Dynamic incorporation of foreign law.

AuthorDorf, Michael C.

Lawmaking bodies in one polity sometimes incorporate the law of another polity "dynamically," so that when the law of the foreign jurisdiction changes, the law of the incorporating jurisdiction changes automatically. Dynamic incorporation can save lawmaking costs, lead to better legal rules and standards, and solve collective action problems. Thus, the phenomenon is widespread. Dynamic incorporation does, however, delegate lawmaking power. Further, as the formal and practical barriers to revocation of the act of dynamic incorporation become higher, that act comes closer to a cession of sovereignty, and for democratic polities, such cessions entail a democratic loss. Accordingly, dynamic incorporation of foreign law has proven controversial both within federal systems and at the international level. The problem is most acute when nation states agree to delegate lawmaking power to a supranational entity. In order to gain the reciprocal benefits of cooperation and coordination, the delegation must be functionally irrevocable or nearly so. Representation of the member nation states within the decision-making structures of the supranational entity can ameliorate, but cannot fully compensate for, the resulting democratic losses suffered by those nation states. More broadly, the benefits of dynamic incorporation must always be balanced against its costs, including the cost to self-governance.

INTRODUCTION I. HOW DYNAMIC INCORPORATION THREATENS DEMOCRACY A. The Prima Facie Threat to Democracy B. The Revocability Spectrum II. DIRECTIONS OF INCORPORATION: UP, DOWN, AND ACROSS A. Up B. Down C. Across III. REASONS FOR DYNAMIC INCORPORATION A. Avoiding Lawmaking Costs B. Accommodating Local Diversity Through Customization C. Coordination and Reciprocity IV. THE POLITICAL SAFEGUARDS OF DYNAMIC INCORPORATION A. Representation as Remedy B. Representative Courts CONCLUSION INTRODUCTION

When lawmaking bodies incorporate by reference laws from other jurisdictions, typically they do not thereby delegate any lawmaking power. Incorporation by reference functions as a shorthand. It adopts the law as it stands at the moment of incorporation. Future changes in the law of the adopted jurisdiction do not take effect in the adopting jurisdiction, unless and until the lawmaking body in the adopting jurisdiction takes the further step of incorporating the changes. Thus, incorporation by reference is usually static. However, lawmaking bodies sometimes employ a strategy of dynamic incorporation of foreign (1) law, so that if and when the law of the incorporated jurisdiction changes, the law of the incorporating jurisdiction changes with it. In contrast to static incorporation, dynamic incorporation does delegate lawmaking authority, (2) and has therefore proven controversial.

At the national level, scholars disagree about whether the Constitution permits the United States to enter international agreements (whether by treaty or by other means) that cede to foreign, partly foreign, or transnational bodies the power to make rules of law that are self-executing within the United States and thus binding on U.S. government officials. For example, David Golove and Henry Monaghan each argue that since the founding, the federal government has had the power to enter agreements authorizing international and foreign bodies to take legislative, executive, and adjudicatory actions that not only bind the United States as a matter of international obligation, but also operate internally. (3) In addition, Edward Swaine has offered a functional justification of most delegations of lawmaking authority to transnational bodies. (4) By contrast, Curtis Bradley, John Yoo, and others offer a different picture of the historical record and contend that, in any event, modern understandings of the Constitution limit the ability of the federal government to place the making, execution, and interpretation of law in the hands of foreign bodies that it does not control. (5)

The proper resolution of the federal constitutional question has important consequences both for international agreements into which the United States has already entered, such as the North American Free Trade Agreement (NAFTA), (6) and for international agreements into which the United States may enter in the future, such as the Kyoto Protocol and successor environmental treaties. If and when the validity of such federal commitments reaches the United States Supreme Court, the Justices will no doubt be attentive to the constitutional text, structure, and original understanding, as well as historical practice, their own precedents, and the expected consequences of whatever rule they announce. (7)

Likewise, similar tensions will need to be resolved in accordance with the particular language, history, and interpretive conventions in the European Union (EU) and its member states. The European Court of Justice insists that treaty signatories must bring their domestic law--including constitutional provisions into conformity with EU obligations, (8) while member states insist that EU law must yield to contrary domestic constitutional requirements where they conflict. (9)

To be sure, the looming collision in the EU concerns static as well as dynamic incorporation: under the Westphalian approach of some national constitutional courts, even an EU norm that was clear at the time of accession would have to yield to a contrary national constitutional norm. (10) But the issue is more acute with respect to dynamic incorporation. For preexisting EU norms, the act of ratification provides legitimacy for any subsequent sublimation of a national norm to a European one. By contrast, where the relevant EU norm is promulgated (by the European Commission, say) after some nation's accession, all that vindicates the EU norm is the original, perhaps decades-old, act of accession. Given the well-mooted "democratic deficit" in the EU, (11) dynamic incorporation of EU law thus means replacing domestic norms with supranational ones of questionable legitimacy.

The legitimacy of dynamic incorporation of foreign law also poses potential difficulties within federal systems such as the United States, both at the state and national levels. Although some state constitutions expressly prohibit static as well as dynamic incorporation by reference, (12) courts have been reluctant to approve dynamic incorporation even in states that do not generally prohibit incorporation by reference. Depending on how one counts, either twelve or fifteen state high courts forbid dynamic incorporation of federal law as an impermissible delegation of lawmaking power, (13) and more might forbid it if they were to face the question directly.

Yet notwithstanding the skeptical states, domestic examples of dynamic incorporation of foreign law abound. For example, some states define various terms in their income tax codes in a way that incorporates definitions found in the federal Internal Revenue Code, including definitions that Congress changes after the state decides to incorporate federal law. (14) In addition, liability in tort in some states may depend on compliance with federal law, even where the relevant federal standards go into effect after the state rule (whether legislatively or judicially created) incorporating them. (15) Further, some states interpret their state constitutions in "lockstep" with the U.S. Supreme Court's interpretation of parallel provisions of the Federal Constitution, with the consequence that a change in U.S. Supreme Court constitutional jurisprudence can change the meaning of the state constitution. (16)

Likewise, federal law sometimes dynamically incorporates state law. For example, under the Conformity Act, federal courts applied the procedural law of the states in which they sat respectively. (17) Federal Rule of Evidence 501 (which was enacted by an ordinary Act of Congress) makes state privilege law applicable in federal court where state law provides the rule of decision. (18) In addition, the Assimilative Crimes Act incorporates the criminal law of the state in which federal land is located. (19) The federal judiciary provides yet another example: in exercising its power to fashion federal common law in discrete areas of federal concern, the courts presumptively define the content of federal law as state law. (20)

The foregoing examples reveal that the federal government and many states have found dynamic incorporation useful, even as other states forbid the practice. But even without a blanket proscription on dynamic incorporation, some instances of the phenomenon will appear problematic or at least highly peculiar. For example, to my knowledge, no state has ever defined its law to dynamically incorporate the law of one of its sister states. Statutory efforts at harmonization, such as state-by-state adoption of restatements or uniform codes, have typically functioned merely as a form of static incorporation, and to the extent that state courts thereafter look to one another for guidance, they treat out-of-state decisions only as persuasive precedent. (21) Moreover, to my knowledge, each example of federal dynamic incorporation of state law is a territorially limited accommodation to the complexities created by a system of federalism. Congress has not attempted to make the law of a single state applicable, on a dynamic basis, to the nation as a whole; presumably an attempt to do so--for example, via a law specifying that federal law in admiralty cases shall be Florida law or that federal law governing contracts with the federal government shall be New York law--would prompt serious misgivings if not objections on nondelegation or other constitutional grounds.

Whether the misgivings indeed rise to the level of state or federal constitutional violations is not my main concern here. My goals are analytic and general. This Article asks how and when dynamic incorporation of foreign law does or does not violate...

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