Who should make policy for America? Elected officials or unelected judges?

That argument is back, only this time, the legal game has gone global -- and trillions, not billions, of dollars are at stake.

The political history of the past 35 years has seen a backlash against judicial policymaking. That is, after activist courts issued liberal-left decrees on crime, welfare, school busing, abortion and affirmative action, the nation's voters, working mostly through the Republican Party, sought to undo those diktats.

This political counterrevolution has been substantially successful. In June, Mississippi's newly elected Republican governor, Haley Barbour, signed into law landmark tort reform, ending, it was hoped, his state's pariah status as the most anti-business, trial-happy venue in the country. More recently, John Edwards, the beau ideal trial lawyer turned politician, was retired from politics after an undistinguished vice presidential campaign that left observers concluding that his pose of millionaire populism rang false.

And at his press conference yesterday, President George W. Bush reiterated his support for Congressional anti-tort action, too, declaring that he wanted to see the national legal system "reformed in such a way that we're competitive in the world." Given that the Democrats in the forthcoming 109th Congress will no longer be led by Sen. Tom Daschle, the notorious filibusterer of litigation reform, there's reason to hope for a reduction in the $200 billion-a-year "tort tax."

However, the trial lawyers, entrepreneurial as always, have found new courts -- world courts -- to play in. And they have found allies among activists and fortune-hunters who dismiss traditional democracy and diplomacy in pursuit of their goals.

On Dec. 13, Unocal Corp. announced that it would settle a human-rights lawsuit "filed" by more than a dozen villagers in Myanmar (who alleged governmental human rights abuses were overlooked by the company). Of course, the lawyering was done by Westerners. That suit was filed under the Alien Tort Claims Act, enacted by Congress in 1789, written as an unremarkable statute to protect foreign diplomats inside the United States. The original authors had no idea that today wily attorneys would morph the Claims Act into a billion-dollar legal vehicle for international pettifoggery.

Terms of Unocal's settlement were not disclosed, but most likely the California-based oil company paid out a lot. "Major multinationals are terrified," said Susan Aaronson, director of the Kenan Institute's Washington Center for Globalization Studies, to the Los Angeles Times. Not all Americans, to be sure, are worried about the fate of multinational corporations, but they will likely learn to worry about their own jobs and pension funds if these lawsuits continue -- which, of course, they will.

Meanwhile, another legal bonanza is opening. On Dec. 15, the Inuit Circumpolar Conference, represented by Earthjustice International, announced that it would ask the Inter-American Commission on Human Rights (IACHR) to declare that emissions of "greenhouse gases" are a threat to the Inuit way of life.

What's the likely verdict of the suit? Here's a prediction: The IACHR will find the industrialized countries, particularly the United States -- which, of course, has not signed the Kyoto global warming treaty -- to be "guilty." And what will happen then? International lawyers, citing this decision, will storm courtrooms around the world, seeking damages totaling in the trillions. Another goal, of course, will be to force the United States to sign on to Kyoto -- which the Senate unanimously denounced in 1997.

Thus the irony: Americans have rejected costly, even tyrannical, judicial rule on the home front. But at the same time, while few paid attention, a new international legal front has opened up. And it could cost America far more, in terms of dollars spent and democratic freedom lost.