Private Law Treaties and Federalism: Can the United States Lead?

By Dubinsky, Paul R. | Texas International Law Journal, Fall 2018 | Go to article overview

Private Law Treaties and Federalism: Can the United States Lead?


Dubinsky, Paul R., Texas International Law Journal


TABLE OF CONTENTS

INTRODUCTION.....................................39

I. HISTORICAL BACKGROUND: FEDERALISM AND PIL IN THE UNITED STATES....................41

П. FEDERALISM'S DECLINE AND THE GOLDEN AGE...................46

Ш. FEDERALISM AND THE THIRD RESTATEMENT..............52

IV. THE REVIVAL OF FEDERALISM AFTER THE THIRD RESTATEMENT..............54

V. PIL AND FEDERALISM IN THE SUPREME COURT (1987-88)............... 59

VI. UNSUCCESSFUL ATTEMPTS AT A HAGUE JUDGMENTS CONVENTION..............62

VII. FEDERALISM AND THE HAGUE CHOICE OF COURTS CONVENTION............69

VIII. BEYOND THE COCC: RETURNING TO THE JUDGMENTS PROJECT...................74

CONCLUSION...................75

INTRODUCTION

This Article is concerned with the influence of federalism on U.S. treaty-making and treaty observance in private law1 and private international law2 (collectively "PIL"). Traditionally, both fields have been dominated by lawmaking at the state rather than at the federal level. For much of U.S. history, the strong assumption was that this tradition of state dominance in PIL imposed constraints on federal power to enter into PIL treaties. But the period associated with the Restatement (Second) and the Restatement (Third) of the Foreign Relations Law of the United States (the "Second and Third Restatements") tamed out to be unusual. Between the early 1960s and the mid-1990s, the federal government deployed the treaty power not only to enter into PIL treaties but also to take a leadership role in drafting those treaties. It did so largely free of the federalism-based constraints that for many decades had kept the United States out of such endeavors. Thus, from the perspective of American internationalists and proponents of broad federal power in all aspects of foreign relations, the Restatement years were a golden era.3 This was a time when ambitious projects in global PIL lawmaking seemed possible and U.S. delegations could lead such projects with optimism that the Senate would ratify the instruments negotiated.4

It is now clear that in the decades after the Third Restatement's publication in 1987, the golden era lost some of its internationalist luster. Evidence of this is now apparent. The Restatement's provisions on PIL treaties are rarely cited by courts. PIL treaties and treaty proposals that pose some prospect of federalizing state law, even tangentially, receive a cool reception from domestic organizations devoted to the unification of state laws. In treaty negotiations, the Executive Branch is cautious in pursuing positions that might be opposed by states-rights advocates, and the State Department is willing to accede to proposals for state legislation to implement treaties. A new stream of legal scholarship has emerged, critical of traditional doctrines relating to treaties-doctrines long regarded as foundational and beyond reconsideration.5

The pages that follow argue that these and other PIL developments result in part from a resurgence in domestic U.S. federalism, which has spilled over to the realm of treaty making, implementation, and interpretation. This reemergence of federalism-that either takes the form of a legal bar on U.S. entry into certain treaties or as a political constraint on congressional consent-has in effect tapped the brakes on the energetic pace of treaty developments that preceded the Third Restatement. This reemergence now calls into question whether the United States can continue to take a leading role in PIL treaty-making in the future.

I. Historical Background: Federalism and PIL in the United States

The United States emerged from World War II with a robust economy that was dominant in manufacturing, that enjoyed broad overseas markets, and that possessed a pool of capital that its citizens and businesses could invest abroad. Yet the United States lacked a network of treaties capable of fully supporting these activities, notwithstanding decades of commentary by legal scholars pointing out the benefits of such treaties. …

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