The Volokh Conspiracy

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Volokh Conspiracy

Good reading for federal courts geeks


These were posted a little bit ago, but I recently noticed that the inimitable John Harrison has two interesting new articles up on SSRN, on topics that will probably be of interest to fed courts geeks. The first, Legislative Power, Executive Duty, and Legislative Lawsuits, is a highly novel piece on legislative standing—well, actually, it argues that it's a mistake to see the problem as one of standing rather than the existence of a cause of action. The abstract:

The Constitution does not entitle members of Congress, or the houses of Congress, as such, to judicial relief for executive failure to carry out the law properly. Nor does the Constitution empower Congress to authorize lawsuits for that purpose by legislators or legislative bodies. The argument that the Constitution itself authorizes that kind of litigation rests on an error concerning the concept of legislative power. Insofar as it creates an interest that could be injured so as to figure in a cause of action, legislative power creates an interest in the validity of legal enactments, not in compliance with them. The interest in validity is not threatened when a private person fails to comply with, or when the executive fails to carry out, a valid enactment. Because the legislative power's operation is complete when a valid enactment is created, to enable legislators or legislative bodies to sue executive officers for failure properly to carry out the law would be to enable them to exercise or control the executive power, and so would be inconsistent with the separate vesting of the two powers. Although the federal courts have generally assessed the constitutionality of lawsuits by legislators as such under the Supreme Court's Article III standing doctrine, the genuinely important question involves causes of action, not the authority of the federal judiciary. Legislative lawsuits to enforce the law raise questions concerning the relationship between the legislature and the executive, not the role of the federal courts in the constitutional system.

The other one, The American Act of State Doctrine, is a neat piece of doctrinal revisionism. The abstract:

The act of state doctrine as the Supreme Court has enunciated it directs American courts to decide cases on the assumption that acts of foreign governments taken in their own sovereign territory have the legal effect they purport to have. In the leading case of Banco Nacional de Cuba v. Sabbatino, the Court applied that principle to a Cuban expropriation decree concerning property located in Cuba, finding the decree effective to transfer title whether or not Cuba's expropriation had violated international law. The act of state doctrine is not a principle of immunity or abstention, nor does it require courts to assume that foreign sovereign acts are consistent with any relevant legal duty. The doctrine is wholly about validity. Although the Court's current statements of the doctrine are quite clear, its content is obscured by its history. The case that usually is taken as the doctrine's source was about immunity, not validity. Later act of state cases made the doctrine a principle of validity, and immunity is now addressed under other statutory and common-law rules. Although the Court's formulation is clear, a number of lower court decisions have seriously misapplied the doctrine, treating it as a rule of abstention or as a requirement that foreign government acts be assumed to comply with applicable duties, for example those imposed by federal statutes. Those cases are inconsistent with the Supreme Court's holdings, and rely on a version of the act of state doctrine that conflicts with established principles of immunity, abstention, statutory construction, and public international law.

There are also some interesting connections here to Harrison's other work. Legislative Power, Executive Duty, and Legislative Lawsuits draws on the framework in Power, Duty, and Facial Invalidity. The act of state article, meanwhile, reminds me of the doctrinal revisionism in Harrison's earlier Ex Parte Young.

Collectively recommended for the fed courts set.