BUT BEFORE I GO. . .

Habermas watch, here.

CALL THE SERGEANT-AT-ARMS

I'm serious. Compare this with this (from here, PDF file):

RULE XVII

DECORUM AND DEBATE

Decorum

1. (a) A Member, Delegate, or Resident Commissioner who desires to speak or deliver a matter to the House shall rise and respectfully address himself to ‘‘Mr. Speaker’’ and, on being recognized, may address the House from any place on the floor. When invited by the Chair, a Member, Delegate, or Resident Commissioner may speak from the Clerk’s desk.

(b)(1) Remarks in debate shall be confined to the question under debate, avoiding personality.

(2)(A) Except as provided in subdivision (B), debate may not include characterizations of Senate action or inaction, references to individual Members of the Senate, or quotations from Senate proceedings.

(B) Debate may include references to actions taken by the Senate or by committees thereof that are a matter of public record; references to the pendency or sponsorship in the Senate of bills, resolutions, and amendments; factual descriptions relating to Senate action or inaction concerning a measure then under debate in the House; and quotations from Senate proceedings on a measure then under debate in the House that are relevant to the making of legislative history establishing the meaning of that measure.

Rules, schmules, I guess. Via Billmon.

PS: The point of those rules is to lend the legislative body a certain seriousness befitting its responsibilities, as well as to help limit conflict between members. That includes partisan conflict. Since accusations of "partisanship" are tossed around with abandon these days, seems to me like a little trip back to Bible school might be necessary for some folks. Those who tend in the Christian direction, that is.

Thus endeth Friday's sermon. See you on Monday.

MORE BEST BAKERY LITIGATION

Some human rights activists also succeeded in convincing the Indian Supreme Court to delete passages from the official record of the Gujarat High Court decision that "cast aspersions on their credibility and bona fides in helping certain persons to approach this Court for redressal of their grievance." The case is Tessta Setalvad v. State of Gujarat, here. Justice Pasayat writes:

9.Observations should not be made by Court against persons and authorities, unless they are essential or necessary for decision of the case. Rare should be the occasion and necessities alone should call for its resort. Courts are temples of justice and such respect they also deserve because they do not identify themselves with the causes before it or those litigating for such causes. The parties before it and the counsel are considered to be devotees and Pandits who perform the rituals respectively seeking protection of justice; parties directly and counsel on their behalf. There is no need or justification for any unwarranted besmirching of either the parties, or their causes, as a matter of routine.

10. Courts are not expected to play to the gallery . . . . Uncalled for observations on the professional competence or conduct of a counsel, and any person or authority or harsh or disparaging remarks are not to be made, unless absolutely required or warranted for deciding the case.

The Court then orders that the offending passages (listed in the opinion) should "stand expunged and deleted from the judgment of the High Court, and consequently must be treated as having never existed or being part of the High Court judgment."

I have no idea how common such rulings are in India, or anywhere else for that matter. I've never heard of the official expunging of judicial rulings. Interesting.

TEXT OF BEST BAKERY OPINION

If you're interested in the full text of the Indian Supreme Court opinion by Justice Arijit Pasayat in the Best Bakery case, which arose out of the violence in Gujarat two years ago, you can go here (Supreme Court Online) or here (Judis). For some comments on the case, see the posts here and here at the blog Human Rights in India.

Here are a few striking passages in which Justice Pasayat deplores the atmosphere in the lower courts:

[35] A more serious ground which disturbs us in more ways then one is the alleged absence of congenial atmosphere for a fair and impartial trial. It is becoming a frequent phenomenon in our country that court proceedings are being disturbed by rude hoodlums and unruly crowd, jostling, jeering or cheering and disrupting the judicial hearing with menaces, noises and worse. This tendency of toughs and street roughs to violate the serenity of court is obstructive of the course of justice and must surely be stamped out. Likewise, the safety of the person of an accused or complaint is an essential condition of or participation in a trial and where that is put in peril by commotion, tumult or threat on account of pathological conditions prevalent in a particular venue, the request for a transfer may not be dismissed summarily. . . . Indeed, it is the duty of the court to assure propitious conditions which conduce to comparative tranquility at the trial. Turbulent conditions putting the accused's life in danger or creating chaos inside the court hall may jettison public justice. If this vice is peculiar to a particular place and is persistent the transfer of the case from that place may become necessary. Likewise, if there is general consternation of atmosphere of tension or raging masses of people in the entire region taking sides and polluting the climate, vitiating the necessary neutrality to hold detached judicial trial, the situation may be said to have deteriorated to such an extent as to warrant transfer. . . .

. . .Mob action may throw out of gear the wheels of the judicial process. Engineered fury may paralyse a party's ability to present his case or participate in the trial. If the justice system grinds to a held through physical maneuvers or sound and fury of the senseless populace the rule of law runs aground. Even the most hated human anathema has a right to be heard without the rage of ruffians or huff of toughs being turned against him to unnerve him as party or witness or advocate. Physical violence to a party, actual or, imminent, is reprehensible when he seeks justice before a tribunal. Manageable solutions must not sweep this Court off its feet into granting as easy transfer but uncontrollable or perilous deterioration will surely persuade us to shift the venue. It depends. The frequency of mobbing manoeuvres in court precincts is a had omen for social justice in its wider connotation.

On the subject of the communal violence as a whole, here is a striking passage:

[63] When the ghastly killings take place in the land of Mahatma Gandhi it raises a very pertinent question as to whether some people have become so bankrupt in their ideology that they have deviated from everything which was so dear to him. When large number of people including innocent and helpless children and women are killed in a diabolic manner it brings disgrace to the entire society. Criminals have no religion. No religion teachers violence and cruelty-based religion is no religion at all, but a mere cloak to usurp power by fanning ill feeling and playing on feelings aroused thereby. The golden thread passing through every religion is love and compassion. The fanatics who spread violence in the name of religion are worse than terrorist and more dangerous than an alien enemy. . . .

And one more on the way the cases were handled in Gujarat:

[65] If one even cursorily glances through the records of the case, one gets a feeling that the justice delivery system was being taken for a ride and literally allowed to be abused, misused and mutilated by subterfuge. The investigation appears to be perfunctory and anything but impartial without any definite object of finding out the truth and bringing to book those who were responsible for the crime. The public prosecutor appears to have acted more as a defence counsel than one whose duty was to present the truth before the Court. The Court in turn appeared to be a silent spectator, mute to the manipulations and preferred to be indifferent to sacrilege being committed to justice.

CONSPIRACY

I may or may not have met with a conspirator this past weekend.

I'm just saying: I'm glad that I took all those classes in Aramaic.

QUOTE OF THE DAY. . .ER, YESTERDAY

From this NYT article on proposed taxes on topless bars to pay for property tax breaks and school funding:

But an older dancer [at the Yellow Rose, not work safe!] saw it differently. Rio, 32, a mother and homeowner who said she had a bachelor's degree in art, said she was appalled by the governor's proposal. She characterized it as immoral because it linked "adult entertainment" with school children and because she saw it as a tax increase on the women like herself, who she said lack political influence.

"This is the lowest thing they could do," Rio said. "The governor wants to give the owners of the biggest houses a tax break and he wants women who have to take their clothes off for money to pay for it."

WHY I LIKE POLITICAL SCIENCE, OR, A CONSTRAINED (AND COOPERATIVE) COURT

It's one of the advantages of being a political scientist studying law that you don't need to exaggerate the significance of the Supreme Court. Stephen Bainbridge, a law professor, reflecting on Justice Breyer's worries about unchecked executive power, writes:

If five of the nine unelected old men and women on that court agree, they can strike down any law or executive action. And our elected representatives have essentially no power to constrain them other than the impractical route of amending the Constitution.

Prof. Bainbridge's complaint about a too-powerful Court is mirrored by William at Southern Appeal as well.

This complaint is not quite on target, and I suspect that the description stems from professional biases that tempt lawyers to take myths of judicial supremacy at face value. I'm generally a critic of judicial supremacy, but sometimes it's worth noting that the actual extent of that supremacy can be overstated.

Here are some familiar ways that the Court is limited:

• It only hears a limited number of cases per year (less than 100 nowadays), and those cases that it does hear are generally related to rather narrow aspects of any particular policy. With respect to yesterday's Gitmo case, for example, the question was whether federal courts even have jurisdiction to hear a habeas petition, not whether prisoners at Gitmo should go free. What happens after the courts get jurisdiction -- if they do -- is still up in the air.


• The overwhelming majority of cases that the Court hears, it hears on appeal. That means that it is emphatically not the case that "any law or executive action" can be struck down by majority vote on the Court. The law or action has to get to the Supreme Court first, and the parties to the suit have to meet all sorts of procedural hurdles to get there.


• Most importantly, perhaps, recent research indicates that the justices do see themselves as constrained by the other branches of government in important ways, beyond the distant threat that their constitutional decisions could be overturned by an constitutional amendment. That's the basic lesson of Epstein and Knight's landmark text, The Choices Justices Make, for example. (And we can leave aside the broad category of non-constitutional or statutory decisions that the Court makes and that Congress can counter with ordinary lawmaking.)


• Consider also the back-and-forth between Congress and the Court on the issue of religious freedom since Smith, or the basic irrelevance of the Court's decision in Chadha, or the complicated ways that Congress, the President and state governmens have responded to Roe, for example. Political actors have a variety of means for responding to Court action, short of the constitutional blunderbusses of the amendment process or impeachment.

Now I don't mean to deny that the Court acts in a heavy-handed fashion at times. In Bush v. Gore, for example, the Court used its power in a way to almost assure that there could be no check from other political actors. That was a shame.

Since we're talking about wartime, though: given the historical willingness of courts to accomodate executive wishes during wartime -- think Quirin and Korematsu -- I'd say that the odds are in favor of a similar Court quiescence here, if one tempered by a sense of duty to do things better, somehow, this time around. Even if the Court rules in favor of Rasul, for example, everything will depend on how narrow the ruling actually is. Even Justice Breyer -- who provoked this outburst from both Professor Bainbridge and William at Southern Appeal -- even Breyer was offering his comments in the context of an explicit willingness to accomodate the executive's wishes during wartime. Breyer said:

[W]e have the possibility of really helping you with what you're really worried about, which is undue court interference, by shaping the substantive right to deal with all those problems of the military that led you to begin your talk by reminding us of those problems. [Solicitor General Olson began his argument by noting that the U.S. is "at war"] So if it's that choice, why not say, sure, you get your foot in the door, prisoners in Guantanamo, and we'll work out the substantive rights to work out something that's protective but practical. (My transcript from around 48:00 in the C-span oral argument file)

Breyer was clearly offering Court cooperation with the executive, just not cooperation of the Colonel Schultz kind: "I see nothing, I know nothing." The real message of Breyer's remarks was, "we'll work with you," not "you'll do what we say."

TRACHMAN'S RESPONSE

Will Trachman was kind enough to respond to my criticisms of his Findlaw piece. Here is his reply, which I have edited ever-so-slightly:

I want to thank Mr. Marston for thoroughly reading my piece, as well as his insightful comments on the substance of the section 5 debate. I think Mr. Marston has done an excellent job bringing to light some of the tougher issues in the debate, and will definitely aid opponents of my point of view in articulating their positions. . . .

Mr. Marston writes:

>>If the main reason for withholding power from Congress is that Congress might make laws that you don't like, then the logical question is, Will the Court do any better?<<

This sentence demonstrates Mr. Marston’s fundamental misunderstanding of the section 5 problem. The Court doesn’t make laws. It’s not supposed to. Congress is supposed to make laws, and the courts are supposed to make sure that those laws are constitutional. There is no dilemma between either Congress or the courts making laws.

The real issue, of course, is whether a ruling by the Court is any better than Congress enacting a statute that purports to enforce the Fourteenth Amendment. Note the importance of constraining Congress’s power to make the law. As I note in my article, Congress has made full use of its Article I powers, like the Commerce Clause, to enact legislation. But Congress faces limits. The Rehnquist Court has limited the Commerce power in Lopez and Morrison, and has protected state legislatures from being commandeered by Congress (in Printz and New York v. U.S.). To reinstate plenary power in Congress, where they are able to both interpret the Constitution and then legislate pursuant to it, is to invite abuse.

Let me quote from a law professor much more distinguished than myself, and, incidentally, a professor considered far to the left of the Rehnquist Court).

Michael Dorf (Columbia Law School Professor): “Virtually any law, indeed, any human action, can, on some rational understanding, be seen to deprive someone of life, liberty, property, or equality; thus, a congressional power to enforce Congress’s own definition of the substantive provisions of the Fourteenth Amendment could well become a de facto plenary congressional power.”

This doesn’t sound dangerous? I disagree.

>>If Congress can define Section 5, however, and does so poorly -- by outlawing affirmative action, say -- then members of Congress can be held accountable at the polls.<<

This is actually a decent argument, and offered by many noted academics, perhaps most prominently Laurence Tribe of Harvard Law School. Without intending to sound presumptuous, I think Professor Tribe and Mr. Marston need to re-think their position.

The first problem with the argument is that it ignores the proper means of amending the Constitution. If Congress, for instance, wants to change the substance of the Fourteenth Amendment (by redefining § 1’s protections on equal protection, due process, and privileges or immunities) it may do so, under this theory, by mustering a mere majority of both houses of Congress. This should not be so. The substantive protections of the Constitution should not be altered based on mere majorities. Article 5 of the Constitution requires not only that 2/3 of each house of Congress agree to alter the Constitution, but also that ¾ of the states agree to its amendment. Surely, Mr. Marston might object to an argument contending that the Federal Marriage Amendment to the Constitution need only pass by a bare majority in each house of Congress, followed by these legislators being “held accountable” at the polls. Amendments to the Constitution are, and have always been, different than mere legislation.

The second problem is that the Constitution’s meaning might change all too frequently. One day, bans on affirmative action may be necessary to enforce the amendment, or perhaps prohibitions on states regulating assault weapons (remember – any of the first eight amendments can be “enforced,” since they are incorporated against the states by the fourteenth amendment’s due process clause). The next day, these laws might not be necessary for enforcing the amendments. States will obviously face confusion when an entire genre of laws are in effect when one party controls Congress, but where they are not when another party is in control of Congress.

>>I think that the battle has been fought to a draw here<<

Not by a long shot. The battle here is between plenary congressional power and good governance. One branch of the government should not be permitted to exercise full interpretative power over the Constitution while at the same time legislating pursuant to it. Suppose, for instance, that Congress sought to “enforce” the equal protection clause by mandating that states actively discriminate against African Americans on the basis of their race. May Congress interpret § 1 of the Fourteenth Amendment in such a manner as to defy the express constitutional rulings of the Supreme Court? I would hope not. For Mr. Marston, however, this remains an open question.

ON RASUL v. BUSH

After listening to the oral argument file for Rasul v. Bush (the Gitmo case) and doing some research on the case yesterday, here are a few thoughts:

1) The detainees' lawyer, John Gibbons, argued that the administration has attempted to create a zone under American control where no law applies but the executive's will. This (the zone) is fundamentally a bad idea, it seems to me. Law is a means of regularizing and checking power. There are certainly conditions under which power has the upper hand and should have the upper hand. Combat units shouldn't need lawyers with them in foxholes. But there is law that applies to war; UCMJ, various conventions. Even in the combat zone, law is not absent.

2) History supports this contention that lawless zones are anathema to our traditions of law. An amicus brief submitted by several legal historians argued that even before the British asserted formal sovereignty over territories controlled by the East India Company, for example, courts entertained writs of habeas corpus in those territories. The existence of a merely conventional recognition of "formal sovereignty" in our treaty with Cuba for the use of Gitmo -- a place where, as Justice Souter noted yesterday, "we even protect the Cuban iguana" -- is not a strong enough reed upon which to build a case for absolute executive power without judicial oversight in any form whatsoever.

3) Even people designated as unlawful combatants are entitled to "some process," in Justice Ginsburg's phrase from yesterday. The administration wants to argue both that it has engaged in some process and that the courts should never be involved in making sure that statement is true, in even the most minimal and perfunctory way. Nonetheless, some kind of minimal oversight is necessary to make sure that the executive branch is affording some process. The basic point of the writ of habeas corpus, it seems to me, is to make sure that custodians -- the jailers -- are acting in a lawful manner. (And there was some argument along those lines yesterday.)

4) The central question is not simply whether the Constitution alone requires the courts to hear the habeas petitions in this case. Eisentrager seems to stand for that position, as Eugene Volokh notes (approvingly; see here as well). Justice Stevens spent a lot of time yesterday pointing out that the law has changed since Eisentrager was decided, both because the habeas corpus statute has been modified by Congress and because a subsequent Supreme Court decision, Braden, called Eisentrager into question. Scalia disputes this interpretation of Braden, apparently. But the argument that Stevens makes needs to be taken seriously. The Justices must give a fair and complete a reading of the value of Eisentrager as precedent; that's part of their job as official interpreters of public texts and as official participants in a process of what Lief Carter and Thomas Burke call "public justification." And at any rate, stare decisis is surely a weaker norm when fair arguments exist that challenge the validity of a precedent. I would bet that few people have actually relied on Eisentrager, for example, after Braden was decided. So after Braden, at least, the central question seems to be whether the Constitution along with the habeas statute requires courts to hear the petition.

5) Finally: Ted Olson owes Scalia a beer. Scalia came to his rescue four times yesterday, by my count.

CELEBRATE

It won't hurt you. Really. (Via American Samizdat)

PATHETIC

I'm trying not to call attention to these kinds of stories, but the GOP response to Kerry's recent ads is pathetic. To counter Kerry's claim that 3 million jobs have been lost under Bush, the GOP cites an article that notes that only 1.8 million jobs have been lost. I'm too lazy to find the A.P. article that the GOP cites, but I would hardly want to run on a record of losing "only" 1.8 million jobs, even if my candidate cites a higher figure. And then in response to Kerry's argument that Bush has given tax breaks to the wealthy, the GOP responds by citing a Donald Luskin article that looks at income and payroll tax figures but ignores dividend taxes and the estate tax (for starters). This is simply dishonest. No one -- and certainly nobody who is wealthy -- calculates their tax burden by looking at income and payroll taxes only. Give me a break. And in response to Kerry's claim that Bush has nominated extremist judges, the GOP is simply nonresponsive.

I don't expect too much from this genre of argument, but I'm really astounded at the weakness of the GOP's arguments here.

SIS'

Check out Heidi's exhibit at the Bromfield Gallery in Boston, April 28 - May 22. Here are directions to the gallery. It's in the South End. Be the-ah or be skway-ah, as my grandma from Brockton would have said. Sort of.

TRACHMAN ON SECTION FIVE

Will Trachman's Findlaw article on Tennessee v. Lane does not answer a crucial question: why, precisely, should the people accept court-imposed limits on Congress's power under the Fourteenth Amendment? Or: why should the Court -- and not Congress -- have power to define the limits of the 14th Amendment?

Stated simply, Section 5 of the 14th Amendment can be read to allow Congress to give content to the rights protected by the rest of the amendment. Trachman admits that such a reading was arguably the "original intent" of the framers of the 14th Amendment.

Let's look at some history here. Congress and the Court have been at this question in earnest since the early 1990s. In 1993, when Congress disagreed with the Court's interpretation of religious liberty, Congress tried to tell the Court that its -- Congress's -- views on religious liberty should prevail. The case that Congress was reacting to was Employment Division v. Smith, (1990) in which a divided Court ruled that the 1st Amendment didn't require states to create exceptions from generally applicable criminal laws when those laws burdened religious practices. The Court upheld drug laws that prevented members of a native tribe from receiving unemployment compensation because they had been dismissed from their job for taking peyote. In Smith, the Court had quite self-consciously moved away from one line of precedent that was favorable to religion and embraced arguments that were less favorable toward religion.

Congress told the Court that it should have taken the other road. The Court was not persuaded. It struck down the law that Congress passed in reaction to Smith (the Religious Freedom Restoration Act, or RFRA, struck down in Boerne v. Flores). But Congress responded to Boerne with a similar law that applied only to property and to prisoners (the Religious Land Use and Institutionalized Persons Act, or RLUIPA). So far, the courts have supported this latter law.

I suppose that this story could be read in a variety of ways. One way to read it is to say that when Congress really wants something, it will find a way to get it, and eventually the courts are going to fall in line. I wouldn't want to make too much of that claim. At any rate, here, Congress wanted to protect more freedom than the Court wanted to protect. If the courts are willing to uphold RLUIPA -- which is essentially RFRA narrowed to two policy areas -- why couldn't they have saved us all the trouble and just allowed Congress to pass RFRA in the first place?

Trachman advances two main arguments concerning the danger of allowing Section 5 to be read in the way that it was intended to be read.

First, he argues that broad Section 5 power would allow Congress to reach "private action," to outlaw actions by private individuals rather than simply action by government. Why is that significant? Because according to Trachman, the Fourteenth Amendment only allows Congress to reach government action. He doesn't tell you that the main support for this argument is . . .wait for it. . .a ruling by the Supreme Court itself that interpreted the 14th Amendment in this narrow fashion, the Civil Rights Cases (1883).

Why would you want to know such a thing? In the Civil Rights Cases, the Court itself narrowed the meaning of the 14th Amendment. The big question for us is whether Congress or the Court should have the power to interpret the scope of the 14th Amendment. Here, Trachman is saying that Congress shouldn't be trusted with the power to interpret the 14th Amendment because it might go against what the Court says about the 14th Amendment. Indeed. That's the logical result of siding with Congress. It's no answer to Congress -- or to the public -- to say that Congress shouldn't have that power because the Court has already told Congress what the amendment means. The argument seems circular to me.

But there's another reason why Trachman would have a hard time discussing the Civil Rights Cases. Just as the courts let Congress have its way with RLUIPA (so far), the courts have also let Congress have its way with the precise issue that was at stake in the Civil Rights Cases -- eventually, that is. The Civil Rights Cases struck down the Civil Rights Act of 1875, which outlawed discrimination in places of public accommodation. Sound familiar? It should. In 1964, Congress basically passed the same law with a different constitutional justification -- this time relying on congressional power over interstate commerce rather than congressional power to enforce the 13th and 14th Amendments. Courts have left the law standing. (See here, for example.)

If it was so dangerous to allow Congress to reach private action in the Civil Rights Cases, why should the courts allow Congress to reach private action through the Civil Rights Act of 1964? Clearly, outlawing discrimination in places of public accommodation is more easily defended as a civil rights measure, grounded in the spirit of the reconstruction amendments, than as a measure that regulates interstate commerce. After all, the 13th and 14th Amendments were intended to secure civil rights. The commerce power was intended to allow Congress to regulate. . .well. . .commerce.

Now Trachman's second argument against broad Section 5 power is that Congress could use the power for both conservative and liberal ends:

If granted this power, Congress is likely to abuse it -- and not only for liberal goals. Suppose Congress were to preclude state schools from using the type of race-based admissions preferences the Supreme Court recently approved. Congress could justify this conservative measure as an attempt to enforce its interpretation of the Equal Protection Clause.

So Congress could outlaw affirmative action and say that it is enforcing the 14th Amendment. Is that so bad? Or, put differently, is it worse to allow the Supreme Court -- and the Supreme Court alone -- the power to determine whether or not affirmative action offends the 14th Amendment? If you disagree with the Court's ruling, you would need to a) push a constitutional amendment (unlikely to pass), b) wait for the Court's membership to change and hope that liberal justices will overrule the bad precedent, or c) press Congress to make a law that challenges the Court, similar to way that RLUIPA challenges the Court. RLUIPA-type laws are not all that common, it seems to me.

If Congress can define Section 5, however, and does so poorly -- by outlawing affirmative action, say -- then members of Congress can be held accountable at the polls.

I think that the battle has been fought to a draw here, and Trachman doesn't show us a way out. If the main reason for withholding power from Congress is that Congress might make laws that you don't like, then the logical question is, Will the Court do any better? And if both are likely to make rulings that you don't like, what then? Go with the more entrenched or the more responsive institution?

Beats me.

What's certain is that the Court has also "abused" its power to interpret the 14th Amendment. Seems to me that the Civil Rights Cases are proof of that. It's good that Congress gave the Court the opportunity to correct its mistake, albeit eighty years later. Perhaps life would have been a little better for some citizens if the Court had gotten it right the first time.

I don't want to be too harsh on Trachman. Clearly it's received wisdom that courts are supposed to interpret the Constitution; it probably sounds odd to argue that Congress should be let in on the act. But after reading Trachman's piece, you should wonder still whether the received wisdom is worth defending.

MORE: Trachman responds; scroll up and see!

BUT WAIT, THERE'S MORE!

In preparation for listening to the oral arguments from tomorrow's Guantanamo Bay cases (see, for example, here -- PDF file), I just read the Court of Appeals for the D.C. Circuit decision in al Odah v. Bush. I had never seen this before:

Opinion for the Court filed by Circuit Judge RANDOLPH.

Concurring opinion filed by Circuit Judge RANDOLPH.

Probably shows my ignorance of the work of circuit courts, but I didn't realize that you could write the majority opinion and write a concurring opinion at the same time. Hmmm. You learn something new every day, I guess.

HAPPY PATRIOT'S DAY

Go Sox.

PS: Yay! Manny Ramirez needs not to ground into an inning-ending DP with the go-ahead run on third base, though.

NAFTA TRIBUNALS

Read Adam Liptak's front page Sunday NYT article on the tribunals created by Chapter 11 of NAFTA. For more info, go to State's website on NAFTA investor-state arbitration, here.

International war crimes tribunals receive more attention from the press. U.S. Supreme Court citation of foreign precedent in such areas as gay rights receives a lot of attention from conservatives who decry the importation of "foreign law" to American soil. But in terms of the development of the law, NAFTA chapter 11 tribunals are at least as significant in the long run, and perhaps even more so. I want to say more about this later. Off to class. . .

MORE: In his reaction to this article, I think Brad DeLong is only half right (via Dan Drezner). DeLong writes:

Somehow Adam Liptak never finds the space to state the obvious: these NAFTA tribunals are not review courts, not appeals courts. They do not set aside judgments. Nobody who wins a case in the U.S. has anything to fear from these NAFTA tribunals. No Mississippi court has anything to fear from these NAFTA tribunals--the awards it makes stand, and the flow of this year's campaign contributions to judges from lawyers who have won verdicts over the past decade continues as well. All these tribunals do is to give some possibility of recourse to those foreign investors ground fine by the wheels of America's courts if and only if they can persuade judges like Mikva, Mason, and Mustill that injustice has been done.

Now he is right in the sense that these tribunals "do not set aside judgments." But I'm not sure what he means when he says that they're not "review courts." They do, in fact, have the power to examine state court proceedings based on certain standards of how investors should be treated -- as DeLong himself notes at the end of the quote. The tribunal in Loewen (PDF file) held that the investor protection provisions of NAFTA also apply to the results of court proceedings. At least as things stand now, this means that when Canadian or Mexican investors are involved in a court proceeding in the U.S., neither state nor federal courts have the last word in the dispute. Sounds like "review" to me.

Imagine, for example, that the tribunal had ruled in favor of those challenging the court judgment in Loewen. According to the terms of NAFTA, states [As in: signatories to NAFTA, not individual states like Mississippi] are supposed to be bound by the judgments of these tribunals; otherwise, what's the point of the treaty? If this process isn't "review" of state and federal court judgments, I'm not sure what is.

Now Brad's main point still stands. Even if the tribunal ruled in favor of Loewen, a lot would have to happen before he got any money, and if you're a betting man, the odds are probably against his ever seeing a dime resulting from the tribunal's judgment.

One bump along the road is sovereign immunity and whether or not NAFTA can be read to abrogate it. The arguments offered by companies who have brought suit before the tribunals are broad on this score. As John Echeverria at GELPI (full disclosure: he's Anita's boss), writes (in "The Real Contract on America," The Environmental Forum, July/August 2003, PDF file here):

Chapter 11 ostensibly dispenses with sovereign immunity altogether, apparently permitting recovery of money damages against the United States to the full extent of the rights of action created by Chapter 11. This, at least, is the interpretation embraced so far by firms that have sued under Chapter 11 and the panels hearing the claims. If this is the correct reading, it would mean that Chapter 11 confers significantly greater rights on foreign investors than U.S. investors possess under U.S. law. For example, all investors, domestic and foreign, can sue in U.S. courts under the Equal Protection Clause and the Due Process Clause for injunctive relief. However, if Chapter 11 is as broad an abrogation of sovereign immunity as supporters contend, foreign investors (but not domestic investors) can also sue for monetary relief on equal protection or due process claims in Chapter 11 proceedings.

One plausible alternative view is that NAFTA cannot actually be read as effecting such a sweeping abrogation of sovereign immunity. The Supreme Court has repeatedly said that Congress can abrogate sovereign immunity only by doing so in express terms. Congress arguably did not effect an express waiver when it approved NAFTA. A waiver of immunity might possibly be inferred from the language of Chapter 11, but Congress merely approved NAFTA and did not actually adopt it as a U.S. statute. The federal legislation implementing NAFTA states that, in the event of a conflict between NAFTA and any provision of U.S. law, U.S. law is to prevail. Because sovereign immunity is a basic, longstanding feature of U.S. law, this provision arguably means that NAFTA cannot properly be viewed as an effective abrogation of immunity. It remains to be seen whether this alternative view prevails, but in the meantime Chapter 11 continues to be implemented under the quite radical premise that it does away with sovereign immunity completely.

We know two important things about law. First, law develops. So the investors' arguments may influence the course of the law; indeed, given the waxing of pro-property rights arguments and the growing consensus of economic and political elites on the desirability of globalization (whatever that means), one should expect victories on the part of investors.

Second, as law is developing, the threat of a lawsuit can affect behavior. The whole point of investor-state arbitration is to make interference with investors more costly for states; the threat of lawsuits is part of that threat.

Now it is true that the chilling effect on regulation can be overstated at this stage. Jack Coe writes:

The staggering numbers accompanying the Chapter 11 prayers for relief, though making for sensational headlines, are misleading. The specter of chilling effect is more accurately assessed by considering net damages awarded rather than damages sought. Approximately fifteen Chapter 11 cases have come to a conclusion. Two have settled, five seem to have been abandoned by the claimants, and eight have reached an adjudicated outcome. Only Metalclad and Myers have ended in awards of arguably significant compensation. In Metalclad, the recovery (approximately $ 17 million) constituted less than 20 percent of what the claimant sought, left the claimant to pay its own costs (estimated to be approximately $ 4 million) and was conditioned on transference to Mexico of title to the investment (comprising a ready-to-operate landfill). The claimant's recovery, moreover, was delayed, and ultimately somewhat reduced, through post-award proceedings in a domestic court; the investor's additional costs of defending the award in those proceedings were not awarded by the trial court. S.D. Myers' $ 6 million (Can.) recovery, presently being contested in a Canadian court, has similarly hollow features.

In Azinian, Mondev, ADF and Loewen, after costly proceedings, the respective claimants recovered nothing, while having to bear their own costs. Waste Management, moreover, was made to initiate its claim afresh after its first effort was dismissed on jurisdictional grounds. As to Methanex, though pending, it is not clear that the claim will enjoy success; it would appear that a recent jurisdictional ruling has lessened the claimant's odds of recovering. In Ethyl, Canada settled for $ 13 million, perhaps shielding itself from a greater award and appreciable costs. Relatively small recoveries were granted in Pope & Talbot and Feldman. Taken as a whole, these results should do little to embolden potential claimants or to restrain regulators. (Taking Stock of NAFTA Chapter 11 in Its Tenth Year: An Interim Sketch of Selected Themes, Issues, and Methods, 36 Vand. J. Transnat'l L. 1381, 1438-1439; footnotes omitted)

Still, this interim data is hard to evaluate; takings cases against states and localities aren't all that easy to win, either, but that doesn't keep people from trying. And as John Echeverria notes (see here, again), there are lots of reasons to be worried about the development of the law in this area.

So while I think DeLong highlights a potentially misleading aspect of Liptak's column, he also creates the false impression that there are no reasons to worry about NAFTA tribunals. States and localities involved in litigation with private investors would be ill advised to ignore NAFTA tribunals, and they would be well advised to read Liptak's article.