--Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).Grounded in the principles of the sociology of law, the course has morphed into an effort to introduce students to law as a self-referencing system with its own particular structures, premises, constraints and language, with its own logic and taboos and its own means of understanding the world. That systemicity (cf. Peter Checkland, Systems Thinking, Systems Practice, Chichester : John Wiley and Sons Ltd, 1999) is then a critical element in the way in which the legal system (in this case of the United States) interacts with the world, both as a legal and as a socio-economic-political actor. The course has also expanded from its original narrow and technical focus, to a broader focus on principles and the use of language and logic to build and operate a system of law. That broadening has made it possible to offer the course not just to first year law students, but also to graduate students in the social sciences and in international affairs, as a grounding in the legal systems that are important in their respective fields.
--Developing a New Course--"Elements of Law"
--"Elements of Law" Course 2.0: A Framework Course for the U.S. Law Curriculum,
This and the posts that follow produces some of the materials I will be presenting to the class. I offer these materials in hopes that they may prove of use and that you might share comments, perspectives and suggestions as I develop those materials on this site. Thanks.
This post includes a draft of the second Chapter of Part II-- Hierarchies of Law and Governance; Sources and Uses, Chapter 10 (Hierarchies of Law within the Domestic Legal Order and Between National and International Law Reflecting Governmental Order).
March 25, 2008, Decided
PruneYard Shopping Center v. Robins
[Available at: http://supreme.justia.com/cases/federal/us/447/74/case.html]
In a world in which the state represented the repository of the highest law of the territory within which its authority could be enforced, the domestic legal order of states expressed both a description of a system of law-states, and also gave expression to the premise that the law-state was the highest form of legitimate law making. Beyond that was the world of the “law of nations” in a modern version not far different from its conception at the time of the Institutes (e.g., Emer de Vattel, Le Droit des Gens (James Brown Scott ed., translation of the 1758 edition by Charles G. Fenwick (another English language version)), and from the 19th century a more formalized structure of contract relations between states, managed under a system of treaties and custom understood as international law. These applied as contracts among equals among the family of civilized nations but could be used to support colonization or the making of unequal treaties when superior nations engaged in state to state relations with an inferior state. Before 1945, this system, of international law produced a bifurcated approach to law systems. On the one hand the system of law produced within a state, the sum of which constituted its domestic legal order, was understood to apply directly to individuals and understood as the legitimate expression of popular sovereignty because it proceeded from the people or their representatives in ways sanctioned by the “higher (constitutional) law” of the state. On the other hand, the obligations incurred by states among each other were said to bind states, as juridical entities, but had no effect within the territory of a state unless, under the rules provided for this purpose within a state, these treaty or customary obligations, were incorporated into the domestic legal order of a state. In the absence of that incorporation there was no automatic transposition of international into domestic law and individuals within a state had neither rights nor obligations under these provisions, however much they might want either.
But especially since the middle of the 20th century, law and law systems have once again become more detached from the state, and assumed an autonomy that might produce a direct connection between international law and individuals wherever situated irrespective of the action or inaction of an intermediary state. This change is described in your reading, Larry Catá Backer, Inter-Systemic Harmonization and Its Challenges for the Legal-State, in FICHL Publication Series No. 11 (2011): The Law of the Future and the Future of the Law 427-437 (Editors: Sam Muller, Stavros Zouridis, Morly Frishman and Laura Kistemaker; Torkel Opsahl Academic EPublisher, Oslo, 2011). Again, the object is coherence, but the vantage point has changed. Were the state once stood at the apex of legal regulation, now it is increasingly subsumed within higher order systems, both public (international state based institutions) and private. Harmonization is currently proceeding along different lines that reflect ambiguous and multi-vector interactions between traditional and emerging governance actors and that suggest the context in which the future of legal systems, however understood, will be determined. This think piece first considers the foundations. The great 19th century project of horizontal harmonization, centered on states and their domestic law systems. The 20th century project of vertical harmonization focused on legal internationalization, from which the edifices of supra-national institutions and public transnational law evolve. It then turns to the current challenge of inter-systemic harmonization. Founded on governance polycentricity, of the mechanics of law beyond the domestic legal orders of states, of the rise of private law with public functions, and of public entities as private actors, it is changing the landscape of law. The greatest challenge for law is to avoid becoming irrelevant where corporations use contracts to govern their supply chains, states become private market actors, and private enterprises regulate markets by assessment and rating.
For today’s class students will consider these issues as applied in the United States. We will use as the basis of our examination the discussion in Medellín v. Texas, 128 S.Ct. 1346 (2008). The case presents a useful example of the way in which state, federal and national governments, and their legal orders, now intersect within the law-state system of the United States. Its complexity provides a window on the realities of the application of law where multiple jurisdictions and systems of law may apply simultaneously to a single event or series of events.
The facts of the case are fairly straightforward:
Medellin was arrested at approximately 4 a.m. on June 29, 1993. A few hours later, between 5:54 and 7:23 a.m., Medellin was given Miranda warnings; he then signed a written waiver and gave a detailed written confession. App. to Brief for Respondent 32-36. Local law enforcement officers did not, however, inform Medellin of his Vienna Convention right to notify the Mexican consulate of his detention. Brief for Petitioner 6-7. Medellin was convicted of capital murder and sentenced to death; his conviction and sentence were affirmed on appeal. Medellin v. State, No. 71,997 (Tex. Crim. App., May 16, 1997), App. to Brief for Respondent 2-31.
Relying on both the Presidential Memorandum and the ICJ Avena decision, Medellin filed a second application for habeas relief in state court. Ex parte Medellin, 223 S. W. 3d 315, 322-323 (Tex. Crim. App. 2006). That appeal was then dismissed by the Texas Court of Criminal Appeals as an abuse of the writ. Ex Parte Medellín, 223 S. W. 3d, 315, at 352 (Tex. Ct. Crim. App. 2006). In that court’s view, neither the Avena decision nor the President’s Memorandum was “binding federal law” that could displace the State’s limitations on the filing of successive habeas applications. Ibid. The U.S. Supreme Court granted certiorari. 550 U.S. 917, 127 S. Ct. 2129, 167 L. Ed. 2d 862 (2007). The U.S. Supreme Court then had two significant issues to deal with―the first was the effect of international law on American jurisprudence and its incorporation into the decisions of American courts. The second was an issue of federalism, touching on the effect of a Presidential Memorandum purportedly issued under the President’s foreign affairs powers on the application and interpretation of the criminal law of a state.
With respect to the first issue, the Supreme Court first summarized its view of the relationship of international law to the domestic law of the United States.
This Court has long recognized the distinction between treaties that automatically have effect as domestic law, and those that―while they constitute international law commitments―do not by themselves function as binding federal law. The distinction was well explained by Chief Justice Marshall’s opinion in Foster v. Neilson, 27 U.S. 253, 2 Pet. 253, 315, 7 L. Ed. 415 (1829), overruled on other grounds, United States v. Percheman, 32 U.S. 51, 7 Pet. 51, 8 L. Ed. 604 (1833), which held that a treaty is “equivalent to an act of the legislature,” and hence self-executing, when it “operates of itself without the aid of any legislative provision.” Foster, supra, at 314, 2 Pet. 253, 315, 7 L. Ed. 415. When, in contrast, “[treaty] stipulations are not self-executing they can only be enforced pursuant to legislation to carry them into effect.” Whitney v. Robertson, 124 U.S. 190, 194, 8 S. Ct. 456, 31 L. Ed. 386 (1888). In sum, while treaties “may comprise international commitments . . . they are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be ‘self-executing’ and is ratified on these terms.” Igartua-De La Rosa v. United States, 417 F.3d 145, 150 (CA1 2005) (en banc) (Boudin, C. J.).
A treaty is, of course, “primarily a compact between independent nations.” Head Money Cases, 112 U.S. 580, 598, 5 S. Ct. 247, 28 L. Ed. 798 (1884). It ordinarily “depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it.” Ibid..... Only “[i]f the treaty contains stipulations which are self-executing, that is, require no legislation to make them operative, [will] they have the force and effect of a legislative enactment.” Whitney, supra, at 194, 8 S. Ct. 456, 31 L. Ed. 386.
To arrive at this determination, the Supreme Court described what it considered the appropriate interpretive analysis for cases of this kind. Because statutes are at issue, it interpretation starts with the relevant text (Ibid; Part II.A). But, “‘Because a treaty ratified by the United States is “an agreement among sovereign powers,’ we have also considered as “aids to its interpretation” the negotiation and drafting history of the treaty as well as “the post ratification understanding” of signatory nations. Zicherman v. Korean Air Lines Co., 516 U.S. 217, 226, 116 S. Ct. 629, 133 L. Ed. 2d 596 (1996).” (Ibid). The majority suggested that the “most natural reading of the Optional Protocol is as a bare grant of jurisdiction.” (Ibid). In any case, they reasoned, the obligation to comply with ICJ judgments arises from the U.N. Charter and not the Optional Protocol. But if that is the case, the Court determined, then the operative language, that each member state undertakes to comply with ICJ decisions means only that the member state commits “to take future action through their political branches to comply with an ICJ decision.” Brief for United States as Amicus Curiae in Medellin I, O. T. 2004, No. 04-5928, p 34.” (Ibid). Thus, the undertaking is a political undertaking not a legal one. In effect, the U.N. Charter, the majority suggests, commits the United States only to endeavor to transpose ICJ judgments into domestic law. For this purpose, the Supreme Court relied on both the position of the U.S. government and its application of prior cases, and its inference from the framework for the enforcement of ICJ decisions. “It is, moreover, well settled that the United States’ interpretation of a treaty “is entitled to great weight.” Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 184-185, 102 S. Ct. 2374, 72 L. Ed. 2d 765 (1982). . . . The Executive Branch has unfailingly adhered to its view that the relevant treaties do not create domestically enforceable federal law. See Brief for United States as Amicus Curiae 4, 27-29.” (Ibid).
It must be remembered, however, that the premises out of which the majority Justices reached their conclusion remain highly contested. That contestation exists on two levels. One level is focused on the peculiarities of U.S. constitutional law. Within the parameters of American constitutional law, the narrow textualismthat produced the majority opinion is countered by a functional approach well illustrated by the dissenting Justices. Rather than focusing on the logic of the text at issue and the intent of the drafters in the interpretive construction of the text, the functionalist justice will look to achieving the intent objective of the drafters rather than privileging the textual and formal logic of the text. As the majority in the Medellin case suggested, formalists tend to view the functional approach as veering too close to and sometimes embracing a legislative power that is not for courts to wield. Thus the issue of interpretation, the issue of legal hierarchies and the role of international law in the United States becomes one not merely of the application of law and constitutional principles, but also of the theory of separation of powers (which organ of government has the authority to make these determinations) and of the character of interpretation itself (e.g., when does interpretation become legislation). (Medellin, Part II.B).
PruneYard reminds us again, of course, of the importance of hierarchy in law. In that case, state constitutional law, which is supreme within the domestic legal order of a state, must itself conform to the superior effects of the constitution of the community of states to which California is a member. It is thus against the overriding constraints of federal constitutional (and to some extent statutory) law, that the California constitution must be read. PruneYard also provides an insight into the arguments rejected in Medellin. There the plurality rejected the application of a similar relationship between international law and the constitutional law of the United States. They rejected the idea of a hierarchy in which international law sat atop the constitutional and domestic legal order of states in favor of a view that treated the two systems as distinct through connected through the intermediation of consent in which legislatures evidenced acquiescence through legal transposition (the enactment of international obligation into domestic law through statutes and the like).
Yet it is also important to remember that there is a hierarchy of international law, one that in some ways is as contested that that within domestic legal orders (Larry Catá Backer, Sovereign Investing and Markets-Based Transnational Legislative Power: The Norwegian Sovereign Wealth Fund in Global Markets, 29 American University International Law Review – (forthcoming 2013)). Sometimes the hierarchy is explicitly bound up with the issues of the appropriate sources of law to be applied by international bodies. The Statute of the International Court of Justice, which played a prominent role in Medellin, for example, provides: