The Unsettled Nature of the Union

This article is a response to Bradford R. Clark, The Eleventh Amendment and the Nature of the Union, 123 Harv. L. Rev. 1817 (2010). In his article, The Eleventh Amendment and the Nature of the Union, Professor Bradford Clark offeres an explanation for the puzzling text of the Eleventh Amendment, which appears to preclude federal jurisdiction over suits against a state by citizens of other states but not by its own citizens. Professor Clark argues that the Amendment\u27s text made sense to the Founders because they did not envision any suits against the states arising under federal law. Thus, by clarifying that the states could not be sued under Article III\u27s diversity provisions, the Amendment\u27s framers were effectively precluding all suits against the states in federal court. In this response, the author notes that Professor Clark\u27s defense of the Eleventh Amendment\u27s text combines a narrow claim and a broad claim. the author finds Professor Clark\u27s narrow claim that the Founders understood that the federal obligations of the states would be enforceable in suits against state officials rather than the states themselves to be well supported. On the other hand, he is unconvinced by Professor Clark\u27s broader claim that the Founders understood that the federal government would lack the power to impose legal obligations on the states. He finds Professor Clark\u27s evidence for this claim to be equivocal, most of it being susceptible to a narrower reading. In his view, the Founders did not settle this particular aspect of the legislative power of the federal government

\u3ci\u3eAltmann v. Austria\u3c/i\u3e and the Retroactivity of the Foreign Sovereign Immunities Act

In Republic of Austria v. Altmann, the U.S. Supreme Court decided that the Foreign Sovereign Immunities Act of 1976 (FSIA) generally applies to claims based on events that occurred before the Statute\u27s enactment. To decide the retroactivity question, the Court had occasion to consider the essential nature of foreign sovereign immunity: is it merely a procedural immunity providing foreign states with present protection from the inconvenience and indignity of a lawsuit, or is it something more than that? The Court\u27s examination of this question was brief and unsatisfying. Its analysis would have been enriched by a recognition that foreign sovereign immunity is regulated not just by federal statute, but also by principles of customary international law that the federal statute sought, in large part, to codify. Among the authorities the Court did consider, it found support for the proposition that foreign sovereign immunity is a procedural immunity and also for the proposition that foreign sovereign immunity is an immunity from substantive liability. Viewing these authorities as contradictory, the Court concluded that the retroactivity issue had to be resolved on other grounds. This brief article maintains that the relevant authorities are not contradictory. They are consistent with the conclusion that foreign states enjoy both a procedural and a substantive immunity, a possibility that the Court appears to have overlooked

Regionalism Versus Globalism: a View from the Americas

The well-deserved celebration of UNIDROIT\u27S first seventy-five years focused on a topic that is of particular interest to the Organization of American States and to the organ of the OAS to which the author belongs, the Inter-American Juridical Committee. The topic of the 75th Anniversary Congress-- Worldwide Harmonization of Private Law and Regional Integration --implicates one of the several dichotomies with which we in the Inter-American system who work on questions of private international law (and international private law) have been grappling in recent years, the problem of regional versus global approaches to the harmonization of private international law (and international private law). In this brief contribution, the author offers a few comments on this and related dichotomies from the perspective of the Inter-American private international law codification process

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

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

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

\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

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

\u3ci\u3eBreard\u3c/i\u3e, \u3ci\u3ePrintz\u3c/i\u3e, and the Treaty Power

This article considers whether the anti-commandeering principle of New York v. United States and Printz v. United States applies to exercises of the Treaty Power. It illustrates the problem with an analysis of the treaty provision involved in Breard v. Greene, 118 S. Ct. 1352 (1998), which requires state officials to notify certain aliens they arrest that they have a right to consult with their consul. Whether exercises of the treaty power are subject to the commandeering prohibition depends on the resolution of two ambiguities in the Supreme Court\u27s anti-commandeering doctrine. The first concerns the distinction between commandeering and mere encouragement. Specifically, can a treaty such as the one involved in Breard be upheld as an exercise of conditional preemption, on the theory that it gives the state the choice between providing notification and refraining from arresting aliens? The answer to that question depends on whether a treaty barring states from arresting aliens would be valid, and the answer to that question turns on where the line falls between commandeering and valid preemption. If, as some lower courts have found, Printz and New York prohibit legislation that imposes obligations on states but not individuals, or regulates the states in their roles as governments, then a treaty barring the arrest of aliens would contravene the anti-commandeering principle. But, if so, the anti-commandeering principle could not be applicable to the treaty power, as it would call into question too much Supreme Court precedent. If the anti-commandeering principle is narrower, there would appear to be no reason to exempt the Treaty Power from its scope. Under the narrow interpretation of Printz and New York, the sorts of obligations to which the treaty-makers would legitimately want to subject the states would be valid encouragement under the conditional preemption doctrine. The anti-commandeering principle, narrowly construed, would thus not represent much of a burden on the Treaty Power. (Whether the anti-commandeering principle is broad or narrow is before the Supreme Court this Term in Condon v. Reno.

Treaty-Based Rights and Remedies of Individuals

Treaties are frequently described as contracts between nations. As instruments of international law, they establish obligations with which international law requires the parties to comply. In the United States, treaties also have the status of law in the domestic legal system. The Supremacy Clause declares treaties to be the supreme Law of the Land and instructs the courts to give them effect. The status of treaties as law in two distinct legal orders has given rise to unusual conceptual problems. In recent years, it has produced confusion among the courts regarding the enforceability of treaties in the courts by individuals. As Chief Justice Marshall long ago observed, [t]he province of the court is, solely, to decide on the rights of individuals .... Accordingly, it is frequently said that treaties are enforceable by individuals in our courts only when they confer rights on individuals. Yet it is widely held that treaties, as international instruments, establish legal obligations and correlative legal rights only of the nations that are parties to them, not of individuals