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.
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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.
Monopoly, Mercantilism, and Intellectual Property
Within intellectual property, Darcy v. Allen and the Statute of Monopolies are frequently, almost reflexively, invoked as establishing a baseline norm of economic freedom from which governments depart when they grant exclusive rights to deal in any trade or article of commerce. Against this free-market backdrop, all such grants are suspect, and only those that are justified by reference to their originality or utility (copyrights and patents) are valid. Rejecting the dominant view of Darcy and the Statute of Monopolies, this Article provides a more detailed political and legislative history of both the compromise leading to Darcy and the adoption of the Statute of Monopolies than any to date, and consequently demonstrates that their true importance lies in their political, not economic, content. This reinterpretation suggests that both events are best viewed through the lens of political accountability, a departure from the prevailing understanding of these events, both in and out of intellectual property. The Article concludes by considering the ramifications that this new understanding has for modern debates about intellectual property. Both events suggest that politics and coalition, not litigation, is the most promising brake on the seemingly ever-expanding scope of intellectual property laws. Further, the mercantilist experience with market controls suggests that targeted measures like compulsory licenses are more likely to perpetuate rather than restrict the power of special interests who hold large amounts of intellectual property.