Lower Courts and Constitutional Comparativism

The issue of constitutional comparativism has been a topic of significant commentary in recent years. However, there is one aspect of this subject that has been almost completely ignored by scholars: the reception, or lack thereof, of constitutional comparativism by state and lower federal courts. While the Supreme Court\u27s enthusiasm for constitutional comparativism has waxed and now waned, lower state and federal courts have remained resolutely agnostic about this new movement. This is of tremendous practical significance because over ninety-nine percent of all cases are resolved by lower state and federal courts. Accordingly, if the lower courts eschew constitutional comparativism, then this constitutes the rejection of a comparative interpretive methodology in virtually all cases. This article examines this issue in consideration of the related opinions of two leading constitutional law scholars, David Fontana (who favors the use of comparative material in lower courts) and Vicki Jackson (who opposes it)

Arbitrating Human Rights

Corporate liability for human rights abuses is one of the most important developments in current international law and practice. With the advent of human rights litigation against corporations, there is now the prospect of a deep-pocket defendant that is complicit in grave human rights abuses, subject to personal jurisdiction, and not immune from suit. Indeed, if a corporation is accused of aiding and abetting human rights abuses, this is all but a concession that the corporate actor is not the principal wrong-doer. It is of course possible that this controversial trend toward corporate responsibility may reflect a genuine concern about corporate abuse of power. But more likely it reflects an abiding frustration that the primary perpetrators–sovereigns–are beyond the reach of most victims. If victims cannot pursue claims against the principal, they will resign themselves to pursue claims against those who aid and abet. How have we come to this state of affairs, in which the corporation is pursued while the sovereign evades punishment? Why should the corporate accomplice alone be found liable if the sovereign is the primary malfeasor? For the first time in scholarly literature, this Article suggests an alternative approach, that corporations have existing tools to remedy the situation, drawing on principles derived from human rights, contract law, and arbitration. The essential idea is that if a corporation is found liable for aiding and abetting human rights abuse, it may invoke contractual provisions in the agreement with the sovereign to arbitrate the question of shared responsibility. While the victims may not pursue the sovereign, there is no impediment for a corporation that is found liable to pursue the sovereign in arbitration to secure its share of liability, either in the form of contribution or indemnification. In short, human rights litigation against the corporation could lead to who pays arbitration against the sovereign

Misusing International Sources to Interpret the Constituion

This article addresses the trend toward using international sources to interpret the Constitution. While recognizing that international sources may be appropriately used as persuasive authority in certain types of constitutional analysis, this article argues that such reliance is inappropriate if done improperly. There are four misuses of international sources that serve as the focus of the article. The first misuse of international sources - particularly evident in death penalty litigation - occurs when the global opinions of humankind are ascribed constitutional value to thwart the domestic opinions of Americans. The article suggests that international norms cannot be internalized within our Constitution unless such norms are first internalized by our people as our community standards. That is, international standards cannot serve as community standards unless they reflect our own national experience. To conclude otherwise would grant countermajoritarian international norms constitutional relevance as a community standard. The second misuse of international sources occurs when treaties are elevated to a status they do not enjoy under our federal system. The entire edifice of constitutional law rests on the foundation that the acts of the political branches are subject to and limited by the Constitution. Proposing that international law be part of the canon of constitutional material improperly empowers the political branches to create source materials - treaties and executive agreements - that serve as interpretive inputs to the process of constitutional decision making. The third misuse of international sources occurs when the Court references them haphazardly, relying on only those materials that are readily at its fingertips. In the international legal arena, where the Court has little or no expertise, the Court is unduly susceptible to selective and incomplete presentations of the true state of international and foreign affairs. If the suggestion is that international sources may cast an empirical light on the consequences of different solutions to a common legal problem, it is incumbent upon the Court to engage in empirical rather than haphazard comparativism. It is far from evident that this is what the Court is doing. A final misuse occurs when international and foreign materials are used selectively. In a country that considers itself the world\u27s foremost protector of civil liberties, what is perhaps most surprising about the enthusiasm for comparativism is the assumption that it will enhance rather than diminish basic human rights in this country. This assumption is either blind to our visionary leadership, deaf to the discord in the international instruments, or selectively mute in giving voice to only certain topics for comparison

The Claims Resolution Tribunal and Holocaust Claims Against Swiss Banks

This article discusses the legal challenges for implementing settlements for Holocaust reparation claims to Swiss bank accounts. It specifically discusses the activities related to the settlement of these claims undertaken by the Independent Committtee of Eminent Persons (Volcker Commission). The article\u27s first section presents historical information about Holocaust claims against Swiss banks. Specifically, it attempts to answer the question of why it has taken so long for Holocaust reparation claims against Swiss banks to be processed. The author blames this delay primarily on the obfuscation by the Swiss banks and the inattention of the Swiss government[,] which is indicated by the fact that a complete accounting of the banks\u27 Holocaust-era activities was not publicized until the mid 1990\u27s under the direction of the Volcker Commission. Next, the article provides information about the Claims Resolution Tribunal\u27s claims resolution procedures. This tribunal, established by the Volcker Commission, was charged with arbitrating Holocaust reparation claims brought by private citizens against Swiss banks. It explains how claims resolutions procedures were modified throughout the history of the tribunal to expedite the process and ensure that the tribunal focused only on those claims that were truly related to losses caused by the Holocaust. This is followed by an analysis of the most challenging legal issues related to resolving Holocaust claims against Swiss banks, including burden of proof and plausibility problems, choice of law conflicts, and difficulties in determining whether claimants were truly descended from Holocaust victims. The article concludes with a discussion of what reparation and restitution claims accomplish in terms of moral accounting to the families of the victims, and the damage done to all the parties involved by the banks\u27 failure to address their moral responsibilities related to Holocaust claims in a timely matter

The Bipartisan Consensus on Big Tech

This Article contends that there is an emergent bipartisan consensus that Big Tech has grown too powerful and that action must be taken to address its abuse of power. That action takes the form of a variety of legislative proposals to enhance government enforcement powers, reform the merger laws, and address self-preferencing, data portability, and interoperability. Litigation efforts focus on Facebook and Google’s abuse of monopoly power, particularly with respect to Facebook’s elimination of competition through acquisitions and Google’s abuse of monopoly power in search and display advertising. While we are in the midst of one of the most divisive and polarizing periods in our nation’s history, there is a strong bipartisan consensus on the perils of Big Tech and a desperate need to do something about it

Hearing before the United States Senate Committee on the Judiciary, Subcommittee on Competition Policy, Antitrust, and Consumer Rights: The Impact of Consolidation and Monopoly Power on American Innovation

Originally published by the United States Senate Committee on the Judiciary Perma.cc Copy of Testimony Perma.c

Foreign Relations as a Matter of Interpretation: The Use and Abuse of Charming Betsy

Charming Betsy is a canon of construction that construes legislative enactments consistent with the law of nations. This canon promotes the passive virtue of avoiding constitutional problems by eschewing potential international law violations through statutory interpretation, thereby enhancing the United States\u27 performance in foreign affairs. As a rule of separation of powers, Charming Betsy helps explain how foreign relations concerns clarify the scope of legislative, executive, and judicial authority. But when advocates contend that the Constitution likewise should be read through the lens of Charming Betsy, they abuse the doctrine by ignoring its purpose. While structural guarantees that relate to foreign affairs are animated by a concern for compliance with international law, there is little support for a position that takes foreign relations into account in interpreting the content of individual liberties so as to harmonize those liberties with international norms. The proper function of foreign relations in construing individual liberties is its traditional one, to justify government authority to curtail constitutional guarantees