Volume 63, Number 5 – February 2014

Articles

The Savage Constitution
Gregory Ablavsky
PDF

Conventional histories of the Constitution largely omit Natives. This Article challenges this absence and argues that Indian affairs played a key role in the Constitution’s creation, drafting, and ratification. It traces two constitutional narratives about Indians: a Madisonian and a Hamiltonian perspective. Both views arose from the failure of Indian policy under the Articles of Confederation, when explicit national authority could not constrain states, squatters, or Native nations. Nationalists agreed that this failure underscored the need for a stronger federal state, but disagreed about the explanation. Madisonians blamed interference with federal treaties, whereas the Hamiltonians argued the federal military was too weak to overawe the “savages.”

The Myth of the Mild Declaratory Judgment
Samuel L. Bray
PDF

When plaintiffs want prospective relief, they usually request an injunction, a declaratory judgment, or both. The fact that plaintiffs often choose between these remedies, or seek them together, raises an obvious question: How are they different? The standard answer is that the declaratory judgment is milder and the injunction is stronger. This mildness thesis has been endorsed by the Supreme Court, the Restatement (Second) of Judgments, and many legal scholars. Three rationales have been given for why the declaratory judgment is milder, each focused on something the declaratory judgment is said to lack: a command to the parties, a sanction for disobedience, and full issue-preclusive effect. This Article critiques the rationales for the mildness thesis, demonstrating that they cannot be squared with the way the declaratory judgment and the injunction are actually used.

Notes

The Institutional Speech or Debate Protection: Nondisclosure as Separation of Powers
Ethan L. Carroll
PDF

The Speech or Debate Clause encompasses certain privileges that inure to the benefit of legislators. But its nondisclosure protection secures legislative—not legislators’—independence. This nondisclosure protection provides Congress as an institution the procedural right to assert its interests prior to the executive branch’s compelling the disclosure of legislative acts and corresponding documentary materials. Reading the opinion of the U.S. Court of Appeals for the D.C. Circuit in United States v. Rayburn House Office Building as a separation-of-powers case distinguishes this institutional, procedural protection from a so-called “nondisclosure privilege” against any compelled disclosure, which was rejected by the U.S. Court of Appeals for the Ninth Circuit in United States v. Renzi. The D.C. Circuit’s construction of the Speech or Debate Clause in Rayburn leaves executive-branch officials considerable latitude to investigate Members of Congress, subject to procedural constraints. Because the value the Clause protects is democratic representation, rather than legislative independence per se, the question of nondisclosure is one of protective procedure, not of privilege: Congress, not the executive branch, gets to make first determinations as to privilege.

Streamlining the Corruption Defense: A Proposed Framework for FCPA-ICSID Interaction
Michael A. Losco
PDF

Over the past decade, the number of Foreign Corrupt Practices Act (FCPA) enforcement actions has soared, as has the number of cases before the International Centre for Settlement of Investment Disputes (ICSID). At the same time, events have demonstrated that two problems may arise from the lack of coordination between anticorruption investigations and ICSID arbitration proceedings. First, anticorruption investigations may reveal arbitral decisions to be incorrect due to a lack of evidence regarding corruption in the formation of investment contracts. Second, the “corruption defense”—an emerging affirmative defense that allows host states to invoke corruption in the formation of investment contracts as an absolute bar to liability—creates a perverse incentive that encourages states to expropriate investors’ assets, or to renegotiate for burdensome new terms, following FCPA investigations.

Volume 63, Number 5 – February 2014

Articles

The Savage Constitution
Gregory Ablavsky
PDF

Conventional histories of the Constitution largely omit Natives. This Article challenges this absence and argues that Indian affairs played a key role in the Constitution’s creation, drafting, and ratification. It traces two constitutional narratives about Indians: a Madisonian and a Hamiltonian perspective. Both views arose from the failure of Indian policy under the Articles of Confederation, when explicit national authority could not constrain states, squatters, or Native nations. Nationalists agreed that this failure underscored the need for a stronger federal state, but disagreed about the explanation. Madisonians blamed interference with federal treaties, whereas the Hamiltonians argued the federal military was too weak to overawe the “savages.”

The Myth of the Mild Declaratory Judgment
Samuel L. Bray
PDF

When plaintiffs want prospective relief, they usually request an injunction, a declaratory judgment, or both. The fact that plaintiffs often choose between these remedies, or seek them together, raises an obvious question: How are they different? The standard answer is that the declaratory judgment is milder and the injunction is stronger. This mildness thesis has been endorsed by the Supreme Court, the Restatement (Second) of Judgments, and many legal scholars. Three rationales have been given for why the declaratory judgment is milder, each focused on something the declaratory judgment is said to lack: a command to the parties, a sanction for disobedience, and full issue-preclusive effect. This Article critiques the rationales for the mildness thesis, demonstrating that they cannot be squared with the way the declaratory judgment and the injunction are actually used.

Notes

The Institutional Speech or Debate Protection: Nondisclosure as Separation of Powers
Ethan L. Carroll
PDF

The Speech or Debate Clause encompasses certain privileges that inure to the benefit of legislators. But its nondisclosure protection secures legislative—not legislators’—independence. This nondisclosure protection provides Congress as an institution the procedural right to assert its interests prior to the executive branch’s compelling the disclosure of legislative acts and corresponding documentary materials. Reading the opinion of the U.S. Court of Appeals for the D.C. Circuit in United States v. Rayburn House Office Building as a separation-of-powers case distinguishes this institutional, procedural protection from a so-called “nondisclosure privilege” against any compelled disclosure, which was rejected by the U.S. Court of Appeals for the Ninth Circuit in United States v. Renzi. The D.C. Circuit’s construction of the Speech or Debate Clause in Rayburn leaves executive-branch officials considerable latitude to investigate Members of Congress, subject to procedural constraints. Because the value the Clause protects is democratic representation, rather than legislative independence per se, the question of nondisclosure is one of protective procedure, not of privilege: Congress, not the executive branch, gets to make first determinations as to privilege.

Streamlining the Corruption Defense: A Proposed Framework for FCPA-ICSID Interaction
Michael A. Losco
PDF

Over the past decade, the number of Foreign Corrupt Practices Act (FCPA) enforcement actions has soared, as has the number of cases before the International Centre for Settlement of Investment Disputes (ICSID). At the same time, events have demonstrated that two problems may arise from the lack of coordination between anticorruption investigations and ICSID arbitration proceedings. First, anticorruption investigations may reveal arbitral decisions to be incorrect due to a lack of evidence regarding corruption in the formation of investment contracts. Second, the “corruption defense”—an emerging affirmative defense that allows host states to invoke corruption in the formation of investment contracts as an absolute bar to liability—creates a perverse incentive that encourages states to expropriate investors’ assets, or to renegotiate for burdensome new terms, following FCPA investigations.