CFIUS as A congressional notification service

Southern California Law Review

Volumn 83, Issue 1, 2009, Pages 81-132

  David, Zaring ^a,b  

^a UNIVERSITY OF PENNSYLVANIA   (United States)

^b UNIVERSITY OF PENNSYLVANIA LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

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EID: 77952254694     PISSN: 00383910     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (341)

1. United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 320 (1936).
2. This increase in executive branch action has inspired a blizzard of academic concern. See, e.g., Curtis A. Bradley, Chevron Deference and Foreign Affairs, 86 VA. L. REV. 649, 673-75 (2000) (discussing the virtues of an appropriately cabined doctrine of deference in foreign affairs);
3. Robert M. Chesney, Disaggregating Deference: The Judicial Power and Executive Treaty Interpretations, 92 IOWA L. REV. 1723, 1771-74 (2007) (suggesting that the level of judicial deference accorded executive interpretation of treaty language should be determined based on the origins and circumstances of the executive's process in interpreting the treaty);
4. Eric A. Posner & Cass R. Sunstein, Debate, Chevronizing Foreign Relations Law, 116 YALE L.J. 1170, 1204-07 (2007) (arguing for deference to the executive's interpretation of ambiguous statutes).
5. See also G. Edward White, The Transformation of the Constitutional Regime of Foreign Relations, 85 VA. L. REV. 1 (1999) (examining the historical increase in deference to the executive in foreign affairs by both Congress and the courts).
6. See Eric A. Posner & Adrian Vermeule, Crisis Governance in the Administrative State: 9/11 and the Financial Meltdown of 2008, at 15-36 (Univ. of Chi. Law Sch., John M. Olin Law & Econ. Working Paper No. 442, 2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1301164 (arguing that the executive branch is descriptively likely to take the policymaking lead during crises because of its institutional advantages in taking action).
7. See Mark Mazzetti, Global Economy Top Threat to U.S., Spy Chief Says, N. Y. TIMES, Feb. 13, 2009, at A14. For commentary,
8. see, for example, Peter Boone & Simon Johnson, The Next World War? It Could Be Financial, WASH. POST., Oct. 12, 2008, at B1 (cautioning that "[i]f governments don't respond [to the financial crisis] with sensible, coordinated policies, there's a risk of financial war").
9. Such institutions are common in law enforcement: criminal prosecutors often do not explain why they decide not to prosecute, and administrative agencies are not obliged under the Administrative Procedure Act to explain their decisions about which regulations to prioritize in enforcement. See 5 U.S.C. § 701(a)(2) (2006) (recognizing the extent to which "agency action is committed to agency discretion by law"). In addition, other national security agencies, especially the intelligence agencies, also operate using undisclosed policies - for example, the Freedom of Information Act does not require agencies to disclose matters related to national security.
10. See 5 U.S.C.S. § 552(b)(3) (LexisNexis 2009).
11. Anthony Michael Sabino, Transactions That Imperil National Security: A Look at the Government's Power to Say "No, " N.Y. ST. B.A.J., Nov/Dec. 2005, at 20, 20.
12. See In re Global Crossing, Ltd., 295 B.R. 720, 722 (Bankr. S.D.N.Y. 2003) (stating that "[g]iven the national security-related nature of the CFIUS review process, it is generally protected from disclosure to the public," subject to only certain exceptions).
13. U.S. Dep't of Treasury, Office of Investment Security: Committee on Foreign Investment in the United States (CFIUS), http://www.ustreas.gov/offices/ international-affairs/cfius/ (last visited Aug. 15, 2008) [hereinafter CFIUS Overview].
14. In Webster v. Doe, the Supreme Court concluded that as a statutory matter there was "no law to apply" in employment decisions by the CIA. Webster v. Doe, 486 U.S. 592, 599 (1988)
15. (quoting S. REP. No. 79-752, at 26 (1945)). The decision suggests that employment in a national security agency was essentially at will, discretionary, and unreviewable. Webster is controversial for many reasons, and the question of how its statutory national security exemption applies in other contexts is one such contested issue - in other words, if national security concerns bar judicial review of agency employment decisions, exactly which, if any, agency decisions made in the interest of national security are judicially reviewable?
16. See Regulations Pertaining to Mergers, Acquisitions, and Takeovers by Foreign Persons, 56 Fed. Reg. 58, 774, 58, 775 (Nov. 21, 1991).
17. See also Catherine H. Gibson, Frankfurter's Gloss Theory. Separation of Powers, and Foreign Investment, 36 N. KY. L. REV. 103, 110 (2009) (noting how Congress has granted the president "wide discretion" in determining what national security threats will "trigger CFIUS's powers").
18. See 50 U.S.C.S. app. § 2170(b)(1)-(2) (LexisNexis 2009).
19. See also CFIUS Overview, supra note 8.
20. 50 U.S.C.S. app. § 2170(b)(3)(B), (d)(l).
21. Id. § 2170(1)(1)(A).
22. See also infra notes 109-125
23. 50 U.S.C.S. app. § 2170(1)(1)(A).
24. Committee on Foreign Investment in the United States (CFIUS), One Year After Dubai Ports World: Hearing Before the H. Comm. on Financial Servs., 110th Cong. 89 (2007) [hereinafter CFIUS Hearing] (testimony of Clay Lowery, Treasury Assistant Secretary);
25. Jim Abrams, A Year After Dubai Port Deal, Congress Sends Investment Bill to White House, ASSOCIATED PRESS, July 11, 2007 (noting legislation to increase the prominence of CFIUS in light of growing national security concerns).
26. Form 8-K is the current report companies must file with the Securities and Exchange Commission to "announce major events that shareholders should know about." See SEC, Form 8-K, http://www.sec.gov/answers/form8k.htm (select "Form 8-K") (last visited Sept. 19, 2009).
27. These numbers resulted from a search of Westlaw's EDGAR database on July 24, 2008. The search entered was "(committee /3 'foreign investment' /3 'United States') or CFIUS."
28. See CNOOC Withdraws Its Bid for Unocal, ONLINE ASIA TIMES, Aug. 4, 2005, http://www.atimes.com/atimes/China/GH04Ad02.html;
29. Unocal Reject CNOOC After Chevron Raises Takeover Offer, PEOPLE'S DAILY ONLINE, July 21, 2005, http://english.peopledaily.com.cn/200507/21/eng20050721- 197449.html.
30. See also Rawi Abdelal & Adam Segal, Has Globalization Passed Its Peak?, FOREIGN AFF., Jan/Feb. 2007, at 103, 109 (noting CFIUS's role in an increasingly policitized approval process).
31. See Abdelal & Segal, supra note 17;
32. Lobbyist's Last-Minute Bid Set Off Ports Controversy (National Public Radio broadcast Mar. 8, 2006), available at http://www.npr.org/templates/story/ story.php?storyId=5252263. For an overview of the crisis and the broader implications for CFIUS review,
33. see STEVEN M. DAVIDOFF, GODS AT WAR: SHOTGUN TAKEOVERS, GOVERNMENT BY DEAL, AND THE PRIVATE EQUITY IMPLOSION 107-132 (2009).
34. See Press Release, 3Com and Bain Capital Partners Announce Mutual Withdrawal of CFIUS Application (Feb. 20, 2008), available at http://www.3com.com/corpinfo/en-US/pressbox/press-release.jsp?INFO-ID=281478;
35. DealBook, http://dealbook.blogs.nytimes.com/2008/02/20/3com-bain- withdraw-deal-from-regulatory-approval/(Feb. 20, 2008, 09:17 EST).
36. See, e.g., Henny Sender & Francesco Guerrera, Lehman's Secret Talks to Sell 50% Stake Stall, FIN. TIMES, Aug. 20 2008, http://www.ft.com/cms/s/0/ 586ed412-6ee6-11dd-a80a-0000779fd18c.html.
37. See Posting of Heidi N. Moore to Deal Journal, http://blogs.wsj.com/ deals/2008/06/11/deals-deal-makers-2008-does-the-world-like-doing-business-with- americans/?mod=googlenews-wsj (June 11, 2008, 09:15 EST) (noting that "several Asian sovereign wealth funds have been talking to the Committee on Foreign Investment in the U.S. in the past day to understand what the U.S. agency expects in terms of governance and other concerns").
38. Also, consider this mollifying speech by a Treasury Department official: I know some of you may have concerns about the investment review process in the United States, known as CFIUS, or the Committee on Foreign Investment in the United States, a committee that is chaired by the U.S. Treasury. However, I want to make clear that the legal authority of CFIUS is narrowly targeted to address only acquisitions that raise genuine national security concerns, not broader economic interests or industrial policy factors. David McCormick, Treasury Under Sec'y for Int'l Affairs, Global Financial Turmoil and Its Implications for China, Remarks at the Inaugural Session of the Lujiazui Financial Forum in Shanghai (May 9, 2008), available at http://www.treas.gov/press/releases/hp972. htm.
39. See, e.g., China Blasts Draft CFIUS Regulations, U.S. Businesses Urge Revisions, INSIDE U.S. TRADE, June 13, 2008, at 12 (recounting Chinese criticism of the draft CFIUS regulations as "excessively stringent").
40. China has begun to adopt laws to block foreign acquisitions that "it deems are not in China's national interest." U.S. GAO, GAO-08-320, FOREIGN INVESTMENT: LAWS AND POLICIES REGULATING FOREIGN INVESTMENT IN 10 COUNTRIES app. V, at 43 (2008), available at http://www.gao.gov/new.items/d08320.pdf [hereinafter GAO 2008 REPORT].
41. See also Andrew Batson & Matthew Kamitschnig, China Plans System to Vet Foreign Deals for Security, WALL ST. J., Aug. 26, 2008, at Cl (stating that "China's government is formalizing a process for reviewing foreign acquisitions of local companies for national-security concerns," while quoting one observer's comment that "[i]t looks like a national-security- review mechanism similar to CFIUS in the U.S., where several ministries are involved").
42. GAO 2008 REPORT, supra note 23, app. VIII, at 71 (stating that India's National Security Council Secretariat "suggested... establish[ing] a process for assessing security threats related to foreign investment, similar to the U.S. CFIUS process");
43. DAVID M. MARCHICK & MATTHEW J. SLAUGHTER, COUNCIL ON FOREIGN RELATIONS, CSR No. 34, GLOBAL FDI POLICY: CREATING A PROTECTIONIST DRIFT 12 (2008), available at http://www.cfr.org/content/publications/attachments/FDl- CSR34.pdf ("[India] has considered creating new national security-related screening in the telecoms field - in part in reaction to a CFIUS review of an Indian company undertaking a U.S. acquisition - but has not moved to implement any new restrictions.").
44. See GAO 2008 REPORT, supra note 23, app. VII.
45. See Alan Beattie, US Warns over Rules on Foreign Takeovers, FIN. TIMES, May 5, 2008, http://www.ft.eom/cms/s/0/ced4bb48-1a3c-11dd-ba02-0000779fd2ac.html (noting "a succession of interventions by rich country governments to block foreign takeovers on grounds of national interest").
46. See James Cole, Jr. & Igor Kirman, Takeover Law and Practice, in DOING DEALS 2008: UNDERSTANDING THE NUTS & BOLTS OF TRANSACTIONAL PRACTICE 11 (PLI Corporate Law & Practice, Course Handbook Series No. 13981, 2008);
47. Edward D. Herlihy, Takeover Law and Practice 2007, in CONTESTS FOR CORPORATE CONTROL 2008: CURRENT OFFENSIVE & DEFENSIVE STRATEGIES IN M&A TRANSACTIONS 213 (PLI Corporate Law & Practice, Course Handbook Series No. 13964, 2008);
48. David A. Katz, Takeover Law and Practice 2007, in SEVENTH ANNUAL INSTITUTE ON SECURITIES REGULATION IN EUROPE 855 (PLI Corporate Law & Practice, Course Handbook Series No. 13750, 2008);
49. Patricia A. Vlahakis, Takeover Law and Practice 2007, in 39TH ANNUAL INSTITUTE ON SECURITIES REGULATION 807 (PLI Corporate Law & Practice, Course Handbook Series No. 11518, 2007).
50. See infra tbl.
51. Ilene Knable Gotts, Leon B. Greenfield & Perry Lange, Is Your Cross-Border Deal the Next National Security Lightning Rod?: Identifying Potential National Security Issues and Navigating the CFIUS Review Process, A.B.A. SEC. Bus. L. TODAY, July/Aug. 2007, at 31, 33, available at http://www.abanet.org/buslaw/blt/2007-07-08/lange.shtml.
52. Alan Holmer, Special Envoy for China, Sustaining Economic Growth, Remarks at Wuhan University on the U.S.-China Strategic Economic Dialogue (May 21, 2008), available at http://www.treas.gov/press/releases/hp992htm.
53. Interview by David Wessel with Matthew J. Slaughter & David M. Marchick, Council on Foreign Relations Discussion: Global FDI Policy: Correcting a Protectionist Drift (June 26, 2008), available at http://www.cfr.org/ publication/16695/global-fdi-policy.html.
54. David Zaring, ASIL Tries to Explain What You Need to Know About CFIUS, CONGLOMERATE, Apr. 11, 2008, http://www.theconglomerate.org/2008/04/what-you- need-t.hrml.
55. This explanation is consistent with accounts such as those from Jack Beermann, who has written on Congress's increasing level of executive oversight in Jack M. Beermann, The Turn Toward Congress in Administrative Law, 89 B.U. L. REV. 727 (2009).
56. Those agreements include the subset of CFIUS reviews of telecommunications license transfers, which the Federal Communications Commission makes public. CFIUS does not publicize mitigation agreements, nor do other federal agencies. See infra notes 118-119 and accompanying text.
57. Elena Kagan is the scholar most associated with this view. See Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245 (2001). But other scholars, from all walks of the political spectrum, have expressed agreement with this theory, particularly when it comes to matters of national security.
58. See, e.g., Harold Hongju Koh & John Choon Yoo, Dollar Diplomacy/Dollar Defense: The Fabric of Economics and National Security Law, 26 INT'L LAW. 715, 749 (1992) (noting that "[c]ongressional attempts to place statutory checks on this broad delegation of power have failed," and thus "Presidents have expansively defined threats to national security," arguing that foreign affairs are a matter of presidential domination).
59. See, e.g., David M. Driesen, Toward a Duty-Based Theory of Executive Power, 78 FORDHAM L. REV. 71 (2009);
60. Stephen Skowronek, Essay, The Conservative Insurgency and Presidential Power: A Developmental Perspective on the Unitary Executive, 122 HARV. L. REV. 2070 (2009).
61. For contemporary proponents of this view, see, for example, Curtis A. Bradley, Jack L. Goldsmith & David H. Moore, Sosa, Customary International Law, and the Continuing Relevance of Erie, 120 HARV. L. REV. 869 (2007). Their work stems from the so-called realist tradition in international relations scholarship, which posits that the international world is lawless and anarchic.
62. See KENNETH N. WALTZ, THEORY OF INTERNATIONAL POLITICS 88 (1979) (stating that "[i]nternational systems are decentralized and anarchic");
63. Curtis A. Bradley & Jack Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 HARV. L. REV. 815 (1997) (arguing that customary international law rarely constrains sovereigns). According to this view, the United States will predictably do whatever it must to further its international interests, law be hanged.
64. C. S. Eliot Kang, U.S. Politics and Greater Regulation of Inward Foreign Direct Investment, 51 INT'L ORG. 301, 302-03 (1997). The extensiveness with which national security-based policies are being applied in the domestic context is worth noting. Although national security exceptionalism has a long history, it has only grown in importance since the onset of the war on terror - which has transformed, usually uncomfortably, civilian regulators into war on terror fighters, and also elevated, somewhat surprisingly, the importance of lawyers in the process of waging that war.
65. See generally David Zaring & Elena Baylis, Sending the Bureaucracy to War, 92 IOWA L. REV. 1359 (2007) (critiquing the mobilization of administrative agencies in waging the war on terror).
66. For examples of crisis-driven regulation, see Stuart Banner, What Causes New Securities Regulation? 300 Years of Evidence, 75 WASH. U. L.Q. 849 (1997) (propounding the crisis-oriented theory of securities regulation),
67. and Larry E. Ribstein, Commentary, Bubble Laws, 40 HOUS. L. REV. 77, 83-90 (2003) (using the crisis theory to critique the passage of the Sarbanes-Oxley Act).
68. Dara Kay Cohen, Mariano-Florentino Cuéllar & Barry R. Weingast, Crisis Bureaucracy: Homeland Security and the Political Design of Legal Mandates, 59 STAN. L. REV. 673, 678 (2006).
69. Trading with the Enemy Act (TWEA), Pub. L. No.65-91, § 5, 40 Stat 411, 415 (1917).
70. Regan v. Wald, 468 U.S. 222, 226 n.2 (1984
71. ) (citing Act of Mar. 9, 1933, Pub. L. No. 73-1, sec. 2, § 5(b), 48 Stat. 1, 1).
72. The Act of March 9, 1933, amended TWEA, granting the president powers during wartime "or during any other period of national emergency." Act of Mar. 9, sec. 2, §5(b), 48 Stat, at 1. For an overview of TWEA's evolution,
73. see Aaron Xavier Fellmeth, Cure Without a Disease: The Emerging Doctrine of Successor Liability in International Trade Regulation, 31 YALE J. INT'L L. 127, 163-65 (2006) (offering a contemporary review of the powers granted by TWEA),
74. and Stanley J. Marcuss, Grist for the Litigation Mill in U.S. Economic Sanctions Programs, 30 LAW & POL'Y INT'L Bus. 501, 501-02 (1999) (same).
75. International Emergency Economic Powers Act (IEEPA), Pub. L. No.95-223, § 202(a), 91 Stat. 1625, 1626 (1977)
76. (codified at 50 U.S.C. § 1701(a) (2006)).
77. See generally Frederic Block, Civil Liberties During National Emergencies: The Interactions Between the Three Branches of Government in Coping with Past and Current Threats to the Nation's Security, 29 N.Y.U. REV. L. & SOC. CHANGE 459, 460-78 (2005) (discussing the president's power to act during national emergencies and statutes that authorize presidential declarations of national emergencies).
78. Defense Production Act (DPA) of 1950, Pub. L. No.81-774, 64 Stat. 798.
79. See John Ing, Gold: Rich Country, Poor Country, SAFEHAVEN, Feb. 8, 2007, http://www.safehaven.com/article-6872.htm (noting attempts by "hedge and commodity players" to "comer the physical markets").
80. Kang, supra note 38, at 302.
81. Exec. Order No. 11, 858, 40 Fed. Reg. 20, 263 (May 7, 1975).
82. 135 CONG. REC. H902 (daily ed. Apr. 3, 1989) (statement of Rep. Wolf).
83. The United States and Japan were engaged at the time in a trade war over semiconductors-a war that Japanese manufacturers would eventually win. See Peter T. Kilborn, US Japan Trade Tension Mounts, N.Y. TIMES, Apr. 15, 1987, at D5 (describing the trade dispute and noting that "[a]s the ... deadline neared for the American imposition of stiff retaliatory duties on imports of Japanese semiconductor goods, American officials were ruling out a compromise of the sort that ended the countries' previous conflicts over trade").
84. William C. Rempel & Donna K. H. Walters, The Fairchild Deal: Trade War; When Chips Were Down, L.A. TIMES, Nov. 30, 1987, at 1. One other roughly contemporaneous transaction excited congressional interest: the British raider Sir James Goldsmith also attempted to take over Goodyear Tire and Rubber.
85. See EDWARD M. GRAHAM & DAVID M. MARCHICK, U.S. NATIONAL SECURITY AND FOREIGN DIRECT INVESTMENT 41 (2006).
86. See Omnibus Trade and Competitiveness Act of 1988, Pub. L. No.100-418, sec. 5021, § 721, 102 Stat. 1107, 1425-26 (codified as amended at 50 U.S.C.S. app. § 2170 (LexisNexis 2009)).
87. See also W. Robert Shearer, Comment, The Exon-Florio Amendment: Protectionist Legislation Susceptible to Abuse, 30 Hous. L. REV. 1729, 1731 n.12 (1993). In some ways this process was an exchange: Exon-Florio allowed for greater governmental intervention in foreign direct investments, but free traders got much of the rest of the landmark Act.
88. Exon-Florio authorized the president to investigate the "effects on national security" of mergers, acquisitions, and takeovers by foreign persons. Omnibus Trade and Competitiveness Act of 1988 § 721(a), 102 Stat, at 1425.
89. Id. § 721(c), 102 Stat, at 1425-1426
90. Id. § 721(d), 102 Stat, at 1426. This provision explicitly states that: The President may exercise the authority conferred by subsection (c) only if the President finds that(1) there is credible evidence that leads the President to believe that the foreign interest exercising control might take action that threatens to impair the national security, and (2) provisions of law, other than this section and the International Emergency Economic Powers Act, do not in the President's judgment provide adequate and appropriate authority for the President to protect the national security in the matter before the President. Id. (citation omitted).
91. 50 U.S.C.S. app. § 2170(d)(1).
92. Id. § 2170(1)(A).
93. Shearer, supra note 51, at 1754-1766 (discussing ten of the investigations conducted by CFIUS in the five years following the passage of Exon-Florio).
94. 138 CONG. REC. S6599 (daily ed. May 13, 1992) (statement of Sen. Byrd).
95. First, the Byrd Amendment required investigations in "any instance in which an entity controlled by or acting on behalf of a foreign government seeks to engage in any merger, acquisition, or takeover which could result in control... that could affect the national security of the United States." National Defense Authorization Act for Fiscal Year 1993, Pub. L. No.102-484, sec. 837, §721(b), 106 Stat. 2315, 2464 (1992)
96. (codified as amended at 50 U.S.C.S. app. §2170). Second, the amendment added several factors that it invited the Committee to consider when passing on an acquisition, such as a country's record on cooperation in counter-terrorism efforts, or adherence to nonproliferation control regimes.
97. See id.
98. Although the statutory language requiring congressional notification is quite clear, the language "requiring" CFIUS to consider certain factors when investigating, or even to launch an investigation in the first place, is qualified. Id. sec. 837, § 721(g), 106 Stat, at 2464 (adding a requirement that the president provide Congress with a written report of the findings and conclusions of its investigation). In the case of CFIUS, such investigatory requirements often turn on an initial determination that the transaction is in fact covered, which in turn depends on the president's interpretations of statutory language that is both judicially unreviewable and broadly phrased.
99. See id.
100. Defense Production Act Amendments of 1992, Pub. L. No.102-558, sec. 163, § 721(k)(1)(B), 106 Stat. 4198, 4219 (codified as amended at 50 U.S.C.S. app. § 2170(m)(3)(A)(ii)).
101. Specifically, the amendment provides: (1) [] In order to assist the Congress in its oversight responsibilities with respect to this section, the President and such agencies as the President shall designate shall complete and furnish to the Congress, not later than 1 year after the date of enactment of this section and upon the expiration of every 4 years thereafter, a report which- (A) evaluates whether there is credible evidence of a coordinated strategy by 1 or more countries or companies to acquire United States companies involved in research, development, or production of critical technologies for which the United States is a leading producer, and (B) evaluates whether there are industrial espionage activities directed by foreign governments against private United States companies aimed at obtaining commercial secrets related to critical technologies. Id. sec. 163, § 721(k), 106 Stat. at 4219. 63. See infra tbl.
102. In the Dubai Ports World dispute, a company largely owned by the government of Dubai sought to acquire P&O, a British firm that owned or leased the terminal facilities in a number of ports around the world, including six in the United States.
103. GARY CLYDE HUFBAUER, YEE WONG & KETKI SHETH, U.S.-CHINA TRADE DISPUTES: RISING TIDE, RISING STAKES 53 (2006).
104. See also GRAHAM & MARCHICK, supra note 50, at 140 (describing the criticism CFIUS received for not giving Congress notice of Dubai Ports World's proposed acquisition of P&O);
105. Mike Ahlers et al., Bush Faces Pressure to Block Port Deal, CNN, Feb. 20, 2006, http://www.cnn.com/2006/POLITICS/02/20/port.security/index.html (describing the reactions of a number of legislators to the proposed acquisition).
106. CFIUS approved the transaction, but before the transaction closed, congressional pressure (such as an adverse 62-2 vote in the House Appropriations Committee) convinced Dubai Ports World to sell the American port facilities to an American-controlled firm. GRAHAM & MARCHICK, supra note 50, at 140-41;
107. HUFBAUER ET AL., supra, at 53.
108. In the Unocal case, a government-controlled Chinese company saw its $18.5 billion cash offer for Unocal run into stiff congressional resistance, leading in the end to an acquisition by an American oil company, Chevron, which offered $17.8 billion in cash and stock. See GRAHAM & MARCHICK, supra note 50, at 128-36 (providing an overview of the saga).
109. See also Steve Lohr, Unocal Bid Opens Up New Issues of Security, N.Y. TIMES, July 13, 2005, at C1 (describing the role of CFIUS in investments like CNOOC's). For a critical view of congressional action in these transactions,
110. see Douglas Holtz-Eakin, You Can't Be CFIUS, WALL ST. J., July 13, 2006, at A8 ("[I]nternational investors looked askance when an acquisition-the purchase by [Dubai Ports World] of [P&O]-dissolved into political controversy... [that] came on the heels of heavy-handed congressional interference in [CNOOC's] proposed purchase of American oil company Unocal.");
111. J. Robinson West, CNOOC's Miscalculation, WALL ST. J., July 14, 2005, at AlO (criticizing CNOOC's aggressive approach to its proposed investment in Unocal and explaining how that approach led to congressional frustration).
112. 153 CONG. REC. H6309 (daily ed. June 12, 2007) (statement of Rep. Price).
113. Foreign Investment and National Security Act (FINSA) of 2007, Pub. L. No.110-49, 121 Stat. 246 (amending 50 U.S.C.S. app. § 2170).
114. See id.
115. See also id. sec. 3, §721(k)(2)(J), 121 Stat, at 252 (permitting the president to add members).
116. In 1975, President Ford had issued an executive order designating the U.S. Trade Representative, the Chairman of the Council of Economic Advisers, and the Director of the Office of Management and Budget as additional members.
117. See Exec. Order No. 11, 858, 40 Fed. Reg. 20,263 (May 7, 1975), available at http://www.archives.gov/federal-register/codification/executive-order/11858. html. Under FINSA, CFIUS also retained the mechanism that it had used to conduct investigations in the past.
118. See FINSA, sec. 2, §721(b), 121 Stat, at 247-52 (providing for national security reviews and investigations). For a discussion of this amendment by an attorney practicing in the field, see Philip C. Thompson, United States: Treasury Department Issues Proposed Regulations Governing Review of Foreign Investment in the United States, MONDAQ, May 22, 2008, http://www.mondaq.com/article.asp?articleid=60924.
119. See FINSA, sec. 2, §721(b)(1)(D), 121 Stat, at 248-249
120. Id. sec. 2, §721(b)(1)(D). 121 Stat, at 248.
121. See id. sec. 2, §721(b)(2)(B)(i)(IH). 121 Stat, at 249.
122. FINSA also elucidates, in more detail, what Congress would like the Committee to do when it does get around to investigating. First, the statute requires the Committee to do a particular, if undefined, version of analysis when evaluating both nonexclusive factors provided by Congress and other factors indicated as salient: for example, when an agreement or condition designed to "mitigate [a] threat to national security" is imposed, it "shall be based on a risk-based analysis, conducted by the Committee, of the threat to national security of the covered transaction." Id. sec. 5, §721(1)(1)(B). 121 Stat, at 254. National security should be the prime consideration, presumably rather than political or diplomatic considerations, although the statute is not entirely clear on this score. The statute also requires CFIUS to provide a report on an annual basis, not only detailing the reviews and investigations of all covered transactions,
123. see id. sec. 7, §721(m)(1)-(2), 121 Stat, at 257, but also evaluating whether there is "credible evidence of a coordinated strategy ... to acquire United States companies involved in... development... of critical technologies for which the United States is a leading producer,"
124. id. sec. 7, §721(m)(3)(A)(i), 121 Stat, at 257-58. This request that the Committee become more involved in more transactions is paired with some substantive requirements about the conduct of the investigations that could be difficult for the Committee to meet. Consider, in this regard, whether the Director of National Intelligence will be able to "expeditiously carry out a thorough analysis of any threat to the national security of the United States posed by any covered transaction," and also "seek and incorporate the views of all affected or appropriate intelligence agencies with respect to the transaction," within twenty days of the Committee receiving notice of the transaction.
125. Id. sec. 2, §721(b)(4)(A)-(B), 121 Stat, at 251.
126. Id. sec. 9, §721(h)(3)(A), 121 Stat, at 259. The statute also gives CFIUS the authority to enforce these penalties, as well as a mechanism for blocking transactions; under the statute, the president "may direct the Attorney General of the United States to seek appropriate relief, including divestment relief, in the district courts of the United States."
127. Id. sec. 6, § 721(d)(3), 121 Stat. at 256. Proposed Committee regulations specified the power to include liquidated damages provisions in mitigation agreements.
128. See Regulations Pertaining to Mergers, Acquisitions, and Takeovers by Foreign Persons, 73 Fed. Reg. 21, 861, 21, 863 (Apr. 23, 2008)
129. (codified at 31 C.F.R. § 800.801 (2009)).
130. FINSA, sec. 5, § 721(1)(3)(B). 121 Stat. at 255.
131. See id. sec. 7, §721(m)(3)(B), 121 Stat. at 258.
132. That report must include trend information on mergers and filings, as well as [a] list of all notices filed and all reviews or investigations completed during the period, with basic information on each party to the transaction, the nature of the business activities or products of all pertinent persons, along with information about any withdrawal from the process, and any decision or action by the President under this section. Id. sec. 7, §721(mX2XA), 121 Stat. at 257.
133. See id. sec. 2, § 721(b)(3)(A)-(B), 121 Stat. at 249-50. In both cases, Congress has required that the Committee "transmit to the members of Congress... a certified written report... on the results of the investigation, unless the matter under investigation has been sent to the President for decision."
134. Id. sec. 2, § 721(b)(3)(B), 121 Stat, at 250.
135. Id. sec. 7, § 721(g)(1), 121 Stat, at 256.
136. See CFIUS Hearing, supra note 14, at 90 (testimony of Clay Lowery, Treasury Assistant Secretary).
137. For a lengthy discussion of covered transactions, see 31 C.F.R. § 800.301 (2009).
138. See id. § 800.216 (defining "foreign person"). As seen in the Dubai Ports World fiasco-which involved the sale of an American asset by a British firm to a sovereign-owned firm based in Dubai - based on these definitions, any business in the United States qualifies as a U.S. person, even if it is already owned by a foreign person. On the other hand, if assets defined as U.S. persons are sold to foreign persons, they become foreign persons because a foreign entity exercises, or could exercise, control over them.
139. See id. For example, if the American subsidiary of P&O (the British corporation that owned the American ports) purchased another American asset, that too would be a reviewable transaction.
140. See FINSA, sec. 2, §721(a)(6), 121 Stat. at 247.
141. National security has never been defined by Congress, although Congress has offered the president a few nonexclusive factors that may be useful to consider. According to the Committee, the term "national security" has always been "interpreted broadly," with the determination of whether a transaction would threaten national security lying entirely "within the President's discretion." Regulations Pertaining to Mergers, Acquisitions, and Takeovers by Foreign Persons, 56 Fed. Reg. 58, 774, 58, 775 (Nov. 21, 1991).
142. To just take one example, a "covered transaction" is "any" merger, acquisition, or takeover by "any" foreign person that could result in foreign control of "any" person engaged in interstate commerce. FINSA, sec. 2, § 721(a)(3), 121 Stat. at 246. More specific terms like "critical infrastructure"- which could potentially apply to any road, wire, or farm in the country, as well as the operators, suppliers, and maintainers of roads, wires, and farms - have never been closely defined; indeed, one CFIUS official has opined that trying to define and limit such a term is "unproductive."
143. See Zaring, supra note 32. CFIUS has proposed regulations that spend plenty of energy defining "covered transactions," offering examples of control, critical infrastructure, and other terms that have the effect of illustrating what counts under the agency's rules, without cabining its ability to reach other, dissimilar matters in the future.
144. See 31 C.F.R. § 800.301 (clarifying the meaning of the term "covered transaction" by defining and discussing related terms).
145. The thirty-day review of covered transactions for the initial national security review has not changed since Exon-Florio - nor has the forty-five-day deadline for the completion of formal investigations following the initial review, nor the fifteen-day deadline for presidential action. 50 U.S.C.S. app. § 2170(b)(1)(E), (b)(2)(C), (d)(2) (LexisNexis 2009). This grant of substantive power with procedural limitations is increasingly common, particularly in the putatively deferential world of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., which requires courts to defer to agency interpretation of ambiguous statutory provisions-a rule that provides more flexibility in substantive grants of power than do clear deadlines like those faced by CFIUS.
146. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)
147. Some would find this sort of oversight to be useful. See, e.g., Kevin M. Stack, The President's Statutory Powers to Administer the Laws, 106 COLUM. L. REV. 263 (2006) (arguing that a narrow definition of presidential statutory authority is desirable because it better enables Congress to police the president's assertion of authority and because it provides a check on the president's tendency to claim statutory authorization for executive action). Stack argues that statutes should not be considered to grant authority to the president absent explicit delegations by Congress, affording discretion only when the statute expressly grants that power to the president.
148. See id. at 267;
149. Kevin M. Stack, The Statutory President, 90 IOWA L. REV. 539, 543 (2005) (arguing that when the basis for the president's actions is statutory, "Congress is the ultimate source of power"). Of course, the DPA, as amended, does give the president these sorts of powers - only they are tempered by the reporting structure.
150. See Interview with Matthew J. Slaughter & David M. Marchick, supra note 31.
151. See also Jonathan C. Stagg, Note, Scrutinizing Foreign Investment: How Much Congressional Involvement Is Too Much?, 93 IOWA L. REV. 325, 342 (2007) ("Congress has chosen to take action in several instances where it considered a transaction a threat to national security, even after CFIUS conducted an investigation and approved the deal.")
152. See supra notes 17-18, 64-65 and accompanying text.
153. See also David E. Sanger, Dubai Expected to Ask for Review of Port Deal, N. Y. TIMES, Feb. 26, 2006, at 1 (describing the Dubai Ports World fiasco as involving a "severe political error [in] failing to consult with Congress").
154. GRAHAM & MARCHICK, supra note 50, at 124
155. See id. at 124-25.
156. See Stephanie Kirchgaessner, UK Fund Set to Escape CFIUS Probe, FIN. TIMES, June 11, 2008.
157. See Neil King, Jr. & Gregg Hitt, Small Florida Firm Sowed Seed of Port Dispute, WALL ST. J., Feb. 28, 2006, at A3.
158. See GRAHAM & MARCHICK, supra note 50, at 128-36.
159. Zaring, supra note 32.
160. Sidney A. Shapiro, Political Oversight and the Deterioration of Regulatory Policy, 46 ADMIN. L. REV. 1, 7 (1994).
161. See also Daniel B. Rodriguez, The Positive Political Dimensions of Regulatory Reform, 72 WASH. U. L.Q. 1, 43 (1994) (commenting that "[p]ositive political theory describes regulatory policymaking as a part of a world in which political actors function within institutions rationally and strategically in order to accomplish certain goals").
162. See Arthur Lupia & Mathew D. McCubbins, Learning from Oversight: Fire Alarms and Police Patrols Reconstructed, 10 J.L. ECON. & ORG. 96, 97 (1994) ("Fire-alarm oversight... is relatively passive, indirect, and decentralized. Legislators who conduct fire-alarm oversight establish a system of rules, procedures, and informal practices that enable [interested third parties] to examine administrative decisions... [and] to seek remedies from agencies, courts, and [the legislature] itself." (internal quotation marks omitted)).
163. McCubbins and his coauthors, as well as those who have followed them, have tended to conclude that congressional supervision of agencies is relatively effective, arguing that the Administrative Procedure Act ("APA"), which requires a certain level of disclosure by agencies, was enacted by a rational Congress concerned with ensuring the efficacy of fire alarm-style oversight.
164. See, e.g., McNollgast, The Political Origins of the Administrative Procedure Act, 15 J.L. ECON. & ORG. 180, 199 (1999) ("Fire alarm oversight also requires that elected officials, once the fire alarm has sounded, investigate conflicting claims among constituent groups and an agency. To undertake this function, elected officials must have ready access to relevant information-----The APA helps to ensure that this information is provided through the openness provisions and the requirement that agencies allow affected parties to participate.").
165. See also David Zaring, Three Models of Constitutional Toris, J. TORT L., Issue 1, 2008, art. 3, at 2-3 (describing the scandal oversight mechanism).
166. As Lupia and McCubbins have explained, "Police-patrol oversight is the centralized and direct approach to uncovering hidden knowledge and is what most people think about when they discuss the oversight function of legislatures. An example of police-patrol oversight is a legislator who personally conducts an audit of agency activity." Lupia & McCubbins, supra note 95, at 97. This catchy term, as well as the term "fire alarm," comes from
167. Mathew D. McCubbins & Thomas Schwartz, Congressional Oversight Overlooked: Police Patrols Versus Fire Alarms, 28 AM. J. POL. SCI. 165 (1984).
168. See supra Part U.A.
169. In this sense, CFIUS is not entirely unprecedented; indeed, the broader regime of international trade has often featured active congressional oversight. See Paola Conconi, Giovanni Facchini & Maurizio Zanardi, Fast Track Authority: Trade Policy or Politics?, Vox, May 21, 2008, http://www.voxeu.org/ index.php?q=node/1159 (noting a 2008 congressional decision to cut back on the ability of the executive to "fast track" trade agreements).
170. See, e.g., Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U. CHI. L. REV. 123 (1994) (defending Congress's regulation of presidential action by noting the need for a restoration of a proper system of checks and balances).
171. See Foreign Investment and National Security Act (FINSA) of 2007, Pub. L. No. 110-49, sec. 7, §721(m), 121 Stat. 246, 257-58 (requiring a detailed annual report);
172. id. sec. 7, §721(g)(1), 121 Stat. at 256 (requiring information at requests of congressmen).
173. See also id. sec. 2, §721(b)(3)(B), 121 Stat. at 249-51 (requiring certification to Congress); supra Part H.A.
174. Bush, Congress in Dark About Port Deal, CBS NEWS, Feb. 22, 2006, http://cbs4denver.com/national/Politics.Republicans.Democrats.2.264247.html.
175. See infra tbl.
176. For the source of this data, see U.S. GAO, GAO-05-686, DEFENSE TRADE: ENHANCEMENTS TO THE IMPLEMENTATION OF EXON-FLORIO COULD STRENGTHEN THE LAW'S EFFECTIVENESS 14 tbl.2, 18 tbl.3 (2005), available at http://www.gao.gov/new. items/d05686.pdf [hereinafter GAO 2005 REPORT].
177. See also 2008 CFIUS ANN. REP. TO CONGRESS: PUB. VERSION 2-3, available at http://www.treas.gov/offices/interational-affairs/cfius/docs/CFIUS-Annual-Rpt- 2008.pdf (providing data for the years 2005-2007);
178. GRAHAM & MARCHICK, supra note 50, at 57 tbl. 2.1 (providing data for the years 1998-2005);
179. U.S. GAO, GAO/NSIAD-00-144, DEFENSE TRADE: IDENTIFYING FOREIGN ACQUISITIONS AFFECTING NATIONAL SECURITY CAN BE IMPROVED 8 tbl.1 (2000), available at http://www.gao.gov/archive/2000/ns00144.pdf [hereinafter GAO 2000 REPORT] (providing data for the years 1988-1999);
180. U.S. GAO, GAO-02-736, DEFENSE TRADE: MITIGATING NATIONAL SECURITY CONCERNS UNDER EXON-FLORIO COULD BE IMPROVED 5 tbl.1 (2002), available at http://www.gao.gov/new.items/d02736.pdf [hereinafter GAO 2002 REPORT] (providing data for the years 1997-2001).
181. GAO 2005 REPORT, supra note 103, at 10.
182. Indeed, regulators who work with CFIUS have come to expect presidential approval. The Federal Communications Commission observed in 1997 that "the Executive Branch has never asked the Commission to deny an application on national security or law enforcement grounds." Amendment of the Comm'n's Regulatory Policies to Allow Non-U.S. Licensed Space Stations to Provide Domestic & Int'l Satellite Serv. in the U.S., 12 F.C.C.R. 24094, 24171 (1997).
183. See GAO 2000 REPORT, supra note 103, at 9. As the transaction risked providing China with access to American aerospace products, but restricted exportation to other countries, and because China was then considered a totalitarian dictatorship hostile to the interests of the United States, it is difficult to imagine a way that the transaction would have survived even the mildest level of scrutiny. Moreover, this occurred in 1989, the year of Chinese unrest and repression that concluded with the Tiananmen Square crackdown.
184. See Nicholas D. Kristof, A Reassessment of How Many Died in the Military Crackdown in Beijing, N.Y. TIMES, June 21, 1989, at A8.
185. See GAO 2005 REPORT, supra note 103, at 10.
186. See also supra tbl.
187. The three amendments to the DPA were Exon-Florio in 1988, the Byrd Amendment in 1992, and FINSA in 2007. See supra notes 51, 58-59, 67 and accompanying text. Table 1 displays the corresponding spikes in numbers of notifications. See supra tbl.
188. Interestingly, the number of notifications correlated to investigations at 67 percent, according to a Pearson test; the correlation was significant at the 0.1 percent level, suggesting that the more matters CFIUS sees, the more likely it is to get involved. For the sources of data for figure 1, see supra note 103.
189. Jeffrey P. Bialos, National Security Considerations in International Commercial Agreements: Foreign Investment Rules and Export Rules, in
190. (PLI Commercial Law & Practice, Course Handbook Series No. A4-4463, 1994) (quoting U.S. Treasury Dep't, Staff Analysis of the Economic Strategy Institute's Report, "Foreign Investment in the United States; Unencumbered Access" 2 (July 1991)).
191. See also GAO 2002 REPORT, supra note 103, at 6 ("As a matter of practice, the Committee tries to avoid the use of investigations and presidential determinations. The Committee reviews foreign acquisitions to protect national security while seeking to maintain the U.S. open investment policy. For many companies, being the subject of an investigation has negative connotations.").
192. Bialos, supra note 109, at 650 n.4 (quoting U.S. Treasury Dep't, supra note 109, at 2).
193. In this view, the comparison would be between acquirers and targets on the one hand, and defendants and victims on the other. The mitigation agreements would be the plea deals struck, and the prospect of a blocked transaction, the never-utilized, often-threatened death penalty. For more on this sort of analogy, see Rachel E. Barkow, Administering Crime, 52 UCLA L. REV. 715 (2005) (analogizing sentencing commissions to agencies).
194. Kang, supra note 38, at 304. For example, these agreements have "encourage[d] [foreign acquirers] to support U.S. research and development and maintain domestic production, among other things."
195. Id.
196. Dubai Rejects Two US Deals Fearing Political Backlash, KIPPREPORT, June 18, 2008, http://www.kippreport.com/2008/06/dubai-rejects-two-us-deals-fearing- political-backlash/ (quoting Andrew Wright, managing director of the fund).
197. In re Global Crossing, Ltd., 295 B.R. 726, 732 (Bankr. S.D.N.Y. 2003). The Global Crossing matter is one of only three appearances by CFIUS in the federal courts as of August 2008 - the others involved a bankruptcy proceeding and a passing reference to a takeover defense - suggesting how far outside the realm of judicial review the Committee lies.
198. See Consol. Gold Fields, PLC v. Anglo Am. Corp. of S. Africa Ltd., 713 F. Supp. 1457, 1464 (S.D.N.Y. 1989) (noting, in passing, CFIUS's lack of challenge to a potential acquisition as a factor weighing in favor of the acquisition);
199. In re Chateaugay Corp., 198 B.R. 848, 852-54 (Bankr. S.D.N.Y. 1996) (noting CFIUS's investigation of a proposed acquisition of the assets of an entity in bankruptcy proceedings and the foreign acquirer's withdrawal from the proposed transaction).
200. In re Chateaugay, 198 B.R. at 853.
201. See Holmer, supra note 30.
202. See 50 U.S.C.S. app. §2170(1)(1)(A) (LexisNexis 2009).
203. The Congressional Research Service has noted that "[a]s a consequence of the confidential nature of the CFIUS review of any proposed transaction, there are few public sources of information concerning the Committee's work to date." JAMES K. JACKSON, CONG. RESEARCH SERV., REPORT NO. RS22197, THE EXON-FLORIO NATIONAL SECURITY TEST FOR FOREIGN INVESTMENT 4 (2006).
204. That statute provides that "[a]ny information or documentary material filed with the President or the President's designee pursuant to this section shall be exempt from disclosure." 50 U.S.C.S. app. § 2170(c).
205. See Holmer, supra note 30. Holmer was a member of CFUIS when serving as Deputy U.S. Trade Representative.
206. Thomas E. Crocker, What Banks Need to Know About the Coming Debate over CFIUS, Foreign Direct Investment, and Sovereign Wealth Funds, 125 BANKING L.J. 457, 458 (2008) (noting that only 6.5 percent of foreign investments are even reviewed by CFIUS).
207. Foreign Ownership: Hearing Before the Subcomm. on Transportation Security & Infrastructure Protection of the H. Comm. on Homeland Security, 110th Cong. 12 (2007) (statement of Stewart A. Baker, DHS Assistant Secretary for Policy).
208. A copy of this manual is available at http://www.fas.org/sgp/library/ nispom.htm (last visited Nov. 1, 2009). For further discussion of NISPOM,
209. see Robert A. Borich, Jr., Globalization of the U.S. Defense Industrial Base: Developing Procurement Sources Abroad Through Exporting Advanced Military Technology, 31 PUB. COOT. L.J. 623, 630-31 (2002).
210. Sabino, supra note 6, at 22.
211. GRAHAM & MARCHICK, supra note 50, at 65-66.
212. See. e.g., VSNL Am., Inc., 19 F.C.C.R. 16555, 16567 n.73 (2004).
213. See 47 U.S.C. §§ 214, 310(d) (2006);
214. Jamie S. Gorelick, John H. Harwood II & Heather Zachary, Navigating Communications Regulation in the Wake of 9/11, 57 FED. COMM. L.J. 351, 395 (2005).
215. Further, as a general matter, every time a telecommunications license holder is purchased, the license allowing for operation in the regulated industry must be transferred to the acquiring company. See 47 U.S.C. §§ 214, 310(d).
216. See Lockheed Martin Global Telecomms., 16 F.C.C.R. 22897 (2001).
217. See Commc'ns, Inc., 17 F.C.C.R. 19212 (2002).
218. VSNL Am., 19 F.C.C.R. 16555.
219. Applications of Cellco P'ship, 23 F.C.C.R. 12463 (2008).
220. The United States has more allies than there are members of the OECD; my coding was thus meant to be conservative, reaching all countries that either did not look like the United States economically or were thought to be members of the developing world.
221. Although contract scholars have debated whether boilerplate is a sign of bargaining power and, potentially, oppression by the drafter, see, e.g. Symposium, "Boilerplate": Foundations of Market Contracts, 104 MICH. L. REV. 821 (2006);
222. Lucian A. Bebchuck & Richard A. Posner, One-Sided Contracts in Competitive Consumer Markets, 104 MICH. L. REV. 827 (2006) (suggesting that boilerplate can be beneficial in "redressing" the imbalance in consumer contracts where sellers are deterred from opportunistic behavior by a desire to protect their reputations and opportunistic buyers have no reputation to lose);
223. Omri Ben-Shahar, Foreword to "Boilerplate": Foundations of Market Contracts Symposium, 104 MICH. L. REV. 821, 822 (2006) (noting how "buried one-sidedness is also a very familiar feature of boilerplate contracts" and that, "[d]isguised by 'legalese,' [these contracts] are often unbalanced, favoring their drafter");
224. Jason Scott Johnston, The Return of Bargain: An Economic Theory of How Standard-Form Contracts Enable Cooperative Negotiation Between Businesses and Consumers, 104 MICH. L. REV. 857 (2006) (arguing that boilerplate facilitates bargaining because it is enforced on a case-by-case basis);
225. Ronald J. Mann, "Contracting" for Credit, 104 MICH. L. REV. 899 (2006) (arguing that boilerplate is detrimental to credit card holders), empirical research studies by Omri Ben-Shahar, James White, and Florencia Marotta-Wurgler have suggested that boilerplate can contain unfairness,
226. see Omri Ben-Shahar & James J. White, Boilerplate and Economic Power in Auto Manufacturing Contracb, 104 MICH. L. REV. 953, 982 (2006);
227. Florencia Marotta-Wurgler, What's in a Standard Form Contract? An Empirical Analysis of Software License Agreements, 4 J. EMPIRICAL LEGAL STUD. 677, 680 (2007). In the case of the government, these agreements have an air of the pro forma about them.
228. Mark A. Hall & Ronald F. Wright, Systematic Content Analysis of Judicial Opinions, 96 CAL. L. REV. 63, 66 (2008). Klaus Krippendorff defines "content analysis" as "a research technique for making replicable and valid inferences from texts (or other meaningful matter) to the contexts of their use."
229. KLAUS KRIPPENDORFF, CONTENT ANALYSIS: AN INTRODUCTION TO ITS METHODOLOGY 18 (2d ed. 2004). For an overview of some of the basics of content analysis from a social science perspective,
230. see id. at 18-43.
231. For some well-known examples of hand coding in a variety of legal issue areas, see Robert A. Hillman, Questioning the "New Consensus" on Promissory Estoppel: An Empirical and Theoretical Study, 98 COLUM. L. REV. 580 (1998) (analyzing courts' application of the promissory estoppel theory by collecting and examining data from court opinions);
232. Laura E. Little, Hiding with Words: Obfuscation, Avoidance, and Federal Jurisdiction Opinions, 46 UCLA L. REV. 75 (1998) (examining Supreme Court federal jurisdiction decisions for grammatical structures identified as obfuscating meaning);
233. id. at 80 n.12 (mentioning other scholars who have categorized rhetorical moves made by the Supreme Court in cases dealing with constitutional interpretation);
234. Wendy Parker, The Future of School Desegregation, 94 Nw. U. L. REV. 1157 (2000) (conducting two empirical studies of federal, courtordered school desegregation by examining written district and appellate court opinions and district court docket sheets);
235. Jane S. Schacter, The Confounding Common Law Originalism in Recent Supreme Court Statutory Interpretation: Implications for the Legislative History Debate and Beyond, 51 STAN. L. REV. 1 (1998) (interpreting a term's worth of references to legislative history in Supreme Court opinions addressing statutory questions); and
236. Robert E. Scott, A Theory of Self-Enforcing Indefinite Agreements, 103 COLUM. L. REV. 1641 (2003) (hand coding indefinite contract cases). I must confess my own membership in the hand-coding fraternity.
237. See David Zaring, The Use of Foreign Deasions by Federal Courts: An Empirical Analysis, 3 J. EMPIRICAL LEGAL STUD. 297 (2006) (surveying the federal court practice of citing opinions from foreign high courts).
238. David Tabak, Making Assessments About Materiality Less Subjective Through the Use of Content Analysis, in SECURITIES LITIGATION & ENFORCEMENT INSTITUTE 2007, at 691, 696 (PLI Corporate Law & Practice, Course Handbook Series No. 11072, 2007).
239. See id. at 699-700 (noting ways in which quantitative content analysis can be used in securities litigation).
240. See George S. Geis, Essay, Automating Contract Law, 83 N.Y.U. L. REV. 450, 471-76 (2008) (describing the features, as well as the cost, of corporate "knowledge-management" systems).
241. See, e.g., Pamela C. Corley, The Supreme Court and Opinion Content: The Influence of Parties ' Briefs, 61 POL. RES. Q. 468, 473-77 (2008) (discerning which factors affect the extent to which parties' briefs influence the content of Supreme Court opinions).
242. See, e.g., Bryan Calvin, Paul M. Collins, Jr. & Pamela C. Corley, Lower Court Influence on U.S. Supreme Court Opinion Content, 67 ANN. MEETING OF THE MIDWEST POL. SCI. ASS'N (2009), available at http://www.psci.unt.edu/ pmcollins/MPSA%202009.pdf (examining the ability of lower federal courts to shape the content of Supreme Court opinions).
243. For an overview, see Samuel J. Horovitz, Note, Two Wrongs Don't Negate a Copyright: Don't Make Students Turnitin If You Won't Give It Back, 60 FLA. L. REV. 229 (2008) (describing the Tumitin system, its origins, and plagiarism more generally).
244. See Geis, supra note 138, at 476-96.
245. See, e.g., Corley, supra note 139, at 471-77.
246. WCopyFind is available for free downloading at http://www.plagiarism. phys.virginia.edu/Wsoftware.html (last visited Nov. 1, 2009).
247. See, e.g., Corley, supra note 139, at 471.
248. I thank people at Wharton's statistics department for helping me devise this adjustment method.
249. As a robustness check, rather than using the raw total match score, I used the log of the total match score divided by the minimum word length of the two agreements Both approaches give qualitatively similar results, so for brevity I present only the results for the method discussed in the text.
250. For some background on t-tests, see DAVID FREEDMAN, ROBERT PISANI & ROGER PURVES, STATISTICS 490 (4th ed. 2007).
251. This scale predicts reading ease on a scale from 1 to 100 and predicts human interest in the reading material in question. See WILLIAM H. DUBAY, THE PRINCIPLES OF READABILITY 20-22, 50 (2004), available at http://www.eric.ed.gov/ ERICDocs/data/ericdocs2sql/content-storage-01/0000019b/80/1b/bf/46.pdf. For a description of a considerable number of readability studies, as well as an overview of their development,
252. see generally id. Some of the agreements were obtained from Westlaw and some from PDF files, but this difference in format also did not make a difference in their-overlap.
253. A different plagiarism software program, Viper, was used to compare each individual agreement with the others. No matter where the acquiring party hailed from, and no matter who owned it, the agreements borrowed, at the median, somewhere between 55 and 80 percent of their content from the other published telecommunications agreements. On that analysis, with a slightly more opaque sort of software, the medians per group were 65 percent for non-OECD, government-owned companies; 79 percent for non-OECD, privately owned companies; 71 percent for OECD, government-owned companies; and 56 percent for OECD, privately owned companies.
254. VSNL Am. Inc., 19 F.C.C.R. 16555 (2004).
255. GRAHAM & MARCHICK, supra note 50, at 127-28.
256. VSNL, Am., 19 F.C.C.R. 16555 (authorizing the sale).
257. Transfer of Control of Licenses & Authorizations Held by Newcomm Wireless Servs., Inc. from Clearcom, L.P. to TEM P.R. Inc., 19 F.C.C.R. 15488 (2004) (grant of consent for transfer).
258. Verizon Commc'ns, Inc., 22 F.C.C.R. 6195 (2007).
259. Applications of XO Commc'ns, Inc., 17 F.C.C.R. 19212 (2007).
260. Transfer of Control Domestic & Int'l Section 214 Authorizations Held by Cypress Commc'ns Operating Co., LLC (FCC June 28, 2005) (grant of authorizations), available at http://fjallfoss.fcc.gov/edocs-public/ attoclimatch/DA-05-1850Al.doc.
261. Indeed, in other contexts, 99 percent of an agreement might be like other agreements concluded by the same party, and only 1 percent different. But if that 1 percent included the price term, then we of course would not call the contracts identical; we would call them standard form contracts. For a discussion of boilerplate in these sorts of contracts, see, for example, Ben-Shahar & White, supra note 133, at 958-63.
262. See Video-Cinema Films, Inc. v. Lloyd E. Rigler-Lawrence E. Deutsch Found., No. 04 Civ. 5332 (NRB), 2005 WL 2875327 (S.D.N.Y. Nov. 2, 2005) (holding a television programmer liable for copying less than 1 percent of a motion picture).
263. See Meredith Corp. v. Harper & Row, Publishers, Inc., 413 F. Supp. 385 (S.D.N.Y. 1975) (finding plagiarism amounting to 11 percent of the copied work, as well as copying of topic sequence and other features, to constitute a copyright violation).
264. Perhaps unfortunately, the Supreme Court has not imposed a percentage similarity requirement on copyright infringement claims. See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 564-66 (1985) (holding that copying of an insubstantial portion of a book still qualified as copyright infringement when the defendant essentially copied the "heart of the book").
265. Gideon Parchomovsky & Kevin A. Goldman, Essay, Fair Use Harbors, 93 VA. L. REV. 1483, 1511 (2007) (proposing that "the lesser of fifteen percent or three hundred words may be copied without the permission of the copyright holder" and that "[t]he words need not appear consecutively (either in the original or in the copy), so long as the total number of duplicated words does not exceed the threshold").
266. The instructions for running a report using Viper plagiarism software provide that an overall plagiarism rating of 21 percent or more means that the material runs a high risk of containing plagiarized material, and that in that case, the user needs to check the report very carefully. See, e.g., Viper Plagiarism Report Generated for VNSL Agreement (Aug. 2008) (on file with author).
267. See supra note 123 and accompanying text (discussing NISPOM). CFIUS tends to wait to bless such transactions until the Department of Defense has concluded a NISPOM agreement that it believes it can live with. See GRAHAM & MARCHICK, supra note 50, at 72.
268. As the General Accounting Office, now the Government Accountability Office ("GAO"), reported in 2002, "The Justice Department modeled the agreement it negotiated on network security agreements it has used with some telecommunications companies.... While the agreement negotiated under the authority of Exon-Florio addressed many of the same issues as the network security agreements, the provisions were often less detailed." GAO 2002 REPORT, supra note 103, at 10.
269. For examples of the requirements regarding the storage of data within the United States, the enablement of access to that data to U.S. law enforcement officials for the auditing of operations, and the imposition of compliance checks, see Verizon Commc'ns, Inc., 22 F.C.C.R. 6195, 6241 (2007) ("[A]II Domestic Communications that are carried by or through the Domestic Communications Infrastructure shall pass through facilities under the control of the Domestic Companies that are physically located in the United States, and from which Lawfully Authorized Electronic Surveillance can be conducted pursuant to Lawful U.S. Process."); id. at 6255 ("The Domestic Companies shall retain and pay for a neutral third party telecommunications engineer to audit its operations objectively on an annual basis."); and id. at 6245 ("The Head of Security of the Domestic Companies, or a designee..., shall serve as the Security Officer with the primary responsibility for ensuring compliance with the Domestic Companies' obligations under this Agreement, and shall be a resident citizen of the United States with an active security clearance....").
270. Those agreements are also concluded by the Department of Justice.
271. Letter from Robert Scavone, Executive Vice President, P&O Ports N. Am., Inc. & Sultan Ahmed Bin Sulayem, Executive Chairman, Ports & Custom Free Zone Corp., to Stewart A. Baker, Assistant Sec'y for Policy, Planning & Int'l Affairs (Jan. 6, 2006) (on file with author). The other requirements imposed on Dubai Ports World were similarly unexciting. Dubai Ports World represented that its "current intent and plan is to operate any U.S. Facilities they own or control to the extent possible with the current U.S. Management structure." Id. It also promised to "take all reasonable steps to assist and support federal, state and local law enforcement agencies... in conducting any lawful law enforcement activity related to any service provided in the U.S. by the Companies or their subsidiaries," including "disclosure, if necessary, of information relating to the design, maintenance, or operation of the Companies' U.S. facilities, equipment or services," and the "prompt" provision of "any relevant records that may exist in the U.S., involving matters relating to foreign operational direction, if any, of U.S. facilities." Id.
272. In 2007, the International Bureau of the FCC reported that the Commission processed 190 transfers of control or assignments. 2007 FCC INTERNAT'L BUREAU ANN. REP. 3, available at http://fjallfoss.fcc.gov/edocs-public/attachmatch/DOC- 279574Al.pdf. In 2005, it processed 195 transfers of control or assignments.
273. 2006 FCC INTERNAT'L BUREAU ANN. REP. 8, available at http://www.fcc.gov/ realaudio/presentotions/2006/012006/ib.ppt. Some of these may have involved license transfers to acquirers at least partially owned by foreign investors, but the FCC has not clarified how many such transfers were involved, nor do the annual reports of the International Bureau of the FCC indicate these statistics. Moreover, the Commission itself only published three mitigation agreements involving CFIUS in those years. Indeed, the FCC has said that some agreements that suffice for CFIUS purposes may not be included with its orders.
274. See, e.g., Bell Atl. N.Z. Holdings, Inc., 18 F.C.C.R. 23140, 23158 (2003) ("Executive Branch agencies involved here have no objection to a grant of the Transfer Applications or the Petition for Declaratory Ruling provided that the Commission conditions the grant on compliance with the terms of a network security agreement between the Department of Justice, Federal Bureau of Investigation, Department of Defense and Department of Homeland Security, and Pacific Telecom and MTC...."). Despite this lack of recordkeeping clarity, the FCC has promised to "accord deference to the expertise of Executive Branch agencies in identifying and interpreting issues of concern related to national security, law enforcement, and foreign policy." Rules & Policies on Foreign Participation in the U.S. Telecomms. Market, 12 F.C.C.R. 23891, 23920 (1997) .
275. Of course, in some cases, provided appropriate caution is exercised on the conclusions, this sort of research with small sample sizes can be extremely enlightening. For an example of an effective version of this sort of research, see Scott, supra note 135, at 1652-68 (examining eighty-nine cases dealing with contract indefiniteness ).
276. For an overview of the potential of and problems with citations studies, see Zaring, supra note 135, at 308-12.
277. See Zaring & Baylis, supra note 38, at 1415-17 (discussing the expansion of the Treasury Department's anti-money laundering program).
278. See id. at 1394-1418 (discussing various expansions of the Treasury Department's regulatory role following September 11, particularly as a result of the PATRIOT Act). In the context of money laundering prevention, the Treasury receives an overwhelming number-millions, in fact-of suspicious activity reports related to national security per year now that it requires banks to notify it in the case of possible terrorist financial transactions. Id. at 1415-16. Treasury's Office of Foreign Assets Control has designated not just countries and state-owned corporations, but also the accounts of individuals, as susceptible to asset freezes; that job requires the office to monitor, once again, millions of relevant transactions. See id. at 1395-97.
279. Crocker, supra note 121, at 458.
280. Id.
281. See Warren H. Maruyama, The Wonderful World of VRAs: Free Trade and the Goblet of Fire, 24 ARIZ. J. INT'L & COMP. L. 149, 175-76 (2007) (noting that past administrations "(as is almost always the case with the U.S. executive branch) were much more in favor of free trade than the Congress").
282. The criticism of CFIUS may be slightly misplaced due to problems of observation. The Committee claims to act often through informal deterrence, and those cautions are not matters of the public record-nor are many potentially onerous mitigation agreements.
283. U.S. CONST, art. I, § 8, cl. 3.
284. See Posner & Sunstein, supra note 2, at 1198-1207 (preferring Chevron-style deference for those executive interpretations of the law that do make it into court).
285. Cass R. Sunstein, Adminbtrative Law Goes to War, 118 HARV. L. REV. 2663, 2670-71 (2005).
286. Cass R. Sunstein, Monkey Wrench, LEGAL AFF., Sept.-Oct. 2005, at 36, 37.
287. See id. at 37-38.
288. Kagan, supra note 35, at 2281.
289. Id. at 2282. See also David J. Barron & Elena Kagan, Chevron's Nondelegation Doctrine, 2001 SUP. CT. REV. 201, 234-57 (describing an "administrative nondelegation doctrine," arguing for the benefits of an approach to decisionmaking involving high-level government officials rather than low-level bureaucrats).
290. See Kagan, supra note 35, at 2342.
291. Steven Croley, White House Review of Agency Rulemaking: An Empirical Investigation, 70 U. CHI. L. REV. 821, 883 (2003) ("[T]he White House clearly has used rulemaking review to put its own mark on particular agency rules increasingly often over the course of the past two decades, and at an accelerated pace during the Clinton administration."). As a descriptive matter, presidentialists tend to locate the positive enhancements of the president's role in the domestic administrative state in a series of executive orders. President Reagan's 1981 executive order on regulatory review required agencies within the executive branch to run their draft regulations by the White House's Office of Management and Budget ("OMB") before promulgating them. Exec. Order No. 12, 291, 46 Fed. Reg. 13, 193, 13, 194 (Feb. 17, 1981). This was a sea change in the structure of the federal bureaucracy that marked the beginning of ever-greater amounts of presidential control over it.
292. See Croley, supra, at 824-25. The Clinton administration's cognate executive order, No. 12, 866, underscored the need for the OMB to review particularly significant regulatory action on a cost-benefit plan and adopted an annual regulatory planning process.
293. See Exec. Order No. 12, 866, 58 Fed. Reg. 51, 735 (Sept. 30, 1993); Croley, supra, at 826-29. President George W. Bush passed a subsequent executive order that largely retained these elements of presidential supervision and indeed brought even more agencies into the planning process.
294. See Exec. Order No. 13, 422, 72 Fed. Reg. 2763 (Jan. 18, 2007) (amending Exec. Order No. 12, 866). This order was revoked by President Barack Obama. See Exec. Order No. 13, 497, 74 Fed. Reg. 6113 (Jan. 30, 2009).
295. Thomas O. Sargentich, The Emphasis on the Presidency in U.S. Public Law: An Essay Critiquing Presidential Administration, 59 ADMIN. L. REV. 1, 4 (2007). Other critics of the presidentialist view exist, of course.
296. See, e.g., Nicholas Bagley & Richard L. Revesz, Centralized Oversight of the Regulatory State, 106 COLUM. L. REV. 1260, 1263 (2006) (arguing that presidential administration has led to an "unwarranted embrace of an unjustified antiregulatory mission");
297. Cynthia R. Farina, The "Chief Executive " and the Quiet Constitutional Revolution, 49 ADMIN. L. REV. 179, 179 (1997) (decrying the "cult of the Chief Executive");
298. Peter M. Shane, Political Accountability in a System of Checks and Balances: The Case of Presidential Review of Rulemaking, 48 ARK. L. REV. 161, 200 (1995) ("If bureaucratic accountability to elected politicians is to be used as a structural mechanism aimed at achieving direct responsiveness to public opinion, it would probably make more sense to intensify the influence that Congress-especially the House-has over the agencies. Members of Congress are eligible for reelection indefinitely; a common observation of the House is that its members are in a constant election campaign.").
299. See William P. Marshall, Eleven Reasons Why Presidential Power Inevitably Expands and Why It Matters, 88 B.U. L. REV. 505, 517 (2008) ("The President's power is also enhanced by the vast military and intelligence capabilities under his command. In his roles as Commander-in-Chief and head of the Executive Branch, the President directly controls the most powerful military in the world and directs clandestine agencies such as the Central Intelligence Agency and National Security Agency. That control provides the President with immensely effective, non-transparent capabilities to further his political agenda...." (footnote omitted)). However, Lisa Schultz Bressman and Michael Vandenbergh offer a different perspective that specifically critiques and qualifies the efficacy of executive regulatory control with regards to the Environmental Protection Agency.
300. See Lisa Schultz Bressman & Michael P. Vandenbergh, Inside the Adminbtrative State: A Critical Look at the Practice of Presidential Control, 105 MICH. L. REV. 47, 70-76 (2006).
301. Derek Jinks & Neal Kumar Katyal, Debate, Disregarding Foreign Relations Law, 116 YALE L.J. 1230, 1276 (2007) ("Congress already has to fear... that the executive will distort its statutes to permit activities that it did not intend. But what stops that risk from flowering today is the courts...." (footnote omitted)).
302. See, e.g., Kaufman v. Mukasey, 524 F.3d 1334, 1340 (D.C. Cir. 2008).
303. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963) (recognizing the necessity of congressional emergency powers, for "while the Constitution protects against invasions of individual rights, it is not a suicide pact").
304. Gregory E. Maggs, The Rehnquist Court's Noninterference with the Guardians of National Security, 74 GEO. WASH. L. REV. 1122, 1123 (2006).
305. See, e.g., supra tbl.
306. See, e.g., JACK L. GOLDSMITH & ERIC A. POSNER, THE LIMITS OF INTERNATIONAL LAW 3, 13 (2005) (explaining that international law arises from states acting to maximize their own interests, and that "under [that] theory, international law does not pull states toward compliance contrary to their interests, and the possibilities for what international law can achieve are limited by the configurations of state interests and the distribution of state power").
307. See id. at 42 (arguing that state self-interest, rather than a sense of legal obligation, accounts for compliance with customary international law principles).
308. See, e.g., Jack Goldsmith & Jeremy Rabkin, Editorial, A Treaty the Senate Should Sink, WASH. POST, July 2, 2007, at A19 (arguing that the United States should not surrender sovereignty in a treaty because an international tribunal might be hostile to U.S. interests).
309. See HANS J. MORGENTHAU, POLITICS AMONG NATIONS: THE STRUGGLE FOR POWER AND PEACE 275-311 (3d ed. 1960) (arguing that international law has no influence independent of state power relationships).
310. See WALTZ, supra note 37, at 88 (stating that "[i]nternational systems are decentralized and anarchic"). See generally E. ADAMSON HOEBEL, THE LAW OF PRIMITIVE MAN: A STUDY IN COMPARATIVE LEGAL DYNAMICS (1954) (likening international law to types of primitive law such as Eskimo law, with weak enforcement, self-help, and a lack of delegation to officials with authority).
311. See John J. Mearsheimer, The False Promise of International Institutions, INT'L SECURITY, Winter 1994/1995, at 5, 7. Many realists argue that international institutions have no effect on competition between states.
312. See infra notes 210, 212 and accompanying text.
313. See William W. Burke-White & Andreas von Stoden, Investment Protection in Extraordinary Times: The Interpretation and Application of Non-Precluded Measures Provisions in Bilateral Investment Treaties, 48 VA. J. INT'L L. 307, 311 (2008).
314. Koh & Yoo, supra note 35, at 734-42.
315. See generally ANNE-MARIE SLAUGHTER, A NEW WORLD ORDER (2004) (describing the importance of new government actors in global governance, commenting on the proliferation of government networks, and exploring their advantages and disadvantages).
316. The mere presence and attention of a large number of lawyers creates a kind of "selfpolicing" effect.
317. SLAUGHTER, supra note 203, at 36-64. For a discussion of the typical distinctions made between high and low politics, see Christopher A. Whytock, A Rational Design Theory of Transgovernmentalism: The Case of E.U.-U.S. Merger Review Cooperation, 23 BU. INT'L L.J. 1, 29-30 (2005). For some interesting examples using the distinction,
318. see Laurence R. Heifer, Understanding Change in International Organizations: Globalization and Innovation in the ILO, 59 VAND. L. REV. 649, 670-71 tbl.1 (2006) (presenting entries in the neofunctionalist column that describe shifts from low politics to high politics under certain conditions),
319. and J. H. H. Weiler, The Geology of International Law-Governance, Democracy and Legitimacy, 64 HEIDELBERG J. INT'L L. 547, 550 (2004) ("The regulatory layer [in international law] is distinct from its predecessors in a variety of ways: Its subject matters tend to be away from what traditionally was considered high politics and more towards what was traditionally considered low politics.").
320. See David Zaring, Informal Procedure, Hard and Soft, in International Administration, 5 CHI. J. INT'L L. 547, 552 (2005).
321. Phillip R. Trimble, Essay, The Plight of Academic International Law, 1 CHI. J. INT'L L. 117, 123 (2000).
322. See, e.g., JACK GOLDSMITH, THE TERROR PRESIDENCY: LAW AND JUDGMENT INSIDE THE BUSH ADMINISTRATION 90-91 (2007).
323. See Elizabeth A. Cheney, Introduction to Special Project: National Security, 58 VAND. L. REV. 1623, 1624 (2005) ("The 'policy and process' of U.S. national security has evolved significantly throughout this country's history, particularly in the years since September 11.").
324. See also Winston P. Nagan & Craig Hammer, The New Bush National Security Doctrine and the Rule of Law, 22 BERKELEY J. INT'L L. 375, 382-401 (2004) (examining historically significant national security doctrines and engaging in a comparative approach of the national security law formulated by various countries).
325. See generally Tung Yin, The Impact of the 9/11 Attacks on National Security Law Casebooks, 19 ST. THOMAS L. REV. 157 (2006) (discussing the extent of coverage in national security law and antiterrorism casebooks with regard to the war on terror and commenting on the increase in course offerings at law schools dealing with national security law).
326. North American Free Trade Agreement, U.S.-Can.-Mex., art. 2102, Dec. 17, 1992, 32 I.L.M. 605(1993).
327. Bilateral Investment Treaties with Panama, Senegal, Haiti, Zaire, Morocco, Turkey, Cameroon, Bangladesh, Egypt and Grenada: Hearing Before the S. Comm. on Foreign Relations, 99th Cong. (1988).
328. General Agreement on Tariffs and Trade art. XXI, Oct. 30, 1947, 55 U.N.T.S. 194, available at http://www.wto.org/english/docs-e/legal-e/gatt47-e. pdf [hereinafter GATT].
329. See, e.g., GATT Panel, United States-Trade Measures Affecting Nicaragua 1-3 (Oct. 13, 1986), available at http://sul-derivatives.stanford.edu/ derivative?CSNID=91240197&mediaType=application/pdf (reporting on the United States' invocation of GATT Article XXI in 1985 to justify its trade embargo on Nicaragua).
330. See also Dapo Akande & Sope Williams, International Adjudication on National Security Issues: What Role for the WTO?, 43 VA. J. INT'L L. 365, 375 (2003) (discussing in detail this particular invocation in 1985);
331. U.S. Won't Offer Trade Testimony on Cuba Embargo, N. Y. TIMES, Feb. 21, 1997, at Al (reporting on how the United States made a similar argument in 1996 when its passage of a new set of Cuba sanctions in the Helms-Burton Act occasioned a dispute with Europe).
332. Klass v. Germany, 2 Eur. Ct. H.R. (ser. A) at 232 (1978).
333. International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), art. 4(1), U.N. Doc. A/RES/2200(Dec. 16, 1966).
334. See Burke-White & von Stoden, supra note 201, at 337-68 (inquiring into how much freedom these clauses give states to take action that would otherwise breach a BIT in response to extraordinary circumstances);
335. Susan Rose-Ackerman & Benjamin Billa, Treaties and National Security, 40 N.Y.U. J. INT'L L. & POL. 437, 489-93 (2008) (concluding that international law does not authorize states to read into treaties a completely open-ended national security exception and that national security exceptions must be interpreted in light of specific treaties).
336. 5 U.S.C. § 552(b)(1), (7) (2006) (exempting matters that are authorized by executive order to be kept secret in the interests of national security or foreign policy, as well as information compiled by law enforcement that could endanger individuals or disclose the confidential source to an investigation by a national security agency).
337. 28 U.S.C. § 2680(j) (2006) (exempting "[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war"). For a useful overview of the complications created in courts by sovereign immunity, see Gregory C. Sisk, The Tapestry Unravels: Statutory Waivers of Sovereign Immunity and Money Claims Against the United States, 71 GEO. WASH. L. REV. 602, 602-06 (2003).
338. 5 U.S.C. § 553(a)(1) (providing that notice and comment procedures do not apply to regulations involving "a military or foreign affairs function of the United States").
339. The first export controls during peacetime were instituted in response to the development of the Soviet Bloc in Eastern Europe with the enactment of the Export Control Act of 1949. See IAN F. FERGUSSON ET AL., CONG. RESEARCH SERV., REPORT NO. RL30169, EXPORT ADMINISTRATION ACT OF 1979 REAUTHORIZATION 2 (2002). Since then, Congress has renewed the controls in various forms of legislation, but the most recent, the Export Administration Act of 1979, expired in August 2001. Id. at 3-4. However, the president has extended his control to limit exports up through August 17, 2010, using the authority granted to him in 1EEPA. See Continuation of Emergency Regarding Export Control Regulations, 74 Fed. Reg. 41, 325 (Aug. 13, 2009). See Executive Order No. 13, 222, 66 Fed. Reg. 44, 025, 44, 025 (Aug. 17, 2001), for the original declaration of a national emergency because of the "unusual and extraordinary threat to the national security, foreign policy, and economy of the United States" given the "expiration of the Export Administration Act of 1979," therefore enabling the president to limit and control imports and exports.
340. Export Administration Act (EAA) of 1979, Pub. L. No. 96-72, 93 Stat. 503.
341. Koh & Yoo, supra note 35, at 747. The tools for implementing export controls include the Commodities Control List, created and maintained by the Department of Commerce, which limits where potentially sensitive goods and technologies can be transported. Id. at 746-47.