This is from an article by Eric Posner and Glen Weyl:
Longstanding worries that judicial review interferes with democratic values, blocks publicly beneficial legislation, and can lead to backlash, have never gained a foothold.
The article as a whole is interesting, but I'm not going to talk about its main points. What struck me is that while the statement in this sentence is no doubt true in the domestic law context (certainly in the U.S., and I think many other places as well), in the international law context things are much less settled. In fact, when I look at the debate over ISDS, I think the core issue may be this exact issue: There are concerns that international judicial review through ISDS can interfere with democratic values and block publicly beneficial legislation. I can't see any way around the fact that it does the former (at least in the sense of being counter-majoritarian); the latter is more uncertain, depending in large part on the particular legal standards.
Not that it's easy to frame "international judicial review" as a subject that the media focuses on, but I'd really like to see the ISDS debate emphasize this issue more that it has.
