The Yale Law Journal

April 2005

Globalization and Distrust

Anupam Chander
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.