Volume 78, Number 1

April 2003

Law and the Shaping of American Foreign Policy: From the Gilded Age to the New Era

Jonathan Zasloff

What is the proper relationship between law and American foreign policy? Can or should law and legal institutions shape international relations? Although Americans vigorously debate these questions today, there was a time when they assumed a tight connection between law and foreign affairs. Lawyers dominated American foreign policy at the turn of the twentieth century; every Secretary of State from 1889 to 1945 was a lawyer, and the Republican Party’s chief foreign policy thinker, Elihu Root, was also its foremost lawyer. In this Article, Professor Jonathan Zasloff argues that this relationship between law and foreign policy had real consequences for the shape of American diplomacy during that period. Professor Zasloff contends that classical legal ideology—the prevailing ideological framework among elite lawyers in the late nineteenth and early twentieth centuries—profoundly influenced the direction of American foreign policy. Classical legal ideology taught that law does not derive its effectiveness from the coercive state but rather from popular custom and social norms. Moreover, it held that law could be effective without state coercion because it stood as a neutral, apolitical source of order that satisfied widely varying social groups. These two beliefs implied that international law could form a basis for a legally regulated world order and that traditional balance-of-power methods were either unnecessary or harmful. As policymakers debated the shape of the post-World War I world order, classical legal ideology told lawyer-statesmen like Root that they did not need to make strategic commitments to ensure global stability. Lawyers imbued with classical legal ideology concentrated on international law and institutions and neglected realpolitik foreign policy. In doing so, they unwittingly contributed to global catastrophe.

The Constitutional Rights of Private Governments

Roderick M. Hills, Jr.

Private organizations enjoy constitutional rights that allow them to coerce their members. Such rights pose a puzzle for theories maintaining that the purpose of rights is to protect individuals from coercion. This Article proposes a solution to the puzzle by arguing that such theories of rights—which the Article terms “anticoercion theories”—are misguided. The purpose of rights is not to protect individuals from coercion but rather to insure that individuals are coerced by the right sort of institution. The Article defends this “institutional” theory of rights as more normatively attractive than the anticoercion theory. The institutional theory is also better capable of explaining the U.S. Supreme Court’s doctrine of associational autonomy in Boy Scouts of America v. Dale and Troxel v. Granville.

The Global Fifth Amendment? NAFTA’s Investment Protections and the Misguided Quest for an International “Regulatory Takings” Doctrine

Vicki Been, Joel C. Beauvais

Just over two years ago, in Metalclad Corp. v. United Mexican States, an arbitral tribunal announced a seventeen-million-dollar award under NAFTA Article 1110, which requires host governments to compensate foreign investors for acts of “direct or indirect expropriation” or “measures tantamount to expropriation.” Several of these “regulatory takings” claims have recently been filed against NA FTA governments, and while it is still too early to judge how broadly tribunals will interpret the expropriation provision, the Metalclad case has opened the door for investors to challenge and potentially stifle environmental and land use regulation.

In this Article, Professor Vicki Been and Joel Beauvais shed light on two issues central to the debate over global investor-protection provisions. First, the Article compares the expropriation decisions under NAFTA’s Article 1110 with regulatory takings law under the Fifth Amendment of the U.S. Constitution. Despite claims that NAFTA simply “exports” the U.S. takings standard, the tribunals’ interpretations of the expropriation provision have exceeded the substantive scope of U.S. compensation requirements while removing procedural limitations typically imposed on domestic takings claims. Second, the Article explores the rationales traditionally asserted for domestic compensation requirements—cost-internalization, fairness, and insurance—finding that they do not justify an expansive regulatory takings doctrine in the international context. After rejecting claims that expropriation provisions benefit developing countries by attracting foreign investment, Been and Beauvais go on to highlight the significant costs of imposing a broad international regulatory takings doctrine: It gives foreign investors a competitive advantage over domestic firms, redistributes wealth between domestic taxpayers and foreign firms, and may deter efficient regulation.

The Article concludes that a global regulatory takings doctrine is neither necessary nor beneficial. Because of its substantial risks, the United States and other sponsors of international investment agreements should eschew the expansion of compensation requirements, instead limiting expropriation provisions to the traditional concerns of investor protections: physical invasions and seizures, direct nationalization, and governmental assumption or transfer of control of foreign property.


Abraham Lincoln’s First Amendment

Geoffrey R. Stone

As we confront the challenges of the “War on Terrorism,” it is useful to look back at our own history to understand how in past crises we have struck the balance between liberty and security. In this Essay, Professor Geoffrey Stone considers how Abraham Lincoln dealt with the conflict between free expression and military necessity during the course of the Civil War. Although we tend to think of Lincoln’s suspension of habeas corpus as the paramount civil liberties issue in this era (apart from slavery), Professor Stone explores how Lincoln, facing often severe criticism of his administration, struggled to balance free speech rights against the imperiled security of the Union.


Plaintiff Due Process Rights in Assertions of Personal Jurisdiction

R. D. Rees

Personal jurisdiction proceedings formally focus on the defendant’s liberty interest in avoiding the reach of an overextending court. In this Note, R. D. Rees argues that such an approach may fail to provide the plaintiff due process. The laws of various jurisdictions convert a single set of underlying facts into distinct causes of action, and the Supreme Court understands these statutory programs to create property interests. Although a plaintiff may not have a substantive right to a cause of action in a given jurisdiction, she does have the procedural right to have her interests considered before dismissal for lack of jurisdiction finally destroys her property claim. Since the defendant-centered nature of the “minimum contacts” test does not appear to allow for such consideration, Rees proposes a modest adjustment to the current test that would weigh plaintiff interests among the totality of the circumstances.

Bids Fare Well: The Democratic Accountability of Business Improvement Districts

Brian R. Hochleutner

A Business Improvement District, or BID, is a territorial subdivision within a municipality. Within a BID, local property and business owners pay district-specific assessments to fund local improvements such as enhanced security, sanitation, marketing, and infrastructure. Because BIDs are often managed by private entities controlled principally by local property or business owners, critics have charged that BIDs are undemocratic and insufficiently accountable. In this Note, Brian Hochleutner argues that BIDs are both democratic and accountable, at least to the BID’s most likely stakeholders and to the extent that those stakeholders are likely to be affected by the BID’s activities. As Hochleutner demonstrates, a BID’s small size and limited purpose work to limit accountability concerns generally. Further, a BID’s size and purpose also work with other aspects of the BID model—such as substantial oversight by local government officials and the BID’s own corporate governance mechanisms—to ensure that BIDs are not only particularly responsive to the interests of local property and business owners, but also sufficiently accountable to the interests of local residents. Hochleutner concludes that the BID model provides a way of governing sublocal commercial districts and downtown areas that is more fair and accountable to those actually governed than any obvious alternative.