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The next economic crisis is closer than you think. But what you should really worry about is what comes after: in the current social, political, and technological landscape, a prolonged economic crisis, combined with rising income inequality, could well escalate into a major global military conflict.

The 2008-09 global financial crisis almost bankrupted governments and caused systemic collapse. Policymakers managed to pull the global economy back from the brink, using massive monetary stimulus, including quantitative easing and near-zero (or even negative) interest rates.

While these concepts and conversations suggest bipartisanship could deliver infrastructure reform, the current state of national politics delivers anything but an infrastructure boost. Put bluntly, when political discord leads to infrastructure failure, it doesn’t just deepen our distrust of government—it also takes our economy down with it.

After all, it was only months ago when fights between House Democrats and the Republican White House spilled over into our airports. With public employees and contractors forced to work without pay during the budget shutdown, it was little surprise that TSA security officers and air traffic controllers started calling in sick. Then, 35 days after the shutdown began, LaGuardia Airport closed due to staffing shortages. The budget fight ended just hours later.

The Mansfield and Snyder argument has gained plenty of high-profile traction but does the empirical evidence support the argument? We find in our study that it does not. In particular, we find few observations involving incomplete democratization, weak institutions, and war between 1816 and 1992. Furthermore, we show that the purported relationship between incomplete democratization and war rests entirely on a cluster of unrepresentative observations involving the dismemberment of the Ottoman Empire prior to World War I .Finally, we discover that the cases selected to support the hypothesis rarely involved incomplete democratization with weak institutions. This is not to say that incomplete democratizers face no risks—indeed, scholars have recently shown that these states face a serious increased propensity for state failure or internal conflict.6 But while incomplete democratizers may face a heightened risk of imploding, we show that there is scant empirical support for the argument that these states are at risk of exploding and becoming more belligerent members of the international system.

While these dangers always lurk in any democratisation process, they may be offset by a number of mitigating forces, which are generated by democratisation. The rulers of a newly democratising state are likely to focus on internal consolidation and economic reconstruction (especially if it has been under long and ruinous authoritarian rule) to fulfil promises made during the struggle for democracy. Hence war would be regarded as wasteful. Democratisation creates more domestic transparency in ways beneficial to regional understanding and trust. Transition to democratic rule brings in its wake availability of greater information about a state’s national security and financial policies and assets. This could reduce suspicions among neighbours and expand regional security and economic cooperation. Rule of law in the domestic context often leads to rule-based interactions in the regional arena. This can be more conducive to regional collective problemsolving. Democratisation creates a deeper basis for regional socialisation by according space to the civil society and accommodating its concerns. The ruling elite in democratising states is likely to co-opt the civil society and accept its transnational links, and thereby increase their chances for more effective responses to transnational issues. The ruling elite in democratising states is likely to give a higher priority to maintaining and enhancing its international legitimacy than to regain territory from neighbours or to seek unilateral gain. Opposition leaders during the struggle for democratic change accept and use international liberal norms, such as pacific settlement of disputes, and interdependence. This may offset the impact of nationalism produced by democratisation. Furthermore, the nationalism that accompanies democratisation may turn out to be a positive nationalism, or ‘democratic pride’ (i.e. pride in having achieved an open polity; being able to say we are a ‘democratic nation’, win respect from the international community, avoid the derogatory labels of authoritarian regime or ‘dictator’), than a negative nationalism. Democratising states are more likely to subject themselves to international mediation and arbitration. And democratising states are as much if not more likely to adopt cooperative security and regional integration strategies towards their neighbours. The last factor, called the ‘cooperative security’ effect of democratisation, has been a significant trend in three recent cases of democratic transitions in East Asia.

Third, there are no instances of an incomplete democratizer with weak institutions participating in, let alone initiating, an external war since World War I. To the extent that the configuration of the international system post–World War I, and certainly post–World War II, is different from the pre–World War I era, these six empirical observations suggest little about the likelihood of incomplete democratizers with weak institutions either participating in or initiating wars in the contemporary international era. This is particularly noteworthy because, of the seventy-eight instances in which states with weak institutions have experienced an incomplete democratization between 1816 and 1992 as measured by the composite index, sixty-three of these, or 80 percent, have occurred between 1945 and 1992, after decolonization and during the so-called third wave of democratization. 25 Out of these sixty-three states with weak institutions that have undergone incomplete democratic transitions since 1945, not a single one has either initiated or participated in the outbreak of an external war.26 Indeed, some cases that are prime candidates for logic of the theory, such as Russia in 1991–92, which is coded as an incomplete democratizer with weak institutions, were plagued by fragmentation; but none initiated or participated in external wars. Thus, according to the empirical data, wars initiated by, or even involving, democratizing states with weak institutions are hardly a “chronic danger in history;” 27 instead, wars involving incomplete democratizers occur extremely rarely, both in absolute numbers and relative to other types of states, whether transitioning or stable. So how do Mansfield and Snyder find such strong correlations between incomplete democratization and war participation? It is to this question that we now turn.

The order will inevitably look somewhat different as the twenty-first century progresses. China, India, and other economies will continue to grow, and the U.S. share of the world economy will drop. But no other country, including China, is poised to displace the United States from its dominant position. Even so, the order may still be threatened by a general diffusion of power away from governments toward nonstate actors. The information revolution is putting a number of transnational issues, such as financial stability, climate change, terrorism, pandemics, and cybersecurity, on the global agenda at the same time as it is weakening the ability of all governments to respond.¶ Complexity is growing, and world politics will soon not be the sole province of governments. Individuals and private organizations—from corporations and nongovernmental organizations to terrorists and social movements—are being empowered, and informal networks will undercut the monopoly on power of traditional bureaucracies. Governments will continue to possess power and resources, but the stage on which they play will become ever more crowded, and they will have less ability to direct the action.¶ Even if the United States remains the largest power, accordingly, it will not be able to achieve many of its international goals acting alone. For example, international financial stability is vital to the prosperity of Americans, but the United States needs the cooperation of others to ensure it. Global climate change and rising sea levels will affect the quality of life, but Americans cannot manage these problems by themselves. And in a world where borders are becoming more porous, letting in everything from drugs to infectious diseases to terrorism, nations must use soft power to develop networks and build institutions to address shared threats and challenges.¶ China is unlikely to surpass the United States in power anytime soon.¶ Washington can provide some important global public goods largely by itself. The U.S. Navy is crucial when it comes to policing the law of the seas and defending freedom of navigation, and the U.S. Federal Reserve undergirds international financial stability by serving as a lender of last resort. On the new transnational issues, however, success will require the cooperation of others—and thus empowering others can help the United States accomplish its own goals. In this sense, power becomes a positive-sum game: one needs to think of not just the United States’ power over others but also the power to solve problems that the United States can acquire by working with others. In such a world, the ability to connect with others becomes a major source of power, and here, too, the United States leads the pack. The United States comes first in the Lowy Institute’s ranking of nations by number of embassies, consulates, and missions. It has some 60 treaty allies, and The Economist estimates that nearly 100 of the 150 largest countries lean toward it, while only 21 lean against it.¶ Increasingly, however, the openness that enables the United States to build networks, maintain institutions, and sustain alliances is itself under siege. This is why the most important challenge to the provision of world order in the twenty-first century comes not from without but from within.

As one of the countless millions of people who were freed or protected from totalitarianism by the United States of America, it is easy for me to talk about the past. To talk about the belief of the American people and their leaders that this country was exceptional, and had special responsibilities to match its tremendous power. That a nation founded on freedom was bound to defend freedom everywhere. I could talk about the bipartisan legacy of this most American principle, from the Founding Fathers, to Democrats like Harry Truman, to Republicans like Ronald Reagan. I could talk about how the American people used to care deeply about human rights and dissidents in far-off places, and how this is what made America a beacon of hope, a shining city on a hill. America led by example and set a high standard, a standard that exposed the hypocrisy and cruelty of dictatorships around the world. But there is no time for nostalgia. Since the fall of the Berlin Wall, the collapse of the Soviet Union, and the end of the Cold War, Americans, and America, have retreated from those principles, and the world has become much worse off as a result. American skepticism about America’s role in the world deepened in the long, painful wars in Afghanistan and Iraq, and their aftermaths. Instead of applying the lessons learned about how to do better, lessons about faulty intelligence and working with native populations, the main outcome was to stop trying. This result has been a tragedy for the billions of people still living under authoritarian regimes around the world, and it is based on faulty analysis. You can never guarantee a positive outcome— not in chess, not in war, and certainly not in politics. The best you can do is to do what you know is right and to try your best. I speak from experience when I say that the citizens of unfree states do not expect guarantees. They want a reason to hope and a fighting chance. People living under dictatorships want the opportunity for freedom, the opportunity to live in peace and to follow their dreams. From the Iraq War to the Arab Spring to the current battles for liberty from Venezuela to Eastern Ukraine, people are fighting for that opportunity, giving up their lives for freedom. The United States must not abandon them. The United States and the rest of the free world has an unprecedented advantage in economic and military strength today. What is lacking is the will. The will to make the case to the American people, the will to take risks and invest in the long-term security of the country, and the world. This will require investments in aid, in education, in security that allow countries to attain the stability their people so badly need. Such investment is far more moral and far cheaper than the cycle of terror, war, refugees, and military intervention that results when America leaves a vacuum of power. The best way to help refugees is to prevent them from becoming refugees in the first place. The Soviet Union was an existential threat, and this focused the attention of the world, and the American people. There existential threat today is not found on a map, but it is very real. The forces of the past are making steady progress against the modern world order. Terrorist movements in the Middle East, extremist parties across Europe, a paranoid tyrant in North Korea threatening nuclear blackmail, and, at the center of the web, an aggressive KGB dictator in Russia. They all want to turn the world back to a dark past because their survival is threatened by the values of the free world, epitomized by the United States. And they are thriving as the U.S. has retreated. The global freedom index has declined for ten consecutive years. No one like to talk about the United States as a global policeman, but this is what happens when there is no cop on the beat. American leadership begins at home, right here. America cannot lead the world on democracy and human rights if there is no unity on the meaning and importance of these things. Leadership is required to make that case clearly and powerfully. Right now, Americans are engaged in politics at a level not seen in decades. It is an opportunity for them to rediscover that making America great begins with believing America can be great. The Cold War was won on American values that were shared by both parties and nearly every American. Institutions that were created by a Democrat, Truman, were triumphant forty years later thanks to the courage of a Republican, Reagan. This bipartisan consistency created the decades of strategic stability that is the great strength of democracies. Strong institutions that outlast politicians allow for long-range planning. In contrast, dictators can operate only tactically, not strategically, because they are not constrained by the balance of powers, but cannot afford to think beyond their own survival. This is why a dictator like Putin has an advantage in chaos, the ability to move quickly. This can only be met by strategy, by long-term goals that are based on shared values, not on polls and cable news. The fear of making things worse has paralyzed the United States from trying to make things better. There will always be setbacks, but the United States cannot quit. The spread of democracy is the only proven remedy for nearly every crisis that plagues the world today. War, famine, poverty, terrorism–all are generated and exacerbated by authoritarian regimes. A policy of America First inevitably puts American security last. American leadership is required because there is no one else, and because it is good for America. There is no weapon or wall that is more powerful for security than America being envied, imitated, and admired around the world. Admired not for being perfect, but for having the exceptional courage to always try to be better. Thank you.

But the more power Congress leaves to the president, the more zero‐​sum the winner‐​takeall stakes of one election to decide one national leader becomes, thus further exacerbating polarization. This is why the 2020 election feels so existential, yet again. The doom loop is escalating once more and undermining our ability to respond to the COVID-19 pandemic. It is preventing us from breaking out of the false choice between revitalizing the economy and maintaining public health. It also threatens the legitimacy of an election that is likely to be conducted largely by mail.

BREAKING OUT OF HYPERPARTISANSHIP

For many Americans reading this, there is no doubt a sense of remove from the relevance of the European project. Think of it this way: for centuries Europe was the Middle East of the world. It was a war-hungry, dysfunctional, violent, chaotic piece of the globe that could barely go a decade without a barbaric, usually pointless blood-letting conflict. Since World War II and the economic and political integration that brought former nation-state rivals into mutually beneficial coexistence, the continent has been a region of remarkable prosperity and stability. Keep in mind, this has never happened before in human history: a set of political leaders and their constituents voluntarily chose to cede elements of sovereignty in order to form a better, stronger union. The United States and Great Britain, often mentioned as democratic ideals, were two empires won by violent conquest in which wealthy elites only begrudgingly allowed democracy to sift down to the most impoverished and brutalized citizens.

The parochial movements of the last five to ten years—from the EU’s troubles to the Scottish independence vote to the surge of American nationalism that brought us such phenomenon as the go-it-alone war in Iraq and now Donald Trump—have different roots and causes but they do share a common thread. We live in an increasingly complex and interdependent world where the greatest threats to peace, individual well-being, and human flourishing are largely transnational. Climate change, infectious disease, nuclear proliferation, financial crisis, cyber insecurity—these are all borderless phenomenon that do not care if their victims are French, British, American, or Syrian. Their worst consequences do not care about our flags, languages, religions, or skin colors. And yet at a time when transnational peril necessitates a greater need for cooperation, tolerance, and unity, Western liberal democracies are taking a hard turn into fragmentation, arrogance, self-pity, and denial. The break-up of the European Union brought on by a wave of selfish, quasi-authoritarian nationalism would be a staggering blow to the economic and political security of what remains of the increasingly precarious free world.

To be sure, the United States has often been inconsistent and imperfect in its foreign policy. But over more than a century, it has also been what former secretary of state Madeleine Albright rightly called “the indispensable nation” for democracy—indispensable in advancing human rights, indispensable in stirring democratic hopes, indispensable in building the international institutions and alliances that have enabled freedom to thrive.

Ideals matter in world politics, but so does power—and the United States, for all its flaws and blunders, has been the rare great power to fuse both might and right to create space for the expansion of democracy. Since the end of World War II, a strong, steadfast American presence has kept the democracies of Europe and the more pluralistic states of Asia from throwing in their lot with the Soviet Union, Maoist China, and their successor dictatorships. Take away American power, presence, and principles, and most Asian states would jump on the bandwagon of the emerging Chinese imperium in Asia. Remove America as the bonding cement of NATO and a counterweight to Russia’s ambitions in former Soviet states like Ukraine and Georgia, and it will doom hopes for freedom throughout the former USSR—probably even in the Baltic states—and cast a long, dark shadow over the remaining democracies of Central and Eastern Europe. The European Union might not survive such a U.S. retreat, and if the EU did, it would feel intense pressure to reconcile with a resurgent Russian empire. The world without us would be a far more frightening and dangerous place, with muscular, corrupt dictatorships dominating large swaths of the globe through both blatant coercion and covert subversion.

7. Fascist Nationalism. There is another possible future that the Foreign Affairs scenarios do not contemplate, and it’s a dark world in which Trump, Putin, Xi, Erdogan, and others construct regimes that are authoritarian and nationalist. Fascism is possible in the United States and elsewhere if big business can be seduced by promises of riches in return for the institutional keys to democracy. Perhaps Foreign Affairs editors are right to leave this dark world out, for it would be very dark: nationalist wars with risks of escalation into global nuclear conflict, further digital militarization (even Terminator-style scenarios of smart military robots), and unchecked climate disasters.

The most obvious response to the ill winds blowing from the world’s autocracies is to help the winds of freedom blowing in the other direction. The democracies of the West cannot save themselves if they do not stand with democrats around the world.

This is truer now than ever, for several reasons. We live in a globalized world, one in which models, trends, and ideas cascade across borders. Any wind of change may gather quickly and blow with gale force. People everywhere form ideas about how to govern—or simply about which forms of government and sources of power may be irresistible—based on what they see happening elsewhere. We are now immersed in a fierce global contest of ideas, information, and norms. In the digital age, that contest is moving at lightning speed, shaping how people think about their political systems and the way the world runs. As doubts about and threats to democracy are mounting in the West, this is not a contest that the democracies can afford to lose.

Our nation just endured one of the most anticipated elections in a generation amid a pandemic that has completely engulfed our country. In addition to the pandemic, our country seems entrenched in an existential threat to our democracy. This moment in time is unique, but how did we get here?

On Oct. 1, 2013, our federal government was shut down for 16 days. The source of the shutdown was the junior senator from Texas, Ted Cruz, and his crusade to delay the inevitable implementation of the Affordable Care Act. At the time, it really felt like our Congress had hit rock bottom with partisan divide at its peak. Still, we had no idea what lay ahead.

First I'd like to express my gratitude to Judge Buckley and to Judge Ginsburg and to all the judges on the circuit for inviting me here. This is a great occasion for those of us who have been trying to look at these problems over the last several years. And I must say that I'm really heartened by the comments of Congressman Cardin and Judge Coffin as to the possibilities of improving relations between the Congress and the judiciary. My task, as Judge Buckley has noted, is *323 to look at statutory revision, to think in terms of ways in which Congress and the courts can interact in ways that promote the concerns of each.

And to that end I have, as Judge Buckley has noted, conducted a pilot project. My purpose here today is to briefly describe the methodology of this pilot project, the results of that project and then to offer some thoughts on the kinds of mechanisms appropriate to the task of improving communications between the branches.

It is worth noting that OLRC inhabits an odd place on this spectrum. OLRC is required to prepare the U.S. Code for publication; that aspect of its work is mandatory. But it is up to OLRC to decide when a new title should be created and what it should contain, and Congress is not required to take any action on codification bills prepared by the office. OLRC can organize and reclassify enacted statutes into coherent legal titles, but it is up to Congress whether to formally enact those titles as so-called “positive law.” As *1631 noted, half of the titles of the U.S. Code (including important titles like Title 42, which contains the civil rights laws) have been organized by OLRC (or prior codifiers) but never formally enacted by Congress as positive law titles.

OLRC staff told us several times there is a “total lack of political will” to enact codification bills:

As noted earlier, ambiguities can have a variety of causes, intentional and unintentional. To the extent that cases identify the latter, they reinforce the need for greater attention to the nuances of legislative drafting. The statutory housekeeping mechanism could thus be of use to those within Congress concerned with improving the drafting process.

C. GAPS

A third way to reduce the federal workload is to reduce the scope of federal jurisdiction by eliminating unimportant categories of cases so that judges can devote more time to the cases that remain. The strong opposition to even the most modest recommendations of the Federal Courts Study Committee19 (with the consequent likelihood that only insignificant, technical recommendations will be enacted20) underscores the difficulty with this approach. There may be widespread support for reducing the scope of federal jurisdiction, but there are numerous ways to do this and strong opposition to each one. Because interest groups with narrow, focused demands can often overcome more diffuse support for broad reform,21 none of these solutions has been adopted. Hence, supporters of diversity jurisdiction argue that this jurisdiction is essential and suggest that Congress reduce the federal docket by repealing rights like those conferred in the Federal Employer's Liability Act22 and the Jones Act.23 Lawyers for railroad employees and seamen (and their unions) say that these rights are too important to abandon and recommend instead that Congress concentrate on reducing frivolous prisoner petitions. Civil rights advocates respond that prisoners must have access to federal courts and counsel Congress to eliminate diversity. And so the buck gets passed around and around; in the end nothing is done.24

*78 In any event, even if Congress could agree on what cases to remove from the federal docket, this would provide only a short-term solution. The federal docket necessarily evolves with the nation's substantive goals, and the business of the federal government changes too fast and is too controversial for federal jurisdiction to remain stable. No one foresaw in the 1850s that federal courts would be needed to protect myriad new federal rights by the end of the 1860s. No one thought in the years before the eighteenth amendment that a huge investment of federal judicial resources would be necessary to enforce Prohibition, just as no one foresaw when the amendment was ratified how short its life would be and how quickly this business would disappear. Of more recent vintage, I doubt that many people in the mid-1950s anticipated how important civil rights cases would become. And no one would have predicted as recently as five years ago that we would begin a “war on drugs” requiring a massive investment of federal judicial resources (just as no one can predict how long this demand will last). Our national priorities change so quickly that about the only thing of which we can be sure is that tomorrow's docket will look very different from today's. New laws will be enacted; unforeseen problems will arise; new accommodations will be required.

A legislative second view, set in motion by court decisions on unclear or incomplete congressional prescriptions, could advance the coherence of federal law far more effectively than a second chamber in the Supreme Court. The legislative review we have suggested entails a step less drastic than the creation of a new judicial tier. The second-look device, adequately staffed and diligently pursued by members of Congress, could conserve judicial resources within the federal court system. It could also spare judges some detective work and avoid or dissolve much intercourt conflict. The first branch ought at least to attempt conscientiously an in-house ‘second look at laws' by legislators before adding another rung to the federal judicial ladder.

The Intercircuit Panel has been promoted as a forum with auspicious potential to render federal law more coherent and less likely to generate litigation.99 Regarding congressional attempts to create such a tribunal, one might recall the moral of Maeterlinck's fantasy play about two children who journey afar in search of a wondrous Blue Bird: in the end, the youngsters discover that all along the bird remained caged in their very own home.100

Statutes eventually endorsed arbitration and defined its relation to the courts. The Federal Arbitration Act of 1925 (FAA)27 attempted to ‘revers e centuries of judicial hostility to arbitration agreements . . . and to place them ‘upon the same footing as other contracts.’'28 The FAA applies to contracts within the federal maritime and commerce powers and makes agreements to arbitrate ‘enforceable, save upon such grounds as exist at law or equity for the revocation of any contract.’29 The Act authorizes federal courts to compel arbitration30 and allows them to overturn awards only on very limited grounds, such as corruption of the arbitrator or the granting of an award in ‘manifest disregard of the law.’31

As arbitration became a familiar feature of commercial and labor practice, regularized by its own institutions and mores, courts were less likely to view it as unacceptable ‘rough justice.’ Recent Supreme Court *447 cases generally embrace arbitration.32 One likely explanation for this reversal is the judicial self-interest in reducing burdensome case loads. Many observers—including some federal judges—argue that the case load threatens the federal judiciary's capacity to perform essential functions.33 [FOOTNOTE 33 BEGINS] See, e.g., R. POSNER, THE FEDERAL COURTS: CRISIS AND REFORM 94-129 (1985) (reviewing the debilitating consequences of the ‘caseload explosion’ in the federal courts); Baker & McFarland, The Need for a New National Court, 100 HARV. L. REV. 1400, 1410-14 (1987) (proposing a new court to relieve the Supreme Court's work load); Ginsburg & Huber, The Intercircuit Committee, 100 HARV. L. REV. 1417, 1426-28 (1987) (arguing that elevation of the law-clarifying functions of the Office of Law Revision Counsel would render a new court unnecessary). [FOOTNOTE 33 ENDS] The search for case load solutions may skew legal doctrine,34 and one would expect the Court to err toward excessive receptivity to alternative fora so long as they do not displace the courts' most valued function of deciding major statutory and constitutional cases.

I. BACKGROUND ON 42 U.S.C. § 405(H) AND ITS ANALYTICAL FRAMEWORK: MEDICARE'S JURISDICTIONAL BAR ABSENT EXHAUSTION OF ADMINISTRATION REMEDIES

A. Section 405(h) and Its Legislative History