Article

Foreign Sovereigns as Friends of the Court

This Article presents the first systematic study of foreign sovereign amicus briefs in the Supreme Court. Based on an analysis of the briefing, oral arguments, and opinions in every Supreme Court merits case involving a foreign sovereign amicus since 1978, this Article argues that foreign sovereigns do and should play an important role in shaping foreign relations law.

The Article begins with an empirical investigation of which sovereigns file, the types of cases in which they file, and the nature of the arguments they make. To a surprising extent, the Court cites foreign sovereign briefs, discusses them at argument, and even grants oral argument time to foreign sovereign amici—all despite the widespread perception that the Court is ambivalent or even hostile to foreign and international law.

The Article then situates the Supreme Court’s treatment of foreign sovereign amici within a larger story about how the Court approaches foreign relations questions. Although scholars have attempted to systematize and explain the deference the Court gives to the U.S. government in foreign relations cases, they have largely ignored the role that foreign sovereign amici play in the very same disputes. Accounting for the role of foreign sovereign amici challenges existing scholarly accounts of how and why the Court defers to the U.S. government on foreign relations issues.

The Article argues that the reasons underlying the Court’s deference to the U.S. government—the executive’s expertise, status as a lawmaker, and exercise of control over relevant policies—often apply to foreign sovereigns as well. This overlap in justifications for deference supports treating foreign sovereign amici similarly to the U.S. government in cases involving “international facts,” treaty interpretation, and customary international law. In cases involving foreign law, the justifications for deference suggest that foreign sovereign amici should receive more deference than the U.S. government.

In sum, attention to foreign sovereign amici sheds light on executive-to-judicial transnational networks and provides a more nuanced picture of the competing influences on the Court’s foreign relations jurisprudence.

A Declaratory Theory of State Accountability

Scholars and jurists may never reach consensus as to the historical meaning of Article III and the Eleventh Amendment and the proper balance of immunity and accountability. Certainly we find little in revisionist accounts of that history that disproves the diversity theory. But even in a world where sovereign immunity prevails, perhaps all will agree that the federal courts have a legitimate role to play in evaluating claims that the states have violatedwillingness to hear claims for money damages in respect of any such declaratory judgments offends no principle of existing law. In this Article, we propose to fuse these elements together into a declaratory theory of state accountability. Rather than viewing such decisions as Seminole Tribe and Alden as immunizing states from liability, we think the states should invite federal law claimants to pursue their money claims by invoking the ordinary processes of state law.  supreme federal law in the context of actions for declaratory relief. Perhaps, too, all will agree that the states’ willingness to hear claims for money damages in respect of any such declaratory judgments offends no principle of existing law. In this Article, we propose to fuse these elements together into a declaratory theory of state accountability. Rather than viewing such decisions as Seminole Tribe and Alden as immunizing states from liability, we think the states should invite federal law claimants to pursue their money claims by invoking the ordinary processes of state law. 

Such a cooperative approach to the vindication of federal claims has a good deal to recommend it. By channeling federal claimants into state law processes, the declaratory approach would preserve state control of the treasury and obviate the concern that exorbitant federal awards might drain state coffers. At the same time, the declaratory approach maintains federal judicial engagement with questions of state compliance with federal law. Finally, the declaratory approach places some responsibility on the states for ensuring the effectiveness of remediation. With time, the states may establish the sort of routine mode of money claim payment that now characterizes practice at the federal level under the judgment fund. After all, supporters of state immunity offered assurances in the wake of Chisholm that the states could be trusted to do right by money claimants.327 As an acceptance of that offer, the Eleventh Amendment calls upon the states to entertain money claims in the wake of a federal declaratory judgment that the state has violated federal law. 

Statutory Domain and the Commercial Law of Intellectual Property

For more than a century, the commercial law of intellectual property has generated intense controversy with ever-growing stakes. The central fulcrum in the area—the “first sale” or “exhaustion” doctrine—has produced four recent Supreme Court cases, a host of lower court decisions, and a mountain of scholarly criticism. Scholars who otherwise agree on little unite in excoriating the doctrine as a “per se,” “ham-handed,” “sterile” rule that is “frustratingly under-theorized” and grounded in “a set of arid technicalities of no particular value.” Champions of intellectual property dislike the doctrine because they want infringement suits to enforce contractual restrictions on goods embodying intellectual property. Skeptics of intellectual property want a stronger doctrine that would sweep away all contractual restrictions and encumbrances on such goods. We argue that both camps wrongly assume that the doctrine was created through common law reasoning in pursuit of substantive policies such as fostering an unencumbered flow of goods in commerce. This Article demonstrates that, in both its historical origins and its current application, the law in this area is based on statutory interpretation and is directed toward the more nuanced goal of limiting the domain of intellectual property statutes to avoid displacing other areas of law. This thesis explains why the foundational cases reject intellectual property infringement claims but are agnostic as to whether the unsuccessful plaintiffs could achieve their goals under contract or property law theories. The century-long development of law in this area also provides useful insights for statutory interpretation theory by illustrating precisely how courts limit a statute’s domain so that one area of law appropriately yields to another.

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