This panel was convened at 9:00 am, Saturday, April 12, by its moderator, Simona Grossi of Loyola Law School, Los Angeles, who introduced the panelists: Cassandra Burke Robertson of Case Western University Law School; Zachary Clopton of the University of Chicago Law School; Anthony Colangelo of Southern Methodist University Dedman School of Law; and Beth Stephens of Rutgers University School of Law.
STATE LAW LITIGATION OF INTERNATIONAL NORMS: HORIZONTAL AND VERTICAL DIMENSIONS
By Zachary D. Clopton *
For decades, scholars of international litigation focused their attention on the federal courts. The combination of diversity, alienage, federal question, and Alien Tort Statute (ATS) jurisdiction largely justified this focus, opening multiple avenues for litigants to prosecute claims in federal courts. In recent years, however, the federal courts have closed some doors to international litigation. In response, international litigators have turned their gaze to state courts. This panel is but one example of this new direction. For an excellent earlier treatment of this topic, the University of California Irvine Law Review published a symposium issue in 2013 dedicated to human rights litigation in state courts and under state law. (1)
Within this new domain of U.S. states and international law, the focus justifiably has been on causes of action derived from common-law sources (whether in state or federal courts): (1) state law; (2) foreign law, through state choice-of-law rules, and (3) international law, also through state choice of law. What unites these categories is that courts are responsible for the relevant lawmaking choices. But state political branches also can engage with international norms. Examining the current and potential roles for state political branches permits an examination of doctrinal and theoretical questions in state litigation. First, I will offer some examples (real and hypothetical) of state political branch involvement. Second, I will discuss two sets of inquiries in these cases: vertical debates about federal versus state actors, and horizontal debates about courts versus political branches. Third, I will discuss federal court doctrines that could limit state-level litigation, but I will do so in light of these horizontal and vertical dimensions. Finally, I will comment briefly on how state political branch involvement could play out with respect to the litigation of international norms.
STATE POLITICAL BRANCHES
Given the shortness of life, I will only briefly summarize some of the ways that state political branches can participate in the instantiation of international norms.
With respect to international agreements, state statutes can implement international treaties, including non-self-executing treaties or even treaties not ratified by the U.S. Senate. To date, these efforts have primarily been in the area of international private law, such as the International Wills Convention. States also can make agreements with foreign governments on their own-the Great Lakes Charter and California's recent efforts on global warming are two examples. Julian Ku has been at the forefront of documenting both of these varieties of state participation in international law. (2)
State statutes also can touch on international norms. The state laws preempted in cases like Crosby, (3) Garamendi, (4) and the Ninth Circuit's decision in Movsesian, (5) for example, touch on these issues. One also could imagine state statutes directly incorporating international law. What about a state alien tort statute providing state-court jurisdiction for violations of the law of nations? State statutes could specify causes of action for violations of certain international norms, and such statutes even could provide a cause of action without requiring the plaintiff to show injury in fact, since Article III standing is only a requirement for federal jurisdiction. State criminal or administrative law also could incorporate international norms.
VERTICAL AND HORIZONTAL DIMENSIONS
State-level litigation of international norms asks at least two questions. First, on the vertical dimension, are states (independent of the federal government) proper actors in foreign affairs? Second, on the horizontal dimension, how do courts compare to the political branches on these issues? It may be that responses to both questions are driven by views about international law. One could imagine a judge or scholar hostile to international law in all its forms, just as one could imagine a judge or scholar amenable to expanding the role of international norms in both directions. But the vertical and horizontal dimensions open up room for more nuanced positions.
First, it may be that some opposition to state involvement in international law derives from the vertical concerns of foreign affairs federalism. On this view, international law is the province of the federal government--political branches or courts. Arguments for the federal government as the "one voice" in foreign affairs include minimizing externalities and retaliation, concerns with (dis)uniformity, and views about the competence, experience, and expertise of the relevant actors.
Alternatively, horizontal objections translate into arguments that international law is the province of political branches--federal or state. Indeed, John Yoo and Julian Ku take this position in their book, Taming Globalization: International Law, the U.S. Constitution, and the New World Order. Arguments in support of the political branches at the expense of the judiciary relate to (1) political accountability; (2) functional expertise and experience; (3) access to information; (4) limits on agenda-setting; and (5) limits on execution, by which I mean that courts have more limited options for resolving disputes than legislatures.
Discussion of state-level litigation of international norms routinely turns to potential doctrinal limits enunciated by federal courts. How much the federal courts are willing to reach into state litigation should depend on how they respond to the horizontal and vertical dimensions.
If concerns about state-level litigation are vertical, then various doctrines are in play. One option would be to sweep more cases into federal courts. The Southern District of Texas's expansive opinion in Sequihua, (6) which found federal subject matter jurisdiction based on the federal common law of foreign relations, could step in where diversity of citizenship, alienage, and ATS jurisdiction are unavailable. Another option would be to treat international law causes of action as federal common law, thus creating federal question jurisdiction for all international claims regardless of party identity or amount in controversy. Of course, these doctrines may only be a weigh station before dismissal. The Class Action Fairness Act, for example, could be understood as taking this approach for class actions generally--broadening federal court jurisdiction in order to take advantage of more restrictive federal rules at the expense of some more expansive state regimes.
Vertically minded federal courts also could announce constitutional or federal common-law rules that apply to, and limit, state courts. With respect to constitutional rules, Professor Robertson's personal jurisdiction cases discussed on this panel and the limited constitutional choice of law rules are two options. The Dormant Commerce Clause and Dormant Foreign Affairs Preemption also may be available. Alternatively, Sabbatino (7) stands for a post-Erie enclave for federal common law regarding foreign affairs. One could imagine federal common-law rules for choice of law or forum non conveniens, although the Court has rejected these options to date.
All of the doctrines described so far could be used to limit international-law claims in state courts if the federal courts remained hostile. But, interestingly, these approaches require federal judges to police the vertical dimension. In other words, these doctrinal approaches imply some willingness to allow courts to trump political branches, i.e., vertical concerns are more pressing than horizontal ones. Instead, if federal courts are most concerned about the horizontal dimension--if they want to empower political branches--then limits on state law should come from Congress and the President. Preemption decisions like Garamendi and Crosby fit the bill, as does the panel opinion in Movsesian, which adopted a version of presidential preemption. But a horizontally minded judiciary would be more limited in the doctrinal tools available to curb state-level claims.
What should we make of the role of state political branches in the litigation of international norms? Should those favoring international law in state courts devote some energy to lobbying state legislators and governors?
In some sense, state political branch involvement should make international litigation in state courts easier. This approach would satisfy those who reject judicial lawmaking and those with federalist impulses. And state legislatures also could try to insulate their cases from federal procedural doctrines through exclusive jurisdiction techniques. As a theoretical matter, state political branches have some advantages. Critics of courts are right to note that legislatures have advantages in polycentric disputes that have spillover effects on nonparties. Legislatures have more flexibility than courts in setting agendas and crafting policy responses. And Professor Spiro has persuasively argued that the externality problem is, at best, overstated. (8)
In a more practical sense, however, state legislative activity in international affairs may be more easily attacked in federal courts. Considering the doctrinal responses...