Choice of Law as Extraterritoriality

This contribution to Resolving Conflicts on the Law: Essays in Honour of Lea Brilmayer (published under the title Choice of Law as Geographic Scope Limitation) argues that the choice-of-law question commonly addressed by state and foreign courts is conceptually identical to the question addressed by federal courts in determining whether a federal statute applies to a dispute having foreign elements. The latter question is clearly understood today to relate to the statute’s territorial scope. State courts have long conceptualized the choice-of-law question in the same way. Faced with a state statute addressing the issue before it and phrased in all-encompassing terms, the courts assume that the legislature did not intend to legislate for the whole world. They assume that the legislature enacted the statute with the purely domestic case in mind, with the understanding that cases with foreign elements will be addressed through the application of prevailing choice-of-law rules. A state’s choice-of-law rules thus operate as background principles of interpretation to determine the territorial reach of state law, just as federal extraterritoriality doctrine operates as a background principle of interpretation for federal statutes. Although this understanding of choice-of-law rules has a long pedigree, it has not been universally embraced. In particular, influential scholars have developed a two-step theory of choice of law, under which only the principles that courts apply at the first step address the law’s territorial scope. If these first-step rules yield the conclusion that more than one state’s laws extend to the case at hand, the courts resolve this conflict at the second step by applying “rules of priority.” The latter rules, according to the two-step theorists, do not address the law’s reach; rather, they empower the courts under specified circumstances to decline to apply the forum’s concededly applicable law in favor of another state’s law. The distinction is important for two-step theorists, as they maintain that other states are required to give effect to step-one rules that render the state’s law inapplicable to the case at hand, but are under no obligation to give effect to a state’s step-two rules, even if they would lead the courts of that state not to apply the state’s law to the case at hand. This essay questions the claim that step-one rules operate as limitations on a law’s territorial but step-two rules do not. Either both operate as territorial scope limitations or neither does. The essay goes on to agree with the two-step theorists that step-two rules are not binding on the courts of other states, while disagreeing with their contention that step-one rules are binding on other states. The final section considers whether the conclusion that neither category of choice-of-law rules is binding on other states means that choice-of-law rules do not in fact operate as limitations on a law’s territorial scope, and offers two alternative conceptualizations of choice-of-law rules that would explain the freedom of sister states to disregard them

Things We Do with Presumptions: Reflections on \u3ci\u3eKiobel v. Royal Dutch Petroleum\u3c/i\u3e

The author argues in part I that the presumption should be regarded as categorically inapplicable to statutes conferring jurisdiction on the federal courts. He argues further that the majority opinion in Kiobel supports the conclusion that the presumption is inapplicable to such statutes. It is clear from the Court’s opinion that it was not applying the presumption to determine the geographical scope of the ATS qua jurisdictional statute. It was instead applying the presumption to determine the geographical scope of the federal common law cause of action it had recognized in Sosa v. Alvarez-Machain. Even when the presumption against extraterritoriality is applicable, courts will not always conclude that the statute does not apply extraterritorially. Although the courts presume that Congress meant for the statute to apply only domestically, that presumption can be rebutted or overcome. The usual way in which the presumption can be rebutted or overcome is through sufficient evidence that Congress meant for the statute to apply extraterritorially. In some cases, the Court has focused exclusively on the statute’s text, suggesting that the presumption against extraterritoriality is a clear statement rule that can be overcome only by clear statutory language. But, in Morrison v. National Australia Bank Ltd., the Court recognized that “context” can be taken into account as well. And, in Kiobel, the Court recognized that a statute’s “historical background” might also “overcome” the presumption. These methods of rebutting or overcoming the presumption are discussed in part II. When a court finds the presumption applicable and not rebutted or overcome, it must determine whether the statute applies to the particular case before it. As the Court recognized in Morrison, a non-extraterritorial statute might reach a case based on conduct that is partly foreign and partly domestic. Applying the presumption in such a case, the Court explained, requires identification of “the ‘focus’ of congressional concern” under the relevant statute. If the statute is non-extraterritorial, the conduct that was the focus of congressional concern must have occurred in the United States. When a court determines the statute’s applicability to the facts of a particular case, it might be said to be determining whether the presumption has been satisfied in the particular case. How to satisfy the presumption is discussed in part III. The Court in Kiobel may have recognized a fourth thing that might be done with the presumption against extraterritoriality: the presumption might in certain circumstances be displaced. The majority used this term in the final paragraph of its opinion, a paragraph that has generated much debate about what sorts of questions the Court left open in Kiobel. The Court wrote that “even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.” The Court may have been using the term to refer to the issue I have refer to as the “satisfying” of the presumption. There is also some basis, however, for understanding the Court to have left open the possibility that the presumption might be inapplicable or rebutted with respect to some claims brought under the ATS for violations of customary international law. What the Court meant by “displacing” the presumption is the subject of part IV

\u3ci\u3eBreard\u3c/i\u3e and the Federal Power to Require Compliance with ICJ Orders of Provisional Measures

Among the puzzling aspects of the Breard episode was the Clinton administration\u27s claim that the decision whether or not to comply with the Order of the International Court of Justice requiring the postponement of Breard\u27s execution lay exclusively in the hands of the Governor of Virginia. The ICJ\u27s Order provided that [t]he United States should take all measures at its disposal to ensure that Angel Francisco Breard is not executed pending the final decision in these proceedings. The Clinton administration argued that the Order was not binding, but it also took the position that, even if the order were binding, there would be no authority in the federal Government to require a postponement of the execution

Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties

Courts in recent years have perceived threshold obstacles to the enforcement of treaties deriving from their nature as contracts between nations that generally depend for their efficacy on the interest and honor of the parties, rather than on domestic adjudication. This approach to treaty enforcement is in tension with the Constitution’s declaration that treaties are part of the law of the land and its instruction to judges to give them effect. The Founders understood that treaties depended on interest and honor on the international plane, but they made treaties enforceable in our courts anyway in order to avoid the international friction that could be expected to result from treaty violations and to capture the benefits of a reputation for treaty compliance. The Supremacy Clause gives treaties a domestic judicial sanction that they would otherwise lack. It makes treaties enforceable in the courts in the same circumstances as the other two categories of norms specified in the clause—federal statutes and the Constitution itself. The sole exception to this rule is for treaties that are non-self-executing in the sense contemplated by the Court in Foster v. Neilson. The concept of a non-self-executing treaty fits uneasily with the Supremacy Clause, as reflected in the common but untenable view that non-self-executing treaties lack the force of domestic law. According to Foster, a non-self-executing treaty is not enforceable in the courts because it is addressed to the political branches. But determining which treaties are so addressed has been challenging. Treaties generally leave the question of domestic implementation to the domestic laws of the states-parties, and our domestic law (the Supremacy Clause) directs judges to give them effect. The author argues that the Supremacy Clause establishes a default rule that treaties are directly enforceable in the courts like other laws, rebuttable only by a clear statement that the obligations imposed by the treaty are subject to legislative implementation. If the stipulation had to appear in the text of the treaty, the clear statement rule would present problems for U.S. treaty makers seeking to control the domestic consequences of multilateral treaties. To address this problem, the treaty makers have developed a new form of clear statement, the “declaration” of non-self-execution. However, scholars have questioned the compatibility of such declarations with the Supremacy Clause. The author concludes that the treaty makers have the power to limit the domestic effects of treaties through declarations of non-self-execution. On the other hand, if the Constitution were understood to establish a default rule of non-self-execution, declarations of self-execution would stand on more tenuous ground. Thus, a default rule of self-execution is not only more consistent with the constitutional text and structure and with Supreme Court precedent, it is also normatively attractive because it leaves the treaty makers with the power to control the domestic consequences of the treaties they conclude

Habeas as Forum Allocation: A New Synthesis

The scope of habeas relief for state prisoners, especially during the decades before the Supreme Court’s 1953 decision in Brown v. Allen, is a famously disputed question – one of recognized significance for contemporary debates about the proper scope of habeas review. This Essay provides a new answer. It argues that, until the enactment of AEDPA in 1996, state prisoners were always entitled to de novo review of the legal and mixed law/fact questions decided against them by the state courts. Until 1916, such review was provided by the Supreme Court; after 1953, such review was provided by the lower federal courts via habeas. The situation between 1916 and 1953 was murkier. This Essay shows that this was a transitional period marked by disagreement among the Justices as to the appropriate federal forum to review state court decisions resulting in custody. At the beginning of this period, a majority of Justices continued to insist that the responsibility rested with Supreme Court. Towards the end of this period, the Court shifted this responsibility to the habeas courts as a majority of Justices came to recognize that the Court could no longer hope to monitor state court criminal convictions. The Justices during this period agreed that federal review of state court convictions was necessary but disagreed about which federal court should provide such review. The scope of habeas jurisdiction during this period, as before and after, reflected the Justices’ views about the proper allocation of jurisdiction among federal courts to review the state courts’ decision of constitutional questions arising in criminal cases resulting in custody

AEDPA as Forum Allocation: The Textual and Structural Case for Overruling \u3cem\u3eWilliams v. Taylor\u3c/em\u3e

In Williams v. Taylor, the Supreme Court read a section of the Anti- Terrorism and Effective Death Penalty Act (AEDPA) to change the long-prevailing de novo standard of review of federal habeas petitions by state prisoners. In holding that Congress had denied the lower federal courts the power to grant habeas relief to prisoners in custody pursuant to wrong but reasonable state court decisions, the Court departed from the provision’s text and relied instead on its perception of a generalized congressional purpose to cut back on habeas relief and on the non-redundancy canon of statutory construction. On both scores, the minority opinion had the better argument. Moreover, both opinions overlooked legislative history strongly supporting the conclusion that Congress did not intend to change the standard of review. The case for reading the provision as requiring a departure from the well-established standard of review was thus remarkably weak. Even if the support for the holding had been stronger, however, the Court should have rejected such a reading for a reason considered by neither opinion: under the majority’s interpretation, the provision allocates federal jurisdiction over the relevant cases in a highly dysfunctional manner. AEDPA (as construed in Williams) does not prohibit all federal courts from granting relief to state prisoners convicted pursuant to wrong but reasonable state court decisions. Had it done so, it would have raised serious constitutional issues. Instead, the statute leaves it to the Supreme Court to review state court criminal convictions for such errors. But allocating this role to the Supreme Court today makes little sense. Precedent and principle support judicial resistance to interpretations of jurisdictional statutes that produce such dysfunctional allocations of judicial power. The Court should reverse Williams at its earliest opportunity. Pending such reversal, the Court should grant review of at least some allegedly “wrong but reasonable” state court convictions in order to vindicate the liberty interests of state prisoners who would not be in custody had those precedents been properly applied and to protect its precedents requiring the reversal of convictions infected with non- harmless constitutional errors

Withdrawing from International Custom: Terrible Food, Small Portions

Curtis A. Bradley and Mitu Gulati’s Withdrawing from International Custom brings to mind the old joke recounted by Woody Allen in Annie Hall: “Two elderly women are at a Catskill mountain resort, and one of ’em says, ‘Boy, the food at this place is really terrible.’ The other one says, ‘Yeah, I know; and such small portions.’” Similarly, while Bradley and Gulati attack international law’s current prohibition of unilateral withdrawal from custom, they propose an alternative that differs only modestly from it (small portions). At the same time, the doctrinal change they propose would take customary international law in the wrong direction, diminishing its value to states as a mechanism to address common problems (terrible food). If the goal is, as the authors say, to strengthen rather than bury customary international law, the authors have come up with the wrong recipe. Under the prevailing approach to withdrawal from custom, which the authors denominate the “Mandatory View,” states may exempt themselves from a rule of customary international law by persistently objecting to the rule while it is in the process of forming. Once the rule has come into being, however, states that have not persistently objected are bound until the rule dissolves through a multilateral process. Bradley and Gulati propose to replace the Mandatory View with the “Default View,” which would recognize a limited right of states to withdraw unilaterally from some rules of customary international law. Part I of this essay considers how the Mandatory View actually differs from the authors’ proposed Default View. Section I.A examines the limitations of the Default View: some that Bradley and Gulati accept, some that they are willing to entertain and seem necessary, and some that they do not address but seem implicit in their proposal. Section I.B considers some aspects of the Mandatory View, as it actually operates, that render it less unlike the Default View than the authors suggest. Part I concludes that, taking account of the limitations of the Default View and the aspects of the Mandatory View discussed below, the doctrinal change the authors propose is less dramatic than they suggest. Part II offers two reasons for believing that the modest doctrinal change that Bradley and Gulati propose would significantly diminish the value of customary international law as a mechanism for regulating state behavior. First, adoption of the Default View would weaken customary international law by increasing its indeterminacy and complexity. Because customary international law is unwritten and lacks a centralized mechanism of enforcement and dispute resolution, it depends to a significant degree on the clarity and simplicity of its rules for its efficacy. Customary international law already fares poorly in this respect, but the Default View would make a bad situation worse by making the applicability of its rules subject to indeterminate limitations and qualifications. If exercised, moreover, the right to unilateral withdrawal would produce an extremely complex web of relationships among the nations of the world. This added indeterminacy and complexity would weaken the norms’ pull toward compliance and in turn reduce the norms’ value to states. Second, the Default View would reduce any given state’s incentive to comply with norms of customary international law by introducing uncertainty about how long other states will be bound by the norm. Acceptance of a norm of customary international law has value to states as a form of precommitment. Adding an option of unilateral withdrawal reduces the value of the norm to states by weakening the level of other states’ commitment. A state that acquiesces in a new norm of customary international law agrees to subordinate its own short-term interest in deviating from the norm because it believes it will benefit over the long term if other states do the same. Each state’s compliance is thus an investment that it expects to pay off over the long term. Giving states the option of unilateral withdrawal would reduce the expected long-term payoff, which in turn would make states less likely to make the investment in the first place. Thus, under the Default View, new norms of customary international law are less likely to get off the ground. Bradley and Gulati express the hope that their proposal will prompt useful reflection about this particular feature of modern customary international law. They have clearly achieved this goal, but, for this reader, reflection has confirmed the wisdom of the prevailing view

W(h)ither \u3ci\u3eZschernig\u3c/i\u3e?

The author argues here that a declaration of victory by the critics of the dormant foreign affairs doctrine would be premature. Notwithstanding the Court\u27s citation of Ashwander v. TVA, the actual grounds of the decision in Crosby were in no meaningful sense less constitutional in nature than a decision based on the dormant foreign affairs power would have been. Moreover, even though the Court said that its decision was based on a straightforward application of settled ... implied preemption doctrine, the Court\u27s preemption analysis was anything but ordinary. Indeed, Crosby\u27s version of preemption analysis is subject to the same sorts of objections that Zschernig\u27s critics have directed at the dormant foreign affairs doctrine. Moreover, if the case were taken as a model for deciding issues of preemption in purely domestic cases, it would be anything but narrow. The decision would be narrow only if its approach to preemption were confined to suits implicating foreign relations. But then the decision would be exceptionalist, and the Court\u27s holding would begin to resemble a decision on dormant foreign affairs grounds. The author suggests here that Crosby\u27s approach to preemption was so extraordinary that it would have yielded the same conclusion with respect to the Massachusetts Burma Law even if there had been no Federal Burma Law. Crosby thus offers little cause for celebration to the critics of dormant foreign affairs doctrine. Part I of this article describes the Zschernig decision and explains how the lower courts in Crosby relied on it in striking down the Massachusetts Burma Law. Although the Supreme Court in Crosby avoided that seemingly constitutional issue in favor of a purportedly sub-constitutional preemption holding, Part II of this article argues that there is less of a difference than may at first appear between a holding based on the dormant foreign affairs doctrine and one based on obstacle preemption. Both are sub-constitutional in all relevant respects, and obstacle preemption is in any event vulnerable to the same criticisms that have been leveled at the dormant foreign affairs doctrine. Part III argues that Crosby perpetuates foreign affairs exceptionalism. Part III(A) contrasts the Crosby decision with the Court\u27s recent constitutional federalism decisions and speculates that the implications of the latter cases may have been overlooked in Crosby because the case was perceived primarily as a foreign affairs case. Part III(B) looks more closely at the reasons the Court gave in Crosby to justify its preemption holding and argues that they were so extraordinarily conducive to a finding of preemption that they would have yielded the invalidation of the Massachusetts Burma Law even if there had been no Federal Burma Law. Part IV considers the recent academic critiques of the Zschernig doctrine and concludes that they justify at most a modest reformulation, but not the abandonment, of the dormant foreign affairs doctrine. The author suggests that the Crosby decision would have rested on sounder, and narrower, grounds if the Court had interpreted Zschernig to stand for the proposition that state laws are invalid if they single out a state or a group of states, or their nationals or those who deal with them, for unfavorable treatment

Sovereign Immunity, Due Process, and the \u3ci\u3eAlden\u3c/i\u3e Trilogy

In Alden v. Maine, the Court held that the principle of sovereign immunity protects states from being sued without their consent in their own courts by private parties seeking damages for the states\u27 violation of federal law. The Court thus rejected the forum allocation interpretation of the Eleventh Amendment, under which the Amendment serves merely to channel suits against the states based on federal law into the state courts, which are required by the Supremacy Clause to entertain such suits. The Court held instead that the Eleventh Amendment protects the states from being subjected to private damage liability by Congress acting through Article I. On the same day, however, the Court appeared to resurrect the forum allocation interpretation of the Eleventh Amendment with respect to a subset of federal laws: those that establish rights that constitute property or liberty within the meaning of the Fourteenth Amendment\u27s Due Process clause. The Court in Florida Prepaid v. College Savings Bank affirmed that patents are property and that a state violates the Due Process clause when it deprives persons of such property without affording them an adequate compensatory remedy. The extent to which the Due Process principle articulated in Florida Prepaid undoes the sovereign immunity principle articulated in Alden depends on the breadth of the concepts of property and liberty. Although the third case in the Alden trilogy, College Savings Bank v. Florida Prepaid, makes it clear that not all federal rights are property for purposes of the Due Process clause, other cases, which the Court did not reject or even discuss, stress that the concepts of liberty and property are broad indeed. In particular, the new property cases define property in such a way as to include the right to accrued wages invoked by the plaintiffs in Alden. Thus, the Florida Prepaid\u27s Due Process exception to Alden\u27s sovereign immunity principle may be broad enough to have required a different result in Alden itself, had the exception been invoked. Alternatively, the decision in Alden, alongside that in College Savings Bank, may signal a dramatic narrowing of the Court\u27s definition of property and liberty. If so, the sovereign immunity tail is beginning to wag a large Due Process dog

Four Problems with the Draft Restatement’s Treatment of Treaty Self-Execution

The American Law Institute has embarked on the challenging task of restating the confounding distinction between self-executing and non-self-executing treaties. In some respects, the current draft of the Fourth Restatement of Foreign Relations Law represents an advance from the treatment of the subject in the Third Restatement (Third). At the same time, the current draft retains, and may even aggravate, some of the flaws of that earlier treatment. This Essay suggests four ways the current draft could be improved. First, the draft should explicitly recognize that the concept of self-execution is not a unitary one. The self-executing label encompasses four distinct types of reasons why a treaty might require implementing legislation. Second, the draft should abandon the claim that the self-executing or non-self-executing nature of a treaty is “essentially” about the treaty’s judicial enforceability. Third, the draft should qualify its claim that self-execution turns on the intent of the U.S. treaty makers. Finally, the draft should modify its claim that there is no presumption either in favor or against self-execution. There is substantial support in case law for a presumption in favor of self-execution with respect to one of the four categories of self-execution— the “intent-based” category