A.  The Contested Legitimacy of International Courts

The Max Planck Institute’s research on international judicial institutions as lawmakers, which was published in May as a special issue of the German Law Journal,  is an important contribution to the analysis of one of the most complex and controversial legal issues in our epoch.  In the last two decades, international adjudication has become a recurrent source of legal concern, and sometimes even a source of public concern. 

What is so singular about international adjudication in the current period?  An easy answer to this question is that there is a widely-shared perception that, since the last decade of the twentieth century, we have witnessed unprecedented growth in international litigation.  This change has not only inundated existing international judicial institutions with claims, often giving rise to complex disputes, but it also has promoted the creation of new dispute settlement bodies.  Still, it might be argued that the growth of litigation and the emergence of new institutions is not necessarily a cause for alarm.  First, such growth may merely signal a period of transition from one set of rules to another.  It takes time, in other words, to interpret the new rules and adjust the behavior of a more differentiated variety of players.  Second, the proliferation of international tribunals simply may be a consequence of the fact that international regulation has become pervasive.   There are functional reasons for this, an important one being the fact that many interests now require global standards, for example with respect to food safety and electronic communications.   This may explain why there is demand for more specialized bodies to adjudicate the disputes that arise from such regulation.  It might also explain why there are some connections between those bodies.   Third, the scenario is rounded out by...