Search the archive.

Prophets of doom have been telling us for decades that a deadly new pandemic — of bird flu, of SARS or MERS coronavirus, and now of Ebola — is on its way. Why are we still listening? If you look back at the furor raised at many distinguished publications — Nature, Science, Scientific American, National Geographic — back in, say, 2005, about a potential bird flu (H5N1) pandemic, you wonder what planet they were on. Nature ran a special section titled — “Avian flu: Are we ready?” — that began, ominously, with the words “Trouble is brewing in the East” and went on to present a mock aftermath report detailing catastrophic civil breakdown. Robert Webster, a famous influenza virologist, told ABC News in 2006 that “society just can't accept the idea that 50% of the population could die. And I think we have to face that possibility.” Public health expert Michael T. Osterholm of the University of Minnesota, at a meeting in Washington of scientists brought together by the Institute of Medicine, warned in 2005 that a post-pandemic commission, like the post-9/11 commission, could hold “many scientists … accountable to that commission for what we did or didn't do to prevent a pandemic.” He also predicted that we could be facing “three years of a given hell” as the world struggled to right itself after the deadly pandemic. And Laurie Garrett, author of what must be the urtext for pandemic predictions, her 1994 book “The Coming Plague,” intoned in Foreign Affairs that “in short, doom may loom.” Although she followed that with “But note the may,” the article went on to paint a terrifying picture of the avian flu threat nonetheless. And such hysteria still goes on: Whether it's over the MERS coronavirus, a whole alphabet of chicken flu viruses, a real but not very deadly influenza pandemic in 2009, or a kerfuffle like the one in 2012 over a scientist-crafted ferret flu that also was supposed to be a pandemic threat. Along the way, virologist Nathan Wolfe published “The Viral Storm: the Dawn of a New Pandemic Age,” and David Quammen warned in his gripping “Spillover” that some new animal plague could arise from the jungle and sweep across the world. And now there's Ebola. Osterholm, in a widely read op-ed in the New York Times in September, wrote about the possibility that scientists were afraid to mention publicly the danger they discuss privately: that Ebola “could mutate to become transmissible through the air.” “The Ebola epidemic in West Africa has the potential to alter history as much as any plague has ever done,” he wrote. And Garrett wrote in Foreign Policy, “Attention, World: You just don't get it.” She went on to say, “Wake up, fools,” because we should be more frightened of a potential scenario like the one in the movie “Contagion,” in which a lethal, fictitious pandemic scours the world, nearly destroying civilization. But there were fewer takers this time. Osterholm's claims about Ebola going airborne were discounted by serious scientists, and Garrett seemingly retracted her earlier hysteria about Ebola by claiming that, after all, evolution made such spread unlikely. The scientific world has changed since 2005. Now, most scientists understand that there are significant physical and evolutionary barriers to a blood- and fluid-borne virus developing airborne transmission, as Garrett has acknowledged. Though Ebola virus has been detected in human alveolar cells, as Vincent Racaniello, virologist at Columbia University, explained to me, that doesn't mean it can replicate in the airways enough to allow transmission. “Maybe … the virus can get in, but can't get out. Like a roach motel,” wrote Racaniello in an email. H5N1, we understand now, never went airborne because it attached only to cell receptors located deep in human lungs, and could not, therefore, be coughed or sneezed out. SARS, or severe acute respiratory syndrome, caused local outbreaks after multiple introductions via air travel but spread only sluggishly and mostly in hospitals. Breaking its chains of transmission ended the outbreak globally. There probably will always be significant barriers preventing the easy adaptation of an animal disease to the human species. Furthermore, Racaniello insists that there are no recorded instances of viruses that have adapted to humans, changing the way they are spread. So we need to stop listening to the doomsayers, and we need to do it now. Predictions of lethal pandemics have — since the swine flu fiasco of 1976, when President Ford vowed to vaccinate “every man, woman and child in the United States” — always been wrong. Fear-mongering wastes our time and our emotions and diverts resources from where they should be directed — in the case of Ebola, to the ongoing tragedy in West Africa. Americans have all but forgotten about Ebola now, because most people realize it isn't coming to a school or a shopping mall near you. But Sierra Leoneans and Liberians go on dying.

For most of human history, natural pandemics have posed the greatest risk of mass global fatalities.37 However, there are some reasons to believe that natural pandemics are very unlikely to cause human extinction. Analysis of the International Union for Conservation of Nature (IUCN) red list database has shown that of the 833 recorded plant and animal species extinctions known to have occurred since 1500, less than 4% (31 species) were ascribed to infectious disease.38 None of the mammals and amphibians on this list were globally dispersed, and other factors aside from infectious disease also contributed to their extinction. It therefore seems that our own species, which is very numerous, globally dispersed, and capable of a rational response to problems, is very unlikely to be killed off by a natural pandemic.

One underlying explanation for this is that highly lethal pathogens can kill their hosts before they have a chance to spread, so there is a selective pressure for pathogens not to be highly lethal. Therefore, pathogens are likely to co-evolve with their hosts rather than kill all possible hosts.39

That’s part of the reason that climate scientists have criticized activist rhetoric that humans have until 2030 to stop dangerous climate change. Sure, it might soon be too late to meet some of our most ambitious climate goals, such as keeping warming to 1.5 degrees Celsius, yet any amount of action in the present will help create a less overheated planet in the future.

So is climate change an existential threat? According to the scientific definition, likely not. As far as scientists can predict, a warming planet won’t cause changes so severe that they threaten the survival of the entire human species. And there is evidence that some of our most pessimistic projections may be exaggerated (though a Hothouse Earth wouldn’t be so fun).

As for the struggle for women’s and gay rights, there is also no doubt the Supreme Court played a role. But the counterfactual is always: compared to what alternative method? Feminists abroad made greater strides than ever occurred in the United States without generalized recourse to judges, while there is no telling what democratic mobilization for gay rights would have gotten under its own power had not the Supreme Court intervened in Obergefell v. Hodges in 2015—without allowing conservatives to pose along the way as the best friends of democratic choice, as Justice Antonin Scalia did constantly, with Chief Justice John Roberts following suit in Obergefell itself.

The objection that there may be territories in the country that would surely reject abortion (as well as gay marriage) if it were opened to a vote is a serious one. But the Supreme Court has, as with school integration before it, already acted to allow those states to eliminate abortion (though not gay marriage) de facto. And the reactionary judicial power that liberals helped conjure does not respect the boundary between red and blue America. Bush v. Gore picked a catastrophic president for the whole country. In more recent years, Citizens United converted national elections into contests pitting oligarch-funded candidates against each other. Janus v. AFSCME pounded another nail in the coffin of public unions. And if a fair verdict on juristocracy is to be reached, it is also worth recalling when an empowered judiciary undermined democracy by failing to act, with the effect of ratifying a near monopoly of executive power on issues like securing the borders against immigrants and fighting enemies endlessly beyond them.

WASHINGTON — Long before President Trump nominated him for the Supreme Court on Monday, Judge Brett M. Kavanaugh had already made a name for himself as an influential conservative critic of sweeping environmental regulations.

During his 12 years on the United States Court of Appeals for the District of Columbia Circuit, often regarded as the nation’s second-most powerful court, Judge Kavanaugh voted in a number of high-profile cases to limit Environmental Protection Agency rules involving issues like climate change and air pollution. In two key instances, his arguments were later embraced by the Supreme Court.

The Second Circuit, in allowing the plaintiffs’ claim for an injunction to proceed, presumed that any reduction in carbon emissions, no matter how bluntly calibrated or poorly targeted, contributes in some measure, however small, to the overall project of reducing the long-term injurious consequences of climate change. That simply is not so. Wielding the sledgehammer of injunctive relief against arbitrarily selected groups of carbon emitters and producers is as likely to exacerbate as to ameliorate those injurious effects. For one thing, many climate change scholars have identified the phenomenon of “carbon leakage,” whereby poorly thought out carbon reductions in one section of the global economy result in increased emissions elsewhere, as fossil fuel price reductions, coupled with the tendency for global corporations to shift their bases of operations to avoid stringent regulation, spark rising energy consumption in other jurisdictions.38 Such leakage would exacerbate the injuries about which the plaintiffs complain since carbon emissions from non-defendants—even those halfway around the world—“cause” coastal erosion in exactly the same undifferentiated and attenuated manner as do carbon emissions from the defendants they have randomly targeted. Moreover, there are serious complexities involved in any process of carbon reduction, particularly with respect to the questions of how fast and how much. Slash emissions too fast or too far, and courts risk forcing industry to prematurely retire capital stock, “locking in” inferior technology as companies rush to innovate quickly enough to comply with short-term reduction requirements.39 Such a result would not only entail severe and irretrievable economic costs, but it would exacerbate the longrun harms of climate change by distorting the renewable energy market. On the other hand, slash emissions too little or too slowly, and courts do nothing to ameliorate climate change, while still shaping entitlements in a way that can only inhibit the emergence of any ultimate legislative solution.40 To ask a court to strike the right balance, given that even a stringent injunction will have no statistically significant impact on global temperatures, is to ask it to do the impossible.

Nonetheless, simply advancing the floodgates argument does not mean that judges are eschewing proper legal analysis in order to act in their self-interest. Rather, as Judge Posner put it, a consideration of this argument gives one pause to question its legitimacy vis-a-vis a court's control of its own caseload. 199Link to the text of the note The caseload pressures described [*406] in Part II only raise the stakes when caseload considerations are involved. 200Link to the text of the note

There are also questions of motivation. Judge Posner has noted that prior to the rise in caseloads, when judges invoked the floodgates argument, their "concern was seen as a thin excuse for not wanting to create new rights, since the judges knew nothing about the actual capacity of the judicial system, which was actually underutilized." 201Link to the text of the note A dissenting opinion often will accuse a majority of ruling out of a fear of excessive litigation. For example, in Scott v. Moore, 202Link to the text of the note Judge Wisdom writes for the dissenters that the "majority opinion is, regrettably, a subterfuge to avoid opening the floodgates of litigation." 203Link to the text of the note

This does not leave the courts defenseless against the rising tide, however; they have many tools besides substantive law with which to keep themselves afloat. Perhaps most prominently, both the district courts and the courts of appeals can avail themselves of various procedural rules to help cope with, and indeed limit, their dockets. Most plainly, the Federal Rules of Civil Procedure employ what have been called three basic pretrial “discouragement mechanisms.”311 The first mechanism is the pleading stage itself, with the possibility for a motion to dismiss. Although pleadings obviously have several purposes, scholars have come to identify a significant one as “allowing a court to screen cases for merit.”312 At this juncture, courts can siphon off some of the frivolous cases that come before them. The second mechanism is summary judgment. The main goal of Rule 56 has been said to be “filtering out cases not worthy of trial,”313 and that rule is now regarded as a “powerful tool for judges to control dockets.”314 A third mechanism is the possibility of Rule 11 sanctions, which were developed to “punish lawyers for advancing meritless contentions that wasted the courts’ attention”315 and to deter such litigation from coming into court in the first place.316 In short, the district courts have at their disposal several critical procedural rules that have been fashioned, at least in part, so that district courts can more quickly dispose of frivolous filings and streamline the litigation process more generally.

Many of the mechanisms that exist at the district court level have analogues at the courts of appeals. Through the Federal Rules of Appellate Procedure, the circuit courts have several key ways to manage their dockets and reduce the time taken by frivolous filings. Rule 34 permits appeals courts to decide cases without oral argument317—a powerful time-saving mechanism.318 Additionally, courts of appeals can rely on staff attorneys to help draft summary dispositions.319 Finally, per Rule 38, if a court of appeals determines that a particular filing was frivolous, the court can award damages and costs to the appellee.320

First, as previously discussed, there is reason to be skeptical about the efficacy of the CAP rule in terms of reducing the overall number of cases in the federal courts. 315 Moreover, in addition to the fact that the CAP rule likely does little to reduce the overall number of opportunities for federal courts to judge the behavior of coordinate branches, there is reason to [*1007] believe that the opening-the-floodgates worry itself is overblown. 316 Not only is the floodgates argument in support of the CAP rule lacking in empirical support, 317 but it may also be lacking in a clear, germane, and substantive content when used by various members of the Court. 318F or example, Professor Marin Levy has observed that "recent cases show the justices vacillating between providing assurances that their decision will not result in a deluge of new claims, and accusing each other of being driven by an improper desire to stave off such a deluge." 319 The floodgate alarm has been used in diverse and internally inconsistent contexts without the mooring benefit of evidentiary support, such that it has taken on more the character of epithet than of a serious constitutional obstacle. 320Justice Ginsburg, writing in dissent, has succinctly summarized this development, stating: "The 'floodgates' argument the Court today embraces has been rehearsed and rejected before." 321 The fact that the floodgate rationale is frequently used to support both sides of a contested determination by the Court suggests that it may lack a stable normative content. 322 The floodgate rationale is, at heart, a prediction about how future litigants will behave if the Court adopts a new rule. Yet the ordinary norms of prediction with their attendant empirical safeguards seem not to obtain. 323 Those invoking the floodgate alarm have not felt [*1008] obliged to supply evidence of past instances in which the federal courts were in fact "flooded" as the result of similar rule changes, and that the Federal Rules of Civil Procedure were inadequate to address the "flood." 324 Given that members of the Court have so frequently predicted a litigatory deluge as a consequence of a rule change, it would seem a simple matter to confirm that a deluge has, in fact, occurred. 325 However, evidence of past flooding has yet to emerge within the floodgate discourse. 326

It is possible that the reason that the floodgate worry has not been documented may be because it has yet to come to pass. There is ample reason to believe that the Federal Rules of Civil Procedure are generally commensurate to the task of qualitatively stemming the tide of litigation. 327 The Federal Rules of Civil Procedure are designed to weed out duplicative, harassing, frivolous, and meritless cases. 328While no standing rule - including the CAP rule - prevents nonmeritorious cases from being filed in federal court, such cases are generally resolved on a Rule 12(b)(1) motion to dismiss. 329The Rule 12(b)(1) motion to dismiss is also the first opportunity during which a defendant can challenge standing. 330There is no strategic advantage to [*1009] defendants - in terms of the expenditure of resources - to having a case dismissed for want of standing as compared to any other grounds for dismissal under Rule 12(b)(1). 331Likewise, doctrines and mechanisms designed to conserve both judicial and defendant resources, such as claim preclusion, issue preclusion, abstention, joinder, and case consolidation, all operate to prevent horizonal lawsuits alleging the same nexus of operative facts from going forward simultaneously in multiple district courts - a point that is especially important in the emoluments context where presumably any citizen suit would allege the same operative facts. 332

On the other side, proponents of PERA argue that it addresses three key problems with Alice/Mayo. First, they assert that the Alice/Mayo test is vague and unpredictable, which hampers start-ups, reduces investment, and ultimately undermines innovation. Kimberly A. Moore, chief judge of the U.S. Court of Appeals for the Federal Circuit, expressed that Federal Circuit judges were “at a loss” in how to apply the current patent eligibility provisions. Some IP legal professionals claim that they are unable to provide clear guidance to businesses due to Alice/Mayo. Legal uncertainty ultimately hampers economic activity, and uncertainty in patent eligibility may lead investors to avoid companies with patents in fields strongly impacted by Alice/Mayo such as life sciences and information technology.

Second, proponents of PERA argue that Alice/Mayo unduly restricts what is patent-eligible. In the biotechnology industry for instance, stakeholders contend that Alice/Mayo constrains their capacity to secure patents for diagnostic methods and personalized medicine, ultimately reducing the economic viability of developing these new technologies. Further, some of the subject matter rendered unpatentable by Alice/Mayo is patent-eligible in Europe, China, and other jurisdictions, potentially diverting R&D investment away from the United States and undermining the competitiveness of U.S. businesses.

Now, it is important to recognize that counseling Courts against considering caseload volume in this kind of decision making does not mean that there is no recourse when it comes to docket concerns. Our system provides several ways to relieve caseload pressure short of the courts not recognizing causes of action or deciding not to hear particular sets of cases. Specifically, our constitutional system gives Congress the authority to adjust laws so as to stem that flow.305 And Congress has indeed exercised that power. As noted earlier, Congress passed the Supreme Court Case Selections Act306 to alleviate the Court’s then “unmanageable workload” by eliminating most of the Court’s mandatory jurisdiction.307 With respect to the rest of the federal court docket, Congress has repeatedly enacted targeted legislation to reduce frivolous filings. For example, Congress passed the PLRA precisely as a way of “addressing a flood of prisoner litigation in the federal courts.”308 Similarly, part of the purpose of the Private Securities Litigation Reform Act of 1995309 was to limit frivolous securities claims.310 This is not to suggest that Congress could not do more in this vein; rather the point is simply that there is still a branch of government that has the clear authority to take the courts’ caseload into account in substantive decision making and has done so repeatedly in the past.

Daniel Marques Golodne and Alexandre Sousa da Silva, “Managing patent examiners’ workload by using patent application volume data,” World Patent Information, 03-xx-2022, https://www.sciencedirect.com/science/article/pii/S0172219022000023#!

Since the early 1980's, the amount of patent applications filed in several jurisdictions has been steadily and drastically increasing, resulting in a marked increase in the number of unexamined applications (the so-called backlog) in every patent office [1]. The workload in each office might be considered one of the key indicators affecting the overall quality of patent systems [2].

Federal question filings held steady, growing less than 1 percent to 131,658.

Prisoner petitions increased 7 percent (up 2,490 petitions) as petitions involving civil rights grew 10 percent (up 1,744) to 18,488.

As the coronavirus shifted from distant possibility to dire reality in March 2020, chief judges in federal courts nationwide acted quickly to stem its spread.

Chief U.S. District Judge James Bredar reluctantly suspended nonemergency hearings and canceled jury trials in Maryland only after its governor announced he was activating the National Guard and closing public schools. At the same time though, Judge Bredar worried his order curtailing court operations would run afoul of criminal defendants' constitutional rights and lead to a caseload clog.

The backlog of criminal cases in Washington County is so bad that it could take 15 years to resolve it, according to one lawyer’s calculations. Other counties, especially Penobscot, Piscataquis and Waldo, have also seen large increases in the backlog of criminal cases awaiting resolution in court in recent years.

There are a number of reasons for the growing backlog. Courts were closed for months and their operations were restricted because of the COVID pandemic. Maine has a chronic shortage of court-appointed defense attorneys for low-income defendants. There is a shortage of judicial marshals, who are needed to provide security in courtrooms.

As of August 1, President Biden has fallen behind his predecessor on the number of federal court vacancies he has filled. President Biden has had 140 federal judges confirmed thus far, whereas former President Trump had had 144 judges confirmed by the end of July of his third year.

This lag is disappointing from a White House and Senate that have taken pride in exceeding the pace of judicial confirmation set by the previous administration. However, with 31 judicial nominees pending with the Senate, it is hard to blame the White House for this undesired milestone. President Biden falling behind Trump is predominantly the result of the Senate majority deprioritizing judges since November of last year. There remains an opportunity, albeit an up-hill one, for President Biden and the Senate to exceed the 187 judges that Trump had confirmed by the end of his third year, but it will require a much more concerted commitment by the Senate between now and the end of the year.

Still reeling from the COVID-19 pandemic, court systems in many states are working to clear their case backlogs.

Some court systems have moved cases faster using virtual court proceedings, court data dashboards and online jury selection. In other states, lawmakers are stepping in.

The unique nature of terrorism means that maintaining the appearance of justice and democratic legitimacy will be much more important than in past wars. The terrorist threat is in a perpetual state of mutation and adaptation in response to government efforts to oppose it. The war on terrorism more closely resembles the war on drugs than World War II; it is unlikely to have any discernable endpoint, only irregular periods of calm. The French experience shows that ad-hoc anti-terrorist measures that have little basis in societal values and shallow support in public opinion may wither away during the periods of calm. In the U.S., there is an enormous reservoir of legitimacy, established by over 200 years of history and tradition, in the judiciary. That reservoir represents an important asset that the U.S. government can profit from to maintain long-term vigilance in this type of war. Despite the unusual opportunity for innovation afforded by the crisis of September 11, the U.S. government has not tried to reform American judicial institutions to enable them to meet the threat of terrorism. To prevent the next wave of attacks, however far off they might be, and to avoid re-inventing a slightly different wheel each time will require giving life to institutions that can persist and evolve, even in times of low terrorist activity. Given the numerous differences between the two countries, the U.S. cannot and should not simply import the French system, but it can learn from their mistakes. Their experience suggests a few possible reforms: • A specialized U.S. Attorney tasked solely with terrorism cases and entirely responsible for prosecuting such cases in the U.S. • Direct and formal links between that U.S. Attorney’s office and the various intelligence agencies, allowing prosecutors to task the intelligences agencies during judicial investigations • Special procedures for selecting and protecting juries in terrorism cases and special rules of evidence that allow for increased protection of classified information in terrorist cases Creating a normal, civilian judicial process that can prosecute terrorists and yet retain legitimacy is not merely morally satisfying. It may also help to prevent terrorist attacks in the long run. Not incidentally, it would demonstrate to the world a continuing faith in the ability of democratic societies to manage the threat of terrorism without sacrificing the very values they so desperately desire to protect.

So did another unhealthy trend, deplored in a Feb. 16 ABA task force report titled ''The Federalization of Criminal Law.'' The 16-member panel was headed by Meese, who is more used to being a punching bag for the liberal-leaning legal establishment than a spokesman for it. He lends bipartisan heft to the ABA report's long-overdue conclusions.      There was only perfunctory media attention to the ABA report because this is bland stuff: no charges of racism or ''sexual McCarthyism,'' no summons to yet another war on drugs, no purple prose.      Still, the message is worthwhile. Although crime rates have fallen, the ABA report explains, the proliferation of new federal criminal prohibitions deserves none of the credit: ''There is no persuasive evidence that federalization of local crime makes the streets safer for American citizens.'' This is because the properly limited (albeit rapidly expanding) number of federal law enforcement officials can conduct only about 5 percent of all prosecutions.      At the same time, federalization does subtle but pervasive damage: It gives federal prosecutors too much inherently arbitrary and unreviewable discretion to focus on a tiny percentage of all possible targets; it clogs federal courts with garden-variety criminal cases, diverting them from national problems such as international terrorism, espionage, bribery of federal officials, big antitrust cases, white-collar fraud, and multistate drug conspiracies; it disrupts the federal-state balance; it moves the nation ''rapidly toward two broadly overlapping, parallel, and essentially redundant sets of criminal prohibitions, each filled with differing consequences for the same conduct.''

Looking at today's problem through the lens of our great constitutional experiment, it emerges that there is no single, enduring answer to which way the Constitution should be oriented, inward or outward. The truth is that we have had an inward- and outward-looking Constitution by turns, depending on the needs of the country and of the world. Neither the text of the Constitution, nor the history of its interpretation, nor the deep values embedded in it justify one answer rather than the other. In the face of such ambiguity, the right question is not simply in what direction does our Constitution look, but where do we need the Constitution to look right now? Answering this requires the Supreme Court to think in terms not only of principle but also of policy: to weigh national and international interests; and to exercise fine judgment about how our Constitution functions and is perceived at home and abroad. The conservative and liberal approaches to legitimacy and the rule of law need to be supplemented with a healthy dose of real-world pragmatism. In effect, the fact that the Constitution affects our relations with the world requires the justices to have a foreign policy of their own. On the surface, it seems as if such inevitably political judgments are not the proper province of the court. If assessments of the state of the world are called for, shouldn't the court defer to the decisions of the elected president and Congress? Aren't judgments about the direction of our country the exclusive preserve of the political branches? Indeed, the Supreme Court does need to be limited to its proper role. But when it comes to our engagement with the world, that role involves taking a stand, not stepping aside. The reason for this is straightforward: the court is in charge of interpreting the Constitution, and the Constitution plays a major role in shaping our engagement with the rest of the world. The court therefore has no choice about whether to involve itself in the question of which direction the Constitution will face; it is now unavoidably involved. Even choosing to defer to the other branches of government amounts to a substantive stand on the question. That said, when the court exercises its own independent political judgment, it still does so in a distinctively legal way. For one thing, the court can act only through deciding the cases that happen to come before it, and the court is limited to using the facts and circumstances of those cases to shape a broader constitutional vision. The court also speaks in the idiom of law -- which is to say, of regular rules that apply to everyone across the board. It cannot declare, for instance, that only this or that detainee has rights. It must hold that the same rights extend to every detainee who is similarly situated. This, too, is an effective constraint on the way the court exercises its policy judgment. Indeed, it is this very regularity that gives its decisions legitimacy as the product of judicial logic and reasoning. Why We Need More Law, More Than Ever So what do we need the Constitution to do for us now? The answer, I think, is that the Constitution must be read to help us remember that while the war on terror continues, we are also still in the midst of a period of rapid globalization. An enduring lesson of the Bush years is the extreme difficulty and cost of doing things by ourselves. We need to build and rebuild alliances -- and law has historically been one of our best tools for doing so. In our present precarious situation, it would be a terrible mistake to abandon our historic position of leadership in the global spread of the rule of law. Our leadership matters for reasons both universal and national. Seen from the perspective of the world, the fragmentation of power after the cold war creates new dangers of disorder that need to be mitigated by the sense of regularity and predictability that only the rule of law can provide. Terrorists need to be deterred. Failed states need to be brought under the umbrella of international organizations so they can govern themselves. And economic interdependence demands coordination, so that the collapse of one does not become the collapse of all. From a national perspective, our interest is less in the inherent value of advancing individual rights than in claiming that our allies are obligated to help us by virtue of legal commitments they have made. The Bush administration's lawyers often insisted that law was a tool of the weak, and that therefore as a strong nation we had no need to engage it. But this notion of ''lawfare'' as a threat to the United States is based on a misunderstanding of the very essence of how law operates. Law comes into being and is sustained not because the weak demand it but because it is a tool of the powerful -- as it has been for the United States since World War II at least. The reason those with power prefer law to brute force is that it regularizes and legitimates the exercise of authority. It is easier and cheaper to get the compliance of weaker people or states by promising them rules and a fair hearing than by threatening them constantly with force. After all, if those wielding power really objected to the rule of law, they could abolish it, the way dictators and juntas have often done the world over.