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Abstract:
Antitrust is a brief for the uselessness of international law. Notwithstanding the apparent utility of international cooperation in accommodating global economic activity and reconciling the flourishing of national antitrust regimes, there is little by way of binding agreement or customary international law. Indeed, any "reasonableness" constraint on unilateral antitrust jurisdiction has largely been repudiated, in part because of the problematic role it describes for federal courts, and even beforehand was being held out as proof of the incoherence and irrelevance of custom.

This article argues that existing doctrine, and its attempted repudiation, are both entirely misconceived. After examining the limits of existing international arrangements, I set out a new, general methodology for identifying what I term "local international law" - a process for evaluating potential custom that begins with the norm's potential application to particular members and subjects-matter within the international community, and its articulation, adaptation, and enforcement in domestic circumstances. Special custom, applicable through the interpretation of federal statutes in a fashion sensitive to local actors, permits us to overcome many of the universalist flaws that afflicted the reasonableness approach.

Applying this theory to antitrust, I advocate recognizing antitrust comity, a principle requiring consideration of certain nations' legitimate interests, in particular the prospects for coordinated regulation of international antitrust matters among OECD members. This principle, and the underlying method, permit a fresh look at the diverse means of enforcing U.S. antitrust law. While antitrust comity binds the federal agencies, it does not directly constrain private enforcement; most controversially, it reflects constitutionally-premised limitations on the ability of state government enforcers to conduct the necessary intergovernmental relations, limits best mediated through a federal-state protocol that brings international antitrust comity home.

antitrust, foreign relations law, customary international law, constitutional law

Abstract:
Antitrust is a brief for the uselessness of international law. Notwithstanding the apparent utility of international cooperation in accommodating global economic activity and reconciling the flourishing of national antitrust regimes, there is little by way of binding agreement or customary international law. Indeed, any "reasonableness" constraint on unilateral antitrust jurisdiction has largely been repudiated, in part because of the problematic role it describes for federal courts, and even beforehand was being held out as proof of the incoherence and irrelevance of custom.

This article argues that existing doctrine, and its attempted repudiation, are both entirely misconceived. After examining the limits of existing international arrangements, I set out a new, general methodology for identifying what I term "local international law" - a process for evaluating potential custom that begins with the norm's potential application to particular members and subjects-matter within the international community, and its articulation, adaptation, and enforcement in domestic circumstances. Special custom, applicable through the interpretation of federal statutes in a fashion sensitive to local actors, permits us to overcome many of the universalist flaws that afflicted the reasonableness approach.

Applying this theory to antitrust, I advocate recognizing antitrust comity, a principle requiring consideration of certain nations' legitimate interests, in particular the prospects for coordinated regulation of international antitrust matters among OECD members. This principle, and the underlying method, permit a fresh look at the diverse means of enforcing U.S. antitrust law. While antitrust comity binds the federal agencies, it does not directly constrain private enforcement; most controversially, it reflects constitutionally-premised limitations on the ability of state government enforcers to conduct the necessary intergovernmental relations, limits best mediated through a federal-state protocol that brings international antitrust comity home.

antitrust, foreign relations law, customary international law, constitutional law

Abstract:
Subsidiarity is the principle which the European Community has begun applying to consider whether federal legislation is necessary, or whether action by the Member States will suffice. This article considers whether subsidiarity should constrain the Court of Justice's jurisprudence as well. It begins by analyzing the federalism problems posed by the Court's case law concerning remedies for the violation of Community law, in particular the doctrine holding Member States liable in damages for failing properly to implement Community directives. After concluding that the Court is required to review this jurisprudence for consistency with the subsidiarity principle, and that the Court's existing compensation and rights-centered rationale is largely insufficient, the article develops a two-fold argument for sustaining Member State liability even under the subsidiarity principle: such liability is essential to deterring Member State cheating on implementation, and encourages the development of directives that delegate rather than precisely prescribe regulatory content. The article concludes by describing possible modifications to prevailing liability doctrine in order to render it more consistent with the subsidiarity and proportionality principles.

Abstract:
Competition policy is on the WTO agenda for the Doha Round, but it is unlikely that it will result in any substantive international standards; the goal, instead, seems to be to agree on core principles to guide the development of national law, including transparency, non-discrimination, and procedural fairness, perhaps extending to special and differential treatment for developing countries. While there is much to commend these principles, this paper takes a deliberately contrarian view, arguing that core principles are not at all where WTO competition policy should begin. It further disputes the appropriateness of applying an emerging meta-principle of the WTO constitution, that of bargaining for a "single undertaking," to competition policy. If antitrust is to be pursued globally, it should be addressed by principles and through negotiations tailored to its distinctive needs.

treaties, international law, antitrust, competition, WTO

Abstract:
Does the continuing assignment of legislative power to international institutions like the WTO, NAFTA, and the U.N. infringe the U.S. Constitution? The political controversy over the continued reliance on such organizations, and the potential effect on welfarist and democratic values, is increasingly perceived to have a legal dimension. Recent scholarship has taken two radically different views. One recent strain takes the position that such delegations are constitutionally problematic, chiefly in terms of the nondelegation doctrine and federalism, and proposes that the gap between these principles and constitutional practice be reduced. But others argue that these doctrines lack legal or normative salience. Delegations of legislative authority, it is argued, are functionally indistinguishable from any other kind of legislation; federalism, others maintain, offers no conceivable advantages over managed decentralization. The answer to the incongruity between the increasing use of international delegations and U.S. constitutional principles, in this latter view, is to conclude that nondelegation and federalism doctrines are underenforced for good reason, and to be done with them.

This paper favors neither view, and advances a new perspective. After describing the range of international delegations that raise colorable constitutional issues, I first defend the proposition that, at least with respect to international commitments, the delegation of legislative authority is meaningfully distinct from normal exercises of legislative or treaty authority. But the reasons why delegation analysis remains conceptually relevant - including the difficulty any one nation has in controlling institutions with multiple principals, and the durability of international commitments - reveal that such delegations actually serve other constitutional values, particularly the value federalism places on the diffusion of authority and the creation of checks on the power of the national government. That is, if we look beyond the adverse effects international institutions may have on the existing agents of U.S. federalism, the states, we can see that delegations serve many of the same ends.

After explaining this thesis at length, and reconciling the pursuit of diffusion with other welfarist and democratic concerns, the paper closes by focusing on kinds of international delegations that remain problematic. The objective is to move beyond the ascendant generalizations about the disadvantages of international delegations, without at the same time denying the continuing salience of constitutional values.

international law,international organizations,constitutional law

Abstract:
The law of treaty reservations - which enables states to ask that their multilateral obligations be tailored to their individual preferences - has been controversial for over fifty years, and is at present subject to pitched battles within (and between) the International Law Commission and numerous other international institutions. There is broad agreement that existing scheme under the Vienna Convention on the Law of Treaties involves a sharp tradeoff between honoring the unalloyed consent of non-reserving states (that is, those agreeing to the treaty as originally negotiated, which may object to proposed reservations) and respecting the conditioned consent of reserving states; moreover, it is thought to decisively favor the latter, leading to a surplus of treaty reservations and a paucity of objections to them. The ambiguities that pervade the Convention are said to play a supporting role. Whatever their cause, it is thought, such ambiguities tend to disadvantage non-reserving states; the straightforward solution is to resolve those ambiguities, preferably by making reservations harder to pull off.

This approach is seriously flawed. In fact, the law of treaty reservations - understood as reflecting, rather than surmounting, its frustrating ambiguities - plausibly serves the interests of its supposed victims, the non-reserving states, perhaps even to a greater degree than for inveterate reservers. Treaty reservations not only increase the breadth of treaty participation, but permit agreement on broader commitments than would otherwise be possible. These effects inure to the benefit of reserving and non-reserving states alike. But deeper commitments, coupled with reservations, also establish a reliable, low-cost mechanism for providing information on reserving states, something facilitated by the existing scheme's eccentricities. Those same eccentricities also enable non-reserving states to reserve their own judgment regarding the acceptability of reservations, and thus shift risk control back (somewhat) in their favor.

international law, treaties, signaling

Abstract:
The orthodox view that states have no role in U.S. foreign relations is not only inconsistent with their place in the modern global economy, but the constitutional basis for a "dormant" bar on state participation - that is, absent a controlling federal statute or treaty - is obscure. Revisionist scholarship, and recent Supreme Court case law, suggest that Congress alone should decide when the states must stay out of foreign relations.

In this article, I argue that both the orthodox and revisionist views neglect an alternative basis for a judicial role - the Treaty Clause, enforced through the dormant treaty power. The text, structure, and original understanding of the treaty power establish two important principles of continuing validity. First, the President was to have an independent and substantive authority to negotiate on behalf of the United States, the better to secure advantageous treaties and avoid perilous entanglements. Second, state interference with this negotiating authority, even prior to the conclusive adoption of a federal treaty or statute, was unlawful.

Treaty Clause exclusivity is best maintained by a judicially-enforced dormant treaty power barring the states from bargaining with foreign powers, including indirect bargaining through measures that are contingent on foreign government policies - such as the Massachusetts law targeting companies doing business with Burma. However, state activities that incidentally have effects overseas would not be precluded, and the jurisprudence must be informed by the original rationales for federal exclusivity and by the President's discretion to exempt state activities posing no threat to federal functions.

Abstract:
How do we get a new chief justice? Traditionally, the President decides between nominating a newcomer and promoting a sitting associate justice, and places either nominee before the Senate for its advice and consent. But this is not constitutionally required, or at least not evidently so, and there is no better time to confront this fact. This short essay explains that Congress could develop a different mechanism for promoting justices without subjecting them to a second appointment - providing, for example, that the position would rotate among sitting justices based on seniority, or that the justices would elect a chief from among themselves. This could be the exclusive method for selecting a chief justice, or merely a default that would confront the President and the Senate with incumbents to be dispossessed if they lacked merit. In any case, there is a good argument as a matter of law that our tradition can be changed, and that argument - and the potential advantages of alternative methods, in terms of decreasing the opportunities for strategic behavior by the political branches and by the justices themselves - deserves fuller consideration.

Supreme Court, constitutional law, judiciary

Abstract:
There is little consensus about the scope of the President's powers to cure breaches of U.S. treaty obligations, let alone the influence of decisions by international tribunals finding the United States in breach. Such decisions do not appear to be directly effective under U.S. law. Treaties and statutes address questions of domestic authority sporadically and incompletely, and are suited to the task only if construed heroically; the President's general constitutional authority relating to foreign affairs is sometimes invoked, but its extent is uncertain and turns all too little on the underlying law at issue. Relying on either theory to cope with breaches, accordingly, risks distorting the positive law or vesting the President with a potentially boundless authority - or, in the alternative, risks a recurring gap between our international obligations and our domestic law.

The Take Care Clause affords a surprisingly well-tailored solution. Take care authority has been neglected in recent discourse, and not without reason. On the one hand, it is not obvious that it encompasses treaties, or licenses presidential authority beyond the capacity to ensure compliance within the executive branch; on the other hand, it smacks of unbridled executive power. These objections can be met. As the Article explains, the Take Care Clause includes treaties, including - critically - some treaties conventionally labeled as non-self-executing, and permits presidential authority beyond self-regulation. The text, case law, and practice further support the idea that this authority may be divested by the Constitution, by treaty, or by statute, and must satisfy additional criteria that guard against vesting the president with plenary lawmaking authority.

The Article explains how this theory applies to potential controversies involving compliance with the decisions of international tribunals (like those of the International Court of Justice, or arising under the WTO or the Law of the Sea Convention), legislative decisions by institutions like the Security Council (such as a resolution enabling war crime proceedings against former U.S. officials), and finally treaties that afford no recourse to international mechanisms. The result is a theory that reinforces congressional supremacy without requiring that treaty obligations founder upon it.

treaty, constitution, international law, international tribunals, foreign affairs

Abstract:
This brief essay addresses the Supreme Court's end-of-term decision in Crosby v. National Foreign Trade Council, which preempted Massachusetts's law limiting public procurement from companies doing business in Burma. The essay addresses the perception that Crosby was limited in its implications for foreign relations law, and explores the Court's minimalist approach to inescapably constitutional questions - concluding, in the end, that the Court made foreign relations law without professing to do so, and without fully appreciating its consequences or capitalizing on its benefits.

constitution, foreign relations law, international law

Abstract:
The time is ripe for a non-doctrinal assessment of Justice Jackson’s famous three-category framework for challenges to presidential action, elaborated in Youngstown Sheet & Tube Co. v. Sawyer (also known as the Steel Seizure Case). Recent national security controversies have given the Youngstown framework a whole new lease on life, and its relevance for courts, Congress, and executive branch officials has never been higher. During the same period, empirical and analytical studies of presidential policymaking have advanced beyond personality-driven accounts of particular administrations. Together, these developments offer a terrific opportunity to assess how well the Youngstown framework fulfills its objective of advancing congressional interests and constraining presidential power.

A political economy approach better explains the problem to which Justice Jackson was responding - the capacity of presidential unilateralism to establish policy that can withstand statutory correction, regardless of whether it has a legal basis - and also explains more formally how Youngstown’s categories offer a practical, if legally unorthodox, constraint. The assessment becomes more negative, though, once those categories are treated endogenously - that is, once the political branches are modeled as behaving dynamically and reacting to the framework itself. For example, both empirical surveys of executive orders and case studies suggest that the President may react to the risk of legislative disapproval (which under Youngstown will likely result in judicial disapproval as well) by avoiding Congress altogether or by seeking only its indirect blessing. Because these and other results disserve the framework’s objectives, this Article proposes several more benign alternatives - and, in general, advocates re-seizing Steel Seizure.

Foreign Relations Law, International Law, National Security Law, Constitutional Law

Abstract:
The Supreme Court's revival of federalism casts doubt on the previously unimpeachable power of the national government to bind its states by treaty, suggesting potential subject-matter, anti-commandeering, and sovereign immunity limits that could impair U.S. obligations under vital trade and human rights treaties.

Existing scholarship treats these principles separately and considers them in originalist or other terms, without definitive result. This Article takes a different approach. By assessing all of the doctrines with equal care, but not at daunting length, it permits insight into the common issues involved in determining whether they should be extended to the treaty power. It also demonstrates that international law and constitutional law are not estranged on these questions. Not only does international law require federal states to interpret their constitutions so as to permit adhering to treaties, but the new federalism doctrines show a sensitivity toward preserving adequate means to pursue national and international ends like the treaty power, especially where those means turn on state consent.

Finally, the Article develops a treaty-compact device as an innovative tool for dissolving federalism's constraints. Taking advantage of parallel doctrinal developments that liberate state and national authority relating to foreign and interstate compacts, it demonstrates that combining the use of compacts with treaties offers solutions on each of the new federalism's fronts. The answer, then, is that federalism does not constrain the treaty power, when the Constitution is read as an organic whole, and interpreted in a fashion in keeping both with international law and the new federalism itself.

treaty, constitution, international

Abstract:
This article agrees with recent papers that rational choice analysis may be a useful heuristic for customary international law, which is plagued by an incoherent approach to state interests. The theory's initial application, however, has been flawed and unduly truncated, and I provide additional illustrations from game theory and of customary rules to illustrate the point. Rational choice analysis not only explains why certain customary international law may legitimately be regarded as obligatory, thus redeeming an important legal institution, but also indicates important directions for reform.

customary international law, public international law, rational choice

Abstract:
This paper, published as part of symposium on Missouri v. Holland, explores how the circumstances of that case relate to modern criticisms of Congress' Necessary and Proper power and the doctrine of non-self-executing treaties. Focusing on some of the original concerns - for example, the need for further domestic implementation by Canada (and not, to the same degree, by the United States), the need for spending legislation, and the provision of criminal penalties - unsettles not only the understanding of the Supreme Court's decision, but also more recent critiques of the doctrines with which it has long been associated.

treaties, foreign relations, constitutional law

Abstract:
Widespread objections to the apparently unprecedented decision by the United States to "unsign" the treaty establishing the International Criminal Court reflect concerns particular to that treaty and to U.S. involvement in international affairs. But the controversy also illuminates a genuine problem in the formation of multilateral treaties. The interim obligation for signatories, often understood as a means for maintaining a vestigial role for signature, should also be considered as an incomplete answer to ex post and ex ante commitment problems observable in the treaty context and elsewhere - incomplete, in part, because signatories can effectively withdraw from their obligations without the delay imposed by withdrawal provisions on those states that have completed ratification. After examining the effect of various possible limits to unsigning, the paper proposes ways of reducing the exit gap between withdrawal mechanisms and unsigning that would diminish any strategic opportunities created by this emerging practice.