ARTICLES

Sarah H. Cleveland, Our International Constitution

Recent judicial and academic debate over the role of international law in constitutional interpretation has focused narrowly and misguidedly on cases involving substantive due process and the Eighth Amendment. This Article argues, however, that the contemporary use of international law in cases such as Roper v. Simmons is fully consistent with the Supreme Court’s historical traditions. This Court has a long tradition of understanding the Constitution as inviting consideration of international law in three fundamental contexts: where it directly references international law or a concept of international law; where international law is used as a background principle to identify the territorial scope of the Constitution, the sovereign powers of the national government, or structural relationships within the federal system; and individual rights cases, where international law may inform the search for fundamental values.

Cases also demonstrate, though, that the Court at times has used international law opportunistically and in ways that restrict individual rights. This Article seeks to bridge this legitimacy deficit by offering four principles for identifying appropriate uses of international law in constitutional interpretation. It argues that the Court should consider the Constitution’s receptiveness to the international rule using traditional tools of constitutional analysis; how uniformly accepted and well defined the international norm is and whether states have complied with it in practice; the extent to which the norm has been accepted or rejected by the United States; and any limitations imposed by international law itself on the operation of the international rule.
 

Aaron Xavier Fellmeth, Cure Without a Disease: The Emerging Doctrine of Successor Liability in International Trade Regulation

The United States government regulates the importation and exportation of goods, software, technology, and services for a great variety of purposes.  Since the September 11, 2001 terrorist attacks, the federal administrative agencies responsible for enforcing international trade regulation have focused increasingly on “homeland security” by inter alia imposing new successor liability principles against companies purchasing the assets or stock of accused violators of international trade regulations.  Using this doctrine, the agencies have abused their considerable regulatory powers to fine the deepest corporate pockets for general deterrent purposes without regard to guilt or innocence.  Due to the ubiquity of corporate reorganizations and asset purchases, every company that conducts transnational business stands at risk of being negatively affected by this new practice.

This Article traces the rise of successor liability in American trade regulation, including the recent published decisions by administrative agencies and administrative law judges affixing liability to asset purchasers.  In general, successor liability is an equitable, court-developed state law doctrine aimed at allowing creditors to seek damages not from the original debtor, but another company that merged with, and in some cases acquired the assets of, the original debtor.  Successor liability in the international law context, however, is incompatible with the positive statutory law the administrative agencies are meant to enforce. Moreover, it creates deadweight economic loss by discouraging the free movement of capital and dilutes the valid effectiveness of statutory penalties.  Finally, international successor liability appears to violate due process by punishing asset purchasers innocent of any wrongdoing.

 

ESSAY

Jacob Katz Cogan, Noncompliance and the International Rule of Law

In an effort to elevate the international rule of law, international law scholars, especially since the end of the Cold War, have endeavored to determine how best to induce compliance, that is, how to encourage nations to obey international law. For all its advantages, this focus on compliance obscures the role of noncompliance in the international legal system. In the absence of effective mechanisms for decision and control, States sometimes feel obliged to take actions that formally violate existing norms but may nevertheless reflect current or developing expectations of lawfulness or make existing law effective. This is “operational noncompliance”—noncompliance that keeps an imperfectly effective system, such as international law, operational. Though compliance is and should be the norm, those who discount operational noncompliance disregard the tension, which is acute in the international arena, between the necessity in a legal system of maintaining the principle that the law is to be complied with—because otherwise what does it mean to be a law?—and the role of noncompliance in developing new law and in enforcing current law. This Essay explores that tension, arguing that we should recognize that operational noncompliance is and must be a part of the international legal system, as it is currently constituted, and that, in some cases, acts of operational noncompliance are legitimate. The failure to acknowledge the functions of operational noncompliance mythologizes contemporary international law, limits our ability to achieve community policies, and risks making international law irrelevant. Unless and until we have more effective international institutions, we will need to come to terms with noncompliance’s role in the international legal system.

NOTE

Jonathan T. Schmidt, Keeping U.S. Courts Open to Foreign Antitrust Plaintiffs: A Hybrid Approach to the Effective Deterrence of International Cartels

International cartels are criminal conspiracies that unambiguously undermine the welfare-enhancing potential of the global trading system. This Note considers how the United States can maximally deter international cartels to protect American consumers. It explores the controversy over whether foreign plaintiffs can bring suit in the United States, under America’s antitrust laws, for harms suffered in foreign transactions due to the collusion of international cartels. The Note reviews the court decisions that have examined this question, most notably the Supreme Court’s recent decision in Hoffman-La Roche, Inc. v. Empagran.

The courts considering this issue have sought to fashion a jurisdictional rule that equally applies to all foreign plaintiffs regardless of the antitrust regimes existing in the countries implicated in the litigation. Such an approach is problematic from a deterrence view as it is under- or over-inclusive. The United States requires a more nuanced approach, one that recognizes that some foreign plaintiffs have effective foreign venues in which to bring their anti-cartel claims while others do not. This Note concludes that the U.S. judiciary is institutionally ill-equipped for distinguishing these two types of foreign plaintiffs. Instead, it calls on Congress to pass legislation that empowers the executive branch to restrict the jurisdiction of foreign plaintiffs who have a more convenient forum in which adequate relief is available for their anti-cartel claims. Such a solution would create a consistent, predictable, national policy on international antitrust jurisdiction, and it would encourage international harmonization of antitrust policies.
 

 

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