Abstract

The case of Medellin v. Texas presented the Supreme Court with a recurring question that has bedeviled judges, legal scholars, and political scientists-what effect, if any, must a United States court give to the decision of an international tribunal, particularly where, during the relevant time, the United States was party to a treaty protocol that bound it to that tribunal's judgments. While the Supreme Court held that the International Court of Justice's ("ICJ") decision was not enforceable federal law, its decision reflected an important recognition that the issues presented in that case were not limited to the specific area of ICJ judgments.

Rather, these issues in Medellin represent simply the latest chapter in a longstanding and increasingly important debate among academics, political scientists and public policy experts-the wisdom of "delegations." While the meaning of that term is controversial (a topic I address in Part I), there is common agreement that delegation at least includes a bilateral (or multilateral) grant of authority to an international institution. This includes relationships such as the United States' membership in the United Nations or its accession to the North American Free Trade Agreement ("NAFTA"). Delegations often, though not always, involve a transnational dispute resolution body such as the NAFTA Dispute Resolution Boards or, in the case of Medellin, the International Court of Justice. Another current example of this hotly debated topic is whether the United States should ratify the United Nations Convention on the Law of the Seas ("UNCLOS"), which has its own dispute resolution body for boundary disputes. Advocates defend ratification as action in the national interest and in furtherance of international norms; critics decry it as a surrender of United States sovereignty, particularly its naval prerogatives, to unaccountable transnational bureaucrats.

In my view, delegation debates exemplified by cases like Medellin and the ratification debate over UNCLOS suffer from three related distortions. First, the term "delegation" has been defined too narrowly. Second, this unduly narrow definition has caused some participants in the debate to fail to differentiate between different types of delegations. Third, the unduly narrow definition and insufficiently nuanced account have skewed the normative analysis of specific delegations. Conflicts-of-law jurisprudence, particularly the early jurisprudence from both Europe and nineteenth century American conflicts scholars, supplies an important tool to correct all three distortions.

Part I of this Essay considers the first distortion. It addresses an important definitional aspect of this debate-the meaning of delegation. This issue involves more than mere quibbling over jargon. Rather, it defines the very scope of the discussion. An unduly narrow definition of delegation runs the risk of rendering irrelevant a data subset that might influence the analysis. Conversely, an unduly broad definition of delegation runs the opposite risk-defining the relevant sample set so broadly that verifiable conclusions cannot be generated or are, at best, so tentative and diluted as to be useless. Part I reviews the competing definitions offered in the literature. It then defends the following definition of delegation: delegation occurs whenever a sovereign state grants legislative or adjudicative jurisdiction to an institution-transnational or otherwise-that is not within the direct reach of the sovereign. I use the term "institution" in its broad sense-to encompass more than a physical or juridical entity. Instead, following Professor Robert Keohane, I use the term to mean legal regimes, with or without a bureaucratic infrastructure. Here, conflicts-of-law scholarship which sought to provide a tool for reconciling jurisdictional conflicts among states in a post-Westphalian world-provides a historically rooted,well-tested benchmark for redefining delegation.

Part II of this Essay considers the second distortion in the delegation debate: the lack of a sufficiently nuanced account for classifying delegations. The early delegation debates tended to be bipolar-different camps criticized or defended delegation generally without really making much effort to differentiate between types of delegation. Unfortunately, framing the debate in this manner overlooks salient differences between various forms of delegation. Some recent scholarship has begun to recognize the need for a more sophisticated typology. This Part reviews those recent efforts and then derives a typology that, drawing on an important distinction in conflicts jurisprudence, classifies delegations according to the following criteria: (1) what type of jurisdiction is being delegated (legislative vs. judicial), (2) does the delegation create a new bureaucracy (or instead rely on preexisting institutions), and (3) are the decisions of the newly created bureaucracy automatically domesticated (or instead rely on domestic institutions to give legal effect to their decisions)? In contrast to previous schemes, this one better permits a more nuanced normative debate about delegation.

Part III addresses the third and final distortion: the need for a more nuanced normative debate over the costs and benefits of delegations. It begins by laying out an account of the costs of delegation (such as the loss of sovereignty) and the benefits of delegation (such as improved coordination). Part III then evaluates the costs and benefits through the lens of the conflicts-based typology developed in Part II; it discusses how particular delegations, depending on whether they involve legislative or judicial jurisdiction, organizational or non-organizational activity and automatic or nonautomatic domestication, will entail different mixtures of costs and benefits. Part III concludes with a discussion of the lessons of the Medellin case for the future of the delegation debate.

While this Essay seeks to remedy these three distortions in the delegation debate, it is important to identify at the outset what it does not seek to do. It does not offer an opinion on the constitutionality of a particular delegation. Nor is it meant to provide a normative guidebook for the acceptability or unacceptability of a delegation. Rather, my ambition is more limited-by correcting these three distortions in the debate, I hope to refocus the debate along terms that will facilitate those broader constitutional and normative discussions, whether in the arena of a decision to enact legislation or a judicial decision to apply foreign law.

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