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Abstract:
The Vienna Convention on the Law of Treaties has been widely recognized as the authoritative guide to the customary international law governing treaty interpretation. In American courts, however, the Vienna Convention has enjoyed a mixed reception. Since the Convention entered into force in 1980, the Supreme Court has never cited the Convention for a controlling rule of decision, choosing instead to rely upon nationalist common-law canons developed by analogy to domestic contract law. By contrast, many lower federal and state courts have adopted an overtly internationalist approach to treaty interpretation, applying the Vienna Convention's treaty-interpretation provisions as customary international law. This methodological divide is significant, because the Vienna Convention's interpretive canons depart from the Supreme Court's common law canons in at least three critical respects: First, the Vienna Convention does not contemplate recourse to domestic ratification materials. Second, although the Vienna Convention discourages courts from deferring to a single state's unilateral treaty interpretations, the Supreme Court preaches deference to executive branch treaty interpretations — even in the face of conflicting interpretations from other treaty parties. Third, courts applying the Vienna Convention are less receptive to arguments that treaty provisions should be construed in derogation of the United States' other obligations under international law. Whereas the Vienna Convention views municipal courts as participants in a transnational community of courts, the nationalist paradigm envisions domestic courts as agents of national sovereignty with an obligation to maximize the United States' immediate strategic interests. To bridge the tensions between these competing traditions and place U.S. treaty jurisprudence on a more coherent and sustainable foundation, this article argues that domestic courts should invoke the Vienna Convention more expressly and employ its canons more systematically in deciding questions of treaty interpretation.

treaties, interpretation, Vienna Convention

Abstract:
For several decades, international law has recognized certain norms such as the prohibitions against genocide, slavery, and military aggression as "jus cogens" - peremptory law which supersedes conflicting international treaties and customs. Despite widespread acceptance of the jus cogens concept, legal theorists continue to debate whether peremptory norms derive their legal authority from state consent, natural law, or the demands of international public order. Anxiety over peremptory norms' legal basis has frustrated efforts to clarify the scope and content of jus cogens, as well as placing peremptory norms on a collision course with inherited notions of state sovereignty.

Drawing on Immanuel Kant's conception of fiduciary relations, this Article develops a new theory of jus cogens based on the idea that states are fiduciaries of their people. According to the fiduciary theory, peremptory norms do not stand in opposition to state sovereignty; rather, they are constitutive of state sovereign authority because all states owe their subjects a fiduciary obligation to comply with such norms. The fiduciary model of the state resolves the longstanding tension in international legal theory between peremptory norms and state sovereignty and points to discrete formal and substantive criteria for identifying peremptory norms.

jus cogens, peremptory norms, human rights, international law, sovereignty, fiduciary, authority, legitimacy

Abstract:
An enduring challenge for administrative law is the tension between the ideal of democratic policymaking and the ubiquity of bureaucratic discretion. This Article seeks to reframe the problem of agency discretion by outlining an interpretivist model of administrative law based on the concept of fiduciary obligation in private legal relations such as agency, trust, and corporation. Administrative law, like private fiduciary law, increasingly relies upon a tripartite framework of entrustment, residual control, and fiduciary duty to demarcate a domain of bounded agency discretion. To minimize the risk that agencies will abuse their entrusted discretion through opportunism or carelessness, administrative law empowers the political branches to exert limited residual control over agencies and subjects agencies to nonderogable duties of care and loyalty. As an interpretivist theory, this fiduciary model helps to explain controversial features of administrative law such as the contemporary nondelegation doctrine, Chevron deference, and the limits of presidential control over agency action. By clarifying administrative law's internal dynamics and implicit ambitions, the fiduciary model also provides a blueprint for reform in critical areas such as standing doctrine and the due process restraints on agency discretion.

administrative law, fiduciary

Abstract:
In international law, the term "jus cogens" refers to norms that are considered peremptory in the sense that they are mandatory and do not admit derogation. Although the jus cogens concept has achieved widespread acceptance, international legal theory has yet to furnish a satisfying account of jus cogens's legal basis. We argue that peremptory norms are inextricably linked to the sovereign powers assumed by all states. The key to understanding international jus cogens lies in Immanuel Kant's discussion of the innate right of children to their parents' care. Drawing on Kant's account, our theory of jus cogens posits that states exercise sovereign authority as fiduciaries of the people subject to their power. An immanent feature of this state-subject fiduciary relationship is that the state must comply with jus cogens. The fiduciary theory clarifies jus cogens's content by generating discrete criteria for identifying peremptory norms.

jus cogens, peremptory norms, fiduciary, rule of law, international law, human rights

Abstract:
For nearly a quarter-century, federal courts have deferred to administrative agencies' statutory interpretations under the renowned Chevron doctrine. Despite Chevron's widespread appeal, its theoretical foundations remain contested. Judges and academics have debated whether Chevron rests on a theory of congressional delegation, administrative expertise, deliberative rationality, the executive branch's political responsiveness and accountability, or concerns for national regulatory uniformity. This Article challenges the terms of this longstanding debate by demonstrating that Chevron does not rest exclusively upon any of these competing rationales. Instead, Chevron forges a pragmatic consensus between several leading theories, none of which can properly be considered redundant. By embracing pluralism and practical wisdom in statutory interpretation, Chevron furnishes an enduring response to the fragmentation of contemporary legal and political theory.

In United States v. Mead Corporation, the Supreme Court appeared to abandon Chevron's consensus by endorsing congressional delegation as the touchstone for Chevron deference. By all accounts, Mead has sown confusion and discord in the circuit courts. What Mead's critics have failed to appreciate, however, is that the Supreme Court actually employs the congressional delegation theory instrumentally to sustain Chevron's consensus: Where agency decision-making processes satisfy all of the leading rationales for deference, the Court applies Chevron. Conversely, where any of the leading rationales for deference remains unsatisfied, the Court evaluates agency statutory interpretations under the residual Skidmore test.

The time has come to dismantle Mead's delegation fiction and expressly reconstruct Chevron's pluralist consensus as the definitive test for Chevron deference. By candidly reaffirming Chevron's consensus, the Supreme Court would clarify the scope of Chevron's domain and enhance judicial transparency and accountability in statutory interpretation.

Chevron, administrative law, legislation, statutory interpretation, pluralism

Abstract:
Do administrative agencies undermine popular sovereignty when they make federal law? Over the last several decades, some scholars have argued that rulemaking by unelected agency officials imperils popular sovereignty, and that federal law should resolve the apparent tension between regulatory practice and democratic principle by allowing the President to serve as a proxy for "the will of the people" in the administrative state. According to this view, placing federal rulemaking power firmly within the President's managerial control would advance popular preferences throughout the federal system. This conventional wisdom is misguided. As political scientists have long recognized, the electorate's relative disengagement from the federal regulatory process prevents voters from developing coherent preferences about most questions of regulatory policy. Moreover, even if discrete preferences could be attributed to the people as a whole, the American presidency does not in practice serve as a reliable proxy for majoritarian preferences in the administrative state. As an alternative to presidential "proxy representation," this Article argues that federal administrative law should seek to promote popular representation in agency rulemaking through "fiduciary representation." Like fiduciaries in private law, all federal officers exercise discretionary administrative authority for the benefit of those subject to their power, and all are bound by duties of purposefulness, fairness, integrity, solicitude, reasonableness, and transparency. Rather than focus on a representative's obedience to the ephemeral public will, fiduciary representation emphasizes agencies' responsibilities to act deliberatively and reasonably in promoting the public welfare. On this account, presidential administration is one plausible strategy for reconciling administrative lawmaking with popular sovereignty, but it is not necessarily the most promising strategy. Congress may counter-intuitively promote popular representation in the administrative state by vesting final rulemaking authority in unelected agency administrators rather than the popularly elected President.

administrative law, agencies, rulemaking, regulation, fiduciary, deliberation, deliberative democracy, representation, popular representation, sovereignty, popular sovereignty

Abstract:
One need not accept Hobbes's vision of international relations as a perpetual condition of warre to recognize that the rule of law does not always govern international affairs. The inevitable tension between foreign policy objectives and rule-of-law values in U.S. foreign affairs law has important implications for treaties, which play dual roles in the American constitutional system: Internationally, treaties represent sensitive political agreements with foreign nations having important implications for U.S. foreign policy. Domestically, treaties enacted pursuant to Article II become Supreme law on par with federal legislation. Thus, when interpreting treaties, domestic courts have sought to reconcile these two functions by defending the judicial prerogative to say what the law is while simultaneously affording executive treaty interpretations 'great weight.'

A recent article by Professor Curtis Bradley defends judicial deference to executive treaty interpretation by analogizing this practice to the Supreme Court's two-part test for deference to administrative agency interpretations established in Chevron U.S.A., Inc. v. Natural Resources Defense Council. Accepting that some judicial deference in this realm may be both appropriate and desirable, this Comment nevertheless challenges Chevron's adaptability to judicial treaty interpretation in light of prevailing constitutional and customary international law. In place of Bradley's Chevron paradigm, this Comment offers an alternative analogy from administrative law--Skidmore deference--as a superior paradigm for conceptualizing judicial deference to executive treaty interpretation.

treaties, interpretation, chevron, deference

Abstract:
The past decade has witnessed a surge of interest in Carl Schmitt’s controversial assertion that the rule of law inevitably bends before the demands of state necessity during national emergencies. In an article published recently in the Harvard Law Review, Adrian Vermeule argues that American administrative law is fundamentally “Schmittian” in the sense that it permits federal agencies to operate outside the constraints of administrative procedure and meaningful judicial review during emergencies. Vermeule contends that the federal Administrative Procedure Act (APA) is replete with procedural exceptions, which generate “black holes” — zones where federal agencies are free to act outside the constraints of legal order. In addition, he suggests that federal courts manipulate the APA’s flexible legal standards to accord heightened deference to federal agencies during national crises, transforming standards such as “reasonableness” and “good cause” into “grey holes” — legal devices which preserve the façade, but not the reality, of the rule of law. Far from criticizing these gaps in federal administrative law, Vermeule accepts black holes and grey holes as institutional inevitabilities and dismisses proposals to extend the rule of law to all administrative action as a “hopeless fantasy.”

Vermeule makes a compelling case that statutory loopholes and anemic judicial review have diminished administrative law’s salience during national emergencies. But his broader argument that black holes and grey holes cannot be eradicated is unpersuasive and deeply troubling. In reality, Congress could eliminate the APA’s procedural loopholes without compromising agencies’ capacity to address emergencies if it would simply discard the APA’s rule-based categorical exceptions in favor of a more nuanced, standard-based derogation regime. Likewise, federal courts could easily eliminate grey holes by treating legal standards in administrative law as vehicles for promoting robust public justification of administrative action. The primary obstacle to these reforms is not “institutional,” as Vermeule asserts, but rather cultural: too many legislators and judges view administrative law in static positivist terms as a means for allocating decision making authority among public institutions, rather than in dynamic relational terms as establishing a regime in which public officials must justify all exercises of administrative powers according to public-regarding principles.

To show how our administrative law might be reformed to promote a “culture of justification” during national emergencies, this essay outlines a relational theory of the rule of law based on the principle that public officials and agencies serve as fiduciaries for the public. Whereas Vermeule’s article explores the current limits of our administrative law, the relational theory suggests practical steps for refining our legal system to ground emergency administration more firmly in the rule of law.

administrative law, emergencies, rule of law, Schmitt, justification