This Article analyzes the under-explored phenomenon of unilateral exit from international agreements and intergovernmental organizations. Although clauses authorizing denunciation and withdrawal from treaties are pervasive, international legal scholars and international relations theorists have largely ignored them. This Article draws upon new empirical evidence to provide a comprehensive interdisciplinary framework for understanding treaty exit. It examines when and why states abandon their treaty commitments and explains how exit helps to resolve certain theoretical and doctrinal puzzles that have long troubled scholars of international affairs.
Issue 7
The Federal Courts, the First Congress, and the Non-Settlement of 1789
The extent of Congress’s power to curtail the jurisdiction of the federal courts has produced a long-running debate. Article III traditionalists defend broad congressional power to withhold jurisdiction from the federal courts altogether, while critics argue that some or all Article III business—most notably cases arising under federal law—must be heard in an Article III tribunal, at least on appeal. But traditionalists and their “aggregate vesting” critics are on common ground in supposing that the Constitution is indifferent to whether Article III cases within the Supreme Court’s appellate jurisdiction are heard initially in a state court or an inferior court that Congress chooses to create. Indeed, this is the settled understanding of Article III. This Article suggests that the First Congress likely did not share the common ground on which these competing visions of congressional power rest. Instead, the debates over the 1789 Judiciary Act reveal a widely-voiced understanding that state courts were constitutionally disabled from hearing certain Article III matters in the first instance—such as federal criminal prosecutions and various admiralty matters—and that Congress could not empower state courts to hear them. Many in Congress therefore also supposed that lower federal courts were mandated if such cases were to be heard at all. Although a vocal minority countered with the now-dominant view of state court power and the constitutional non-necessity of lower federal courts, they did so as part of a losing effort to eliminate the proposed federal district courts. The debates pose problems for traditionalists as well as their critics, but they are ultimately more problematic for the critics. Rather than providing support for a theory of mandatory aggregate vesting of federal question cases or other Article III business, this underappreciated constitutional dimension of the debate is better viewed as supporting a limited notion of constitutionally-driven jurisdictional exclusivity.
Massachusetts v. EPA’s Regulatory Interest Theory: A Victory for the Climate, Not Public Law Plaintiffs
Standing doctrine’s development is often framed as a struggle between two competing models of adjudication. The private law model views the court’s role as the adjudicator of individual rights and conditions access to the court on a party’s showing of a discrete injury at the hands of another party. The opposing public law model favors congressional power to create causes of action that confer standing without requiring a showing of differentiated injury, and conceives of the judiciary’s role as integral to ensuring executive compliance with the law. Many commentators view Massachusetts v. EPA, a recent Supreme Court decision addressing global climate change, as liberalizing standing doctrine and as a significant victory for the public law model of adjudication.
This Note departs from this commentary by arguing that, on the whole, the standing theory advanced in Massachusetts places the case within the Court’s trend towards a more restrictive interpretation of the case-and-controversy requirement. This Note first analyzes the Massachusetts opinion, the history of state standing doctrine, and subsequent judicial treatment of the decision, in order to show that the Court’s standing decision is based on a finding of injury to Massachusetts’ governing interest: the ability of Massachusetts to regulate a harm that threatens the Commonwealth’s territorial integrity. The Note then argues that this “regulatory interest theory” creates a standing regime that may be a variation of the public law model, but one that is potentially highly restrictive of both state and individual standing. In fact, the regulatory interest theory may create a standing regime where state attorneys general have monopoly power over public law adjudication, a possibility that threatens both core public and private law model values. This Note concludes that a Positivist approach to standing that predicates state and citizen standing on positive statutory enactment provides a relatively straightforward, far more workable approach to the case-and-controversy requirement.