Academic

Resnick on Foreign Affairs Preemption

By Lawrence Solum

Judith Resnik (Yale University - Law School) has posted Foreign as Domestic Affairs: Rethinking Horizontal Federalism and Foreign Affairs Preemption in Light of Translocal Internationalism (Emory Law Journal, Vol 57, p. 31, 2007) on SSRN.  Here is the abstract:

What does federalism have to do with the question of what role "foreign" law does or ought to play in the United States? That issue frames this Article. Underappreciated thus far in the literatures on federalism and on social network theory is the role played by translocal organizations of public officials. These networks (such as the Conference of Mayors, the National League of Cities, the National Governors Association, the National Conference of State Legislatures, the National Association of Counties, and others) are national, but not federal. They both mirror the jurisdictional boundaries of the United States and cross them. Furthermore, these organizations also blur the line between nongovernmental organizations ("NGOs") and government organizations, for they are voluntary, quasi-private associations of public actors.

Through these activities, these translocal organizations serve as importers and exporters of ideas, some of which they help to turn into law. Sitting between the government and the private sector, these national organizations of state officials have become vital forces in a norm entrepreneurship that I term translocal institutional transnationalism. These interactions create a two-way street (or ocean) for both importation and exportation, and what passes through are a range of precepts, liberal and conservative, on an array of topics from human rights and national security to the organization of families and commerce.

This article documents some of this trade in ideas and laws and analyzes how translocal transnationalism relates to the presumed problem of "foreign" law within the American polity. I do so by two examples, one outlining local efforts to promote and to use the United Nations Convention on the Elimination of All Forms of Discrimination Against Women ("CEDAW"), and the other sketching the engagement of cities in the Kyoto Protocol to the United Nations Framework Convention on Climate Change ("Kyoto Protocol"). Both initiatives undermine the sovereigntist claim that a turn to "foreign" law intrinsically poses problems for majoritarianism and for federalism.

Full post as published by Legal Theory Blog on November 03, 2008 (boomark / email).