A Little Birdie Said: How Twitter is Disrupting Shareholder Activism

Shareholders are organizing and mobilizing on new social media platforms like Twitter. This changes the dynamics of shareholder proxy contests in ways that favor shareholders over management. Disruptive technology may bring about a shareholder revolution, which may not be in shareholders’ best interests, at least from the perspective of shareholder wealth maximization, and it also has powerful implications for the future of corporate social responsibility

The “Self-Executing” Character of the Refugee Protocol’s \u3ci\u3eNonrefoulement\u3c/i\u3e Obligation

When the United States ratified the 1967 U.N. Protocol Relating to the Status of Refugees (Protocol), it undertook not to expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on specified grounds. On May 24, 1992, President Bush issued an executive order, known as the Kennebunkport Order, authorizing the United States Coast Guard to interdict vessels on the high seas suspected of containing Haitians destined for U.S. shores and to return such persons to Haiti without regard to whether their lives or freedom would be threatened on the grounds specified in the Protocol. The Coast Guard thereupon began intercepting such vessels and returning their passengers to Haiti without inquiring whether they would be persecuted there. When this policy was challenged in Haitian Centers Council v. McNary, the Bush Administration responded in two ways to the argument that the policy violates the United States\u27 obligations under the Protocol. First, the government took the position that the policy does not in fact violate the Protocol. It argued that the Protocol prohibits the United States from returning refugees to their persecutors if the refugee is present within our territory, but does not prohibit us from reaching out beyond our territorial waters to intercept refugees on the high seas to turn them over to their persecutors. Second, the government argued that, even if the Protocol\u27s nonrefoulement obligation does apply to refugees on the high seas, the treaty cannot be enforced by the courts of this country because it is not self-executing. Unlike the first argument, the second does not attempt to defend the policy\u27s legality. Instead, it denies the Protocol\u27s judicial enforceability. This article examines the government\u27s second argument

The Four Doctrines of Self-Executing Treaties

A distinction has become entrenched in United States law between treaties that are self-executing and those that are not. The precise nature of this distinction--indeed, its very existence--is a matter of some controversy and much confusion. More than one lower federal court has pronounced the distinction to be the most confounding in the United States law of treaties. A tremendous amount of scholarship has sought to clarify this distinction, but the honest observer cannot but agree with John Jackson\u27s observation that [t]he substantial volume of scholarly writing on this issue has not yet resolved the confusion surrounding it. The continuing, and remarkably candid, judicial confusion over this issue will, in the hopes of the author, excuse yet another attempt to bring some coherence to the doctrine. In this article, he argues that much of the doctrinal disarray and judicial confusion is attributable to the failure of courts and commentators to recognize that for some time four distinct doctrines of self-executing treaties have been masquerading as one. With a view to furthering the development of doctrine in conformity with constitutional allocations of power, the author identifies these four doctrines, as reflected in the self-execution decisions of the Supreme Court and the lower federal courts, and he examines the very different types of analysis that they call for. At a general level, a self-executing treaty may be defined as a treaty that may be enforced in the courts without prior legislation by Congress, and a non-self-executing treaty, conversely, as a treaty that may not be enforced in the courts without prior legislative implementation. \u27 This definition helps us understand the domestic allocation-of-powers function of the distinction: it allocates between the judiciary and the legislature the responsibility for enforcing compliance with treaties by everyone else (private individuals, state and federal executive officials, state legislatures). But the doctrine allocates this responsibility only provisionally. Because of the last-in-time rule, under which a statute is to be enforced by the courts even if it conflicts with an earlier treaty, the legislature ultimately has the power to control the judiciary\u27s role in enforcing even self-executing treaties. The doctrine of self-executing treaties thus serves to distinguish those treaties that require an act of the legislature to authorize judicial enforcement from those that require an act of the legislature to remove or modify the courts\u27 enforcement power (and duty)

\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.