Volume 89.7 (November 2022) 1655-1923
The Improvised Implementation of Executive Agreements
Kathleen Claussen - Professor, University of Miami School of Law.
Implementation is at the core of lawmaking in our divided government. A rich literature covers the waterfront with respect to agencies’ implementation of legislative mandates, and another equally robust line of scholarship considers Congress’s implementation of treaties. Missing from those discussions, however, is another area of implementation central to U.S. foreign relations: the implementation of transnational regulatory agreements.
This Article examines how federal agencies have harnessed far-reaching discretion from Congress on whether and how to implement thousands of international agreements. Agencies regularly implement agreements by relying on a self-developed menu of options, much like they do in the domestic regulatory context—only without the checks and balances that those processes provide. This analysis of the operation of agreements presents a set of extemporized means through which the executive maintains control of these agreements and their regulation of the rights of private actors without legislative intervention or administrative law constraints. These revelations stand in contrast with conventional understandings of implementation as well as to prior accounts of how “international law [is] part of our law.”
Jurisdiction as Power
Ryan C. Williams - Assistant Professor, Boston College Law School.
For centuries, courts and legal commentators defined “jurisdiction” by reference to a court’s “power.” A court that lacked jurisdiction, under this conception, simply lacked the ability to bind the parties, and its resulting rulings could therefore be regarded by both litigants and later courts as void and of no legal effect. But in the middle decades of the twentieth century, the Supreme Court and other U.S. courts strongly embraced the so-called bootstrap doctrine—a distinctive branch of preclusion law that severely limits the ability to collaterally attack a judgment based on a claimed lack of jurisdiction. Because the bootstrap doctrine effectively allows courts to establish their own jurisdiction simply by concluding that they possess it, critics of the power-based conception contend that the definition no longer provides a descriptively plausible or conceptually coherent account of jurisdiction’s identity.
This Article defends the traditional power-based conception of jurisdiction’s identity as both conceptually coherent and normatively desirable. The key to reconciling jurisdiction-as-power with the bootstrap doctrine is to recognize that different criteria may be appropriate for different decision makers at different stages of the adjudicatory process. From the perspective of the rendering court, the applicable jurisdictional rules supply the sole criteria of legal validity. A conscientious judge seeking to work within the confines of her own authority has no discretion to ignore jurisdictional limits or to proceed to a final judgment unless she determines that jurisdiction actually exists. But from the perspective of a later court called upon to recognize an earlier court’s judgment, the criteria of validity are supplied instead by the bootstrap doctrine. That doctrine would sometimes require a later court to act as if jurisdiction were present in the original proceeding even if it was not. But such “as if” exceptions are a familiar part of our law and are not generally understood to supplant or displace the underlying legal rules.
The power-based conception of jurisdiction is not only descriptively plausible and conceptually coherent; it also facilitates jurisdiction’s distinctive role in structuring and allocating decision-making authority between different actors and institutions. Understanding jurisdiction as power can also lead to a deeper understanding of jurisdiction’s necessary effects and illustrate why several of the effects often associated with jurisdiction—such as nonwaivability and insusceptibility to equitable exceptions—are not, in fact, essential to jurisdiction’s identity. Finally, a clearer understanding of jurisdiction’s identity as the “power” of a rendering court can also help inform and clarify various jurisdictional doctrines and lead to a better understanding of the federal judiciary’s role in the constitutional structure.
Property Versus Antidiscrimination: Examining the Impacts of Cedar Point Nursery v. Hassid on the Fair Housing Act
Amy Liang - B.A. 2020, Northwestern University; J.D. Candidate 2023, The University of Chicago Law School.
The Fair Housing Act is a groundbreaking federal law enacted in 1968 during the civil rights movement. Reflecting a policy judgment that the public’s interest in eliminating housing discrimination outweighs a prejudicial landlord’s property right to exclude, it prohibits landlords from rejecting tenants on a discriminatory basis. However, as the Act’s promises remain in the process of fulfillment, the Supreme Court’s 2021 decision in Cedar Point Nursery v. Hassid has placed it into unprecedented danger: by holding that a regulation authorizing temporary occupations of private property constituted a per se taking that requires compensation under the Takings Clause, Cedar Point threatens the constitutionality of the Act, which grants tenants a similar temporary right to access rental properties.
This Comment takes up the task of finding an escape valve for the Act within the current legal landscape. Looking to Cedar Point’s Court-created exceptions, this Comment argues that the Act should fall under the “open to the public” exception because case law, common law considerations, and the normative value in preserving an important antidiscrimination law all support a finding that the Act regulates the business of offering dwelling rentals, a type of business open to the public.
Toward a Centralized Hatch-Waxman Venue
Matthew Makowski - B.S. 2012, American University; Ph.D. 2018, Radboud University; J.D. Candidate 2023, The University of Chicago Law School.
Pharmaceutical litigation often begins when a generic drug company files an application to have its generic drug approved by the FDA. That application is received by the FDA in the District of Maryland. To “submit” it is a statutory act of patent infringement under the Hatch-Waxman Act. Establishing venue in subsequent Hatch-Waxman litigation can be complex because Hatch- Waxman litigation often involves simultaneous and independent lawsuits against many generic applicants. A Hatch-Waxman plaintiff might reasonably attempt to consolidate litigation in a single district court; Hatch-Waxman defendants might reasonably resist consolidation in the plaintiff’s preferred venue. Recent Supreme Court and Federal Circuit case law has narrowed venue options for Hatch-Waxman plaintiffs. This Comment argues for an interpretation of Hatch-Waxman’s statutory act of patent infringement and the patent venue rules that moves toward a centralized venue for Hatch-Waxman litigation in the District of Maryland.
The Joint Venture Exception in the International Silver Platter Doctrine: Variability and Devaluation of Cooperation
Jacqueline Pecaro - B.A. 2018, Cornell University; J.D. Candidate 2023, The University of Chicago Law School.
This Comment examines the joint venture exception in the international silver platter doctrine in the context of the use of wiretaps in federal narcotics cases. Under the international silver platter doctrine, evidence obtained through searches (like wiretaps) by foreign law enforcement on foreign soil and under foreign law is admissible in U.S. courts. The joint venture exception qualifies the international silver platter doctrine: if participation by U.S. law enforcement in a wiretap by foreign law enforcement on foreign soil constitutes a joint venture, then evidence obtained from the search is admissible only if the wiretap was reasonable under the Fourth Amendment. Federal appellate courts lack uniform guidance on which factors to evaluate and weigh in considering whether a joint venture between U.S. and foreign law enforcement existed. This leads to rare findings of joint ventures. If courts do not find that a joint venture existed, courts admit evidence obtained from joint ventures regardless of whether the wiretap complied with foreign law, which provides defendants with no constitutional protections. Based on an empirical and qualitative analysis, this Comment proposes adopting a uniform balancing test for the joint venture exception that considers: (1) who controlled the wiretap, (2) whether U.S. law enforcement provided substantial resources to foreign law enforcement, and (3) how U.S. and foreign law enforcement describe their relationship. This proposal would lead to increased findings of joint ventures in cases involving cooperation in conducting wiretaps between U.S. and foreign law enforcement abroad. Specifically, the proposal would require that more wiretaps comply with the law of the country where they were intercepted. Because courts would find joint ventures more often with my proposed balancing test, my proposal could also increase judicial legitimacy, since courts would less often be deciding cases based on illegally obtained evidence from abroad.