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Abstract:
Hans Kelsen (1881-1973), who lived and taught in the United States for over three decades, was one of those emigre intellectuals whose "style of thinking," as H. Stuart Hughes put it, "withered or barely held [its] own in the new American setting." Kelsen's relative obscurity in the U.S. legal academy continues despite a recent revival of interest in German legal theory among U.S. academics. Oddly enough, that revival of interest, which has been spearheaded by self-described post-Marxists and other progressives seeking to develop a new critique of liberalism, has not focused on Kelsen and his social-democratic critics, instead latching onto the writings of Kelsen's Nazi nemesis, Carl Schmitt. Interest in Schmitt has continued to grow, as reflected in the recent writings of America's leading legal economics and law theorist, Richard Posner. Still, one finds surprisingly little American legal scholarship addressing Kelsen's writings. This Article explores the reasons underlying the rejection by the U.S. legal academy of Kelsen's brand of legal positivism and proposes that Kelsen's theories can assist the American legal academy as it continues to struggle to address the problem of indeterminacy in adjudication.

Kelsen, liberal theory, jurisprudence, Schmitt, Weimar, indeterminacy

Abstract:
The Essay explores the reasons underlying opposition to Hans Kelsen's approach to the law within the U.S. legal academy. The vehemence with which legal scholars within the United States rejected Kelsen's philosophy of law is best understood as a product of numerous factors, some philosophical, some political and some having to do with professional developments within the legal academy itself. Because philosophical and political opposition to Kelsen's legal philosophy has been well-explored in earlier articles, this Essay discusses those topics briefly in Part I and then sets out in Part II a sociological model that grounds the academy's rejection of Kelsen's pure theory of law in professionalization processes already well underway when Kelsen arrived in the United States.

Kelsen had little impact in the U.S. legal academy not only because his brand of legal positivism was uncongenial to a U.S. audience. He also had little impact because he arrived in the United States just as the twin innovations of Legal Realism and the professionalization of the legal academy were solidifying their grips on the U.S. legal community. His mode of legal thought and his approach to legal education could not be accommodated within the newly-created discursive practice of the legal professoriate, and there was thus little possibility that his approach could be accommodated within that realm.

Kelsen, professionalization, legal theory, philosophy of law, case method, legal profession

Abstract:
This Essay reviews Peter Irons, "War Powers, How the Imperial Presidency Hijacked the Constitution" and John Yoo, "The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11."

Peter Irons' WAR POWERS favors congressional initiative in questions of war and peace but makes a historical argument that our government has strayed from the constitutional design in the service of an imperialist foreign policy. John Yoo's THE POWERS OF WAR AND PEACE seeks to overthrow the traditional perspective on war powers espoused by Irons in favor of executive initiative in war. Yoo also pursues a revisionist perspective on the treaty power, which favors executive initiative in treaty negotiation and interpretation but insists on congressional implementation so as to minimize the impact of international obligations on domestic law.

This Essay criticizes Irons' approach for its failure to provide a normative defense of congressional initiative in war and takes issue with some of the historical and structural analyses underlying Yoo's defense of executive unilateralism in the realm of war powers. Because Yoo's arguments on the treaty power raise questions of methodological consistency, he is susceptible to the criticism that his arguments are motivated more by prudential and policy considerations than by fidelity to constitutional text, structure and history. The Essay concludes that, while the constitutional text, structure and history are clear and consistent and support Irons' arguments favoring congressional war powers, the Constitution provides little guidance on how the treaty power should operate. Yoo's view that treaties do not bind the President finds no support in constitutional text or structure. This Essay offers a structural interpretation of the constitutional treaty power different from Yoo's, one that would promote U.S. participation in multilateral treaty regimes that foster security and the rule of law.

war powers, treaty power, foreign affairs power, separation of powers, federalism, textualism, constitutional law, international law, national security law

Abstract:
This paper was first presented at the Temple Law Review Symposium on Executive Power.

In Reynolds v. United States, the Supreme Court shaped the state secrets privilege (the Privilege) as one akin to that against self-incrimination. In recent litigation, the government has asserted the Privilege in motions for pre-discovery dismissal, thus transforming the Privilege into a form of executive immunity. This Paper argues that courts must step in to return the Privilege to a scope more in keeping with its status as a form of evidentiary privilege.

After reviewing the doctrinal origins of the Privilege, the Paper explores three types on issues implicated by the government's invocation of the Privilege. The government, in calling for judicial deference to executive assertions of the Privilege, often relies on (1) separation of powers arguments or on (2) arguments sounding in institutional competence. Courts are often swayed by such arguments and thus give relatively little consideration to the (3) conflict of interest inherent in the government's assertion of the Privilege and the impact of the successful invocation of the Privilege on the rights of individual litigants.

The Paper then proceeds to address arguments that Congress can provide a check on executive abuse of the Privilege. The Paper argues that, assuming that Congress has constitutional authority, it lacks the will or the institutional competence to provide a proper solution to the problems raised by the Privilege. Instead, the Paper contends that, since courts created the Privilege, courts are best positioned to rein it in. The final section of the Paper provides examples drawn from case law illustrating mechanisms whereby courts can protect state secrets while also giving litigants adverse to the government their day in court.

Executive Power, Evidentiary Privileges, State Secrets, Judicial Deference, National Security

Abstract:
In Medellin v. Texas, the Supreme Court permitted Texas to proceed with the execution of a Mexican national who had not been given timely notice of his right of consular notification and consultation in violation of the United States' obligations under the Vienna Convention on Consular Relations. It did so despite its finding that the United States had an obligation under treaty law to comply with an order of the International Court of Justice that Medellin's case be granted review and reconsideration. The international obligation, the Court found, was not domestically enforceable because the treaties at issue were not self-executing. The five Justices who signed the Chief Justice's Majority opinion, including the Court's self-proclaimed originalists, thus joined an opinion that construed the Constitution's Supremacy Clause without any serious consideration of its language or the history of its drafting, ignoring evidence of the Supremacy Clause's original meaning cited by the dissenting Justices.

This Article explores the meaning of originalism in the context of the Court's Medellin decision and contends that the Majority's opinion, while perhaps defensible on other grounds, cannot be reconciled with any identifiable version of originalism. Rather it is best understood as a decision reflecting the conservative Majority's political commitment to favor principles of U.S. sovereignty and federalism over compliance with international obligations, even when the consequences of such a commitment is to enable state governments to undermine the foreign policy decisions of the political branches of the federal government.

Ultimately, however, the Article concludes that Medellin's case never should have come before the Court. The President has a duty to take Care that the Laws be faithfully executed. The Court determined that the Bush administration did not satisfy this duty by issuing an Executive Memorandum directing states to comply with the judgment of the International Court of Justice. That being the case, the President now must comply with his Take Care Clause duties by working with Congress to make certain that federal law compels compliance with the International Court of Justice's judgment. Indeed, this Article contends that the Medellin case is emblematic of the U.S. executive branch's broader failure to ensure that all treaties requiring domestic implementation are in fact implemented so as to avoid placing the United States in violation of its international obligations.

Originalism, Treaty Interpretation, Treaty Compliance, Vienna Convention on Consular Relations, U.N. Charter, Self-Execution, Supremacy Clause, International Court of Justice, Avena Decision

Abstract:
Lovenheim v. Iroquois Brands, Ltd. is not only a standard teaching case in corporate law courses, it is routinely cited by the Securities and Exchange Commission (SEC) in response to corporations seeking to exclude shareholder proposals from proxy materials on the ground that the proposals are not significantly related to the corporations’ businesses. Despite the case’s prominence, its story has not been told in detail. That is a shame because the details of the case are as surprising as its outcome must have been when the court granted Peter Lovenheim the injunction he sought, forcing Iroquois Brands to include in its proxy materials Lovenheim’s proposal calling for an investigation into whether Iroquois’ French supplier of pâté de foie gras force-fed the geese whose livers they later harvested.

This Article explores the law of shareholder proposals and the reasons why the SEC and the courts permit proposals relating to social or ethical issues (social proposals) so long as those issues relate to the corporation’s business. After a history of the relevant SEC regulations and their fates in the courts, the Article presents the complete narrative of the Lovenheim case, providing details that are not captured in the decision or in the limited secondary literature relating to the case. Finally, the Article explores the legal landscape in the aftermath of Lovenheim. It explains why the case has remained good law in the 25 years since the case was decided and why corporations are not motivated to pressure the SEC to limit shareholders’ rights to bring social proposals.

Shareholder Proposals, SEC, Law Stories

Abstract:
This Essay introduces a collection of essays that have evolved from papers presented at a conference on “International Law in the Domestic Context.” The conference was a response to the questions raised by the U.S. Supreme Court’s decision in Medellín v. Texas and also a product of our collective curiosity about how other states address tensions between international obligations and overlapping regimes of national law. Our constitutional tradition speaks with many voices on the subject of the relationship between domestic and international law. In order to gain a broader perspective on that relationship, we invited experts on foreign law to introduce us to the way other states attempt to reconcile international commitments and the domestic constitutional order.

The essays collected here were presented in three separate panels during the conference. The organization of the volume follows the same organizational principle. The first three papers thus focus on questions relating to the implementation of international human rights as domestic law. The two papers that follow address issues relating to international obligations and the foreign affairs power. The final section, which comprises four papers, provides a comparative perspective on how other international law is introduced into the domestic legal systems of Australia, Canada, China and the United Kingdom.

Each contribution attests to the continuing relevance of Holmes’ dictum: the life of the law is not logic but experience. Programmatic statements in founding documents or in law review articles do not determine the status of international law in the domestic context. It is worked out through the various legal histories of each state. As each state grapples to reconcile its national legal traditions with its international obligations, it is worthwhile to pause and consider the experiences of others. It is our hope that this volume contributes to that process.

International Law, Comparative Law, Human Rights, National Security, Foreign Affairs, Federalism, Customary international Law, Preemption, Monism, Dualism

Abstract:
The Tenth Amendment is invoked whenever congressional powers threaten the independent law-making power of the several states. In that context, however, the Tenth Amendment does not tell us very much. After all, if powers are not delegated to the federal government, where else would they go but to the states? Accordingly, the Supreme Court has dismissed the Amendment as a truism.

Although the Amendment is only deployed as a rather ineffectual check on congressional authority, it clearly applies to all branches of the federal government. However, according to the theory of inherent executive authority, certain powers are unique to the sovereign. Consequently, they reside in the federal executive and require no constitutional delegation. This theory of inherent executive power implies that the theory of limited government, which finds its clearest constitutional expression in the Tenth Amendment, applies only to the Congress. By attempting to provide an extra-constitutional source for executive power, advocates of the theory of inherent executive power transform the Tenth Amendment into a truism that isn't true.

This Article contends that the theory of inherent executive powers cannot be reconciled with the theory of limited government embodied in the Tenth Amendment. The Article focuses on the allocation of war powers and maintains that because such powers are allocated to the Congress and not to the Executive, the Tenth Amendment (of all things!) makes it clear that the doctrine of inherent executive authority cannot provide a constitutional basis for the defense of unilateral, non-defensive executive war powers.

Tenth Amendment, war powers, separation of powers, constitutional history, executive power, national security, U.S. foreign relations law, War Powers Resolution, collective security, U.N. Charter, NATO

Abstract:
This short review evaluates Professor Richardson's book both as a contribution to the history of the Atlantic slave trade and as contribution to critical race theory.

Professor Richardson has read innumerable historical monographs, works of legal and sociological theory, international law and critical race theory. Armed with this store of knowledge, he is able to recount a detailed narrative of African-American claims to, interests in and appeals to international law over approximately two centuries spanning, with occasional peeks both forward and backward in time, from the landing of the first African slaves at Jamestown in 1619 to the 1815 Treaty of Ghent.

The work partakes of some of the narrative and methodological strategies of the critical race theory tradition, including the fictive reconstruction of historical events, with new African-American voices added to the mix. But Professor Richardson is equally at ease with the approach to international law of the New Haven School, and he is thus able to write with great authority of how African-American history can be understood to have comprised a tradition of appeals to international law or international legal norms as a source of remediation for the injustices that African-heritage people suffered in the Americas.

African-American History, Slave Trade, International Law, Critical Race Theory

Abstract:
Despite its ubiquity in corporate law, the business judgment rule remains a doctrinal puzzle. Both courts and scholars offer different understandings of the Rule's role in litigation brought against corporate directors and different justifications for its deployment to insulate such directors from liability for breaches of fiduciary duties. This Article rejects all existing justifications for the Rule and argues that the Rule is no longer needed to protect directors from liability, either because the justifications offered never made any sense or because directors are now protected by other, statutory means. Rather, the Rule is needed today to protect not directors but the corporations they serve from the irreparable harm corporations would suffer if forced to disclose prospective business plans in order to defend decisions taken by their boards. This Article follows some recent scholarship in arguing that the Rule is best understood as an abstention doctrine and argues that courts should invoke the Rule and abstain from the review of the business judgment of corporate directors when the litigation that gives rise to such review would compel the corporation to disclose information relating to its prospective business plans. The Article then illustrates why the Rule should not apply in cases involving challenges to board decisions relating to executive compensation through a detailed discussion of the on-going litigation relating to the hiring and dismissal of the Walt Disney Company's former President, Michael Ovitz.