The Yonkers Case: Separation of Powers as a Yardstick for Determining Official Immunity

The author examines the application of the official immunity doctrine to a situation where a federal district court issued contempt citations to local legislators in Yonkers who refused to pass legislation as required by a consent decree. The author argues that the function test for official immunity is by its very nature conclusory, and thus courts, in close cases, should use a separation of powers analysis to inform their application of the function test. Courts should deploy this separation of powers analysis by finding that where an official act was based on a mixture of powers, a rebuttable presumption should exist that the official was acting in an executive capacity and is only entitled to qualified immunity

Of executive preferences and societal constraints: the domestic politics of the transatlantic GMO dispute

When the transatlantic trade dispute over genetically modified organisms came to a boil in the late 1990s and early 2000s it was widely expected to be highly conflictual. The United States was, almost universally, expected to challenge fundamentally the European Union’s regulatory system for GMOs before the World Trade Organisation and was equally universally expected to win the case. The EU was widely, albeit not universally, expected to refuse to comply with the ruling. In keeping with most of the international political economy literature on trade disputes, both of these expectations were rooted in assessments of societal demands for action and resistance. Both expectations, however, were confounded; the US (and its co-complainants) filed a narrow challenge focusing on the EU’s failure to apply its own procedures; and the EU, somewhat falteringly, has resumed approvals of GMOs. Applying a two-level-game framework, this article argues that this relatively cooperative outcome is explained by the executives of both polities exercising their autonomy to pursue policies closer to the preferences of the other polity than their median domestic constituents would have preferred. This article, therefore, makes the case for taking government preferences and autonomy seriously when analysing the outcomes of trade disputes. Moreover, it emphasises that compliance with international rules engages with on-going internal policy processes and debate