Failed states pose one of the deepest challenges to American national security and international peace and stability. Finding a comprehensive and effective solution to the challenges of terrorism, human rights violations, or poverty and economic development requires some understanding of how to restore failed states. The response of the United States and its allies has remained the same: to rebuild the institutions of state control, and, if lucky, to plant a working democracy and a market economy within existing state borders. But many international law scholars remain openly dubious about the ability of states to rebuild – the problem is not failed states but the nation-state as the primary actor in international relations. This paper argues that both American and U.N policy on the one hand, and the conventional academic wisdom on the other hand, are mistaken. Building a normal nation-state with full sovereignty on every territory in the world, without changing any borders, fails to understand why some states are failing in the first place. Viable states simply do not align with the borders recognized by the United Nations or created during the period of rapid decolonization in the decades after World War II. Academics who see in failed states the rise of alternatives to the nation-state have no practical solutions that do not depend on the political, economic, and military resources of strong nation-states. Without them, supra-national governments, trusteeships, or non-governmental organizations have shown little ability to fix failed states. This paper argues that powerful nations can help by performing the more modest role of promoting and guaranteeing power-sharing agreements between competing groups within failed states. It concludes by illustrating the thesis with the outcome of the surge in Iraq.

Failed states pose one of the deepest challenges to American national security and international peace and stability. Finding a comprehensive and effective solution to the challenges of terrorism, human rights violations, or poverty and economic development requires some understanding of how to restore failed states. The response of the United States and its allies has remained the same: to rebuild the institutions of state control, and, if lucky, to plant a working democracy and a market economy within existing state borders. But many international law scholars remain openly dubious about the ability of states to rebuild – the problem is not failed states but the nation-state as the primary actor in international relations. This paper argues that both American and U.N policy on the one hand, and the conventional academic wisdom on the other hand, are mistaken. Building a normal nation-state with full sovereignty on every territory in the world, without changing any borders, fails to understand why some states are failing in the first place. Viable states simply do not align with the borders recognized by the United Nations or created during the period of rapid decolonization in the decades after World War II. Academics who see in failed states the rise of alternatives to the nation-state have no practical solutions that do not depend on the political, economic, and military resources of strong nation-states. Without them, supra-national governments, trusteeships, or non-governmental organizations have shown little ability to fix failed states. This paper argues that powerful nations can help by performing the more modest role of promoting and guaranteeing power-sharing agreements between competing groups within failed states. It concludes by illustrating the thesis with the outcome of the surge in Iraq.

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.

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.

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.

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.

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 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.