Dynamic incorporation of foreign law

University of Pennsylvania Law Review

Volumn 157, Issue 1, 2008, Pages 103-170

  Dorf, Michael C ^a  

^a MIT Sloan School of Management

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EID: 58149105499     PISSN: 00419907     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (358)

1. Throughout this Article, I use the term "foreign" to refer to truly foreign sovereigns, transnational bodies, and different sovereigns within the American federal system. In doing so, I do not mean to deny that for many purposes "[i]nternational law is part of our law." The Paquete Habana, 175 U.S. 677, 700 (1900).
2. But I am interested in how and when international law becomes part of domestic law, and so it would be question-begging to begin with this point. Likewise, I do not deny that the relation of U.S. states to one another and to the national government differs in key respects from the relation of a U.S. state or the national government to a truly foreign sovereign. See Testa v. Katt, 330 U.S. 386, 389-90 (1947) (explaining that, in light of the Supremacy Clause of Article VI, a state cannot treat federal law as "foreign" in the way that it treats die law of a truly foreign sovereign).
3. But cf. Michigan v. Long, 463 U.S. 1032, 1068 (1983) (Stevens, J., dissenting) (likening Michigan to Finland, with respect to the federal government).
4. See Jonathan R. Siegel, The Use of Legislative History in a System of Separated Powers, 53 VAND. L. REV. 1457, 1480 (2000) ("Incorporation by reference of pre-existing text cannot violate the nondelegation doctrine, because it does not give away any power.").
5. David Golove, The New Confederalism: Treaty Delegations of Legislative, Executive, and Judicial Authority, 55 STAN. L. REV. 1697 (2003);
6. Henry Paul Monaghan, Article III and Supranational Judicial Review, 107 COLUM. L. REV. 833 (2007).
7. Whether any given international obligation in fact operates internally of its own force depends on whether the obligation-creating instrument "conveys an intention that it be 'self-executing' and [whether the treaty] is ratified on these terms." Medellin v. Texas, 128 S. Ct. 1346, 1356 (2008)
8. (internal quotation marks omitted) (quoting Igartua-De La Rosa v. United States, 417 F.3d 145, 150 (Ist Cir. 2005) (en banc)).
9. See Edward T. Swaine, The Constitutionality of International Delegations, 104 COLUM. L. REV. 1492, 1613-14 (2004) (explaining that diffusing authority among multiple transnational bodies often serves the same values as federalism).
10. See, e.g., Curtis A. Bradley, International Delegations, the Structural Constitution, and Non-Self-Execution, 55 STAN. L. REV. 1557, 1596 (2003) (endorsing a non-self-execution approach in order to "reduce many of the constitutional concerns associated with international delegations without significantly affecting the United States's ability to participate in international institutions");
11. MichaelJ. Glennon & Allison R. Hayward, Collective Security and the Constitution: Can the Commander in Chief Power Be Delegated to the United Nations?, 82 GEO. L.J. 1573, 1598-99 (1994) (calling die delegation of Congress's war power to the United Nations Security Council constitutionally "troublesome");
12. Julian G. Ku, The Delegation of Federal Power to International Organizations: New Problems with Old Solutions, 85 MINN. L. REV. 71, 76-77 (2000) (arguing that treaty-based international delegations are unconstitutional due to accountability and legitimacy deficiencies);
13. John C. Yoo, Kosovo, War Powers, and the Multilateral Future, 148 U. PA. L. REV. 1673, 1708-20 (2000) (contending diat placing U.S. troops under foreign command "creates significant tension with American constitutional principles of government accountability and popular sovereignty, as promoted by the Appointments Clause, the unitary executive, and the non-delegation doctrine");
14. John C. Yoo, The New Sovereignty and the Old Constitution: The Chemical Weapons Convention and the Appointments Clause, 15 CONST. COMMENT. 87, 88-89, 128 (1998) (arguing that the Chemical Weapons Convention is in tension with the Appointments Clause insofar as it "permits individuals who are not officers of the national government to exercise authority under federal law that affects the rights of American citizens").
15. U.S.-Can.-Mex., Dec. 8-17, 1992, 32 I.L.M. 289 (1993).
16. Under Chapter 19 of NAFTA, each signatory nation retains the right to apply its domestic antidumping and countervailing-duty law, subject to review by "binational panels." Id. ch. 19.
17. It is unclear whether the decisions of these binational panels, which are not subject to review by an Article III court, see 19 U.S.C. § 1516a(g) (2006), can directly bind federal agencies.
18. See Michael C. Dorf, Fallback Law, 107 COLUM. L. REV. 303, 313-14 (2007) (noting "doubts about the constitutionality" of a binational panel system).
19. Although there is no official list, the factors identified in the text closely resemble the "modalities" of constitutional interpretation identified by Philip Bobbitt. See PHILIP BOBBITT, CONSTITUTIONAL INTERPRETATION 12-13 (1991) (listing history, text, structure, consequences, precedent, and national ethos).
20. See, e.g., Case 11/70, Internationale Handelsgesellschaft mbH v. Einfuhr-und Vorratsstelle für Getreide und Futtermittel, 1970 E.C.R. 1125 ("[T]he validity of a Community measure... cannot be affected by allegations that it runs counter to... the constitution of that State....");
21. Case 6/64, Costa v. ENEL, 1964 E.C.R. 585, 593 ("[The European Economic Community] Treaty... could not... be overridden by domestic legal provisions...."). The European Community "has formed only one of three 'pillars' constituting the overarching European Union entity." PAUL CRAIG & GRÁINNE DE BÚRCA, EU LAW: TEXT, CASES AND MATERIALS 3 (3d ed. 2003).
22. For an argument that the well-established supremacy of European Community norms applies for all European Union norms (including those of the second and third pillars), see Koen Lenaerts & Tim Corthaut, Of Birds and Hedges: The Role of Primacy in Invoking Norms of EU Law, 31 EUR. L. REV. 287, 289-90 (2006).
23. See, e.g., Wyrok z dnia 11 maja 2005 r. [Judgment of May 11, 2005],
24. K 18/04 (Pol.) (asserting the primacy of Polish constitutional law over EU law). A summary of the "principal reasons for the ruling" can be found at the official website of the Polish Constitutional Tribunal, see Trybunal Konstytucyjny [Pol. Constitutional Trib.], Poland's Membership in the European Union (Accession Treaty), May 11, 2005, http://www.trybunal.gov.pl/eng/ summaries/documents/K-18-04-GB.pdf (last visited Oct. 1, 2008),
25. but only the Polish language text is authoritative. See also Krystyna Kowalik-Banczyk, Should We Polish It Up? The Polish Constitutional Tribunal and the Idea of Supremacy of EU Law, 6 GERMAN L.J. 1355, 1361-65 (2005),
26. available at http://www.germanlawjournal.com/pdf/Vol06No10/PDF- Vol-06-No-10-1355-1366-Developments-Kowalik%20final.pdf (analyzing the Accession Treaty case).
27. National constitutional courts have relied on three lines of argument to reject the supremacy of European law: the primacy of fundamental rights, the notion that some European actions are ultra vires, and the supposed supremacy of national constitutions. See Mattias Kumm & Victor Ferreres Comella, The Primacy Clause of the Constitutional Treaty and the Future of Constitutional Conflict in the European Union, 3 INT'L J. CONST. L. 473, 474-76 (2005) (identifying these lines of argument as three grounds on which national constitutional courts have asserted authority to overrule EU law).
28. The fundamental-rights argument is expressed in die German Constitutional Court's Solange ("so long as") cases, which first rejected supremacy of European law on the ground that it did not include fundamental rights protection. See Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] May 29, 1974, 37 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 271 (F.R.G.) [hereinafter Solange I].
29. It then accepted supremacy conditionally, finding that adequate rights protection had been established. See BVerfG Oct. 22, 1986, 73 BVerfGE 339 (F.R.G.) [hereinafter Solange H]; see also Wojciech Sadurski, "Solange, Chapter 3": Constitutional Courts in Central Europe - Democracy - European Union 2-26 (Dep't of Law, Eur. Univ. Inst., Working Paper No. 2006/40, 2006), available at http://ssrn.com/abstract=963757 (describing the use of Solarage-type arguments by constitutional courts in postcommunist Central and Eastern European EU member states).
30. See Kumm & Cornella, supra note 9, at 474-76 (describing jurisprudence on the supremacy of national constitutional law over EU law).
31. The term "democratic deficit" can be attributed to David Marquand. See DAVID MARQUAND, PARLIAMENT FOR EUROPE 64-66 (1979) (explaining the democratic deficit resulting from the lack of governmental accountability).
32. For an overview of the democratic-deficit debate, see CRAIG & DE BÚRCA, supra note 8, at 167-75.
33. See, e.g., LA. CONST, art. III, § 15(B) ("No system or code of laws shall be adopted by general reference to it.");
34. N.D. CONST, art. IV, § 13, cl. 4 ("No bill maybe... incorporated in any other bill by reference to its tide only....");
35. OKLA. CONST. art. V, § 57 ("[N] o law shall be revived, amended, or the provisions thereof extended or conferred, by reference to its tide only....").
36. Twelve states clearly forbid dynamic incorporation: Arizona, see State v. Williams, 583 P.2d 251, 254-55 (Ariz. 1978) ("[I] is universally held that an incorporation by state statute of rules, regulations, and statutes of federal bodies to be promulgated subsequent to the enactment of die state statute constitutes an unlawful delegation of legislative power.");
37. California, see People v. Kruger, 121 Cal. Rptr. 581, 583-84 (Cal. App. Dep't Super. Ct. 1975)
38. (citing Brock v. Superior Court, 71 P.2d 209, 212-13 (Cal. 1937));
39. Florida, see FIa. Indus. Comm'n v. State ex. rel. Orange State Oil Co., 21 So. 2d 599, 603 (Fla. 1945);
40. Hawaii, see State v. Tengan, 691 P.2d 365, 373 (Haw. 1984);
41. Maine, see State v. Webber, 133 A. 738, 740 (Me. 1926);
42. Michigan, see Lievense v. Mich. Unemployment Comp. Comm'n, 55 N.W.2d 857, 859 (Mich. 1952);
43. Ohio, see State v. Gill, 584 N.E.2d 1200, 1201-02 (Ohio 1992);
44. Oregon, see Seale v. McKennon, 336 P.2d 340, 345 (Or. 1959);
45. South Carolina, see Santee Mills v. Query, 115 S.E. 202, 205-06 (S.C. 1922);
46. Soudi Dakota, see State v. Johnson, 173 N.W.2d 894, 895 (S.D. 1970) (per curiam);
47. Washington, see State v. Dougall, 570 P.2d 135, 137-39 (Wash. 1977) (en banc);
48. and West Virginia, see State v. Grinstead, 206 S.E.2d 912, 920 (W. Va. 1974).
49. Arkansas, Kentucky, and Minnesota also forbid dynamic incorporation generally, though apparently with exceptions. For Arkansas, compare Cheney v. St. Louis Sw. Ry. Co., 394 S.W.2d 731, 733 (Ark. 1965) ("[A]ppellee's tax liability to Arkansas is based upon a formula subject to prospective federal legislation or administrative rules.
50. It is [therefore] unconstitutional"), with Curry v. State, 649 S.W.2d 833, 836-37 (Ark. 1983) (allowing dynamic incorporation of federal drug regulations where a state agency retains power to veto the incorporation);
51. for Kentucky, compare Dawson v. Hamilton, 314 S.W.2d 532, 535 (Ky. 1958) ("[A]doption... of prospective Federal legislation... constitutes an unconstitutional delegation of legislative power." (internal quotation marks omitted)),
52. with Hamilton v. City of Louisville, 332 S.W.2d 539, 543 (Ky. 1960) (noting that the dynamic incorporation of federal income tax provisions would probably not be unconstitutional);
53. and for Minnesota, compare Wallace v. Comm'r of Taxation, 184 N.W.2d 588, 593 (Minn. 1971) (interpreting the incorporation of federal tax law statically because the Minnesota legislature "could not.. . grant to Congress the right to make future .. . changes in Minnesota law"), with State v. King, 257 N.W.2d 693, 697 (Minn. 1977) (upholding a state law that dynamically incorporated the federal determination of what constitutes a controlled substance).
54. Twelve state constitutions explicitly permit dynamic incorporation of federal tax law. See infra note 14.
55. The following seven state high courts have permitted, either expressly or impliedly but clearly, dynamic incorporation of federal law without relying on an explicit constitutional provision: Alaska, see Hickel v. Stevenson, 416 P.2d 236, 239 & n.7 (Alaska 1966) (following Alaska S.S. Co. v. Mullaney, 180 F.2d 805, 816 (9th Cir. 1950) in upholding the dynamic incorporation of federal tax law);
56. Idaho, see State v. Kellogg, 568 P.2d 514, 517-18 (Idaho 1977) (upholding a law criminalizing the unauthorized sale of drugs that require a prescription under state or federal law);
57. Maryland, see Katzenberg v. Comptroller of the Treasury, 282 A.2d 465, 470, 473 (Md. 1971) (upholding the dynamic incorporation of federal tax law);
58. Massachusetts, see Parker Affiliated Cos. v. Dep't of Revenue, 415 N.E.2d 825, 831 (Mass. 1981);
59. Nebraska, see Anderson v. Tiemann, 155 N.W.2d 322, 327 (Neb. 1967);
60. Pennsylvania, see Commonwealth v. Warner Bros. Theatres, Inc., 27 A.2d 62, 63-64 (Pa. 1942) (upholding the dynamic incorporation of the federal definition of net income);
61. and Tennessee, see McFaddin v. Jackson, 738 S.W.2d 176, 180-182 (Tenn. 1987) (upholding the dynamic incorporation of federal tax law). In addition, the New Jersey Supreme Court has commented favorably on dynamic incorporation of federal food-packaging regulations.
62. See State v. Hotel Bar Foods, Inc., 112 A.2d 726, 732-33 (N.J. 1955) (discussing dynamic incorporation at length before finding it was not at issue in the case).
63. Four other states have upheld dynamic incorporation where a state agency retains power to veto the incorporation: Alabama, see McCurley v. State (Ex parte McCurley), 390 So. 2d 25, 27-29 (Ala. 1980) (upholding a law requiring the state board of health to control a substance once it becomes controlled under federal law, absent objection by the state agency);
64. Arkansas, see Curry, 649 S.W.2d at 836-37;
65. Minnesota, see King, 257 N.W.2d at 697;
66. Missouri, see State v. Thompson, 627 S.W.2d 298, 302-03 (Mo. 1982) (en banc).
67. See, e.g., DEL. CODE ANN. tit. 30, § 1105 (2007) ("The entire taxable income of a resident of this State shall be the federal adjusted gross income as defined in the laws of the United States as the same are or shall become effective for any taxable year with the modifications. . . provided in this subchapter.").
68. Twelve state constitutions expressly allow dynamic incorporation of federal tax law: Colorado, see COLO. CONST, art. X, § 19;
69. Hawaii, see HAW. CONST, art. VII, § 2;
70. Illinois, see ILL. CONST, art. IX, § 3; Kansas,
71. see KAN. CONST, art. XI, § 11;
72. Missouri, see MO. CONST, art. X, § 4(d);
73. New Mexico, see N.M. CONST, art. IV, § 18;
74. New York, see N.Y. CONST, art. III, § 22;
75. North Dakota, see N.D. CONST, art. X, § 3;
76. Oklahoma, see OKLA. CONST, art. X, § 12;
77. Oregon, see OR. CONST, art. FV, § 2;
78. Utah, see UTAH CONST. art. XIII, § 4;
79. and Virginia, see VA. CONST. art. IV, § 11.
80. In addition, courts in four states have upheld dynamic incorporation of federal tax law even in the absence of explicit constitutional authorization: Alaska, see Hickel, 416 P.2d at 238-39;
81. Maryland, see Leatherwood v. State, 435 A.2d 477, 479-80 (Md. Ct. Spec. App. 1981);
82. Massachusetts, see Parker Affiliated Cos., 415 N.E.2d at 831;
83. and Tennessee, see McFaddin, 738 S.W.2d at 181-82.
84. Although states differ over whether violation of a federal statute constitutes negligence by itself, raises a presumption of negligence, or counts as evidence thereof, neither the federal nature of a duty nor the fact that the federal statutory or regulatory duty arose after the state's general tort rules disqualifies the duty for incorporation under state law as negligence per se. See Paul Sherman, Use of Federal Statutes in State Negligence Per Se Actions, 13 WHITTIER L. REV. 831, 877-83 (1992) (explaining and cataloguing the various approaches taken by states toward negligence per se cases).
85. See, e.g., Mitchell v. State, 818 P.2d 1163, 1165 (Alaska Ct. App. 1991) (applying die dynamic lockstep approach);
86. Mefford v. White, 770 N.E.2d 1251, 1260 (111. App. Ct. 2002) ("Illinois courts typically apply the 'lockstep' doctrine, which dictates that provisions of the Illinois Constitution should be construed in the same manner as similar provisions of the United States Constitution.");
87. see also Robert A. Schapiro, Judicial Deference and Interpretive Coordinacy in State and Federal Constitutional Law, 85 CORNELL L. REV. 656, 692-93 (2000)
88. (citing evidence of, and reasons for, the lockstep approach). Interestingly, although the Florida Constitution requires that its search-and-seizure provision "be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court," FLA. CONST, art. I, § 12,
89. the Florida Supreme Court has consistendy held that legislative dynamic incorporation of federal statutory law amounts to an unconstitutional delegation. See, e.g., Adoue v. State, 408 So. 2d 567, 570 (Fla. 1981) ("Any attempt to incorporate a law as part of this state's body of laws prior to its creation by the appropriate federal authority is an unconstitutional delegation of the legislative power.");
90. Hutchins v. Mayo, 197 So. 495, 498 (Fla. 1940) ("We cannot accept the view that the state commission may make binding rules to be promulgated by the federal bureau in the future.").
91. See Conformity Act of 1872, ch. 255, § 6, 17 Stat. 196, 197, superseded by Rules Enabling Act of 1934, 28 U.S.C. §§ 2071-77 (2006);
92. see also 1 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 1.02 (3d ed. 2008) ("In 1872, Congress passed the socalled 'Conformity Act,' which required that federal district courts conform their procedure 'as near as may be' with that of the state in which the district was located.").
93. FED. R. EVID. 501 ("[T]he privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.").
94. 18 U.S.C. § 13 (2006). The Act was upheld in United States v. Sharpnack, 355 U.S. 286, 294 (1958), in which the Court claimed that "Congress is within its constitutional powers and legislative discretion when, after 123 years of experience with the policy of conformity, it enacts that policy in its most complete and accurate form."
95. See United States v. Kimbell Foods, Inc., 440 U.S. 715, 739-40 (1979) (expressing a preference for the dynamic incorporation of state law rather than the formulation of a federal rule, absent a demonstrated need for national uniformity).
96. See infra note 81 and accompanying text.
97. Such an argument was made, for example, by the Kansas Supreme Court in upholding dynamic incorporation. See Mo. Pac. R.R. Co. v. McDonald, 486 P.2d 1347, 1352 (Kan. 1971) ("[The legislature] might have designated some other method but the need and wisdom of its action is stricdy a matter for legislative concern.").
98. Reflecting the limits of my own expertise, I disproportionately draw examples from the American context.
99. See Texas v. White, 74 U.S. (7 Wall.) 700, 725 (1869) ("The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.");
100. DANIEL FARBER, LINCOLN'S CONSTITUTION 77-81 (2003) (explaining Lincoln's understanding of a perpetual, unbreakable Union).
101. U.S. CONST, art. VI.
102. See, e.g., Whitney v. Robertson, 124 U.S. 190, 193-95 (1888) (holding that when a treaty and statute conflict, "the one last in date will control the other").
103. To be sure, a later-in-time U.S. law that conflicts with a UN Resolution might violate international law, but that would not render the U.S. law inoperative internally.
104. For an excellent discussion of the degree to which "ordinary" legislation can have entrenching effects, see Eric A. Posner & Adrian Vermeule, Essay, Legislative Entrenchment: A Reappraisal, 111 YALE L.J. 1665, 1686-88 (2002).
105. Justice Holmes put the point this way: [W] hen we are dealing widi words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. Missouri v. Holland, 252 U.S. 416, 433 (1920).
106. I mostly bracket a fourth kind of delegation - to private actors - which raises sufficiently distinct issues to warrant its own full treatment Among these issues is the question of how to distinguish, in a world without natural baselines, between delegations of government power to private actors and mere government failure to regulate private power. For a useful discussion of the implications of privatization for the state-action doctrine within the United States, see Gillian E. Metzger, Privatization as Delegation, 103 COLUM. L. REV. 1367 (2003).
107. For an argument that beneficiaries of privatized government programs have greater ability to enforce accountability than beneficiaries of public programs, see Jody Freeman, The Private Role in Public Governance, 75 N.Y.U. L. REV. 543, 646-66 (2000).
108. See, e.g., LAZA KEKIC, ECONOMIST INTELLIGENCE UNIT, THE ECONOMIST INTELLIGENCE UNIT'S INDEX OF DEMOCRACY 3-5 tbl.1 (2007), available at http://www.economist.com/media/pdf/DEMOCRACY- INDEX-2007-v3.pdf (last visited Oct. 1, 2008) (ranking countries from most to least "democratic");
109. Freedom House, Freedom in the World 2008, http://www.freedomhouse.org/ uploads/ fiw08launch/FIW08Tables.pdf (last visited Oct. 1, 2008) (ranking countries on "political rights" and "civil liberties").
110. See KEKIC, supra note 30, at 4 tbl.1 (scoring Russia in the middle of the scale on democracy); Freedom House, supra note 30 (placing Russia in the middle of the scale on political rights and civil liberties).
111. Nonetheless, as I acknowledge in Part II, horizontal incorporation and territorially limited downward incorporation can enhance democracy in the aggregate.
112. See Charles M. Tiebout, A Pure Theory of Local Expenditures, 64 J. POL. ECON. 416, 418 (1956) (presenting the classic model in which "[t]he consumer-voter may be viewed as picking that community which best satisfies his preference pattern for public goods[,]" and claiming that "[t]he greater the number of communities and the greater the variance among them, the closer the consumer will come to fully realizing his preference position").
113. Regional migration patterns within the United States tend to show that people do try to match their policy preferences to those of other citizens in choosing where to live. See Robert R. Preuhs, State Policy Components of Interstate Migration in the United States, 52 POL. RES. Q. 527, 527-49 (1999) (finding that the "consumer-voter model explains a significant portion of the variation in aggregate migration behavior").
114. Representation in the United States Senate does substantially deviate from one-person-one-vote principles. See SANFORD LEYTNSON, OUR UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT) 49-62 (2006) (critiquing the Constitution's assignment of two senators to each state, regardless of size, as fundamentally undemocratic).
115. Accordingly, a decision by a very small state like Vermont or Wyoming to dynamically incorporate federal law does not dilute the political influence that individual Vermonters or Wyomingites exercise over the laws that govern them nearly as much as a similar decision by a large state like California or Texas dilutes the political influence of Californians or Texans. Nonetheless, even voters in the smallest states lose a measure of democratic representation when they cede authority to the federal government. According to the U.S. Census Bureau, in 2006 the national population was just under 300 million. U.S. Census Bureau, State Sc County QuickFacts, http://quickfacts.census.gov/qfd/states/ 00000.html (last visited Oct. 1, 2008).
116. Thus, if the 100 Senate seats were apportioned on a strictly proportional basis, it would take six million people to elect two senators. In fact, however, the smallest state, Wyoming, with an estimated population of just over half a million in 2006, id. at http://quickfacts.census.gov/qfd/states/ 56000.html, elects two senators. Thus, Wyoming has roughly twelve times the representation in the Senate as it would have if seats were allocated proportionate to population. However, Wyomingites still only elect one-fiftieth of the U.S. Senate, whereas they elect all of the Wyoming legislature. The twelvefold increase in influence relative to the national population does not compensate for the fiftyfold decrease in influence that accompanies delegation to a much larger polity. Hence, even for population-challenged Wyoming, dynamic incorporation of federal law entails a democratic loss - one that is compounded when we take account of the much-closer-to proportional influence that Wyoming exercises over the choice of House members and the President.
117. GRUNDGESETZ FÜR DIE BUNDESREPUBLIK DEUTSCHLAND [GG] [Federal Constitution] art. 79(3) (F.R.G.), translated in 7 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD 35 (Gisbert H. Flanz et al. eds., Supp. 2007) ("Amendments to this Basic Law affecting the division of the Federation into Länder, their participation on principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible.").
118. See, e.g., Julian N. Eule, Temporal Limits on the Legislative Mandate: Entrenchment and Retroactivity, 12 AM. B. FOUND. RES. J. 379, 386-96, 403-05 (1987) (examining objections to entrenchment in British and American contexts);
119. Michael J. Klarman, Majoritarian Judicial Review: The Entrenchment Problem, 85 GEO. L.J. 491, 502-09 (1997) (describing majoritarian objections to legislative and cross-temporal entrenchment);
120. Frank I. Michelman, Entrenchment and the Dignity of Legislation 8 (Apr. 19, 2006) (unpublished manuscript, on file with author) (arguing that the notion of entrenchment can only be gauged against a normative idea of representative democracy).
121. See Akhil Reed Amar, Philadelphia Revisited: Amending the Constitution Outside Article V, 55 U. CHI. L. REV. 1043, 1044 (1988) ("[T]he first, most undeniable inalienable and important, if unenumerated, right of the People is the right of a majority of voters to amend the Constitution - even in ways not expressly provided for by Article V.");
122. see also Akhil Reed Amar, The Consent of the Governed: Constitutional Amendment Outside Article V, 94 COLUM. L. REV. 457, 457 (1994) ("[T] he U.S. Constitution is a far more majoritarian and populist document than we have generally thought;
123. and We the People of the United States have a legal right to alter our Government - to change our Constitution - via a majoritarian and populist mechanism akin to a national referendum, even though that mechanism is not explicitly specified in Article V."). But see Henry Paul Monaghan, We the People[s], Original Understanding and Constitutional Amendment, 96 COLUM. L. REV. 121, 121-22 (1996) (arguing that Amar "ignores the crucial role reserved for the states in the newly established constitutional order," and that "the Constitution nowhere contemplates any form of direct, unmediated lawmaking or constitution-making by 'die People'").
124. See, e.g., Michael W. McConnell, Textualism and the Dead Hand of the Past, 66 GEO. WASH. L. REV. 1127, 1127 (1998) ("The first question any advocate of constitutionalism must answer is why Americans of today should be bound by the decisions of people some 212 years ago.").
125. See ERIC FONER, TOM PAINE AND REVOLUTIONARY AMERICA 216 (updated ed. 2005) ("Every age and generation must be as free to act for itself, in all cases, as the ages and generations which preceded it."
126. (quoting THOMAS PAINE, The Rights of Man)).
127. See, e.g., Klarman, supra note 36, at 494-95 (critiquing judicial review on the ground that standard sources of decision-making, including "[t]ext, original intent, and tradition[,] are problematic... because of the dead hand problem").
128. See U.S. CONST, art. V (requiring that either a two-thirds majority of both houses of Congress or two-thirds of state legislatures must propose a constitutional amendment, and that either the legislatures or conventions of three-fourths of the states must ratify an amendment before it is adopted).
129. See, e.g., Jack M. Balkin & Sanford Levinson, Understanding the Constitutional Revolution, 87 VA. L. REV. 1045, 1068 (2001) (suggesting that "[p]artisan entrenchment through presidential appointments to the judiciary is the best account of how the meaning of the Constitution changes over time through Article III interpretation rather than through Article V amendment").
130. The Canadian Supreme Court found criminal prohibition of abortion unconstitutional in il v. Morgentaler, [1988] 1 S.C.R. 30.
131. Constitution Act, 1982, being Schedule B to the Canada Act 1982, ch. 11, § 33(1) (U.K.) ("Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding [its violation of certain rights.]").
132. See RONALD DWORKIN, FREEDOM'S LAW: THE MORAL READING OF THE AMERICAN CONSTITUTION 17-18 (1996) (making this argument in support of a "constitutional," as opposed to a "majoritarian, " conception of democracy);
133. JAMES E. FLEMING, SECURING CONSTITUTIONAL DEMOCRACY: THE CASE OF AUTONOMY 19-36 (2006) (rejecting methods of constitutional interpretation that seek only to perfect the processes of representative democracy).
134. 410 U.S. 113 (1973).
135. U.S. CONST, amend. XIV, § 1.
136. See Posner & Vermeule, supra note 27, at 1686-88 ("If there are political or logistical costs to repealing legislation - and there surely are - then an earlier Congress 'binds' a later Congress by enacting legislation that cannot be cosdessly repealed or changed, except in those instances when it provides for the legislation to expire on its own.").
137. See LEVINSON, supra note 34, at 29-49 (explaining how the bicameralism and presentment requirements of the Constitution's Article I, Section 7, protect the status quo against new legislation).
138. See Dan Morgan et al., Powerful Interests Ally to Restructure Agriculture Subsidies, WASH. POST, Dec. 22, 2006, at Al ("Ever since subsidies began... Farm Belt politicians . . . have repeatedly thwarted efforts to scale [them] back....").
139. See Elizabeth Garrett, Rethinking the Structures of Decisionmaking in the Federal Budget Process, 35 HARV. J. ON LEGIS. 387, 397-401 (1998) (explaining the budget process for the renewal of discretionary spending).
140. See, e.g., Morgan et al., supra note 50.
141. See Kenneth W. Abbott & Duncan Snidal, Hard and Soft Law in International Governance, 54 INT'L ORG. 421, 429 (2000) (describing the EU and NAFTA as "'clubs' of sincerely committed states" purposely accepting the high costs of withdrawal in order to "identif[y]... as having a low propensity to defect").
142. See supra note 14.
143. See Saulius Lukas Kaleda, Immediate Effect of Community Law in the New Member States: Is there a Place for a Consistent Doctrine?, 10 EUR. L.J. [U.K.] 102, 102 (2004) (asserting that the principle that EU Community law becomes applicable in a member state immediately upon accession nonetheless allows for some preexisting disputes to be governed by the state's preexisting law in accordance with "specific legal principles [that] constitute part of community inter-temporal law").
144. See Mattias Kumm, To be a European Citizen ? The Absence of Constitutional Patriotism and the Constitutional Treaty, 11 COLUM.J. EUR. L. 481, 495 (2005) (arguing that, despite debate about the legal process for withdrawing from the EU, "the right to withdrawal remain [s] a residual sovereign right, unencumbered by and antecedent to EU Law").
145. See Carlsen v. Prime Minister, [1998] 3 C.M.L.R. 854 (Den.) (holding that European law that violates basic Danish constitutional rights is unenforceable in Danish courts);
146. Solange II, supra note 9 (conditionally accepting European law's supremacy because it had developed sufficient fundamental-rights protection);
147. Solange I, supra note 9 (denying the supremacy of European law on the ground that European law lacks fundamental-rights protection);
148. Corte cost. [Constitutional Court], 13 apr. 1989, n.232, Foro It. I, 1855 (Italy) (holding that European law must conform to the fundamental-rights protections of the Italian Constitution); see also supra note 9.
149. U.S.C. § 13 (2006);
150. see also supra text accompanying note 19.
151. FED. R. EVID. 501;
152. see also supra text accompanying note 18.
153. U.S.C. § 1652 (2006) ("The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply.").
154. This is the argument to which Justice Brandeis alludes in Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938),
155. suggesting that the Constitution requires the Rules of Decision Act to be construed so as to deny federal courts the power to formulate general federal common law. At its core, Justice Brandeis's argument asserts that where Congress has no Article I power to regulate, it may not assign to the courts the power to resolve disputes on the basis of judge-made rules. To be sure, given the expansive modern view of the Commerce Clause-even after United States v. Lopez, 514 U.S. 549 (1995),
156. and United States v. Morrison, 529 U.S. 598 (2000)-there are few subjects over which Congress lacks Article I power.
157. However, as George Rutherglen has argued persuasively, there is a further, horizontal, dimension to the constitutional view of Erie: even where Congress has Article I power over some subject matter, it cannot delegate diat power to the courts on a wholesale basis but only in cases that happen to fall within the courts' jurisdiction under Article III and Title 28. See George Rutherglen, Reconstructing
158. Erie: A Comment on the Perils of Legal Positivism, 10 CONST. COMMENT. 285, 288, 295-96 (1993);
159. see also Thomas W. Merrill, The Judicial Prerogative, 12 PACE L. REV. 327, 342-45 (1992) (challenging interpretations of Erie that "assum[e] federal courts can exercise common law powers in any area that has been visited by congressional legislation").
160. See Jack M. Graves, Party Autonomy in Choice of Commercial Law: The Failure of Revised UCC. §1-301 and a Proposal for Broader Reform, 36 SETON HALL L. REV. 59, 94-99 (2005) (surveying states that uphold contractual choice of law "irrespective of whether the transaction has any relationship to the law chosen").
161. See ROBERT E. SCOTT & JODY S. KRAUS, CONTRACT LAW AND THEORY 2 (rev. 3d ed. 2003) ("Despite the statutory provisions diat govern certain areas, much of modern contract law is still based on common law decisions.").
162. See supra note 16.
163. See, e.g., MASS. CONST, pt. 2, ch. 6, art. 6 ("All the laws which have heretofore been adopted... in... Massachusetts Bay... shall still remain and be in full force, until altered or repealed by the legislature...");
164. UNDANG-UNDANG DASAR REPUBLIK INDONESIA 1945 [Constitution] Transitional Provisions, art. 1, translated in 9 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra note 35, at 19 ("All existing laws and regulations shall remain in effect as long as new laws and regulations have not yet taken effect under this Constitution.").
165. For an overview of reception acts in U.S. states, see generally ELIZABETH GASPAR BROWN, BRITISH STATUTES IN AMERICAN LAW 1776-1836, at 46 (1964),
166. which summarizes each state's reenactment of all or some British statutes. On other former colonies retaining the law of their colonizers, see Ruth L. Okediji, The International Relations of Intellectual Property: Narratives of Developing Country Participation in the Global Intellectual Property System, 7 SING. J. INT'L & COMP. L. 315, 334-35 & nn.73-74 (2003).
167. See also M.B. HOOKER, LEGAL PLURALISM: AN INTRODUCTION TO COLONIAL AND NEO- COLONIAL LAWS 360-409 (1975) (discussing "independent nation [s that have] of [their] own volition imported into [themselves] a legal system (or parts of such a system) which is the product of a totally dissimilar legal culture").
168. CAL. VEH. CODE §§ 12502-05 (West 2000);
169. see also, e.g., FLA. STAT. ANN. § 322.04(c)-(d) (2005);
170. N.Y. VEH. & TRAF. LAW § 250 (McKinney 2005);
171. VA. CODE ANN. § 46.2-307 (2005).
172. See GAL. VEH. CODE § 12503.
173. See RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 6(1) (1971) ("A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.");
174. id. § 187(1) ("The law of the state chosen by the parties to govern their contractual rights and duties will be applied if the particular issue is one which the parties could have resolved by an explicit provision in their agreement directed to that issue.").
175. See, e.g., ARK CODE ANN. § 9-11-107 (2008) ("All marriages contracted outside this state that would be valid by the laws of the state or country in which the marriages were consummated and in which the parties then actually resided shall be valid in all the courts in this state. This section shall not apply to a marriage between persons of the same sex.");
176. IDAHO CODE ANN. § 32-209 (2006) ("All marriages contracted without this state, which would be valid by the laws of the state or country in which the same were contracted, are valid in this state, unless they violate the public policy of this state. Marriages that violate the public policy of this state include, but are not limited to, same-sex marriages, and marriages entered into under the laws of another state or country with the intent to evade the prohibitions of the marriage laws of this state.").
177. Whether even this limited statement is true depends upon the extent to which California is free, under the Federal Constitution, to prevent Oregon-licensed nonCalifornians from driving in California. The Dormant Commerce Clause, the Privileges and Immunities Clause of Article IV, and the Fourteenth Amendment all limit that freedom. See Saenz v. Roe, 526 U.S. 489, 500-04 (1999) (identifying these constitutional provisions, as well as the constitutional structure itself, as sources of a constitutional right to travel);
178. Bibb v. Navajo Freight Lines, 359 U.S. 520, 529-30 (1959) (holding that the Dormant Commerce Clause prohibits a state from enforcing laws that "place a great burden of delay and inconvenience on... interstate motor carriers entering or crossing its territory").
179. See Law and Administrations Ordinance, 5708-1948, 1 LSI 7 (1948) (Isr.) (adopting, among other provisions, Article 46 of the Palestine Order in Council, 1922, MOSES DOUKHAN, 2 LAWS OF PALESTINE 429, 431 (1933));
180. see also U. Yadin, Reception and Rejection of English Law in Israel, 11 INT'L & COMP. L.Q. 59, 60-61 (1962) (noting that, under the British Mandate, Israeli courts were to "rel[y] on English law [whenever the legal question] was a problem which fell into a gap, a lacuna, of the local law").
181. See Michael Zander, Book Review, 13 INT'L&COMP. L.Q. 1133, 1133 (1964) (reviewing E. DAVID GOITEN, Selected Judgements of the Supreme Court of Israel, 1948-1958 (1962)) (describing the decision in CA 92/55 Kohavi v. Becker [1955] P.D. 11 225).
182. Foundations of Law, 5740-1980, 34 LSI 181 (1979-80) (Isr.).
183. See MONETARY AND CAPITAL MKTS. DEP'T, INT'L MONETARY FUND, REVIEW OF EXCHANGE ARRANGEMENTS, RESTRICTIONS, AND CONTROLS 32 tbl.7 (Nov. 27, 2007), available at http://www.imf.org/external/np/pp/2007/eng/112707.pdf (listing countries that have officially adopted or pegged to the currency of another country).
184. Panama officially calls the U.S. dollars that it uses for currency "balboas," even though there are no actual balboa notes. See id. at 31 n.4.
185. See 12 U.S.C. § 411 (2006) (authorizing the Board of Governors of the Federal Reserve system to issue federal reserve notes).
186. See PAUL R. KRUGMAN & MAURICE OBSTFELD, INTERNATIONAL ECONOMICS: THEORY AND POLICY 447-58 (7di ed. 2005) (providing an overview of fixed exchange rates).
187. See id. at 456-58.
188. See MONETARY AND CAPITAL MKTS. DEP'T, supra note 74.
189. These include Eastern European countries, such as Estonia, Lithuania, and Latvia, id.,
190. as well as the fourteen African countries that use the CFA franc, which is itself pegged to the euro, id. at 30 tbl.6.
191. See, e.g., Int'l Ins. Co. v. Johns, 874 F.2d 1447, 1459 n.22 (11th Cir. 1989) ("The Florida courts have relied upon Delaware corporate law to establish their own corporate doctrines.");
192. Vogel v. Mo. Valley Steel, Inc., 625 P.2d 1123, 1126 (Kan. 1981) ("The Kansas Corporation Code was patterned after the Delaware Corporation Code . . . and therefore, Delaware decisions interpreting its code are considered persuasive in our interpretation of the Kansas code.");
193. McMinn v. MBF Operating Acquisition Co., 164 P.3d 41, 53 (N.M. 2007) (looking to Delaware corporate law for guidance, and citing cases from other states that do the same).
194. Corporate-law scholars frequently point to Nevada as an example of a jurisdiction that unsuccessfully attempted to supplant Delaware by copying its law. See Jill E. Fisch, The Peculiar Role of the Delaware Courts in the Competition for Corporate Charters, 68 U. CIN. L. REV. 1061, 1067 (2000) ("In addition to adopting the Delaware statute, the Nevada legislature adopted Delaware case law. Moreover, courts construing Nevada lawappear to follow Delaware precedent.");
195. Jonathan R. Macey & Geoffrey P. Miller, Toward an Interest-Group Theory of Delaware Corporate Law, 65 TEX. L. REV. 469, 488 (1987) ("Nevada essentially has followed this course, adopting both the Delaware statutory and common law as it applies to corporations.");
196. see also William L. Cary, Federalism and Corporate Law: Reflections upon Delaware, 83 YALE L.J. 663, 665 (1974) (describing Nevada's attempt "to become the western Delaware").
197. Whatever these scholars may think Nevada did, the state did not, as a formal matter, dynamically incorporate Delaware law. The authorities cited by the works listed in this footnote at most show that Nevada statically copied provisions of the relevant Delaware statute and that Delaware cases are persuasive precedent in Nevada. For example, Jill Fisch characterizes Hilton Hotels Corp. v. ITT Corp., 978 F. Supp. 1342, 1346-47 (D. Nev. 1997), as "explicitly finding that Nevada follows Delaware case law."
198. Fisch, supra, at 1067 n.45.
199. In fact, this case only states that Delaware law is persuasive authority where no Nevada statutory or case law is on point. With respect to actual incorporation (of laws, not companies!), the most that one can find in the Nevada case law is the statement that the Nevada statute, because it was based on a model act that was in turn rooted in Delaware and New York case law, statically incorporates Delaware (and New York) case law. See Cohen v. Mirage Resorts, Inc., 62 P.3d 720, 726 n.10 (Nev. 2003) (invoking the "rule of statutory interpretation that when a statute is derived from a sister state, it is presumedly adopted with the construction given it by the highest court of the sister state" (internal quotation marks and citation omitted)).
200. Perhaps the best explanation is that the Delaware courts enjoy a reputational advantage that an upstart rival would have great difficulty overcoming.
201. This Part does not argue that these are the only three reasons that might be offered in support of dynamic incorporation.
202. See MONETARY AND CAPITAL MKTS. DEP'T, supra note 74, at 32 tbl.7.
203. I consider downward dynamic incorporation as a means of accommodating diversity below. See infra Part III.B (discussing circumstances where large political entities choose to devolve power to subunits in order to accommodate local preferences). Such downward incorporation often will produce cost savings, but that is not its sole justification.
204. See Clean Air Act Amendments of 1977, Pub. L. No. 95-95, § 209(b), 91 Stat. 755 (codified at 42 U.S.C. § 7543(b) (2000))
205. (permitting any state that regulates automobile emissions as stricdy as the federal government to apply for a waiver, so long as the applying state regulated such emissions prior to March 30, 1966). Because California is the only state that did so, it alone qualifies for the waiver. However, the Clean Air Act Amendments of 1977 permit other states to adopt the California standards and thereby receive a waiver. Id. § 7507.
206. See Donald L. Horowitz, The Many Uses of Federalism, 55 DRAKE L. REV. 953, 957-58 (2007) (arguing that federalism generally arises in states plagued by ethnic conflict only when potential or actual violence forces central governments to yield power to subunits).
207. See generally JOHN FITZMAURICE, THE POLITICS OF BELGIUM: A UNIQUE FEDERALISM (1996) (noting that Belgium has developed a unique federal system that relies on a system of complex institutions through which the various regions may discuss and compromise on divisive issues rather than resort to violence);
208. ERIC STEIN, CZECHO/SLOVAKIA: ETHNIC CONFLICT, CONSTITUTIONAL FISSURE, NEGOTIATED BREAKUP (1997) (discussing the failed negotiations for a common state between Czechs and Slovaks in 1992 and the role of ethnic conflict in shaping the outcome).
209. See supra note 14 (listing several state statutory and constitutional provisions that incorporate definitions from the Federal Internal Revenue Code into state income tax codes).
210. See supra note 14 and accompanying text.
211. Supra note 74 and accompanying text
212. See supra notes 80-81 and accompanying text.
213. See Clearfield Trust Co. v. United States, 318 U.S. 363, 366-67 (1943) (holding that federal common law governs federal contracts in suits by or against the federal government).
214. See generally T.M. DEVINE, THE SCOTTISH NATION: A HISTORY, 1700-2000 (1999) (recounting Scottish history from 1707 to the meeting of the first Scottish Parliament in July of 1999).
215. See Sarah Lyall, With Gusto, Scots Say 'Yes' to Setting Up Parliament, N.Y. TIMES, Sept. 12, 1997, at A3 ("Opponents of a new parliament in Scodand, in the 'Think Twice' campaign led by the Conservative Party, have argued that it would saddle Scotland with new expenses [and] result in far higher taxes . . . .").
216. Id.
217. See supra note 13 and accompanying text (enumerating twelve states that clearly forbid dynamic incorporation of federal law as an unlawful delegation of lawmaking authority, and three other states that forbid dynamic incorporation with limited exceptions).
218. See Michael C. Dorf & Charles F. Sabei, A Constitution of Democratic Experimentalism, 98 COLUM. L. REV. 267, 283-89 (1998) (arguing that a model of decentralized government allows localities to address particular concerns while learning from the experience of their neighbors, encourages experimentation and reform, and enables citizens to direcdy participate in service provision and to evaluate the effectiveness of local government institutions).
219. See supra text accompanying notes 17-19 (providing examples of federal law dynamically incorporating state law).
220. Supra note 17 and accompanying text.
221. FED. R. EVID. 501 ("[T]he privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.").
222. 18 U.S.C. § 13 (2006).
223. Stewart Org. v. Ricoh Corp., 487 U.S. 22, 35 n.* (1988)
224. (Scalia, J., dissenting) (internal quotation marks omitted) (noting Comm'r v. Estate of Bosch, 387 U.S. 456, 457, 464-465 (1967)
225. and Budinich v. Becton Dickinson & Co., 486 U.S. 196, 199 (1988) as prior examples).
226. 355 U.S. 286 (1958).
227. Brief for Appellee, Sharpnack, 355 U.S. 286 (No. 35), 1957 WL. 87702.
228. 53 U.S. (12 How.) 299 (1851).
229. The Court stated, If the law of Pennsylvania, now in question, had been in existence at the date of this act of Congress, we might hold it to have been adopted by Congress, and thus made a law of the United States, and so valid. Because this act does, in effect, give the force of an act of Congress, to the then existing State laws on this subject, so long as they should continue unrepealed by the State which enacted them. But the law on which these actions are founded was not enacted till 1803. . . . If the States were divested of the power to legislate on this subject by the grant of the commercial power to Congress, it is plain this act could not confer upon them power thus to legislate. Id. at 317-18.
230. Id. at 318.
231. Id.
232. Id. at 319.
233. The Act provided: [t]hat all pilots in the bays, inlets, rivers, harbors, and ports of the United States shall continue to be regulated in conformity with the existing laws of the States, respectively, wherein such pilots may be, or with such laws as the States may respectively hereafter enact for the purpose, until further legislative provision shall be made by Congress. Id. at 317
234. (emphasis added) (quoting Act of Aug. 7, 1789, ch. 9, § 4, 1 Stat. 53, 54).
235. Act of May 8, 1792, 1 Stat. 275, 276;
236. see also RICHARD H. FALLON, JR. ET AL., HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 605-07 (5th ed. 2003) (noting that the Process Act "adopted the state law 'as it existed in September, 1789 . . . not as it might afterwards be made'"
237. (quoting Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 32 (1825))).
238. See FALLON ET AL., supra note 112, at 607 ("The Conformity Act eliminated the anachronism of federal adherence to no-longer-existent state practice.").
239. United States v. Sharpnack, 355 U.S. 286, 294-97 (1958).
240. See GRUNDGESETZ FÜR DIE BUNDESREPUBLIK DEUTSCHLAND [GG] [Federal Constitution] art. 73,
241. translated in 7 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra note 35, at 27 (enumerating areas in which the federal government has "exclusive power to legislate").
242. See id. art. 74
243. translated in 7 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra note 35, at 29 (extending "[concurrent legislative powers" to enumerated subjects).
244. Article 71 of the German Constitution provides that "[o]n matters within the exclusive legislative powers of the Federation, the Länder shall have the power to legislate only when and to the extent that they are expressly authorized to do so by a federal law." Id. art. 71,
245. translated in 7 CONSTITUTIONS OF THE COUNTRIES OF THE WORLD, supra note 35, at 26.
246. U.S. CONST, art. I, § 8, cl. 17.
247. For a brief history of the relationship between Washington, D.C. and the federal government, see Note, Democracy or Distrust? Restoring Home Rule for the District of Columbia in the Post-Control Board Era, 111 HARV. L. REV. 2045, 2046-51 (1998).
248. District of Columbia v. John R. Thompson Co., 346 U.S. 100, 109 (1953)
249. (citing THE FEDERALIST NO. 43 (James Madison);
250. DEBATES 432-433 (Jonathan Elliot ed., 2d ed. 1897);
251. JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1218 (4th ed. 1873)).
252. U.S. CONST, art. I, § 8, cl. 4.
253. See 11 U.S.C. § 101 (2006).
254. See id. § 101(14A).
255. See Jerome v. United States, 318 U.S. 101, 104 (1943) ("Congress when it enacts a statute is not making the application of the federal act dependent on state law.");
256. see also Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 43 (1989) (starting with the general assumption that the legislature does not intend for a statutory term of a federal act to be given content by the application of state law).
257. De Sylva v. Ballentine, 351 U.S. 570, 580 (1956) (citation omitted).
258. For an instructive discussion of the materials relevant to the normative question, see FALLON ET AL., supra note 112, at 723-24.
259. Herbert Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 COLUM. L. REV. 543, 545 (1954).
260. But see FALLON ET AL., supra note 112, at 495 (observing that "today one finds many more instances in which federal enactments supply both right and remedy in, or wholly occupy, a particular field," but wondering whether Wechsler's thesis, which was also espoused by Henry Hart, "does not remain accurate over an extremely broad range of applications").
261. See, e.g., First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995) ("When deciding whether the parties agreed to arbitrate a certain matter [under the Federal Arbitration Act], courts generally . . . should apply ordinary state-law principles that govern the formation of contracts.").
262. See, e.g., Califano v. Jobst, 434 U.S. 47, 52-53 n.8 (1977) (enumerating several provisions of the Social Security Act that incorporate marital status as defined by state law);
263. Gillett-Netting v. Barnhart, 371 F.3d 593, 599 (9th Cir. 2004) (conditioning entitlement to insurance benefits on state law determinations of whether children are legitimate);
264. Purganan v. Schweiker, 665 F.2d 269, 270-71 (9th Cir. 1982) (holding that a California law on marriage annulment affects insurance benefits under the Social Security Act).
265. See, e.g., United States v. Craft, 535 U.S. 274, 278 (2002) ("The federal tax lien statute itself 'creates no property rights but merely attaches consequences, federally defined, to rights created under state law.'"
266. (quoting United States v. Bess, 357 U.S. 51, 55 (1958))).
267. For an excellent discussion of this difficulty in the context of a purportedly nonsubstantive change to the Federal Rules of Civil Procedure, see Edward A. Hartnett, Against (Mere) Restyling, 82 NOTRE DAME L. REV. 155 (2006).
268. I.R.C. § 104(a)(2) (2006). The evident object of the distinction is clear. Because the law does not tax imputed income from healthy bodies, damages for the loss of healthy bodies should not be treated as income. Note, however, that the law also does not tax imputed income from emotional well-being, but damages for emotional distress are only partially exempt from gross income. See id. § 104(a).
269. Cf. Catherine M. Sharkey, Unintended Consequences of Medical Malpractice Damages Caps, 80 N.Y.U. L. REV. 391 (2005) (finding that caps on noneconomic damages lead to higher awards for economic damages).
270. Cf. Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 366-67 (2000) (finding that federal law preempted a Massachusetts law that prohibited that state's agencies from doing business in Burma).
271. See U.C.C. Table of Jurisdictions Wherein Code Has Been Adopted, 1 U.L.A. 1-2 (2004).
272. For example, U.CC. § 2-302 (2007) sets forth a standard for an unconscionable contract or clause. Forty-eight states have adopted section 2-302 in order to regulate the perceived fairness of contracts. Ronald L. Hersbergen, Unconscionability: The Approach of the Louisiana Civil Code, 43 LA. L. REV. 1315, 1315, 1317 (1983).
273. California has not adopted the UCC's unconscionability provision, but instead applies its own "judicially imposed" unconscionability doctrine. See, e.g., Graham v. Scissor-Tail, Inc., 623 P.2d 165, 172-78 (Cal. 1981) (per curiam) (observing that a contract may be adjudged unconscionable and deemed unenforceable if it does not fall within the reasonable expectations of the weaker party or if it is unduly oppressive).
274. Louisiana, on the other hand, does not expressly impose any unconscionability limit. See, e.g., Iberia Credit Bureau, Inc. v. Cingular Wireless LLC, 379 F.3d 159, 167 (5th Cir. 2004) ("No section of the Louisiana Civil Code directly addresses, in so many words, the doctrine of unconscionability or the related concept of adhesionary contracts.");
275. La. Power & Light Co. v. Mecom, 357 So. 2d 596, 598 (La. Ct. App. 1978) ("The Louisiana courts have not to date adopted the theory of adhesion contracts.").
276. According to the website of the Uniform Law Commissioners, every state (as well as the District of Columbia and the U.S. Virgin Islands) has adopted Article 9 of the UCC, governing secured transactions. See Uniform Law Comm'rs, A Few Facts about the Revised UCC Article 9, Secured Transactions (1999) (2002), http://www.nccusl.org/Update/uniformact-factsheets/uniformacts- fs-ucca9.asp (last visited Oct. 1, 2008).
277. 304 U.S. 64 (1938).
278. See Salve Regina College v. Russell, 499 U.S. 225, 241 (1991) (Rehnquist, C.J., dissenting, but not on this point) ("[W] here the state law is unsetded . . . the courts' task is to try to predict how the highest court of that State would decide the question.").
279. See U.S. CONST, art. VI, cl. 2 ("This Constitution, and the Laws of the United States which shall be made in Pursuance thereof. .. shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.").
280. See Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 347-48 (1816) (invoking the "necessity of uniformity of decisions diroughout the whole United States").
281. See OLIVER WENDELL HOLMES, Law and the Court, in COLLECTED LEGAL PAPERS 291, 295-96 (1920) ("I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States.").
282. For example, the Florida Legislature introduced the "lockstep" approach to search-and-seizure cases after concern that the Florida Supreme Court was overly liberal and defense oriented. See Christopher Slobogin, State Adoption of Federal Law: Exploring the Limits of Florida's "Forced Linkage" Amendment, 39 U. FLA. L. REV. 653, 666-73 (1987) (describing the political background to the adoption of Article 1, Section 12 of the Florida Constitution).
283. See California v. Greenwood, 486 U.S. 35, 43 (1988) (holding that police inspection of garbage bags left on a curb did not constitute a Fourth Amendment "search" requiring a warrant and probable cause, while conceding that "[i]ndividual States may surely construe their own constitutions as imposing more stringent constraints on police conduct").
284. On the difference between negative and positive liberty, see ISAIAH BERLIN, Two Concepts of Liberty, in THE PROPER STUDY OF MANKIND 191, 203-06 (Henry Hardy & Roger Hausheer eds., 1997).
285. For a related typology, see Benjamin Constant, The Liberty of the Ancients Compared with That of the Moderns (1819), in POLITICAL WRITINGS 307 (Biancamaria Fontana ed. & trans., 1988).
286. The term "political safeguards" is meant to evoke a well-known article by Herbert Wechsler, in which he suggested that the U.S. Constitution's principal protections against the erosion of state sovereignty could be found in the representation of the states as political units in the federal government itself. See Wechsler, supra note 127, at 559.
287. The Supreme Court has relied on the notion of political safeguards to avoid searching judicial scrutiny of laws challenged as intruding into the sovereign prerogatives of states. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 550-51 (1985) ("[T]he composition of the Federal Government was designed in large part to protect the States from overreaching by Congress."
288. (citing JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS 175-84 (1980);
289. D. Bruce La Pierre, The Political Safeguards of Federalism Redux: Intergovernmental Immunity and the States as Agents of the Nation, 60 WASH. U. L.Q. 779 (1982);
290. Wechsler, supra note 127)).
291. Decisions since the 1990s, however, indicate a greater willingness on the Court's part to find judicially enforceable safeguards for federalism as well. See, e.g., United States v. Morrison, 529 U.S. 598, 617 (2000) (striking down a provision of the Violence Against Women Act that allowed victims of gender-motivated violence to sue their attackers in federal court because Congress may not "regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce");
292. Printz v. United States, 521 U.S. 898, 935 (1997) (holding that the Brady Act, which required state lawenforcement officials to conduct background checks of gun buyers, offended state sovereignty);
293. United States v. Lopez, 514 U.S. 549, 567 (1995) (invalidating the Federal Gun-Free School Zones Act as beyond Congress's authority under the Commerce Clause).
294. For a reformulation of Wechsler's thesis emphasizing the role of state and national political parties, see Larry D. Kramer, Putting the Politics Back into the Political Safeguards of Federalism, 100 COLUM. L. REV. 215 (2000).
295. See Medellin v. Texas, 128 S. Ct. 1346, 1357 (2008) (noting that "none of these treaty sources creates binding federal law in the absence of implementing legislation");
296. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 808 (D.C Cir. 1984) ("Absent authorizing legislation, an individual has access to courts for enforcement of a treaty's provisions only when the treaty is self-executing, that is, when it expressly or impliedly provides a private right of action."
297. (citing Edye v. Robertson (Head Money Cases), 112 U.S. 580, 598-99 (1884))).
298. Military Commissions Act of 2006, Pub. L. No. 109-366, § 5(a), 120 Stat. 2600, 2631 (codified at 28 U.S.C. § 2241 note (2006)).
299. Id. § 6(a) (2), 120 Stat. at 2632 (codified at 18 U.S.C. § 2441 note).
300. See Uruguay Round Agreements Act § 129(b)(4), 19 U.S.C. § 3538(b) (4) (2006) (providing that "[t]he Trade Representative may, after consulting with the administering authority and the congressional committees under paragraph (3), direct the administering authority to implement, in whole or in part, the determination" made by the agency that would be consistent with the WTO mandate).
301. In March of 2002 the United States imposed thirty-percent tariffs on certain imported steel products and fifteen-percent tariffs on rebar and stainless steel. See Proclamation No. 7529, 3 C.F.R. 15 (2003).
302. Several countries promptly filed a complaint before the WTO and successfully argued that the steel tariffs violated WTO nondiscrimination provisions. See Appellate Body Report, United States - Definitive Safeguard Measures on Imports of Certain Steel Products, WT/DS248/AB/R (Nov. 10, 2003), available at http://www.wto.org/english/tratop-e/dispu-e/248- 259-abr-e.doc.
303. The European Community (EC), aware that the steel tariffs benefited President Bush in battieground states such as West Virginia, Pennsylvania, and Ohio, threatened economic sanctions that would affect other crucial states like Florida, South Carolina, Washington, and North Carolina. Just prior to the retaliation deadline set by the EC, President Bush ordered an end to the steel tariffs. See Jide Nzelibe, The Credibility Imperative: The Political Dynamics of Retaliation in the World Trade Organization's Dispute Resolution Mechanism, 6 THEORETICAL INQUIRIES LAW 215, 224-25 (2005);
304. see also Rossella Brevetti & Christopher S. Rugaber, Bush Ends Steel Safeguard Tariffs in Face of Threat by EU to Retaliate, 20 INT'L TRADE REP. 2021 (2003).
305. E.g., Ex parte Webb, 225 U.S. 663, 683 (1912) ("Of course an act of Congress may repeal a prior treaty as well as it may repeal a prior act.").
306. As James Madison explained, "the State governments could have little to apprehend, because it is only within a certain sphere that the federal power can, in the nature of things, be advantageously administered." THE FEDERALIST No. 46, at 295 (James Madison) (Clinton Rossiter ed., 1961);
307. see also THE FEDERALIST No. 45, at 29293
308. (James Madison) (Clinton Rossiter ed., 1961) ("The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.").
309. See Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 196 (1824) ("[The power to regulate commerce,] like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution.");
310. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819) ("Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.").
311. See United States v. Lopez, 514 U.S. 549, 567 (1995) (holding the Federal GunFree School Zones Act unconstitutional because it extended beyond Congress's Commerce Clause power);
312. Hammer v. Dagenhart (Child Labor Case), 247 U.S. 251, 277 (1918) (invalidating a federal law prohibiting the interstate shipment of goods produced by child labor),
313. overruled by United States v. Darby, 312 U.S. 100, 115-17 (1941).
314. See Gonzales v. Raich, 545 U.S. 1 (2005) (upholding a federal statute that prohibits possessing, obtaining, or manufacturing marijuana as applied to a person growing marijuana, under state license, strictly within California for medical purposes).
315. See id. at 58 (Thomas, J., dissenting) (arguing for a restrictive view whereby the Commerce Clause only "empowers Congress to regulate the buying and selling of goods and services trafficked across state lines");
316. Lopez, 514 U.S. at 584-602 (Thomas, J., concurring) (arguing that current Commerce Clause jurisprudence is "far removed from both the Constitution and from our early case law," and advocating a more restrictive interpretation).
317. See Texas v. White, 74 U.S. (7 Wall.) 700, 725 (1868) (describing the Union as "perpetual" and "indissoluble").
318. See Wechsler, supra note 127, at 543-44 (invoking the role of states in composing and selecting federal government offices as one of the chief political safeguards of federalism).
319. See Payne v. Tennessee, 501 U.S. 808, 827 (1991) ("Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.");
320. ROBERT C. POST, CONSTITUTIONAL DOMAINS: DEMOCRACY, COMMUNITY, MANAGEMENT 30 (1995) ("If the Constitution predominates because it is law, its interpretation must be constrained by the values of the rule of law, which means that courts must construe it through a process of reasoning that is replicable, that remains fairly stable, and that is consistently applied." (footnote omitted)).
321. MIRJAN R. DAMASKA, THE FACES OF JUSTICE AND STATE AUTHORITY 36-38 (1986) ("While formally free to disregard legal opinions of their superiors, judges continued to look to high courts for guidance.");
322. PETER GOODRICH, READING THE LAW 39 (1986) ("The status of jurisprudence as law is informally recognized in that reference to previous decisions containing interpretations of the law is made during the course of legal argument, and may be found in notes and commentaries made about the code.").
323. See SARAH A. BINDER, STALEMATE: CAUSES AND CONSEQUENCES OF LEGISLATIVE GRIDLOCK 4-10 (2003) (finding bicameral differences, partisan polarization, and a disappearing political center to be significant causes of gridlock);
324. Thomas O. McGarity, Some Thoughts on "Deossifying" the Rulemaking Process, 41 DUKE LJ. 1385 (1992) (discussing causes of, and potential solutions to, the problem of regulatory "ossification").
325. See Stef Shipping Corp. v. Norris Grain Co., 209 F. Supp. 249, 253 (S.D.N.Y. 1962) (describing a typical tripartite arbitration agreement "where each party to a dispute is given the right to select an arbitrator and the third member is selected by them or by a disinterested party").
326. AAA/ABA Code of Ethics for Arbitrators in Commercial Disputes Canon I.D. (2004) ("Arbitrators should conduct themselves in a way that is fair to all parties and should not be swayed by outside pressure, public clamor, and fear of criticism or self-interest").
327. See Shearson/Am. Express, Inc. v. McMahon, 482 U.S. 220, 259 (1987) (noting that arbitrators have no obligation to follow precedent); Géraldine Szott Moohr, Arbitration and the Goals of Employment Discrimination Law, 56 WASH. & LEE L. REV. 395, 402-03 (1999) (describing the nonbinding, generally confidential, and private nature of arbitration decisions).
328. MICHAEL C. DORF, NO LITMUS TEST: LAW VERSUS POLITICS IN THE TWENTY-FIRST CENTURY, at xix (2006).
329. For an excellent account of what constitutes a judicial philosophy and how it figures in Supreme Court decision making, see CHRISTOPHER L. EISGRUBER, THE NEXT JUSTICE: REPAIRING THE SUPREME COURT APPOINTMENTS PROCESS ch. 6 (2007).
330. Eisgruber describes a judicial philosophy as the sum of a judge's "ideological convictions" and "procedural convictions, including . . . convictions about the proper role of courts within the American political system." Id. at 99.
331. Burke believed that a representative should exercise his best judgment about the public interest, even if that means disappointing his constituents. See Edmund Burke, Speech to the Electors of Bristol on Being Elected (Nov. 1774), in THE POLITICAL PHILOSOPHY OF EDMUND BURKE 108, 110 (Iain Hampsher-Monk ed., 1987). He successfully ran for Parliament and put these principles into practice, whereupon he was voted out of office.
332. ROBERT LUCE, LEGISLATIVE PRINCIPLES: THE HISTORY AND THEORY OF LAWMAKING BY REPRESENTATIVE GOVERNMENT 464 (1930).
333. Confirmation Hearing on the Nomination of John G. Roberts, Jr. to Be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 328 (2005) [here-inafter Confirmation Hearing] (statement of Sen. Joseph R. Biden, Jr., Member, S. Comm. on the Judiciary).
334. Christopher Eisgruber argues that confirmation hearings are most likely to be acrimonious, and thus that nominees are most likely to try to hide their views, when Presidents nominate ideological extremists rather than moderates. See EISGRUBER, supra note 168, ch. 7.
335. See HENRY J. ABRAHAM, JUSTICES, PRESIDENTS, AND SENATORS: A HISTORY OF THE U.S. SUPREME COURT APPOINTMENTS FROM WASHINGTON TO CLINTON 3 (new & rev. ed. 1999) (including "geographic" representation in a list of various representative factors considered in judicial appointments).
336. Int'l Court of Justice, Members of the Court, http://www.icj-cij.org/ court/index.php?p1=1&p2=2 (last visited Oct. 1, 2008).
337. COUNCIL OF EUROPE, EUROPEAN COURT OF HUMAN RIGHTS, SURVEY OF ACTIVITIES: 2007, at 5 (2008), available at http://www.coe.int/t/dc/files/themes/cedh/1- 2248184-Survey-of-activities.pdf.
338. See id. ("The Court is composed of a number of judges equal to that of the Contracting States (currently forty-five)." (footnote omitted)). There are actually forty-seven members, but Ireland and Montenegro's seats are currently vacant.
339. See id. at 5 n.6.
340. For a list of members as of December 31, 2007, see id. at 8.
341. See, e.g., Territorial and Maritime Dispute (Nicar. v. Colom.), 2007 I.C.J. 124 (Dec. 13), available at http://www.icj-cij.org/docket/ files/124/14305.pdf (accepting jurisdiction over a territorial dispute).
342. 548 U.S. 331, 355-58 (2006).
343. See id. at 339.
344. See generally Monaghan, supra note 3.
345. See id. at 851-66 (detailing how the United States has entered international agreements creating state-state arbitration panels to resolve the private law claims of its nationals against foreign governments, sometimes leading to a reexamination of decisions of the Supreme Court itself).
346. Id. at 882.
347. See id. at 881-82.
348. Like almost everything else, the question of whether a supranational tribunal makes law will not always be amenable to a yes-or-no answer. The decisions of tribunals that, in theory, only resolve disputes between parties may have varying degrees of precedential effect in practice. Cf. Robert B. Ahdieh, Between Dialogue and Decree: International Review of National Courts, 79 N.Y.U. L. REV. 2029, 2034 (2004) (describing the NAFTA Chapter 11 review process and offering "dialectical review" as an intermediate option between nonbinding "dialogue" among national and supranational tribunals and strictly binding judicial review).
349. Monaghan, supra note 3, at 882.
350. Supra Part IV.A.
351. See, e.g., Military Commissions Act of 2006, 18 U.S.C. § 2441 note ("No foreign or international source of law shall supply a basis for a rule of decision in the courts of the United States in interpreting the prohibitions enumerated in [18 U.S.C. § 2441 (d), the War Crimes Act].");
352. Confirmation Hearing, supra note 170, at 25 (statement of Sen. Mike DeWine, Member, S. Comm. on the Judiciary) ("Many are troubled when they see the Court cite international law in its decisions . . . .").
353. Compare Roper v. Simmons, 543 U.S. 551, 578 (2005) ("It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty . . . ."),
354. and id. at 604-05 (O'Connor, J., dissenting) (acknowledging some role for international law in Eighth Amendment jurisprudence because "this Nation's evolving understanding of human dignity certainly is neither wholly isolated from, nor inherently at odds with, the values prevailing in other countries"),
355. with id. at 622-28 (Scalia, J., dissenting) ("[T]he basic premise of the Court's argument - that American law should conform to the laws of the rest of the world - ought to be rejected out of hand.").
356. For an argument for "the emergence of a transnational law . . . that merges the national and the international," see Harold Hongju Koh, International Law as Part of Our Law, 98 AM. J. INT'L L. 43, 53 (2004).
357. For an argument that "[f]oreign and international law cannot be legitimately used in an outcome-determinative way to decide questions of constitutional interpretation," see Robert J. Delahunty & John Yoo, Against Foreign Law, 29 HARV. J.L. & PUB. POL'Y291, 296 (2005).
358. Justice Kennedy stated for the Court in Roper v. Simmons that foreign experience merely confirmed the conclusions that he and his colleagues would have otherwise reached independently: "The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions." 543 U.S. at 578.