This panel was convened at 1:00 PM on Friday, April 11, by its moderator, Robert B. Ahdieh of Emory Law School/Princeton University, who introduced the panelists: Thomas A. Bamico, Assistant Attorney General, Massachusetts; Stephen de Boer of the Department of Foreign Affairs and International Trade, Canada; Eric L. Hirschhorn of Winston & Strawn LLP; Judith Resnik of Yale Law School; and Christina R. Sevilla of the Office of the U.S. Trade Representative. *
By Robert B. Ahdieh ([dagger])
The study of jurisdiction is properly understood as an elaborate exercise in line-drawing. Reduced to its essence, its core aspiration is to delimit the bounds of relevant legal and regulatory authority.
In important respects, the same might be said of law and regulation generally. Legal norms constitute lines, distinguishing the permissible from the impermissible and, of particular relevance here, demarcating the allocation of decision-making authority. Most visibly, this may be evident in our elaborate jurisprudence of conflicts of law. Among the most complex areas of law--especially if our students are to be believed--the study of conflicts ultimately boils down to a pair of simple questions: What law governs? And what court is authorized to apply it?
An analogous orientation to the project of delimitation might be discerned at the inception of the Supreme Court' s federalism revolution. Behind the broad rhetoric of Justice O'Connor' s opinion in New York v. United States, (1) one finds a central objection to Congress's obscuring of the lines of authority--and hence accountability--for political choices about the handling of nuclear waste. Clear and sharply delineated realms of federal and state decision-making authority, the Court would seem to suggest, are essential prerequisites to democratic governance.
Among the most rigidly delineated spheres of law in American federalism has been the realm of foreign affairs and international law. Here, the resistance to any place for state or local voice--let alone authority--has been quite firm. Whether in theory or practice, no room has been seen for permeation of the black box of the nation-state. (2)
As suggested by a growing number of scholars and explored by the distinguished panelists here today, this may now be changing. In previous work, I have described the engagement of state courts with international tribunals, and the interaction of state regulatory and enforcement authorities with their counterparts abroad. (3) Judith Resnik, to similar effect, has outlined the striking array of state and local initiatives designed to promote--and even implement--the Kyoto Protocol and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). (4)
Building on opening remarks by Professor Resnik, today's panel will highlight two prominent facets of the recent engagement of subnational authorities with foreign affairs and international law. The first--on which we will hear from Christina Sevilla, of the Office of the U.S. Trade Representative, and Stephen de Boer, of Canada's Department of Foreign Affairs and International Trade--concems the place of subnational authorities in shaping international economic policy and reconciling international, state, and local norms. Our second emphasis will be the increasingly prominent debate over how Congress and the federal courts should respond to state and local divestment and sanctions initiatives against foreign states. On this, we will hear from Eric Hirschhorn and Thomas Barnico, who advocated opposing positions on this question, on behalf of the National Foreign Trade Council and the State of Massachusetts, in the two most significant cases to address it to date. (5)
In recent work, Professor Resnik has thrown a bit of cold water on the ongoing--and often frenzied--debate over the Supreme Court's citation of foreign authority. Specifically, she has highlighted the increasing internalization of international norms through state and local executives and legislatures, to suggest the lack of any necessary inconsistency between the embrace of international norms and the normative embrace of federalism and democracy. (6) Further, Professor Resnik has emphasized the growing role of networks of state and local officials, operating both domestically and transnationally, in advancing such subnational engagement with international norms. (7)
These observations challenge--and demand adjustment to--our foundational notions of the relationship of international, national, and subnationai institutions and interests. To begin, they suggest that our longstanding, almost visceral sense of international law as operating in tension, if not outfight conflict, with state and local norms requires reconsideration. States and localities are increasingly participants in the creation, evolution, and internalization of international legal norms. Given as much, it strains reason to understand international law as a means by which national authorities force their preferred norms on resistant state and local authorities. Instead, what appears is a more discursive--even dialectical--process, in which international norms arise from engagement across multiple levels of authority, and arguably serve to give heightened voice to state and local authorities. (8)
But what are we to make of the heightened participation of states and localities in foreign affairs and international law? Much of the objection to such participation has relied on the need for effective coordination of our national engagement with foreign states. With the participation of subnational authorities, the argument goes, such coordination is impossible. As Professor Resnik's evidence suggests, however, this need not be so. Emerging networks of state and local authorities may offer alternative mechanisms of coordination in foreign and international policy. Effective coordination--or standard-setting, as I have characterized it--thus does not necessitate centralized, national-level decisionmaking. Rather, it can be accomplished through horizontal coordination as well. (9)
At a minimum, it is clear that things are changing. Seventy years ago, the Supreme Court admonished that as to the foreign relations of the United States, "the state of New York does not exist." (10) Today, the State of Illinois is imposing sanctions on Sudan, as the State of Texas determines whether the United States will comply with its obligations under the Vienna Convention on Consular Relations. (11)
With today's panel, then, we have a great deal to discuss.
* Mr. Barnico did not submit remarks for the Proceedings.
([dagger]) Visiting Professor & Microsoft/LAPA Fellow, Program in Law and Public Affairs, Princeton University; Professor of Law & Director, Center on Federalism & Intersystemic Governance, Emory University.
(1) 488 U.S. 1041 (1992).
(2) "In respect of all international negotiations and compacts, and in respect of our foreign relations generally, state lines disappear. As to such purposes the state of New York does not exist." United States v. Belmont, 301 U.S. 324, 331 (1937).
(3) See, e.g., Robert B. Ahdieh, Dialectical Regulation, 38 CONN. L. REV. 863 (2006); Robert B. Ahdieh, Between Dialogue and Decree: International Review of National Courts, 79 N.Y.U.L. REV. 2029 (2004).
(4) See Judith Resnik, Foreign as Domestic Affairs: Rethinking Horizontal Federalism and Foreign Affairs Preemption in Light of Translocal Internationalism, 57 EMORY L.J. 31 (2007).
(5) Mr. Hirschhorn served as counsel to the NFTC in National Foreign Trade Council v. Giannoulias, 523 F. Supp. 2d 731 (N.D. Ill. 2007), and Mr. Baruico served as counsel to Massachusetts in Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000).
(6) See Judith Resnik, Law's Migration: American Exceptionalism, Silent Dialogues, and Federalism's Multiple Points of Entry, 115 YALE L.J. 1564 (2006).
(7) See Resnik, supra note 4.
(8) I have previously explored such patterns of engagement across jurisdictional lines, under the rubric of "intersystemic governance." In such circumstances, I suggest, we may find
a regulatory regime characterized by increased interaction, of a more recurrent nature, and by a close intermingling of regulatory conflict and cooperation. Ultimately, rather than increased regulatory coordination supporting each [jurisdiction's] pursuit of its own [goals], we may see something akin to joint, or intertwined, regulation of relevant individuals, institutions, or subject-matter. In such regimes, discrete sets of regulatory rules may collapse into a collective whole. Ahdieh, supra note 3, at 865 (internal citations omitted). Such regimes exhibit a distinct set of institutional characteristics, including (1) a heightened embrace of complexity, as compared to a single-minded emphasis on clarity; (2) a potential for the operational interdependence of regulatory institutions across jurisdictional lines, and (3) a central role for persuasion, rather than coercion, in determining the efficacy of relevant law and regulation. See Robert B. Ahdieh, From Federalism to Intersystemic Governance: The Changing Nature of Modern Jurisdiction, 57 EMORY L.J. 1 (2007). Further, they offer a counterpoint to conventional normative critiques of jurisdictional overlap and regulatory complexity, by exhibiting a heightened capacity to overcome regulatory inertia, to foster innovation, and to facilitate salutary integration. See Ahdieh, supra note 3, at 879-96.
(9) I explore and develop this "coordination" account of the relationship of international, national, and subnational institutions and interests in a forthcoming work. See Robert B. Ahdieh, Foreign Affairs, International Law, and the New Federalism: Lessons from Coordination, 73 Mo. L. REV. 1185 (2008).
(10) United States v. Belmont, 301 U.S. 324, 331 (1937).
(11) See Ahdieh, supra note 9 (describing State of Illinois' Sudanese divestment legislation, and Supreme...