, the United States, appearing as amicus curiae in Kilburn, asserted that it was not clear from existing case law that "the allegation of a foreign state's general support for the terrorist group that carried out the act of terrorism is sufficient to satisfy the statute." The Kilburn court, by contrast, adopted a more relaxed, proximate cause standard for jurisdiction. This Comment argues that Kilburn is inconsistent with the FSIA scheme. I do not weigh the merits of the Kilburn causation standard on its own terms. Rather, I contend that Kilburn will lead to extensive jurisdictional discovery. Permitting such discovery not only would create a disjunction between foreign sovereign immunity practice on the one hand and domestic sovereign immunity practice and international law on the other, but it also might frustrate Congress's goals in passing the terrorism amendment. I begin by explaining why the adoption of the Kilburn standard makes it more likely that courts will engage in jurisdictional discovery. In Part II, I elucidate the history of the FSIA and use that history to demonstrate why extensive jurisdictional discovery is incompatible with the FSIA. Finally, in Part III, I offer alternatives to the Kilburn standard.
The Court of Vice Admiralty at Sierra Leone and the Abolition of the West African Slave Trade
115 Yale L.J. 1122 (2006) Drawing on archival sources, this Note explores an early experiment in humanitarian intervention undertaken by the Court of Vice Admiralty at Sierra Leone through the suppression of the West African slave trade during the early decades of the nineteenth century. Part I discusses the social and geopolitical pressures that helped British abolitionists realize their hopes of creating a free colony in Africa. Part II demonstrates the manner in which Robert Thorpe, Chief Judge of the Court of Vice Admiralty at Sierra Leone, enforced Britain's 1807 Act for the Abolition of the Slave Trade against British and foreign traders alike. Part III argues that Thorpe's court, in conjunction with aggressive interdictions by the British Navy and privateers, forced Europe's great slaving powers to the negotiating table and secured their abandonment of the slave trade through the creation of multilateral institutions equipped to adjudicate captured slave ships. This Part also discusses the Le Louis case, which demonstrated the impact of Thorpe's court on the legal regime governing free navigation. Part IV then analyzes the relevance of Thorpe's experiment in humanitarian intervention to current interdiction efforts undertaken by the Proliferation Security Initiative.
The Responsibility To Protect: The U.N. World Summit and the Question of Unilateralism
115 Yale L.J. 1157 (2006) More than a decade after the world did nothing to halt genocide in Rwanda, and in the shadow of ongoing atrocities in Darfur, Sudan, the international community recently made a new commitment to protect populations from genocide, war crimes, ethnic cleansing, and crimes against humanity. The United Nations 2005 World Summit brought together representatives from more than 170 countries, including the United States. While largely reiterating previous international development and security goals, the Summit culminated with an agreement that the international community, acting through the United Nations, bears a responsibility to help protect populations from genocide and other atrocities when their own governments fail to do so. The agreement further announced a willingness to take "collective action" through the Security Council to protect populations if peaceful means prove inadequate. The motivating force behind the agreement is the United Nations' past inaction in the face of grave atrocities, including genocide. At the conclusion of the World Summit, Secretary General Kofi Annan told the world's leaders: "[Y]ou will be pledged to act if another Rwanda looms." However, by describing the responsibility to protect in terms of U.N. action, the World Summit failed to address a critical issue: What can and should be done by individual states if the United Nations fails to fulfill its pledge? The answer to this question will inform the scope of permissible unilateral action, with implications for future humanitarian interventions and military actions. This Comment argues that the Summit agreement strengthens the legal justification for limited forms of unilateral and regional action–including military action–if the United Nations fails to act to protect populations from genocide and other atrocities. The Summit agreement strengthens the justification for unilateral action in two main ways. First, the agreement affirms important limits on national sovereignty by recognizing a state's responsibility to protect its own citizens. Second, the agreement sets clear responsibilities for the international community when a country fails to protect its own citizens. In cases of U.N. inaction, would-be unilateral actors can point to an explicit failure to fulfill a duty. However, the agreement only supports unilateral action in a narrow set of circumstances. First, the agreement is limited to a small set of extreme human rights abuses. Second, the agreement implies a hierarchy of actors and of interventions: Good faith U.N. action is privileged over unilateralism and peaceful action is privileged over violent means. Finally, the agreement limits the scope of intervention to the goal of protection. For these reasons, the U.S. invasion of Iraq could not have been justified using the Summit agreement.
The World Bank and the Internalization of Indigenous Rights Norms
114 Yale L.J. 1791 (2005) The World Bank has emerged as an important actor in the international law community by enforcing social and environmental standards in borrower countries. One such standard is its indigenous peoples policy, which the Bank attempts to incorporate into domestic law through binding loan agreements. This Note presents a case study of a proposed Bank loan to Morocco in order to examine the difficulties of operationalizing the Bank's indigenous peoples policy. The author argues that the transnational legal process by which the Bank internalizes indigenous rights norms into domestic legal systems is influenced by external factors (domestic political and legal constraints and the level of civil society activism) and internal factors (power relations within the Bank). Understanding the dynamics of norm emergence and internalization within this process is important to understanding the role of international institutions in promoting effective norm compliance.
Globalization and Distrust
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.
American Prosecutors as Democracy Promoters: Prosecuting Corrupt Foreign Officials in U.S. Courts
114 Yale L.J. 1185 (2005) On June 3, 2004, a jury in a San Francisco federal court convicted former Ukrainian Prime Minister Pavel Lazarenko of twenty-nine counts of money laundering, wire fraud, interstate transportation of stolen property (ITSP), and conspiracy. The jury found that Lazarenko stole tens of millions of dollars from the Ukrainian people, which he then concealed in U.S. banks. For only the second time in history, a foreign head of government had been successfully prosecuted in the United States. Yet it was the first time that a former leader of a foreign country was convicted in a U.S. court in part for breaking his own country's laws. The U.S. offenses with which Lazarenko was charged criminalize transactions involving money obtained from an underlying illegal act. While these underlying criminal activities typically occur within the United States, Lazarenko stole property and committed extortion within Ukraine. Nevertheless, the district court instructed the jury that it could find him guilty of violating U.S. laws against money laundering, wire fraud, ITSP, and conspiracy if it found that his activities in Ukraine violated Ukrainian law. In effect, the U.S. government helped Ukraine enforce its own laws where Ukrainian courts had failed. Although Lazarenko's corruption was well known in Ukraine, at the time his own country's courts and prosecutors lacked the independence to convict such a powerful political figure. The story is familiar across the developing world: Good laws on the books are not enforced, corruption and lawlessness deepen, and consequently public disillusionment with the promise of democratic reforms grows. Although U.S. prosecutors claimed no such foreign policy designs, this Comment argues that Lazarenko suggests a potentially powerful new tool to promote the rule of law abroad: U.S. prosecutors indirectly punishing violations of foreign laws in U.S. courts by using such violations to prove elements of U.S. crimes. Helping countries in transition enforce their own laws and eliminate corruption at home until their own legal systems become stronger is a heretofore unrecognized collateral benefit of such prosecutions. In considering whether to prosecute foreign officials in the future, the U.S. government should take into account this goal of promoting democracy.
International Tribunals and Forum Non Conveniens Analysis
114 Yale L.J. 443 (2004) Many international civil disputes are resolved via state-driven litigation before multinational tribunals. Indeed, under traditional principles of international law, individuals may not appear before such tribunals at all. Instead, states must advance claims on behalf of their nationals, a procedure known as diplomatic espousal. As the D.C. Circuit's decision in Nemariam v. Federal Democratic Republic of Ethiopia demonstrates, U.S. courts rarely consider such international tribunals adequate to vindicate individual claimants' interests, because the tribunals' procedures are often in tension with American notions of due process. Accordingly, many courts find that international tribunals are inadequate alternative forums under forum non conveniens analysis. In so holding, courts are allowing forum non conveniens, a doctrine developed to balance proceedings between courts, to undermine the authority of international tribunals--a very different type of adjudicative body. This Comment argues that, in evaluating whether an international tribunal is an adequate alternative forum under forum non conveniens analysis, U.S. courts should focus less on formalistic factors like the identities of the parties who espouse claims before the tribunal and more on the ability of those parties to represent the interests of the individuals whose claims they advance. Emphasizing interest representation, rather than party structure, would help U.S. courts avoid undercutting established international institutions; lessen the perception of U.S. courts as disconnected players in a multilateral world; and allow war-torn states to devote their resources to broad-based compensation and redevelopment, rather than to the litigation of private claims in multiple forums.
Non-Self-Executing Treaties and the Suspension Clause After St. Cyr
113 Yale L.J. 2007 (2004) Ogbudimkpa v. Ashcroft, 342 F.3d 207 (3d Cir. 2003). In INS v. St. Cyr, the Supreme Court rejected Congress's attempt to foreclose judicial review in various provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996. The St. Cyr Court held that Congress must be extraordinarily explicit whenever it intends for legislation to strip courts of the jurisdiction to hear any class of habeas petitions, including the deportation-related claims that AEDPA and IIRIRA sought to restrict. Such a "superclear" statement, the Court concluded, was needed to avoid the potential constitutional problem posed by the Suspension Clause, which bars foreclosure of habeas "unless when in Cases of Rebellion or Invasion the public Safety may require it."
The Eleventh Amendment and the Reading of Precise Constitutional Texts
113 Yale L.J. 1663 (2004) INTRODUCTION In recent years, the Supreme Court has frequently observed that most statutes involve compromise. In particular, when Congress enacts a clear and precise statutory text--one that articulates not only a set of relevant aims but also the specific means of their pursuit--the Court has assumed that the operative details of such a statute may reflect a (frequently unrecorded) compromise to go so far and no farther in pursuit of its background goals. Accordingly, even when a precise statute seems over- or underinclusive in relation to its ultimate aims (as is often the case), the Court now hews closely to the rules embedded in the enacted text, rather than adjusting that text to make it more consistent with its apparent purposes. One might think that similar principles would apply with equal, if not greater, force to constitutional interpretation. The constitutional lawmaking processes prescribed by Articles V and VII reflect a conscious design to give political (or at least geographical) minorities extraordinary power to block constitutional change. Such political minorities, therefore, also have extraordinary power to insist upon compromise as the price of assent. Although constitutional scholarship tends to emphasize those constitutional texts that are framed in open-ended terms, many of the document's clauses--including some rather important ones--articulate their policies at a level of detail that suggests compromise over the acceptable means of pursuing such clauses' apparent background aims. In this Article, I argue that, just as in the case of statutes, when the Court confronts a precise and detailed constitutional text, it should adhere closely to the prescribed solution rather than stretch or contract the text in light of the apparent ratio legis. Indeed, the heightened protection assigned to minority interests in the amendment process may make it especially crucial for a court to adhere to the compromises embedded in a precise constitutional text.
Chevron Deference and Treaty Interpretation
112 Yale L.J. 1927 (2003) One need not accept Hobbes's vision of international relations as a perpetual "condition of warre" to recognize that the rule of law does not always govern international affairs. The inevitable tension between foreign policy objectives and rule-of-law values in U.S. foreign affairs law has important implications for treaties, which play dual roles in the American constitutional system: Internationally, treaties represent sensitive political agreements with foreign nations having important implications for U.S. foreign policy. Domestically, treaties enacted pursuant to Article II become "Supreme law" on par with federal legislation. Thus, when interpreting treaties, domestic courts have sought to reconcile these two functions by defending the judicial prerogative to "say what the law is" while simultaneously affording executive treaty interpretations "'great weight.'" A recent article by Professor Curtis Bradley defends judicial deference to executive treaty interpretation by analogizing this practice to the Supreme Court's two-part test for deference to administrative agency interpretations established in Chevron U.S.A., Inc. v. Natural Resources Defense Council. Accepting that some judicial deference in this realm may be both appropriate and desirable, this Comment nevertheless challenges Chevron's adaptability to judicial treaty interpretation in light of prevailing constitutional and customary international law. In place of Bradley's Chevron paradigm, this Comment offers an alternative analogy from administrative law--Skidmore deference--as a superior paradigm for conceptualizing judicial deference to executive treaty interpretation.
Piercing the Veil
112 Yale L.J. 1399 (2003) Human rights law has a problem with religion. In a postmodern world in which the nation-state has been deconstructed and eighteenth- and nineteenth-century notions of unmediated national sovereignty have been properly put to rest, religion--and its attendant category, culture--represent the New Sovereignty. September 11th crystallized this fact. The infamous Taliban regime in Afghanistan assumed power in 1996 and immediately began stripping women of fundamental human rights. But war, not law, defeated what was perhaps the world's most ruthless fundamentalist regime. This Article argues that religion qua religion is less the problem than is law's construction of this category. Premised on Enlightenment theory, law has a fundamentalist view of religion as law's "other." Confident that freedom in the public sphere is freedom itself, law posits and, indeed, preserves religion as an extralegal sphere that is static, irrational, and imposed. Individuals may exit religion but not reform it. Increasingly, fundamentalists are taking advantage of this legal tradition. Because law does not recognize religious communities as contested and subject to change, legal norms such as the "freedom of religion" and the "right to culture" defer to the claims of patriarchal elites. The result is that, in case after case in both national and international law, law is siding with fundamentalists over modernizers. But on the ground, human rights activists working in Muslim communities are piercing the veil of religious sovereignty. In the work of these activists, this Article hears the rumblings of the New Enlightenment: Today, individuals demand democracy, reason, and rights within religious and cultural communities, not just without them. Examining the campaigns of reformers in Muslim communities through the overlooked efforts of transnational human rights "networks" and archives of women's human rights education manuals--illuminated by interviews with leading activists from around the globe--this Article identifies an emergent, conceptually coherent framework for operationalizing modernity and freedom within a context of culture and community. This New Enlightenment upsets the foundation of the legal understanding of the "right to religion," which has deferred to leaders' views over those of members. While feminists have challenged the absolute sovereignty of the private sphere, particularly on the issue of violence, women's right to contest and create normative community--that is, to make cultural and religious meanings--has been far less theorized. This Article suggests that women's human rights law must go beyond freedom from violence to freedom to make the world.
The Law of Nations and the Offenses Clause of the Constitution: A Defense of Federalism
112 Yale L.J. 109 (2002) One of the most important features of the United States government as originally conceived by the Framers is that, even before the addition of the Bill of Rights, its powers were strictly regulated by the Constitution. Instead of being a supreme parliament, able to do whatever it believed necessary to promote the nation's health, safety, welfare, or morals, Congress was crafted as a legislature of strictly enumerated powers. Every law passed by Congress must fall within one of these discrete powers, or be "necessary and proper" to the execution of such a power. In the decades after the New Deal, however, it seemed as if almost nothing was beyond the purview of the federal government. Nearly any federal law could be upheld as an exercise of the commerce power; whatever civil rights measures fell outside its scope were justified by Section 5 of the Fourteenth Amendment. Indeed, in over fifty years, the Supreme Court struck down only one federal law as exceeding Congress's ostensibly limited constitutional authority. This changed, of course, with three cases starting in the mid-1990s: United States v. Lopez, City of Boerne v. Flores, and United States v. Morrison. For the first time in twenty-five years, the Supreme Court actually struck down laws as exceeding Congress's commerce and Reconstruction powers. The Court even set forth guidelines for determining whether statutes are authorized by the Commerce Clause. As a result of this constitutional upheaval, many academics began to scour the Constitution, looking for alternate fonts of congressional authority to replace the now truncated commerce and Reconstruction powers. Perhaps the most ingenious suggestion is that proposed by Professor Beth Stephens. Building upon an amicus brief filed in Morrison by certain "International Law Scholars and Human Rights Experts," she argues that a little-known constitutional provision, the Offenses Clause, could serve to authorize not only the laws struck down in Lopez, Boerne, and Morrison, but also legislation affecting almost all spheres of domestic activity. The Clause empowers Congress to "define and punish . . . Offences against the Law of Nations." Professor Stephens claims that this provision empowers Congress to enact civil and criminal legislation in any area upon which international law touches. Given the broad sweep of contemporary international law, this approach would turn the Offenses Clause into a Commerce Clause for the twenty-first century. It would bring virtually every aspect of society, including those traditionally left to state regulation, under congressional authority. This Note takes the opposite point of view, arguing that the Offenses Clause is a modest grant of authority, insufficient to support laws such as the Gun-Free School Zones Act and the Violence Against Women Act (VAWA), or to undermine American federalism. The Clause affirms, rather than undermines, the balance of state-federal relations that the Framers intended. I argue that it allows for the enactment of legislation touching upon only that fixed, discrete set of areas involving intercourse with foreign nations and their citizens--including navigation, trade, war, and diplomacy--that comprise what the Framers believed to be the immutable law of nations. Part I of this Note explores the claims made by Professor Stephens and the International Law Scholars, setting forth their case for viewing the Offenses Clause as an important source of substantive authority for Congress. It also examines the consequences of this approach, outlining the wide range of areas traditionally reserved to the states that it would enable Congress to regulate. Part II refutes the primary assumption upon which this interpretation is based. First, I argue that the phrase "law of nations" as used in the Offenses Clause is a term of art that is not synonymous with international law. I demonstrate that it refers to principles in certain well-defined areas that govern interactions among foreign countries and foreign nationals. The term excludes wholly domestic conduct that does not have a direct effect on foreign nations or nationals. Because the law of nations is rooted in natural law, its substantive content was understood by the Framers as being immutable. While modern-day treaties and evolving international norms are important parts of international law, they cannot expand the scope of the law of nations. Part III argues that even if courts abandon the true meaning of the phrase "law of nations" and insist on interpreting it in a modern light, the most faithful modern analogue of this concept is neither international law as a whole, nor customary international law, but jus cogens norms. Allowing for the enforcement of jus cogens norms under the Offenses Clause is less faithful to the provision's true meaning than the approach advocated in Part II. The concept of jus cogens, however, has many important similarities to the law of nations, and the range of recognized jus cogens norms is fairly narrow. Consequently, this interpretation of the Offenses Clause would be a legitimate compromise, retaining much of the Clause's original meaning while preventing it from being used to eliminate the boundary between state and federal authority. Part IV concludes. The Offenses Clause has been virtually ignored throughout most of this nation's history and has yet to be thoroughly explored by the legal literature. In light of suggestions that Congress use the Clause as a replacement for its once-omnipotent commerce and Reconstruction powers, a thorough examination of the history and meaning of its central phrase--"the law of nations"--is necessary.
Do Human Rights Treaties Make a Difference?
111 Yale L.J. 1870 (2002) Do countries comply with the requirements of human rights treaties that they join? Are these treaties effective in chan- ging changing states' behavior for the better? This Article addresses these questions through a large-scale quan- titative analysis of the relationship between human rights treaties and countries' human rights practices. The analysis relies on a database encompassing 166 nations over a nearly forty-year period in five areas of human rights law. The analysis finds that although the practices of countries that have ratified human rights treaties are generally better than those of countries that have not, noncompliance with treaty obligations appears common. More paradoxically, control- ling for other factors that affect practices, it appears that treaty ratification is not infrequently associated with worse practices than otherwise expected. These findings can be explained in part, the Article contends, by the dual nature of treaties as both instrumental and expressive instruments. Treaties not only create binding law, but also declare or express the position of countries that ratify them. Because human rights treaties tend to be weakly monitored and enforced, countries that ratify may enjoy the benefits of this expression-including, perhaps, reduced pressure for improvements in practices-without bearing significant costs. This does not mean that human rights treaties do not have any positive influence, but simply that these positive effects may sometimes be offset or even outweighed by trea- ties' less beneficial effects. The Article concludes by considering better ways to help ensure that human rights treaties improve the lives of those they are meant to help.
The Storrs Lectures: Liberals and Romantics at War: The Problem of Collective Guilt
111 Yale L.J. 1499 (2002) Somehow we in the West thought the age of war was behind us. After nuking Hiroshima, after napalming Vietnam, we had only distaste for the idea and the practice of war. The thought of dying for a noble cause, the pursuit of honor in the name of patria, brotherhood in arms--none of this appealed to us anymore. "I hate war and so does Eleanor," opined FDR in the oft-repeated lyrics of Pete Seeger. War became a subject for ironic disdain. As Tom Lehrer caught the mood of the 1960s: "We only want the world to know that we support the status quo. . . . So when in doubt, Send the Marines!" Behind this disdain for war lies as well a distaste for the Romantic view of the world that tends to glorify the nation and war as an expression of patriotism. As Nancy Rosenblum argues, in the Romantic view of the world, war and militarism become sources of inspiration. Identifying with an ideology worth dying for, accepting a place in the hierarchy of command, becoming part of the fighting collective--these are actions and commitments that lift men out of the quotidian and enable them to feel that their lives express a deeper meaning. Revolutions and wars of self-determination have always appealed to Romantics. In the beginning of the nineteenth century, the Greek war of independence captured Byron's imagination. The War of 1848 brought Francis Lieber face to face with the glory of battle. The Spanish Civil War had a similar appeal in the twentieth century. As Barbara Ehrenreich describes the popular reaction to World War I, the outbreak of hostilities in 1914 unleashed "a veritable frenzy of enthusiasm, . . . not an enthusiasm for killing or loot, . . . but for something far more uplifting and worthy." The aversion to war that set in after Hiroshima and Vietnam represented a rejection of this Romantic sensibility. Finding meaning in warfare was relegated to the outdated attitudes of another time. In popular culture, at least, things have begun changing, and the shift became evident even before September 11. If the postwar and Vietnam eras found expression in films like Dr. Strangelove and Apocalypse Now, the new spirit of patriotism became visible in Steven Spielberg's film Saving Private Ryan and in Tom Brokaw's bestseller The Greatest Generation. Slightly more than fifty years after the event, the invasion of Normandy became a focal point of nostalgia and renewed interest in the lives of heroes bound together in the brotherhood of battle. Consider that Joseph Ellis, best-selling historian and professor at Mount Holyoke College, made up heroic military adventures to please his students. It would have been unthinkable for a professor circa 1970 or 1980 to think that he could impress a university audience by pretending to have fought against the Viet Cong. The recent call to arms against terrorism came when many Americans were yearning to believe, once again, that our highest calling lay in going to war for freedom and the American way. Whatever may happen in the culture at large, the law has never been a particularly hospitable place for poets and Romantics yearning for peak moments of experience. Perhaps some lawyers who litigate grand political issues experience something like Romantics going to war. But by and large, we in the academic world are committed to the orderly life and, at least on the surface of things, to a set of ideas that I describe as the opposite of the Romantic ethic. We advocate the principles of voluntary choice, methodological individualism, and individual responsibility. All challenges to the hegemonic way of thinking are simply accommodated as variations on individual needs and preferences. For want of a better term, I refer to this collection of ideas as liberalism. Not many would dissent from the claim that the dominant culture of the law school world is this ever-yielding, all-encompassing form of liberalism--the "L" word used, of course, in the philosophical rather than the political sense. There are variations of liberal jurisprudence but there is no school of Romantic jurisprudence. Admittedly the "R" word crops up here and there--in works by James Whitman on early nineteenth-century German attitudes toward Roman law, Steve Shiffrin on the First Amendment, and Vivian Curran on the disputed distinction between common law and civil law. A Lexis search reveals about 500 documents in the year 2001 containing the word "liberalism." In the entire database of law reviews, there are about the same number of references to "Romanticism," and often the use of the word is incidental or dismissive, as in the expression "naïve Romanticism." A single methodology dominates the legal discourse of our time. Whether the talk is of law and economics, of constitutional law, of corrective justice, or of human rights, the methodology remains the same. What counts is individuals, their rights, their preferences, their welfare. Perhaps we are missing something by ignoring the impulses that led Romantics to worship an expansive self that could identify with the entire nation as an actor in history. The Romantics in Germany, in France, and in England--though there were ample differences among them--created an alternative to methodological individualism. They developed a way of thinking about the self and about the nation that challenges us to reconsider liberal assumptions about both the virtues and the vices of collective entities of which we are a part. Of all the attributes of collective entities, the phenomenon of collective wrongdoing offers the greatest challenge. I want to take seriously the possibility that entire bodies of people, in particular the nations of which we are a part, can be guilty for the crimes actually carried out by a few. It is obvious that this possibility of collective guilt flouts liberal premises, which hold that only individuals can have the mens rea and tender the malice necessary to be held guilty for wrongdoing. Though I probably have more sympathy for collective guilt than can be found in the current academic culture, I conceive of this Article as devoted not to a thesis but to a problem. The problem is whether it is acceptable to ascribe guilt to collective actors and particularly to nations like the United States, France, and Germany. The problem, I argue, is an outgrowth of larger conflict between the mentality of liberals and the sentiments of Romantics. For liberals and Romantics at war, this is one of the primary intellectual fields of battle. As the fight over collective guilt is won or lost, so are larger stakes decided: Is the individual the ultimate unit of action and responsibility, or are we, as individuals, invariably implicated by the actions of the groups of which we are a part?