Volume 36, Issue 1

The Rise and Fall of Comparative Constitutional Law in the Postwar Era

Written by David Fontana

There have been four confirmation hearings in the United States Senate for nominees to the Supreme Court since 2004—first, for John Roberts to be the new Chief Justice of the Supreme Court in 2005, and then for Samuel Alito in 2006, Sonia Sotomayor in 2009, and Elena Kagan in 2010 to be Associate Justices. Each nominee faced hundreds of questions from a range of senators on a range of different constitutional issues. Among the thousands of questions asked in these four different Senate confirmation hearings, there were only a few issues that were raised in each of the four. One such issue was the role of comparative constitutional law in the American constitutional system.

Senators performing for the television cameras are not the only ones with the feeling that something important and at least somewhat fresh and new is developing in our constitutional system. Just over ten years ago, Mark Tushnet wrote about the new possibilities of comparative constitutional law,  and Bruce Ackerman wrote about the rise of world constitutionalism.  Comparative constitutional law might offer different lessons to different scholars, but the sense shared by all is that something new and original is transpiring—that the Founding Moment for the domestic American Constitution might have transpired in 1787, but the Founding Moment for comparative constitutional law is right now.

However universal this sense is that comparative constitutional law is new to the world of the American law school, it was actually universally studied in American law schools in the first few decades after World War II. Within a year of being appointed Chief Justice of the Supreme Court in 1953, Earl Warren traveled to Germany, Japan, and South Korea, speaking to audiences about a “revival of comparative jurisprudence”  in the United States.  Indeed, fifty years before the Senate Judiciary Committee asked Chief Justice Roberts about comparative constitutional law, Fortune Magazine ran an essay written by Chief Justice Warren about the importance of studying the constitutions of other countries. In statements that today might have prompted calls for his impeachment, Chief Justice Warren indicated that the principles in the American Constitution were not “discovered by our Founding Fathers. They had learned from the experience of people of all ages. But put together as they were and adapted to our conditions and mores, they have served us well.”  Justice William O. Douglas gave a series of lectures and published a book about the constitutional law of India.  Justice Robert Jackson, after working on the Nuremberg Trials, traveled the country and the world discussing recent comparative constitutional changes.

The actions of these three Justices were not anomalous, but were instead a reflection of the burgeoning interest in comparative constitutional law in American law schools during that time period. Many law schools created comparative constitutional law classes during the first few decades after World War II, and a substantial percentage of the articles in the two leading law reviews (the Harvard Law Review and The Yale Law Journal) touched in some way on comparative constitutional law—almost as many articles as touched on American Supreme Court cases resolving issues of American constitutional law. Erwin Griswold—Dean of the Harvard Law School for twenty-one years, Solicitor General of the United States under President Nixon, and the lawyer who argued more cases before the United States Supreme Court than any other during the twentieth century—wrote several law review articles about the constitutional experiences of foreign countries.

But just as quickly as comparative constitutional law came to prominence in American law schools, starting in the early 1970s it began to disappear. Law schools that had earlier created comparative constitutional law classes scrapped those classes in the next few decades. The same two leading law reviews that had earlier published many articles on comparative constitutional law issues then went several decades before publishing another article touching on the topic. Just as soon as comparative constitutional law rose to prominence, it disappeared into thin air.

The reasons for the rise—and later the fall—of comparative constitutional law are complicated, but many of these reasons revolve around the changing focus of the elite members of the legal profession. This dynamic explains why comparative constitutional law first rose to prominence in the decades after World War II, when American lawyers returned from their service overseas and the attention of the profession and the country was focused overseas; it also explains why when the attention of the profession turned inward during the years of the Warren Court, comparative constitutional law largely disappeared. This dynamic of a profession engaged in comparative developments was also cultivated by scholars of comparative constitutional law themselves. The profession started to focus more on public law litigation in American federal courts during later years, and this activity occupied many of the resources and energy that had earlier gone to comparative constitutional examination. Examining this world of American law schools after the fall of comparative constitutional law can also point to some of the deficiencies in American constitutional scholarship and some of the reasons why an infrastructure and related social movements have organized and supported Warren Court-style domestic litigation—to the detriment of comparative constitutional law, and therefore to the detriment of American judicial review. A similar story and division of time periods could be told for comparative law more generally, but this Article begins this story by focusing in particular on comparative constitutional law, which I define as the study of the domestic constitutional law of other countries.

Rights Beyond Borders

Written by Chimene I. Keitner

In the United States and elsewhere, courts are confronting questions about where, and to whom, domestic rights extend. The resulting jurisprudence has sharpened the focus on who can assert claims based on a country’s domestic rights provisions, and why. Despite this judicial attention, the question of whether a country’s domestic rights regime constrains government action beyond national borders has largely escaped comparative scholarly analysis. This is so even though any inquiry into extraterritorial rights is outward-facing by its nature, and thus invites comparative inquiry.

Courts have been somewhat more cosmopolitan. In 1891, the U.S. Supreme Court invoked “the uniform practice of civilized governments for centuries to provide consular tribunals in other than Christian countries” as a basis for finding that the conviction of an American seaman by an American consular tribunal in Japan did not offend the U.S. Constitution. In 1950, the U.S. Supreme Court again invoked foreign practice when it found that German nationals taken into U.S. military custody in China, convicted of war crimes by a U.S. military commission there, and imprisoned in occupied Germany were not entitled to invoke the constitutional writ of habeas corpus to challenge the lawfulness of their detention. In considering “the extraterritorial application of [U.S.] organic law” to the German defendants, the Court found it significant that “[t]he practice of every modern government is opposed to it.” These cross-jurisdictional references, and the contemporary practice of domestic courts in citing each others’ extraterritoriality jurisprudence, point to a gap in scholarship that this Article seeks to fill.

This Article begins by identifying three basic ways of thinking about rights beyond borders. It then uses this framework to analyze jurisprudence on the extraterritorial application of domestic rights in the United States, Canada, and the United Kingdom, three countries whose legal systems share a common historical origin. Although case law from multiple other countries was canvassed at the outset of this project, this Article focuses on the three countries whose courts have developed substantial bodies of jurisprudence in response to claims by individuals subjected to the extraterritorial exercise of government power. It therefore does not include detailed discussions of cases from other common law or civil law jurisdictions, leaving those to future scholarship.

BITs and Pieces of Property

Written by Amnon Lehavi & Amir N. Licht

Property sets out the ways in which society allocates, governs, and enforces rights and duties among persons with respect to resources. The boundaries of property are constantly changing. They influence and are influenced by social, economic, and political shifts. Nowadays, in view of ever-intensifying foreign investments and other cross-border ventures, the institution of property may face its greatest challenge ever: the transition from a largely domestic legal construct into one that accommodates globalization.

Bilateral investment treaties (BITs) appear to offer an ideal solution for the protection of foreign investors’ property rights in the broad range of assets that BITs typically consider to be “investments”: land, chattels, intellectual property, securities, intangibles, and so forth. BITs regularly include certain standards for the protection of foreign investments, such as “fair and equitable treatment,” and provide investors with standing in international law and direct claims vis-à-vis the host country. The alleged promise of BITs lies in reducing uncertainty and enhancing the credibility of states’ commitments to protect property rights.

“Explosion” is a term often used to describe the growth trend in the number of BITs.  The numbers are staggering even to people familiar with the field; no fewer than 2,676 BITs had been concluded by the end of 2008, and virtually every country has been a party to at least one agreement of this type.  If everybody has them, then one might think that BITs must be doing something quite beneficial. As we point out in this Article, however, BITs may do a lot,  but their effect on securing cross-border property rights is far from clear.

Our main source of skepticism regarding the ability of BITs to systematically promote the protection of property rights beyond property law’s traditional boundaries lies in our argument that the notion of property is significantly more complex than first meets the eye. The gradual move to what we term “property discourse” to protect foreign investment under a BIT regime consequently may become complex and uncertain. This Article breaks ranks from conventional wisdom by identifying the intricacies of BIT property protection and pointing to heterogeneity as a central feature of property. Unlike the paradigm that seems to guide the creation of BITs, which emphasizes certainty and credibility, we argue that once property jurisprudence is introduced into BITs, the complex features of property law follow.

We demonstrate the ways in which property rights and duties regularly implicate numerous, often heterogeneous parties, whose interests may be tightly intertwined in the same piece of property. In addition, the public aspect of property rules—touching on expropriation and regulation—is not entirely detached from the private law of property. Consequently, a property regime, with its in rem traits and cross-field effects, may be difficult to sustain when a specific BIT or a tribunal applying it takes out one piece of the puzzle to resolve an isolated investor-state dispute. We thus argue that to properly meet their goals, cross-border investment mechanisms must come to terms with the entire array of jurisprudential dilemmas that characterize property systems.

Note: Aligning Incentives for Development

Written by Annalisa M. Leibold

The precise causes of the “resource curse”—the relationship between natural resource extraction and an increase in poverty, violence, and political instability—remain unknown. Yet the relationship between natural resource extraction and low economic growth rates in underdeveloped countries is well documented.  It is therefore surprising that the World Bank approved funding for the Chad-Cameroon Oil Pipeline on the premise that resource extraction would reduce poverty in Chad.  Critics argued that the Chadian government, with its questionable record on corruption, would surely squander Chad’s oil revenue, thereby following the usual trajectory of the resource curse. In response, the World Bank required Chad to institute certain measures to ensure that oil revenue would be used for development purposes.  This novel scheme—considered the World Bank’s great “experiment” in combating corruption in oil-led development —included a revenue management law and a local and international monitoring component.  Some believed that in these measures the World Bank had found a viable solution to the resource curse.

From the project’s very inception, however, its implementation was fraught with problems that revealed underlying flaws in the Bank’s ideological approach to development. Nongovernmental organizations (NGOs) alleged that the Bank failed to listen to their concerns about corruption and human rights abuses.  They begged the Bank to consider delaying the project until more thorough anticorruption measures could be instituted.  The Bank nevertheless moved forward with the project. Despite the Bank’s novel revenue management scheme, Chad’s President, Idriss Déby, shocked the global community by using Chad’s initial oil royalties to purchase weapons.  The situation deteriorated as Déby openly manipulated the Bank’s revenue laws and oversight bodies.  Ultimately, the Bank determined that it could not remain as a project lending partner, and it withdrew officially from the project in 2008.

At first glance the World Bank’s great experiment appears to have utterly failed. Yet the source of the project’s breakdown can be traced to flaws in the World Bank’s neoliberal approach to development. As discussed in Part IV, the Bank failed in the case of the Chad-Cameroon Oil Pipeline because the Bank (1) did not adequately consider the local context; (2) failed to listen to all of the stakeholders within Chad; (3) did not ensure that all parties realized benefits from third-party coordination, thereby creating a culture hostile to intervention; and (4) failed to institute firm measures to ensure Chad’s continuing compliance, which was crucial given the Bank’s diminishing leverage in the project.  In this sense, the failure of the project manifested itself in the design details but was caused by the World Bank’s more fundamental failure to consider the social and political context of its lending decisions.  The model of the Bank as a third-party coordinator of resource investments retains potential, but the Bank failed in this case because its neoliberal approach to development resulted in a project design that was both incomplete and hierarchical. The project was incomplete in that the anticorruption measures did not go far enough—they were designed primarily to offset project criticism that the Bank received from NGOs. The project was hierarchical in that the Bank followed a top-down approach to development and ignored local stakeholders and crucial evidence on political and social factors unique to Chad. The World Bank can and should step in to align incentives toward development, but the case of the Chad-Cameroon Oil Pipeline demonstrates that the World Bank’s success as a development coordinator is contingent on significant internal institutional reform.

This Note aims to show that, due to the incentives that multinational corporations (MNCs) and government officials face, resource exploitation projects in nondemocratic and underdeveloped states create a “representation failure” (failure to include all relevant stakeholders in the decisionmaking process) and a “time-horizon failure” (failure to consider the long-term development consequences of the project). The World Bank could intervene in such projects to realign incentives and correct these failures by using its initial leverage to secure binding commitments from participants and to assist in the implementation of the development aspects of the project.

Comment: Coastal State Jurisdiction Under UNCLOS

Written by Chelsea Purvis

On April 3, 2010, the bulk coal carrier Shen Neng 1 ran aground on the Great Barrier Reef (Reef). A Chinese-registered ship staffed by twenty-three Chinese nationals,  Shen Neng 1 had picked up 65,000 tons of coal from a port on the coast of Queensland and was heading to China using the Outer Route of the Reef when it deviated from its planned course.  It entered a restricted area of the Great Barrier Reef Marine Park and ran aground on a shoal.  It appears the shipmaster and first mate caused the accident; the shipmaster had deviated from the ship’s intended course in order to take a shortcut, but the extremely sleep-deprived first mate failed to correct course at the appropriate time.  He realized too late that the ship had entered restricted waters and was dangerously close to the shoal. The ship grounded before he could move it to safety.

The ship tore into a two-mile-long section of coral and leaked several tons of oil, seriously damaging the Reef.  The ecological consequences of the grounding have been immense. Not only did the Shen Neng 1 release three tons of fuel oil into the ocean, but it also “crushed and smeared potentially toxic paint” onto two miles of coral.  It could take two decades for this area of the Reef to recover.  Australian authorities quickly moved to stabilize the ship and prevent further damage,  but poor weather and rough seas prevented Australia from bringing the ship quickly into a port.  On May 30, the Queensland and Australian governments finally completed their salvage operation, and the Shen Neng 1 left Australian waters.

In the wake of the Shen Neng 1 grounding, Australian officials and environmentalists have called for heightened protective measures throughout the Reef.  But most of the Reef—including the area where the Shen Neng 1 wreck occurred—lies within Australia’s Exclusive Economic Zone (EEZ). The EEZ is the area of water adjacent to a coastal state’s territorial sea, extending up to two hundred nautical miles  out to sea from a coastal state’s baseline, or low-water line.  Under the law of the sea, Australia has the right and the obligation to protect marine resources in its EEZ. At the same time, Australia cannot interfere with other states’ traditional right of navigation in the EEZ. This constraint leaves Australia largely unable to impose or enforce effective protective measures on ships traversing the Reef.

The difficulty Australia faces in preventing pollution from wrecks in its EEZ reflects a tension in the law of the sea. As part of the United Nations Convention on the Law of the Sea (UNCLOS),  the international community established the EEZ in an attempt to balance navigational freedom with coastal state jurisdiction, including the coastal states’ right to protect marine resources.  The end result, however, weighs too heavily in favor of the freedom of navigation. Coastal states lack the ability to impose or enforce effective antipollution measures before catastrophic accidents occur, even in EEZ areas with special ecological significance.

Existing structures under UNCLOS provide room for correcting this imbalance between navigational freedom and coastal state jurisdiction in EEZs. The International Maritime Organization (IMO), the international organization that sets maritime rules and standards, may authorize coastal states to impose protective measures that restrict the freedom of navigation in ecologically sensitive marine areas.  It has been reluctant to do so in the past, however. Recognizing the increasing threat posed by maritime trade to dwindling marine resources, the IMO should allow increased coastal state jurisdiction over EEZs. It should permit coastal states like Australia to introduce effective protective measures throughout ecologically sensitive areas like the Reef.

Recent Publications

The Rule of Law. By Tom Bingham

The Fog of Law: Pragmatism, Security, and International Law. By Michael J. Glennon

Invisible War: The United States and the Iraq Sanctions. By Joy Gordon

Constitutional Engagement in a Transnational Era. By Vicki C. Jackson

Due Process and International Terrorism. By Roza Pati

Localizing Transitional Justice: Interventions and Priorities After Mass Violence. Edited by Rosalind Shaw and Lars Waldorf