Volume 107

The Chimerical Concept of Original Public Meaning

This Article demonstrates that constitutional provisions rarely if ever have uniquely correct “original public meanings” that are sufficiently determinate to resolve disputed constitutional cases. As public meaning originalism (“PMO”) ascends toward a position of dominance within the Supreme Court, both practitioners and critics should recognize the limited capacity of historical and linguistic facts to settle modern issues.

To understand successful constitutional communication, this Article argues, requires a distinction between “minimal” original public meanings, which either are entailed by language and logic or are otherwise noncontroversial, and the richer and more determinate meanings that originalists often purport to discover. When the Constitution says that each state shall have “two Senators,” “two” means two. By contrast, when members of the Founding generation disagreed about the meaning of a constitutional provision—as they frequently did—the idea of a uniquely correct and determinate more-than-minimal meaning that existed as a matter of linguistic and historical fact is chimerical. Judges can of course reach determinate conclusions, but seldom can those dispute-resolving conclusions be ones of simple historical fact.

Insofar as practitioners of PMO—including Justices of the Supreme Court—purport to discover more-than-minimal original public meanings that provide determinate resolutions to contested cases, skepticism is in order. The problem with claims about more-than-minimal original public meanings is conceptual, not epistemological. Although public meaning originalists speak of “evidence” establishing the historical validity of disputed claims about original public meanings, they have no adequate account of what, exactly, the evidence is supposed to be evidence of. Beyond historical facts about who said and believed different things at particular times, there is no further, diversity-transcending fact of an original public meaning that extends beyond minimal and noncontroversial meanings.

After identifying the conceptual limitations of public meaning originalism, this Article examines the resulting challenges for both theorists of PMO and for originalist and nonoriginalist Justices alike. It also draws lessons concerning the nature of and necessary conditions for successful constitutional communication across generations.

Introduction

With the confirmation of Justice Amy Coney Barrett as an Associate Justice of the Supreme Court, originalism has moved to center stage once more in constitutional debates in the United States. Justice Barrett self-identifies as an originalist.1 1.See, e.g., Full Transcript: Read Judge Amy Coney Barrett’s Remarks, N.Y. Times (Sept. 26, 2020), https://www.nytimes.com/2020/09/26/us/politics/full-transcript-amy-coney-barrett.html [https://perma.cc/J48S-S8ZC] (“I clerked for Justice Scalia more than 20 years ago, but the lessons I learned still resonate. His judicial philosophy is mine, too.”); Nomination of the Honorable Amy Coney Barrett to Be an Associate Justice of the Supreme Court of the United States Before the S. Comm. on the Judiciary, 116th Cong. 4 (2020) (opening statement of Amy Coney Barrett) (arguing judges should “interpret[] our Constitution and laws as they are written”); see also Kanter v. Barr, 919 F.3d 437, 454–65 (7th Cir. 2019) (Barrett, J., dissenting) (exemplifying, in the Second Amendment context, Justice Barrett’s emphasis on historical analysis).Show More So does Justice Neil Gorsuch,2 2.See, e.g., Neil Gorsuch, A Republic, If You Can Keep It 116–27 (2019) (advancing defense of originalism); Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, 138 S. Ct. 1365, 1381 (2018) (Gorsuch, J., dissenting) (contending that “[t]he Constitution’s original public meaning supplies the key” to its interpretation).Show More whom President Trump nominated and the Senate confirmed to succeed Justice Antonin Scalia. Justice Clarence Thomas has long argued for judicial decision making based on “the original public meaning” of the Constitution.3 3.See, e.g., Rosenkranz Originalism Conference Features Justice Thomas ’74, Yale Law School (Nov. 4, 2019), https://law.yale.edu/yls-today/news/rosenkranz-originalism-conference-features-justice-thomas-74 [https://perma.cc/3SKV-9LBQ] (quoting Justice Thomas as saying that modern day originalists should “give the words and phrases used by [authors] natural meaning in context” and that doing otherwise “usurps power from the people”); see also Gregory E. Maggs, Which Original Meaning of the Constitution Matters to Justice Thomas?, 4 N.Y.U. J.L. & Liberty 494, 495, 511 (2009) (describing Justice Thomas’ originalism).Show More Justice Samuel Alito has characterized himself as “a practical originalist.”4 4.Matthew Walther, Sam Alito: A Civil Man, American Spectator (Apr. 21, 2014, 12:00 AM), https://spectator.org/sam-alito-a-civil-man [https://perma.cc/XD92-CVGH] (“I think I would consider myself a practical originalist.”); see also Steven G. Calabresi & Todd W. Shaw, The Jurisprudence of Justice Samuel Alito, 87 Geo. Wash. L Rev. 507, 512 (2019) (observing that a “theme of Justice Alito’s jurisprudence is originalism, though not in the traditional sense of the word that one might associate with Justice Scalia”).Show More

With the prospect that originalist Justices might transform our constitutional law now a palpable one, the question “What is originalism?” deserves close re-consideration. Re-consideration is warranted, despite a bulging catalogue of books and articles debating originalism, because originalism—as originalists themselves sometimes emphasize—has always been and remains a “work in progress.”5 5.Scott Soames, Originalism and Legitimacy, 18 Geo. J.L. & Pub. Pol’y 241, 246 (2020) [hereinafter Soames, Originalism and Legitimacy]. For a brief history of originalism, see Lawrence B. Solum, What Is Originalism? The Evolution of Contemporary Originalist Theory, in The Challenge of Originalism: Theories of Constitutional Interpretation 12, 12 (Grant Huscroft & Bradley W. Miller eds., 2011).Show More

The leading current version is public meaning originalism (“PMO”).6 6.See Lawrence B. Solum, Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate, 113 Nw. U. L. Rev. 1243, 1251 (2019) (“Most contemporary originalists aim to recover the public meaning of the constitutional text at the time each provision was framed and ratified; this has been the dominant form of originalism since the mid-1980s.”); Jamal Greene, The Case for Original Intent, 80 Geo. Wash. L. Rev. 1683, 1684 (2012) (“Today, most academic originalists and even some living constitutionalists say that constitutional interpretation should proceed, first and foremost, from the original meaning of the text at issue.”); Steven G. Calabresi & Hannah M. Begley, Originalism and Same-Sex Marriage, 70 U. Miami L. Rev. 648, 649 (2016) (asserting that “all modern originalists . . . are original public meaning textualists”). But cf. Stephen E. Sachs, Originalism Without Text, 127 Yale L.J. 156, 158 (2017) (noting that “[a] number of scholars, this author among them, have argued for shifting focus from original meaning to our original law”).Professor Solum distinguishes four varieties of originalism in addition to public meaning originalism: Original Intentions Originalism (“The original meaning of the constitutional text is the meaning that the framers intended to convey.”); Ratifiers’ Understandings Originalism (“The original meaning of the constitutional text is the meaning conveyed to the ratifiers of each provision.”); Original Methods Originalism (“The original meaning of the constitutional text is the meaning produced by application of the original methods of constitutional interpretation and construction to the text.”); and Original Law Originalism (“The law in effect at the time the Constitution was ratified is legally binding unless it was changed by methods authorized by the original law.”). Lawrence B. Solum, Triangulating Public Meaning: Corpus Linguistics, Immersion, and the Constitutional Record, 2017 B.Y.U. L. Rev. 1621, 1627 [hereinafter Solum, Triangulating Public Meaning]. For an alternative, critical typology, see Thomas B. Colby & Peter J. Smith, Living Originalism, 59 Duke L.J. 239, 247–62 (2009).Show More Justice Scalia was a founding member of the public meaning originalist school,7 7.See Antonin Scalia, Address Before the Attorney General’s Conference on Economic Liberties in Washington, D.C. (June 14, 1986), in Original Meaning Jurisprudence: A Sourcebook 101, 106 (U.S. Dep’t of Just. ed., 1987) (arguing that originalists “ought to campaign to change the label from the Doctrine of Original Intent to the Doctrine of Original Meaning”); see also Vasan Kesavan & Michael Stokes Paulsen, The Interpretive Force of the Constitution’s Secret Drafting History, 91 Geo. L.J. 1113, 1139 (2003) (characterizing Justice Scalia as “original meaning textualism’s patron saint”).Show More with which Justices Thomas, Gorsuch, and Barrett also have associated themselves.8 8.See sources cited supra notes 1–4.Show More Public meaning originalists do not all agree about everything, but they coalesce around a central tenet: the original and unchanging meaning of a constitutional provision is either (1) what a reasonable person who knew the publicly available facts about the context of its drafting would have taken it to mean9 9.See, e.g., Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 16 (2012) (“In their full context, words mean what they conveyed to reasonable people at the time they were written.”); Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 92 (2004) (“‘[O]riginal [public] meaning’ originalism seeks the public or objective meaning that a reasonable listener would place on the words used in the constitutional provision at the time of its enactment.”); Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 105 (2001) [hereinafter Barnett, Commerce Clause]; Gary Lawson & Guy Seidman, Originalism as a Legal Enterprise, 23 Const. Comment. 47, 48 (2006) (“[W]hen interpreting the Constitution, the touchstone is not the specific thoughts in the heads of any particular historical people . . . but rather the hypothetical understandings of a reasonable person who is artificially constructed by lawyers.”); Michael Stokes Paulsen, The Text, the Whole Text, and Nothing but the Text, So Help Me God: Un-Writing Amar’s Unwritten Constitution, 81 U. Chi. L. Rev. 1385, 1440 (2014) (“[T]he true, original public meaning of the language employed . . . [is] the objective meaning the words would have had, in historical, linguistic, and political context, to a reasonable, informed speaker and reader of the English language at the time that they were adopted.”).Show More or (2) what literate and informed members of the public actually understood it to be,10 10.See, e.g., Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review 60 (1999) (asserting that the process of ratification gave the constitutional “text the meaning that was publicly understood”); Lawrence B. Solum, Cooley’s Constitutional Limitations and Constitutional Originalism, 18 Geo. J.L. & Pub. Pol’y 49, 57 (2020) [hereinafter Solum, Cooley’s Constitutional Limitations] (“The original meaning of the constitutional text is best understood as the meaning communicated to the public at the time each provision was framed and ratified.”); Lawrence B. Solum, Originalist Theory and Precedent: A Public Meaning Approach, 33 Const. Comment. 451, 453 (2018) [hereinafter Solum, Originalist Theory] (“The public meaning of the constitutional text is . . . the content communicated to the public by the text and the publicly available context of constitutional communication.”); Michael W. McConnell, Textualism and the Dead Hand of the Past, 66 Geo. Wash. L. Rev. 1127, 1136 (1998) (“Originalism is the idea that the words of the Constitution must be understood as they were understood by the ratifying public at the time of enactment.”).Show More at the time of its promulgation. Although these two formulations diverge as a conceptual matter, the practical difference is usually small. Because there is typically no way of discovering at the individual level what most people understood a provision’s meaning to be at the time of its ratification, originalist inquiries tend to focus on what those who knew its language and the publicly available facts about its drafting would reasonably or most reasonably would have understood it to communicate.11 11.To take a single illustrative example, Professor Lawrence Solum, who frequently defines original public meanings by reference to “the meaning communicated to the public,” see Solum, Cooley’s Constitutional Limitations, supra note 10, at 57, criticizes the efforts to discern original meanings by historians who focus primarily on assertions by particular historical figures and do not attend sufficiently to “the communicative content of the text” by closely examining its “semantics or pragmatics.” Solum, Triangulating Public Meaning, supra note 6, at 1653–54.Show More

Two primary assumptions link practitioners of PMO as adherents of a single school or approach. First, PMO assumes that members of the Framing generation would have discovered the linguistic meaning of constitutional provisions in roughly the same way that they would have ascertained the meaning of utterances in ordinary conversation.12 12.See, e.g., Scott Soames, Interpreting Legal Texts: What Is, and What Is Not, Special About the Law, in 1 Philosophical Essays: Natural Language: What It Means and How We Use It 403, 403 (Scott Soames ed., 2009) [hereinafter Soames, Interpreting Legal Texts] (arguing that “[p]rogress can . . . be made . . . by seeing [legal and statutory interpretation] as an instance of the more general question of what determines the contents of ordinary linguistic texts”); Lawrence B. Solum, Semantic Originalism 28 (Ill. Pub. L. & Legal Theory Rsch. Paper Series, Research Paper No. 07-24, 2008), available at http://papers. ssrn.com/sol3/papers.cfm?abstract_id=1120244 [https://perma.cc/625M-RML5] (describing the Constitution as a “text” and explaining the central role of semantic theory, framed as “the theory of the meaning of utterances,” in establishing the “linguistic meaning” of constitutional provisions).Show More Public meaning originalists acknowledge that the “model of conversational interpretation”13 13.See Richard H. Fallon, Jr., The Statutory Interpretation Muddle, 114 Nw. U. L. Rev. 269, 275 (2019); cf. Saul Cornell, President Madison’s Living Constitution: Fixation, Liquidation, and Constitutional Politics in the Jeffersonian Era, 89 Fordham L. Rev. 1761 (2021) (referring to “[t]he ‘standard communication model’ favored by many originalists”).Show More may require modest adaptations to address the peculiarities of constitutional interpretation.14 14.See infra notes 52–53 and accompanying text.Show More Nonetheless, they insist, the interpretive methods that structure conversational interpretation furnish a workable template for ascertaining constitutional meanings. I call this the Interpretive Methodology Assumption.

Second, PMO posits that the original meanings of constitutional provisions, like those of conversational utterances, exist as a matter of historical and linguistic fact.15 15.See Lawrence B. Solum, Originalist Methodology, 84 U. Chi. L. Rev. 269, 278 (2017) [hereinafter Solum, Originalist Methodology] (“[T]he communicative content of the constitutional text is a fact.”); Lawrence B. Solum, The Fixation Thesis: The Role of Historical Fact in Original Meaning, 91 Notre Dame L. Rev. 1, 12 (2015) [hereinafter Solum, Fixation Thesis] (“The communicative content of a text is determined by linguistic facts . . . and by facts about the context in which the text was written. Interpretations are either true or false—although in some cases we may not have sufficient evidence to show that a particular interpretation is true or false.”); Soames, Originalism and Legitimacy, supra note 5, at 248 (asserting that “[t]he contents” of statutes and other linguistic acts by collective bodies “is, in principle, derivable from the relevant, publicly available, linguistic and non-linguistic facts”).Show More The factual status of original public meanings inheres in the conjunction of empirical facts about words’ meanings, rules of grammar and syntax, political events leading up to constitutional provisions’ adoptions, and the theoretical, meaning-generating premises of the model of conversational interpretation as adapted to constitutional interpretation.16 16.See Lawrence B. Solum, Communicative Content and Legal Content, 89 Notre Dame L. Rev. 479, 497–98 (2013) [hereinafter Solum, Communicative Content] (defining public meaning as “the conventional semantic meaning of the words and phrases as combined by widely shared regularities of syntax and grammar”).Show More I call this the Conceptual Assumption.

This Article argues that original public meanings, in the sense in which originalists use that term, are insufficient to resolve any historically contested or otherwise reasonably disputable issue17 17.For a different argument to a similar conclusion, see Thomas B. Colby, The Sacrifice of the New Originalism, 99 Geo. L.J. 713, 714 (2011) (arguing that the most sophisticated versions of “the New Originalism” have responded to criticisms of “the Old Originalism” with adaptations that severely limit their claims to determinacy).Show More—an important qualification that I shall explain shortly. The two central assumptions that undergird PMO will not withstand analysis. PMO’s Interpretive Methodology Assumption is untenable. Without it, the Conceptual Assumption crumbles as well.

PMO’s difficulties begin with the Interpretive Methodology Assumption that we can identify linguistic meanings of constitutional provisions that are determinate enough to settle disputed questions by using substantially the same, largely unselfconscious techniques that we employ in interpreting conversational utterances. Given this assumption, PMO equates the meaning of a constitutional provision (or what some philosophers would call a provision’s assertive or communicative content18 18.This is the preferred, technical vocabulary of the public meaning originalists who draw most explicitly on the conceptual apparatus of the philosophy of language. See infra notes 54–56 and accompanying text.Show More) with what either reasonable people or actual people who are assumed to be reasonable would have taken it to mean in the context of its promulgation. But the assimilation of constitutional to conversational interpretation grows problematic when one probes which elements of context a reasonable listener normally takes into account in determining what a remark communicates, asserts, or stipulates. Almost self-evidently, the identity of the speaker matters crucially. Depending on who the speaker was, reasonable people would make different assumptions about the “interpretive common ground”19 19.My usage follows that of Professor Mark Richard, who defines interpretive common ground as shared presuppositions. See Mark Richard, Meanings as Species 3 (2019).Show More that they share with the speaker and about the speaker’s likely communicative intentions. If someone tells me, “Let’s meet at our usual spot at the usual time,” information of this kind will contribute decisively to the meaning (or communicative content) of her utterance. In the case of constitutional provisions, however, there typically is no unitary speaker.20 20.See Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. Rev. 204, 213–15 (1980); Solum, supra note 12, at 40.Show More Constitutional provisions frequently have multiple or in some cases unknown authors who may have had different communicative intentions and held different assumptions about how the public would understand their words.21 21.See infra Subsection II.A.2.a.Show More

Public meaning originalists have diverse strategies for evading this difficulty, mostly by imagining the “reasonable” audience for constitutional provisions as endowed with qualities that make attention to speakers’ particularized communicative intentions unnecessary.22 22.See infra notes 167–191 and accompanying text.Show More But none of those strategies succeeds. It is impossible to give even a modestly rich description of the “context” of constitutional provisions’ promulgation without taking account of who the promulgators were and what understandings or responses they aimed to provoke in their audiences.

The model of conversational interpretation also fails to fit the case of constitutional interpretation for reasons involving the idea of a “reasonable” reader of constitutional provisions whose judgments determine those provisions’ original meanings. Among other things, the audiences for constitutional provisions are diverse. In addition, we know as a matter of historical fact that different, informed, and evidently reasonable people who were alive at the time of constitutional provisions’ promulgation have often disagreed about what those provisions meant.23 23.See infra Subsection III.B.1 (observing disagreement about the meanings of multiple constitutional provisions).Show More

In cases of disagreement, one approach to ascertaining original public meaning would be to investigate what different people who were alive at the time actually thought and to seek to discover whether there was a majority—or failing that, a plurality—view. Indeed, one might expect PMO adherents who equate public meanings with actual people’s historical understandings to pursue that strategy.24 24.See supra note 10 and accompanying text (citing examples of such PMO adherents).Show More Yet I know of no originalist who has worked out a methodology for calculating how many citizens of the past qualified as sufficiently informed to judge the meanings of particular constitutional provisions competently, for identifying how many had one understanding of a disputed provision in comparison with another, and for resolving disagreements by one or another numerically-based protocol.25 25.See, e.g., Richard A. Primus, When Should Original Meanings Matter?, 107 Mich. L. Rev. 165, 214 (2008) (“[W]hen [originalist material] speaks in many voices, there is no way to settle the question of whether a view expressed in the Pennsylvania ratifying convention is more or less authoritative than a view expressed in the newspapers of Massachusetts.”).Show More Rather, as I have said, when it comes to the actual practice of PMO, the touchstone for virtually all inquiries is a hypothetical, reasonable person and the conclusions that such a being would have drawn in light of publicly available evidence.26 26.See, e.g., Lawson & Seidman, supra note 9, at 48 (“[W]hen interpreting the Constitution, the touchstone is not the specific thoughts in the heads of any particular historical people—whether drafters, ratifiers, or commentators, however distinguished and significant within the drafting and ratification process they may have been—but rather the hypothetical understandings of a reasonable person who is artificially constructed by lawyers.”); cf. Solum, Triangulating Public Meaning, supra note 6, at 1637 (“Original public meaning should be distinguished from what have been called ‘original expected application[s].’”).Show More

The unworkability of the model of conversational interpretation as a template for ascertaining the uniquely correct, fact-of-the-matter meanings of constitutional provisions points to an equally shattering conclusion concerning PMO’s Conceptual Assumption: original constitutional meanings that are ascertainable as a matter of historical fact, which are PMO’s Holy Grail, do not exist in forms capable of resolving any historically or reasonably disputed issue.

I restrict my thesis to reasonably disputed cases because, although identifying the meaning of an utterance in context often requires knowing who the speaker was and what she intended to convey, sometimes there may be no reasonable doubt on any relevant score. For example, when Article I, Section 3, Clause 1 provides that “[t]he Senate of the United States shall be composed of two Senators from each State,”27 27.U.S. Const. art. I, § 3, cl. 1.Show More its meaning or communicative content is unmistakable. “Two” means two. The term “each State” refers to the States of the United States. It is equally clear that no provision of the Fourteenth Amendment, read in its linguistic and historical context, requires that citizens of the United States eat cornflakes for breakfast. Reaching these conclusions requires no fine-grained knowledge about the relevant provisions’ authors or about possibly divergent linguistic, historical, biographical, or political assumptions among their audiences. In cases such as these, it suffices to assume that the speaker or speakers—whoever they may have been—would have had what I shall call the “minimal” communicative intentions that would be necessary to make a provision intelligible in its linguistic, historical, and institutional context.28 28.This usage echoes Joseph Raz, Between Authority and Interpretation: On the Theory of Law and Practical Reason 284–85 (2009) (positing that legislators should be assumed to vote for legislation with the “minimal intention” to make law that will be “understood” in accordance with the norms of “their legal culture”).Show More These would include such intentions as to create binding law and to convey, in English, whatever a reasonable listener would necessarily or noncontroversially understand the words of the provision either to require, provide, or stipulate or not to require, provide, or stipulate in light of publicly known facts about their drafting.29 29.Ryan C. Williams, The Ninth Amendment as a Rule of Construction, 111 Colum. L. Rev. 498, 544 (2011), proposes a test along these lines. For discussion of the details and implications of his proposal, see infra notes 207–08 and accompanying text.Show More In cases of evidently unanimous historical understanding, we could thus say that those provisions had the minimal original meanings and non-meanings on which everyone or nearly everyone living at the time either converged or would have converged. If originalists defined constitutional provisions’ original public meanings as limited to their minimal meanings and non-meanings, then I would offer no conceptual objection to claims that uniquely correct original public meanings could be identified as a matter of historical and linguistic fact.

In practice, however, I know of almost no originalists who accept that original public meanings are limited to minimal meanings as I have defined that term. Although there are exceptions, including Professor Jack Balkin,30 30.See, e.g., Jack M. Balkin, Living Originalism 21 (2011) (defending “framework originalism”) [hereinafter Balkin, Living Originalism]; Jack M. Balkin, The Construction of Original Public Meaning, 31 Const. Comment. 71, 80 (2016) [hereinafter Balkin, Construction].Show More public meaning originalists characteristically advance their theories with more substantial ambitions than clarifying how original public meanings can resolve such non-debates as whether Article I requires that each state should have exactly two Senators or whether the Equal Protection Clause mandates that everyone eat cornflakes. Certainly, this is true of the Justices of the Supreme Court who self-identify as originalists. Rather than defining the original public meaning as limited to minimally necessary (for intelligibility) or historically noncontroversial meaning, mainstream public meaning originalists posit that constitutional provisions’ original public meanings consist of minimal meanings plus some further content that, they maintain, can also be discovered as a matter of historical and linguistic fact.31 31.See infra Section I.A.Show More To put the point more concretely, they believe that there is a historically and linguistically discoverable original public meaning that is capable of resolving, as a matter of fact, such historically disputed questions as whether the Second Amendment, the preamble to which refers to the importance of “a well regulated Militia,” safeguards a personal right “to keep and bear arms” for purposes of self-defense;32 32.U.S. Const. amend. II. See District of Columbia v. Heller, 554 U.S. 570, 576 (2008) (grounding the conclusion that the Second Amendment protects a personal right to possess arms for self-defense in “the principle that ‘[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning’” (quoting United States v. Sprague, 282 U.S. 716, 731 (1931))); id. at 652–79 (Stevens, J., dissenting) (analyzing Second Amendment’s historical context and concluding that any rights that it created were linked to service in a well-regulated militia); see also Cass R. Sunstein, Second Amendment Minimalism: Heller as Griswold, 122 Harv. L. Rev. 246, 246 (2008) (“Well over two hundred years since the Framing, the Court has, for essentially the first time, interpreted a constitutional provision with explicit, careful, and detailed reference to its original public meaning.”); Lawrence B. Solum, District of Columbia v. Heller and Originalism, 103 Nw. U. L. Rev. 923, 924 (2009) (contending that Heller offered “the most important and extensive debate on the role of original meaning in constitutional interpretation among the members of the contemporary Supreme Court”).Show More whether the Free Speech Clause of the First Amendment protects corporate spending to influence political campaigns;33 33.See, e.g., Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 385–93 (2010) (Scalia, J., concurring) (emphasizing majority opinion’s consistency with original public meaning of the First Amendment); id. at 425–33 (Stevens, J., concurring in part and dissenting in part) (disputing this analysis); see also Leo E. Strine, Jr. & Nicholas Walter, Originalist or Original: The Difficulties of Reconciling Citizens United with Corporate Law History, 91 Notre Dame L. Rev. 877, 878 (2016) (providing an overview of the historical dispute between the two opinions).Show More and whether the Fourteenth Amendment bars discrimination on the basis of sex or sexual orientation.34 34.See, e.g., Obergefell v. Hodges, 576 U.S. 644, 664 (2015) (“The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”); id. at 726 (Thomas, J., dissenting) (charging the Court with “los[ing] its way” in “deviating from the original meaning of the [Due Process] Clauses”); cf. Calabresi & Begley, supra note 6, at 652–54 (2016) (challenging Justice Thomas’s approach and offering originalist defense of Obergefell).Show More Historically disputable issues such as these dominate the Supreme Court’s docket of constitutional cases.

In cases of this kind, claims that determinate original public meanings existed as a matter of historical and linguistic fact reflect a conceptual or metaphysical mistake.35 35.On the distinction between the metaphysics of meaning and the epistemological issues involved in its ascertainment, see Michael Devitt, Three Methodological Flaws of Linguistic Pragmatism, in What Is Said and What Is Not: The Semantics/Pragmatics Interface 285, 285–86 (Carlo Penco & Filippo Domaneschi eds., 2013).Show More Beyond minimal meanings, there is no single historical fact of the matter about what disputed constitutional provisions more determinately meant and, thus, no determinate original public meaning.36 36.Cf. Thomas B. Colby, The Federal Marriage Amendment and the False Promise of Originalism, 108 Colum. L. Rev. 529, 601–02 (2008) (noting the pointlessness of seeking to establish “the standard of proof necessary to establish a ‘fact’ that never existed”).Show More Insofar as originalists equate the original public meaning with what a reasonable person would have concluded, they mistakenly seek to answer an epistemological question, involving how best to ascertain what the original public meaning was, without first resolving a logically prior conceptual or metaphysical question. That question is whether original public meanings that are broader than minimal meanings exist in a form that a reasonable person could identify as a matter of historical or linguistic fact—that is, without making a judgment about which interpretation would be best in some normative sense or without invoking a challengeable theory of what makes the meaning that some ascribed to a constitutional provision, but that others did not, the true original public meaning. Charged with ascertaining the original public meaning of a constitutional provision, a reasonable decision-maker could not sensibly begin with the question, “What would a reasonable person think the original meaning was?” Instead, a reasonable decision-maker would need to begin with a theory of what in the world makes it true that constitutional provisions have particular original public meanings (if they do) so that the mode of inquiry could be adjudged reasonable or reliable.37 37.A comparison with other contexts in which the law employs “reasonable person” standards confirms this conclusion. The most characteristic function of “reasonable person” standards is to embody reasonableness in a particular domain of thought, action, or disposition. See Christopher Jackson, Reasonable Persons, Reasonable Circumstances, 50 San Diego L. Rev. 651, 655 (2013) (quoting Peter Westen, Individualizing the Reasonable Person in Criminal Law, 2 Crim. L. & Phil. 137, 139 (2008)) (asserting that “[a] reasonable person is reasonableness rendered incarnate”). In seeking to resolve disputed questions, the reasonable person pursues the methods of inquiry appropriate to achievement of true beliefs about the matter in question. See John Gardner, The Mysterious Case of the Reasonable Person, 51 U. Toronto L.J. 273, 273 (2001) [hereinafter Gardner, The Mysterious Case] (defining the “reasonable person” as a “justified” person whose actions satisfy the standards of justification appropriate for actions of the relevant kind and whose beliefs are similarly justified); John Gardner, Reasonable Person Standard, in The International Encyclopedia of Ethics (Hugh LaFollette ed., 2019) (“When the law’s question is what the reasonable person would [believe], the answer is that she would have reasonable [beliefs].”). The deep, underlying assumption is that true beliefs are possible.Show More

With that challenge on the table, I take the original public meaning of constitutional provisions, as public meaning originalists use the term, to be a theoretical construct in the same way that “gross domestic product” and “IQ”—to take two quite disparate examples—are theoretical constructs.38 38.Cf. Balkin, Construction, supra note 30, at 78 (terming the original public meaning “a constructed entity”); Jack M. Balkin, Lawyers and Historians Argue About the Constitution, 35 Const. Comment. 345, 369 (2020) (“‘Original public meaning’ is a theoretical construction, a mediated account of the past that serves the purposes of law and legal theory.”).Show More To be more precise, the original public meaning of a constitutional provision is partly a function of the theory by which the original public meaning is defined. Reliance on a “reasonable person” standard could thus furnish meaningful standards of inquiry only if public meaning originalists had a sufficiently specified theory to tell reasonable inquirers what they ought to look for and ultimately how to produce correct results. A theory linked instead to what people actually thought or believed would have parallel problems. Since very few people would likely have studied the language of proposed provisions or reflected thoughtfully on their implications for particular issues, such a theory needs an account of which mental states or dispositions mattered. It would also have to specify the conditions under which a contested view should count as the singularly correct original meaning. When confronted with theoretical and conceptual challenges such as these, PMO comes up dramatically short.39 39.See, e.g., Richard S. Kay, Original Intention and Public Meaning in Constitutional Interpretation, 103 Nw. U. L. Rev. 703, 720 (2009) (“Public meaning is, quite explicitly, an artificial construct. The qualifying criteria . . . depend on assumptions about how some chosen hypothetical speaker of the language would apprehend the text at issue. Even in theory there is no ‘right answer.’”). According to Lawrence B. Solum, The Public Meaning Thesis: An Originalist Theory of Constitutional Meaning, 101 B.U. L. Rev. (forthcoming Dec. 2021) (manuscript at 52) (on file with author) [hereinafter Solum, Public Meaning Thesis], “When there is controversy over the public meaning, we aim for the interpretation that best explains all the available evidence.” Although this formulation presupposes the existence of a theory that identifies some “evidence” as relevant and supports inferences about the relationship of evidence to conclusions, Professor Solum never articulates the theory on which he relies.Show More Without clear criteria for identifying the truth conditions for claims about original public meanings in cases of actual historical disagreement, PMO appears to insist that “we know it when we see it.” Yet an “it” that exists only insofar as particular practitioners of PMO see it is not the kind of “original public meaning” that they or anyone else should want to make the object of historical inquiry.

To be clear, just as I recognize that constitutional provisions can have minimal original public meanings, I accept—indeed, I shall emphasize—that courts and judges can reach better- or worse-supported conclusions about constitutional provisions’ original legal meanings, even in disputed cases. Proper ascription of legal meanings depends on a mixture of facts about ordinary language use, legal norms, and moral norms, not the mistaken premise that disputed provisions had uniquely correct, original linguistic meanings that are simultaneously factual, reliably ascertainable, and capable of resolving reasonably disputable issues.40 40.In listing moral norms among the factors relevant to legal reasoning, I assume that insofar as authoritative legal materials otherwise fail to provide an answer to a legally disputed questions, a judge should adopt the legally eligible answer that would be morally best. See, e.g., Joseph Raz, Incorporation by Law, 10 Legal Theory 1 (2004).For a different argument from mine to the shared conclusion that disputed constitutional provisions typically lack uniquely correct and determinate linguistic meanings, see Frederick Mark Gedicks, The ‘Fixation Thesis’ and Other Falsehoods, 72 Fla. L. Rev. 219, 223–24 (2020) (arguing that belief in original public meanings represents an ontological mistake because “[t]he meaning of any text from the past is also shaped by the demands of the interpreter” with the result that “in the present[,] textual meaning is mutually constituted by past and present”).Show More

In developing my argument that constitutional provisions lack uniquely correct, original public meanings in the special, stipulated sense that leading originalists postulate, this Article pursues a two-pronged strategy. One branch of my argument advances analytically-based criticisms of PMO. The second juxtaposes the linguistic assumptions that undergird PMO with the picture of linguistic and ultimately constitutional meaning that emerges from work by historians and especially from a recent book on Reconstruction and the Reconstruction Amendments, entitled The Second Founding: How the Civil War and Reconstruction Remade the Constitution, by the eminent historian Professor Eric Foner.41 41.Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution, at xxiv (2019).Show More In describing Foner as an eminent historian, I do not vouch for his conclusions. For purposes of thinking about the plausibility of PMO, however, I accept his account of disagreement and uncertainty among those who helped draft the Fourteenth Amendment and who struggled to identify its communicative content.

In contrast with PMO’s posit that constitutional provisions have single linguistic meanings, Foner insists that the language of the Fourteenth Amendment had multiple, diverse meanings at the time of its promulgation. “[T]he meaning of key concepts embedded in the Reconstruction amendments such as citizenship, liberty, equality, rights, and the proper location of political authority—ideas that are inherently contested—were themselves in flux,”42 42.Id.Show More he writes. More than one Congressman expressed doubt about what key provisions of the Fourteenth Amendment meant. Others confessed to having changed their minds about what rights the Fourteenth Amendment ought to create in the course of debates. If these claims are true, they should inspire skepticism about any version of PMO that posits the existence of original public meanings that extend beyond minimally necessary and noncontroversial meanings and that can be discerned, without a well-specified theory for how to resolve disagreements about central issues, as a matter of historical and linguistic fact.43 43.Crediting Foner’s specific factual claims, a public meaning originalist might say that even if Foner has shown that the communicative content of the Fourteenth Amendment was vague or underdeterminate in many relevant respects, this finding does not preclude PMO’s claim to be able to identify uniquely correct meanings, going beyond minimally necessary meanings, in some other cases of historical disagreement. See Solum, Public Meaning Thesis, supra note 39 (manuscript at 52) (“[T]he case for Public Meaning Originalism would actually be quite strong if, at the end of the day, it turned out that only [the Privileges or Immunities and Equal Protection Clauses of the Fourteenth Amendment] were so underdeterminate that their original public meaning left almost all of the important contemporary questions in the construction zone.”). I reject that originalist response, for reasons given already. Original public meanings in the originalist sense are the artifacts of a model for the generation of linguistic meanings or communicative content that is too poorly specified to generate uniquely correct meanings in any historically debated or reasonably disputable case.Show More

The Article unfolds as follows. Part I lays out the main tenets of PMO, including its Interpretive Methodology and Conceptual Assumptions. Part I also offers a preliminary contrast between PMO’s conception of linguistic meaning and the alternative reflected in Professor Foner’s recent book, which argues that constitutional provisions can have multiple meanings. According to Foner, “no historian believes that any important document possesses a single intent or meaning.”44 44.Foner, supra note 41, at xxiv.Show More Part II debunks the notion that constitutional provisions have a single, factually identifiable, original linguistic meaning that extends beyond their necessary or historically noncontroversial meanings. Part III charts the implications of my thesis for public meaning originalists, for nonoriginalist as well as originalist judges and Justices, for constitution-writers and students of written constitutionalism, and for theories of statutory interpretation. Part IV furnishes a brief conclusion.

Foreign-Influence Laws: The Constitutionality of Restrictions on Independent Expenditures by Corporations with Foreign Shareholders

A decade on, legislatures are still coming to terms with the reach of Citizens United. In a novel push to cabin the effects of the opinion, legislatures have passed or are seeking to pass regulations that raise the specter of foreign intervention in American politics—a menace with which contemporary American political life has become well acquainted. Yet in doing so these legislatures overreach, and they will likely fail to escape the modern Charybdis that is Citizens United.

This Note provides the campaign finance literature’s first detailed taxonomy and discussion of what it calls “foreign-influence laws.” These regulations bar corporations from making independent expenditures when foreigners own a certain percentage of a firm’s shares, a result that appears to directly contradict the Supreme Court’s guidance in Citizens United. Three jurisdictions recently passed foreign-influence laws, and an increasing number of state legislators are proposing them. The statutes emphasize the incompatibility of Citizens United, which protects corporate political speech, and Bluman, which authorizes restrictions on foreigners’ political participation. Nevertheless, neither Citizens United nor Bluman supports the constitutionality of these laws. This Note also provides the first rigorous constitutional analysis of foreign-influence laws, arguing that the regulations should receive strict scrutiny and that the government has a compelling interest to limit the political speech of foreign entities. However, the laws are not narrowly tailored to that interest, given shareholders’ limited power to influence corporate political decisions. As a result, this Note concludes that foreign-influence laws are not constitutional. The Note then provides recommendations to legislatures and courts considering foreign-influence laws, as well as potential alternatives that courts will likely find constitutional.

Introduction

In January 2020, the Seattle City Council enacted a new ordinance designed to limit the political spending of what it called “foreign-influenced corporations.”1 1.See Seattle, Wash., Ordinance 126,035 (Jan. 17, 2020).Show More The law bans any corporation from spending in connection with local elections when a single foreign national owns a 1% stake in the firm, or when foreign nationals in aggregate own 5% or more of the firm.2 2.See Seattle, Wash., Mun. Code tit. 2, ch. 4, §§ 10, 400 (2020).Show More The city council member who sponsored the ordinance explained, “this legislation closes a loophole that previously allowed foreign persons to use their ownership in a corporation to influence political activity.”3 3.Press Release, Seattle City Council, Council President González’s Clean Campaigns Act Passes (Jan. 13, 2020), https://council.seattle.gov/2020/01/13/council-president-gonzalezs-clean-campaigns-act-passes/ [https://perma.cc/6YTT-MZ2Z].Show More In passing the measure, the city council vice chair expressed concern over the effects of foreign money on the American democratic process, noting not only foreign nationals’ growing ownership shares in U.S. corporations but also that “foreign interests can easily diverge from U.S. interests . . . nationally, and . . . locally in municipal government.”4 4.City Council 1/13/2020, Seattle Channel, at 35:37–36:03 (Jan. 13, 2020), http://www.seattlechannel.org/FullCouncil/?videoid=x110205&Mode2=Video [https://perma.cc/BQ8C-MHFK].Show More Seattle’s prohibition on foreign-influenced corporate spending covers not only contributions directly to campaigns, but also contributions to political committees and independent expenditures5 5.Independent expenditures are communications advocating the election or defeat of a candidate and are not coordinated with campaigns. See 11 C.F.R. § 100.16 (2020).Show More when foreigners hold stakes in the donating corporation.6 6.See Seattle, Wash., Mun. Code tit. 2, ch. 4, §§ 10, 400 (2020).Show More For corporations with significant foreign shareholders, these rules re-impose the prohibition on corporate independent expenditures that the Supreme Court ruled unconstitutional in Citizens United v. Federal Election Commission.7 7.558 U.S. 310, 365–66 (2010).Show More

Yet Seattle is not alone in enacting this type of statute. Local and state legislators across the United States have either passed or are considering similar legislation, with support and urging from campaign finance reformers and legal scholars.8 8.Supporters include Free Speech for People, FEC Commissioner Ellen Weintraub, and law professors Laurence Tribe and John Coates, among others. Challenging Foreign Influence in Elections, Free Speech for People, https://freespeechforpeople.org/foreign-influence/ [https://perma.cc/P4XN-DA94] (last visited Apr. 10, 2021); Free Speech for People Applauds Provision in Anti-Corruption and Public Integrity Act Banning Political Spending by Foreign-Influenced Corporations, Free Speech for People (Dec. 22, 2020), https://freespeechforpeople.org/free-speech-for-people-applauds-provision-in-anti-corruption-and-public-integrity-act-banning-political-spending-by-foreign-influenced-corporations/ [https://perma.cc/59CN-AVQY]; Ellen L. Weintraub, Taking on Citizens United, N.Y. Times (Mar. 30, 2016), https://www.nytimes.com/2016/03/30/opinion/taking-n-citizens-united.html [https://perma.cc/V5TX-Q3V4]; Letter from Laurence H. Tribe, Professor, Harv. L. Sch., to the Seattle City Council (Jan. 3, 2020), https://freespeech‌forpeople.org/wp-content/uploads/2020/01/tribe-testimony-1-3-2020-proposed-ordinance-to-limit-political-spending-by-foreign_influenced-corporations.pdf [https://perma.cc/QD7J-SZ8T] [hereinafter Letter from Tribe]; Letter from John Coates, Professor, Harv. L. Sch., to Barry Finegold, Chairman, Mass. State House, and John L. Lawn, Jr., Chairman, Mass. State House (May 14, 2019), https://freespeechforpeople.org/wp-content/uploads/2019/05/2019-Coates-MA-FIC-20190514-PDF-final.pdf [https://perma.cc/MC3Y-YXWK] [hereinafter Letter from John Coates]; infra notes 29–40 and accompanying text.Show More Despite the fact that these laws prohibit nearly all major U.S. corporations from engaging in independent expenditures,9 9.See Michael Sozan, Ctr. for Am. Progress, Ending Foreign-Influenced Corporate Spending in U.S. Elections 42 (2019).Show More advocates argue that the regulations are not only constitutional,10 10.Letter from Tribe, supra note 8; City Council 1/13/2020, Seattle Channel, at 27:17–28:09 (Jan. 13, 2020), http://www.seattlechannel.org/FullCouncil/?videoid=x110205&Mode2=‌Video [https://perma.cc/YJ4Z-CYBX].Show More but also critical for protecting American elections from foreign interference.11 11.See, e.g., Challenging Foreign Influence in Elections, Free Speech for People, https://freespeechforpeople.org/foreign-influence/ [https://perma.cc/G5WP-29XH] (last visited Apr. 10, 2021).Show More For support, advocates look to Bluman v. Federal Election Commission, a 2011 case in which the U.S. District Court for the District of Columbia upheld the federal statute barring foreign nationals from providing anything of value in connection with elections on the federal, state, and local level.12 12.See 18 U.S.C. § 30121 (2018); Bluman v. Fed. Election Comm’n, 800 F. Supp. 2d 281, 283 (D.D.C. 2011). Then-Circuit Judge Kavanaugh wrote the court’s opinion. See Letter from Tribe, supra note 8.Show More

This Note argues, however, that the doctrinal issues stalking laws limiting the political activity of U.S.-based, “foreign-influenced” corporations cannot be so easily dismissed, and Bluman does not actually support curtailing U.S. corporate speech. A deeper analysis of the statutes and case law exposes significant problems that supporters have yet to confront. Furthermore, these laws emphasize a clash between the expansion of corporate speech rights in Citizens United and the continued constraints on foreign speakers’ rights upheld in Bluman. This incompatibility is rendered particularly stark by the growing percentage of foreign-owned U.S. corporate stock, as well as the conclusion that publicly-traded American corporations can rarely be considered entirely American.13 13.According to Federal Reserve data, foreign ownership of U.S. corporate stock grew from about 5% in 1982 to 26% in 2015. See Steven M. Rosenthal & Lydia S. Austin, The Dwindling Taxable Share of U.S. Corporate Stock, 151 Tax Notes 923, 928–29 (2016).Show More To resolve this mismatch between Citizens United and Bluman, the Supreme Court will likely need to provide further guidance, and this Note considers several problems foreign-influence laws present in the context of this discord.

This exploration includes the first detailed account of legislatures’ efforts to pass foreign-influence laws across the United States at the federal, state, and local levels. Part I discusses the history of these laws, as well as recent enactments and proposals. This represents the first taxonomy of what this Note calls “foreign-influence laws.” Part II discusses campaign finance laws and decisions related to both corporations and foreigners, before exploring the degree to which Bluman and Citizens United stand at odds—an aspect of the case law that has to date largely been considered in passing. Part III then argues that foreign-influence laws are likely unconstitutional because they are not narrowly tailored to the government’s interest in controlling foreigners’ political speech. This Part also considers the degree to which foreign-influence laws chill protected speech and discusses federalism concerns that weigh against deference to local legislatures. These problems lead to the conclusion that foreign-influence laws are likely unconstitutional under current Supreme Court guidance. Finally, Part IV provides recommendations to courts and legislatures considering foreign-influence laws, as well as potential alternative approaches to restricting foreign influence on elections that pose fewer constitutional difficulties.

How Litigation Imports Foreign Regulation

Foreign regulators exert a powerful and deeply underestimated influence on American complex litigation. From the French Ministry of Health and the United Kingdom’s National Health Services, to the Japanese Fair Trade Commission and the European Commission, foreign agencies have participated in some of the most important cases in the last two decades. The intersections between American litigation and foreign regulation range from plaintiff discovery requests of documents produced by or to foreign regulators, to coattail class actions against multinationals triggered by enforcement penalties abroad, all the way to foreign agency letters submitted to U.S. courts expressing an interest in a case. Indeed, dozens upon dozens of the most important multidistrict cases in the country—covering over 100,000 claims—have been influenced by foreign regulatory documents or enforcement actions. In this manner, litigation is importing foreign regulatory zeal to the United States. Yet few American legal actors know that foreign regulation affects domestic cases and even judges are unsure whether this practice is appropriate.

This Article presents a systematic study of the new relationship between foreign regulation and American litigation. The cross-border spread of litigation ideas sits at the center of broader debates about complex litigation, the regulatory role of multidistrict litigation, the recent trend of litigation isolationism, and the expanding role of discovery. The Article argues that litigation can import and domesticate foreign regulations, allowing private litigants to audit the work of captured domestic agencies. For instance, litigators can measure the work of the FDA against health regulators in France, or the work of the FTC against regulators in Germany. Litigation can also push U.S. law to match foreign regulation, promoting a rough harmonization across borders, coherence, and convergence. While the litigation-led use of foreign regulation promises a wealth of benefits for U.S. law, it has not been sufficiently recognized, nudged forward, or appreciated. The Article thus seeks to provide a solid theoretical footing for the incorporation of foreign regulations and argues that an understanding of litigation-led globalization clarifies scholarly debates in a variety of literatures. After this analysis, the Article also argues that courts should invite American regulators to help them decide whether to welcome or reject this foreign influence.

Introduction

In 2015, hundreds of pregnant mothers sued the pharmaceutical giant GlaxoSmithKline (“GSK”) in courts throughout the United States, alleging that the drug Zofran caused severe birth defects.1 1.In re Zofran (Ondansetron) Prods. Liab. Litig., 368 F. Supp. 3d 94, 98 (D. Mass. 2019).Show More After the cases were consolidated into a massive multidistrict litigation, GSK argued there was no evidence that the drug caused birth defects and that even the Food and Drug Administration (“FDA”) had repeatedly rejected that link.2 2.Id.Show More Lacking sufficient evidence and facing the prospect of an adverse summary judgment, the plaintiffs’ case looked weak. But their claims came to hinge on a new source of evidence—discovered documents that defendants had produced in the 1990s to the Japanese Ministry of Health and Welfare, including a series of animal studies showing potential birth defects that defendants had “performed specifically to satisfy Japanese regulatory requirements.”3 3.Id. at 108 (internal quotation marks omitted).Show More The use of discovery to uncover these communications allowed plaintiffs to defeat a motion for summary judgment, pegging their case to the content and application of Japanese regulations.4 4.Id. at 99.Show More

Switching to a different context, in a series of spring press releases in 2017, Mexican antitrust regulators announced an investigation into seven banks, including three U.S. entities, for “price fixing and collusion in the government bond intermediation market.”5 5.In re Mexican Gov’t Bonds Antitrust Litig., 412 F. Supp. 3d 380, 383–84 (S.D.N.Y. 2019) (internal quotation marks omitted).Show More That announcement triggered a piggyback antitrust lawsuit in the United States against the three American banks: J.P. Morgan, Citibank, and Bank of America. All three defendants moved to dismiss the claim, arguing that plaintiffs’ complaint did not meet Twombly’s pleading standard because there was no plausible allegation of a conspiracy.6 6.Id.at 387; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545–46 (2007); Defendants’ Memorandum of Law in Support of Their Joint Motion to Dismiss for Failure to State a Claim at 7–18, In re Mexican Gov’t Bonds, 412 F. Supp. 3d 380 (No. 1:18-cv-02830).Show More Plaintiffs, among other things, responded that the Mexican investigation—and all of its potential documents—were a “plus factor” that makes their allegations more plausible.7 7.Plaintiffs’ Memorandum of Law in Opposition to Defendant’s Joint Motion to Dismiss the Consolidated Class Action Complaint for Failure to State a Claim at 18, In re Mexican Gov’t Bonds, 412 F. Supp. 3d 380 (No. 1:18-cv-02830).Show More Due to settlement negotiations and dismissal on other grounds, Judge Oetken ultimately did not decide whether the existence of a foreign investigation can nudge a plaintiff’s claims beyond the plausibility requirement.8 8.In re Mexican Gov’t Bonds Antitrust Litig., No. 18-cv-2830, 2020 WL 7046837, at *4 (S.D.N.Y. Nov. 30, 2020) (granting motion to dismiss on other grounds); In re Mexican Gov’t Bonds Antitrust Litig., No. 18-cv-02830, 2020 WL 7398747, at *1 (S.D.N.Y. Dec. 16, 2020) (approving proposed settlement).Show More

In re Zofran and In re Mexican Government Bonds are just two of thousands of claims in the United States that have been heavily shaped by foreign regulations.9 9.See infra Part I.Show More Indeed, foreign regulators have come to exert a powerful and underestimated influence on American litigation. From the French Ministry of Health and the United Kingdom’s National Health Service, to the Japanese Fair Trade Commission and the European Commission, foreign agencies have shaped some of the most important cases in the last decade, ranging from antitrust claims, technology and privacy class actions, all the way to mass torts litigation.10 10.See In re Davol, Inc./C.R. Bard, Inc., Polypropylene Hernia Mesh Prods. Liab. Litig., No. 2:18-md-2846, 2019 WL 341909, at *1 (S.D. Ohio Jan. 28, 2019) (National Health Services); Eve v. Sandoz Pharm. Corp., No. 98-1429, 2001 U.S. Dist. LEXIS 4531, at *71 (S.D. Ind. Mar. 7, 2001) (French Health Ministry); Plaintiffs’ Reply in Support of Their Motions to Compel re: RFP No. 33 and Interrogatory No. 35 at 1, In re Capacitors Antitrust Litig., 106 F. Supp. 3d 1051 (N.D. Cal. July 18, 2014) (No. 3:14-cv-03264) (Japanese and Korean Fair Trade Commissions); Special Master’s Order Denying Motion of Direct Purchaser Class Plaintiffs to Compel Hitachi to Produce Foreign Regulatory Documents at 4, In re TFT-LCD (Flat Panel) Antitrust Litig., 599 F. Supp. 2d 1179 (N.D. Cal. Apr. 26, 2011) (No. 3:07-md-01827) (European Commission).Show More The intersections between American litigation and foreign regulation include American discovery of documents produced to foreign regulators, coattail U.S. class actions against multinationals triggered by enforcement penalties abroad, and foreign agency letters submitted to U.S. district courts expressing an interest in a pending case.11 11.See infra Part I.Show More Sometimes the relationship is more informal—American litigators draw on foreign case theories, strategies, and findings.

In this manner, litigation is discreetly importing foreign regulatory zeal to the United States. Yet few American legal actors know that foreign regulation is impacting American cases, and even judges are unsure whether this practice is appropriate.

This Article presents the first systematic study of the relationship between foreign regulation and American litigation. It lays out the wide array of intersections between these two legal institutions, showing that this is an important, extensive, and understudied phenomenon. Scholars have long debated the role of foreign law in a handful of U.S. cases dealing with the alien tort statute, constitutional interpretation, or sovereign immunity, among others.12 12.See, e.g., Roper v. Simmons, 543 U.S. 551, 575–78 (2005) (constitutional interpretation); Hannah L. Buxbaum, Transnational Regulatory Litigation, 46 Va. J. Int’l L. 251, 253–54 (2006) (one hundred foreign-cubed securities suits); Cortelyou C. Kenney, Measuring Transnational Human Rights, 84 Fordham L. Rev. 1053, 1060 (2015) (sovereign immunity).Show More But the literature has mostly overlooked how thousands of domestic law claims rely extensively on foreign regulations.

More generally, the dominant view within the judiciary, led by the Supreme Court, has switched to skepticism of foreign law and foreign cases in U.S. courts.13 13.See, e.g., Animal Sci. Prods., Inc. v. Hebei Welcome Pharm. Co., 138 S. Ct. 1865, 1869 (2018) (declining to grant “conclusive effect” to a foreign government’s interpretation of its own law); Bodum USA, Inc. v. La Cafetiere, Inc., 621 F.3d 624, 628–29 (7th Cir. 2010); Pamela K. Bookman, Litigation Isolationism, 67 Stan. L. Rev. 1081, 1084–85 (2015); David J. Seipp, Our Law, Their Law, History, and the Citation of Foreign Law, 86 B.U. L. Rev. 1417, 1417 (2006); cf.Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 124–25 (2013) (declining to apply the Alien Tort Statute extraterritorially). See alsoMaggie Gardner, “Foreignness”, 69 DePaul L. Rev. 469 (2020) (exploring what counts as a “foreign” case).Show More And this view often transcends partisan lines. Addressing questions about the potential approval of a coronavirus vaccine in the United Kingdom, Speaker Pelosi recently argued that Americans could not rely on foreign regulators who were not “on par” with the U.S. Food and Drug Administration:

We have very stringent rules about the Food and Drug Administration here about clinical trials, timing, number of people etc[.], so that when a drug is approved by the FDA that it’s safe and efficacious, then it has the trust of the American people. . . . My concern is that the UK’s system for that kind of judgment is not on par with ours. So if Boris Johnson decides he’s going to approve a drug and this president embraces that, that’s the concern I have.14 14.Peter Beaumont & Sarah Boseley, US Won’t Rely on UK for Covid Vaccine Safety Tests, Says Nancy Pelosi, Guardian (Oct. 9, 2020, 1:28 PM), https://www.theguardian.com/society/2020/oct/09/us-wont-rely-on-uk-for-covid-vaccine-safety-tests-says-nancy-pelosi [https://perma.cc/LQ3M-HRBZ] (emphasis added).Show More

Yet, despite this aversion to the importation of foreign law, American litigants routinely rely on foreign regulations to shape thousands of claims every year—even when foreign regulators disagree with U.S. regulators.15 15.See, e.g., Bodum, 621 F.3d at 628, 630–31.Show More This Article highlights the hidden but powerful role that foreign regulations have occupied in complex litigation, a fact which should inform assumptions in an array of related literatures.16 16.See Gregory Shaffer, Globalization and Social Protection: The Impact of EU and International Rules in the Ratcheting Up of U.S. Privacy Standards, 25 Yale J. Int’l L. 1, 74–75 (2000) (suggesting that U.S. businesses’ wariness to EU regulation is partially rooted in “businesses’ experience with U.S. legal culture”); David P. Graham & Jacqueline M. Moen, Discovery of Regulatory Information for Use in Private Products Liability Litigation: Getting Past the Road Blocks, 27 Wm. Mitchell L. Rev. 653, 655 (2000) (discussing cross-border discovery).Show More

Part I of the Article begins by outlining three major channels through which foreign regulation is creeping into complex litigation cases. One common channel involves cases with American plaintiffs against multinational defendants in which plaintiffs request in discovery any documents that defendant produced to or received from foreign regulators. The kicker is that often, plaintiffs are interested in these documents because some foreign regulators impose higher burdens of production than domestic ones. In this manner, plaintiffs can take advantage of more burdensome safety and efficacy requirements imposed by, say, France or Japan. These cases cover dozens of the most important multidistrict litigation suits (“MDL”), including hundreds of thousands of products liability claims over faulty blood filters,17 17.In re Bard IVC Filters Prods. Liab. Litig., 2020 WL 1166224, at *1–2 (D. Ariz. Mar. 6, 2020).Show More anti-psychotic medications linked to diabetes,18 18.In re Seroquel Prods. Liab. Litig., 447 F. Supp. 2d 1376, 1378 (J.P.M.L. 2006).Show More contraceptives,19 19.In re Yasmin & YAZ (Drospirenone) Mktg., Sales Practices & Prods. Liab. Litig., No. 3:09-md-02100, 2011 WL 6733952, at *1 (S.D. Ill. Dec. 16, 2011).Show More a drug that allegedly caused birth defects,20 20.In re Zofran (Ondansetron) Prods. Liab. Litig., 368 F. Supp. 3d 94, 94–95, 107–08 (D. Mass. 2019).Show More surgical mesh products,21 21.In re Ethicon, Inc. Pelvic Repair Sys. Prod. Liab. Litig., 299 F.R.D. 502, 509 (S.D. W. Va. 2014).Show More talcum powder,22 22.In re Johnson & Johnson Talcum Powder Prods., Mktg., Sales Pracs. & Prods. Liab. Litig., No. 3:16-md-02738, 2017 WL 5196741, at *1–2 (D.N.J. Nov. 6, 2017).Show More and a blood anticoagulant.23 23.In re Xarelto (Rivaroxaban) Prods. Liab. Litig., 65 F. Supp. 3d 1402, 1404 (J.P.M.L. 2014).Show More Importantly, through discovery in these cases, plaintiffs benefit from foreign regulations that exceed FDA requirements and effectively subject defendants to foreign regulations in U.S. courts.24 24.This phenomenon is the reverse of cases in which foreign litigants seek to use our broad discovery system in aid of foreign cases. SeeYanbai Andrea Wang, Exporting American Discovery, 87 U. Chi. L. Rev. 2089, 2092–93 (2020).Show More

Section I.B outlines a second channel involving American plaintiffs riding on the coattails of foreign agency findings or enforcement. These cases arise when agencies in countries like France or Germany either file successful claims in their own courts against multinationals or publicize the results of a new investigation or study. These public filings prompt American plaintiffs to file analogous claims in the United States under domestic law, transforming foreign regulatory actions into U.S. litigation.25 25.It is worth noting that claims filed in the United States that do involve foreign law often become entangled with foreign regulatory agencies. See, e.g.,Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 246 (2004).Show More For instance, a 2015 World Health Organization study, which found that glyphosate was likely a human carcinogen, triggered a massive and ongoing case against Monsanto over the glyphosate-based weed killer Roundup.26 26.See Complaint at 2, 11–12, Hardeman v. Monsanto Co., 216 F. Supp. 3d 1037 (N.D. Cal. 2016) (No. 4:16-cv-00525), 2016 WL 11574934.Show More This WHO study was not only the spark for the case, but it has also shaped the entire path of the litigation, including complaints, media coverage, discovery, trial, and an ongoing battle of foreign regulators, in which both plaintiffs and defendant have submitted studies and evidence on foreign regulatory findings from dozens of countries.27 27.Indeed, in the midst of these cases, dozens of foreign regulators have banned glyphosate. See Where Is Glysophate Banned?, Baum Hedlund Aristei & Goldman PC, https://www.baumhedlundlaw.com/toxic-tort-law/monsanto-roundup-lawsuit/where-is-glyphosate-banned-/ [https://perma.cc/XFA4-HG2T] (last visited July 18, 2020).Show More Similarly, plaintiffs have filed an array of cases against tech companies over privacy violations, citing European data protection laws and enforcement actions. These privacy related claims may represent what one survey of general counsels calls “the next wave of class actions.”28 28.2019 Carlton Fields Class Action Survey: Best Practices in Reducing Cost and Managing Risk in Class Action Litigation 4 (2019).Show More These cases present a remarkable expansion of foreign regulatory influence on American litigation.29 29.See infra Parts I & II.Show More

The final channel discussed in Section I.C. is when foreign regulators file letters of interest in ongoing cases, primarily in the antitrust context. These cases also involve discovery of documents produced to foreign antitrust regulators. But, unlike the cases above, a foreign agency then files a letter with U.S. courts objecting to the alleged violation of sovereignty and requesting that the information be kept confidential. For instance, just in the past decade, plaintiffs have filed class action claims alleging price-fixing by multinational corporations in an array of industries like vitamins,30 30.Animal Sci. Prods., Inc. v. Hebei Welcome Pharm. Co. Ltd., 138 S. Ct. 1865, 1867 (2018).Show More air freight,31 31.In re Air Cargo Shipping Servs. Antitrust Litig., No. 06-md-1175, 2014 WL 7882100, at *1 (E.D.N.Y. Oct. 15, 2014).Show More metals,32 32.In re Capacitors Antitrust Litig., 106 F. Supp. 3d 1051, 1058 (N.D. Cal. 2015).Show More credit cards,33 33.In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., 986 F. Supp. 2d 207, 213 (E.D.N.Y. 2013).Show More and TV panels.34 34.In re TFT-LCD (Flat Panel) Antitrust Litig., 599 F. Supp. 2d 1179, 1183 (N.D. Cal. 2009).Show More These cases prompted the Chinese Ministry of Commerce, the European Commission, the Korea Fair Trade Commission, and the Japanese Fair Trade Commission to write letters arguing that the disclosure of documents would weaken their antitrust laws.35 35.See infra notes 165, 169, 171 and accompanying text. This phenomenon represents one of myriad challenges posed by globalizing markets and the proliferation of antitrust law worldwide. SeeF. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 165 (2004).Show More In this manner, foreign regulators influence American law. 36 36.There is an older literature on the reverse phenomenon—the application of U.S. antitrust law abroad. SeeJonathan T. Schmidt, Note, Keeping U.S. Courts Open to Foreign Antitrust Plaintiffs: A Hybrid Approach to the Effective Deterrence of International Cartels, 31 Yale J. Int’l L. 211, 221–22 (2006); Wolfgang Wurmnest, Foreign Private Plaintiffs, Global Conspiracies, and the Extraterritorial Application of U.S. Antitrust Law, 28 Hastings Int’l & Comp. L. Rev. 205 (2005).Show More

These three channels show how U.S. litigants are taking advantage of foreign regulations to shape cases in U.S. courts. Most of the time it is plaintiffs that seek foreign input to counter the strategy of multinational companies that selectively reveal information to some regulators but not others. But defendants can also present foreign regulatory approvals as exculpatory, pushing against liability in U.S. court. On the whole, U.S. litigants are importing regulatory information and not necessarily legal standards. But this information is only generated due to different legal requirements and is inevitably tied to a set of foreign institutions set up to produce and enforce law. This interaction is therefore not solely epistemic. As I argue below, foreign regulatory information can have a substantive effect on U.S. law.

After documenting these channels, Part II of the Article explores the consequences of this litigation and foreign regulation interaction, with specific focus on the role of foreign law in U.S. court, multidistrict litigation, regulatory harmonization, and the so-called Brussels Effect. Scholars and courts have long wrestled with the influence of foreign law on American litigation,37 37.Roper v. Simmons, 543 U.S. 551, 578 (2005); Vicki C. Jackson, Constitutional Comparisons: Convergence, Resistance, Engagement, 119 Harv. L. Rev. 109, 116–24 (2005); Daniel J. Frank, Note, Constitutional Interpretation Revisited: The Effects of a Delicate Supreme Court Balance on the Inclusion of Foreign Law in American Jurisprudence, 92 Iowa L. Rev. 1037, 1064–69 (2007). For broader debates about foreign law in U.S. litigation, see, e.g., Jenny S. Martinez, Who’s Afraid of International and Foreign Law?, 104 Calif. L. Rev. 1579 (2016) [hereinafter, Martinez, Who’s Afraid?]; Ganesh Sitaraman, The Use and Abuse of Foreign Law in Constitutional Interpretation, 32 Harv. J.L. & Pub. Pol’y 653 (2009). In the most closely related work to date, David Noll argued that U.S. courts have promoted a policy whereby “U.S. regulatory systems are disabled in favor of regulation by other legal systems.” David L. Noll, The New Conflicts Law, 2 Stan. J. Complex Litig. 41, 44 (2014) [hereinafter Noll, Conflicts]. In this Article, however, I highlight how lower courts have allowed foreign regulation to complement domestic private enforcement.Show More and the rise of cross-border agency networks that promote regulatory convergence.38 38.Paul Schiff Berman, Global Legal Pluralism, 80 S. Cal. L. Rev. 1155, 1224–25 (2007); Eric C. Chaffee, The Internationalization of Securities Regulation: The United States Government’s Role in Regulating the Global Capital Markets, 5 J. Bus. & Tech. L. 187, 193–95 (2010).Show More But these debates have not considered the ways in which American litigation can import foreign regulation. The Article argues that while this phenomenon promises a wealth of benefits for U.S. institutions, it has not been sufficiently recognized, appreciated, or nudged forward. The Article argues that litigation-led globalization clarifies debates in three areas:

In Section II.A, the Article provides a normative appraisal, arguing that litigation can borrow foreign regulatory information, a process that promises benefits and corrects the conventional wisdom about foreign law in U.S. courts.39 39.See, e.g., Jackson, supra note 37, 116–18; Stephen C. Yeazell, When and How U.S. Courts Should Cite Foreign Law, 26 Const. Comment. 59, 67 (2009) [hereinafter Yeazell, Foreign Law]; Eugene Volokh, Foreign Law in American Courts, 66 Okla. L. Rev. 219, 227 (2014). The Article contributes to a literature examining the relationship between foreign and domestic regulation. See, e.g., Jason Marisam, The Internationalization of Agency Actions, 83 Fordham L. Rev. 1909 (2015); Buxbaum, supra note 12.Show More One benefit is that private claims that draw on foreign regulators can serve as a “failsafe” when domestic regulators are captured. In that sense, this kind of litigation can improve and audit (or replace) the work of domestic regulators. For instance, litigators can measure the work of the FDA against health regulators in France, or the work of the FTC against regulators in Europe. This failsafe role is particularly important given that research shows the staggering amount of lobbying that takes place in the United States as compared to some European countries.40 40.Anu Bradford, The Brussels Effect: How the European Union Rules the World 251 (2019) [hereinafter Bradford, Brussels Effect Book].Show More Moreover, these cases can also allow domestic regulators to draw on foreign expertise and improve domestic rules. For instance, in In re Zofran—involving agencies in the United Kingdom, Canada, and Japan—the judge personally submitted a comment to the FDA disclosing the facts of the case and urging the FDA to engage in rule-making “as expeditiously as possible.”41 41.Letter from F. Dennis Saylor, IV, C.J. D. Mass., to Stacy Cline Amin, Chief Counsel, FDA (Dec. 13, 2019).Show More The use of foreign regulations to inform both tort liability and rulemaking exemplifies how litigation can domesticate the fruits of foreign regulations.

A sustained focus on litigation as an agent of globalization also highlights the understudied interaction between multidistrict litigation and foreign law.42 42.The one explicit comment about this phenomenon notes that evidentiary rulings usually exclude foreign regulatory evidence but fails to recognize that earlier discovery rulings typically allow it. SeeMark Herrmann & David B. Alden,Drug & Device Product Liability Litigation Strategy 383 (2012).Show More The federal multidistrict statute, 28 U.S.C. § 1407, allows a panel of federal judges to consolidate thousands of related cases.43 43.28 U.S.C. § 1407 (2018); see, e.g., Nora Freeman Engstrom, The Lessons of Lone Pine, 129 Yale L.J. 2, 7 (2019) (discussing the literature) [hereinafter Engstrom, Lone Pine].Show More Most of the literature has focused on the domestic impact of this consolidation.44 44.See Engstrom, Lone Pine, supra note 43; Elizabeth Chamblee Burch, Remanding Multidistrict Litigation, 75 La. L. Rev. 399 (2014); Elizabeth Chamblee Burch & Margaret S. Williams, Judicial Adjuncts in Multidistrict Litigation, 120 Colum. L. Rev. 2129 (2020); Andrew D. Bradt, The Long Arm of Multidistrict Litigation, 59 Wm. & Mary L. Rev. 1165 (2018).Show More But it appears that foreign regulations have been at the core of some of the most important multidistrict litigation cases in the past decade, raising questions about the inner workings of MDLs and discovery. By uncovering and breaking down this process, the Article urges scholars to further explore the interaction between MDLs and foreign law.45 45.For samples of the existing literature on this relationship, see, e.g., Cassandra Burke Robertson, Transnational Litigation and Institutional Choice, 51 B.C. L. Rev. 1081 (2010).Show More

Section II.B of the Article then shows that litigation can be a surprising vehicle for regulatory harmonization, borrowing from and contributing to a literature on global administrative law.46 46.See generallyDaniel W. Drezner, Globalization, Harmonization, and Competition: The Different Pathways to Policy Convergence, 12 J. Eur. Pub. Pol’y 841 (2005) (considering the role of agencies in enhancing international regulatory harmonization); Beth Simmons, The International Politics of Harmonization: The Case of Capital Market Regulation, in Dynamics of Regulatory Change: How Globalization Affects National Regulatory Policies 42, 50–52 (David Vogel & Robert A. Kagan eds., 2004) (outlining challenges in regulating international capital markets); Jean Galbraith & David Zaring, Soft Law as Foreign Relations Law, 99 Cornell L. Rev. 735 (2014) [hereinafter Galbraith & Zaring, Soft Law] (recharacterizing “soft law” as the intersection of administrative and foreign relations law); Gabriella Blum, Bilateralism, Multilateralism, and the Architecture of International Law, 49 Harv. Int’l L.J. 323 (2008) (discussing the role of bureaucracies in shaping international treaty law); Anne-Marie Slaughter, Sovereignty and Power in a Networked World Order, 40 Stan. J. Int’l L. 283 (2004) (arguing that international cooperation enhances, rather than diminishes, state sovereignty); Lawrence L.C. Lee, The Basle Accords as Soft Law: Strengthening International Banking Supervision, 39 Va. J. Int’l L. 1 (1998) (recounting international movements against financial regulation and considering novel sources of international governance).Show More Recent works have explored the ways in which regulators develop transnational links that translate into common domestic regulatory agendas.47 47.See generallyBradford, Brussels Effect Book, supra note 40 (chronicling this phenomenon).Show More This is especially true during global events like the 2008 financial crisis, in which the Federal Reserve coordinated its response with European agencies.48 48.SeeGalbraith & Zaring, Soft Law, supra note 46, at 737.Show More But this Article argues that, because U.S. litigation often assumes the role of regulation, we should also expect litigation to serve as a vehicle of regulatory harmonization.49 49.See infra Subsection II.B.1.Show More And, as I show below, litigation may already be playing that role.50 50.See infra Subsection II.B.2.Show More

This litigation-led harmonization also challenges traditional views about U.S. adversarial legalism, as compared to European bureaucratic legalism.51 51.See, e.g., Robert A. Kagan, Adversarial Legalism: The American Way of Law 3–4 (2001); Sean Farhang, The Litigation State: Public Regulation and Private Lawsuits in the U.S. (2010); William M. Landes & Richard A. Posner, The Private Enforcement of Law, 4 J. Legal Stud. 1 (1975).Show More While much has been made of the differences between ex post private enforcement and ex ante regulation, the cases discussed here show that there can be substantial overlap and dialogue between the two systems.52 52.See infra Subsection II.A.2.Show More This straightforward finding may have implications for political theory and congressional choices.

Finally, Section II.C. joins a growing scholarly literature that aims to rethink the scope of global, cross-border regulation, with specific focus on the so-called Brussels Effect.53 53.See generally Anu Bradford, The Brussels Effect, 107 Nw. U. L. Rev. 1, 51–52 (2012) [hereinafter Bradford, Brussels Effect Article] (arguing that the European Union has exercised an outsize influence on global regulatory agendas by effectively exporting EU regulation to the rest of the world); Paul M. Schwartz, The EU-U.S. Privacy Collision: A Turn to Institutions and Procedures, 126 Harv. L. Rev. 1966 (2013) (arguing that Internet law has emerged as an area of significant cross-border regulation); Stephen J. Choi & Andrew T. Guzman, Portable Reciprocity: Rethinking the International Reach of Securities Regulation, 71 S. Cal. L. Rev. 903 (1998) (arguing in favor of international regulatory competition in securities law); Carla L. Reyes, Note, The U.S. Discovery-EU Privacy Directive Conflict: Constructing a Three-Tiered Compliance Strategy, 19 Duke J. Comp. & Int’l L. 357 (2009) (discussing the challenges of incongruent regulatory schemes governing discovery in transnational litigation between U.S. and EU litigants).Show More Some recent works argue that the European Union successfully exports its regulations to the rest of the world in a variety of ways.54 54.Bradford, Brussels Effect Article, supra note 53, at 5–6.Show More While that literature sets private litigation aside, this Article shows that the Brussels Effect may be both larger and narrower than previously understood. On the one hand, when litigants request documents produced to European regulators, including in data protection cases, those regulators are de facto exporting their agendas to the American legal system. This influence strengthens the scope and impact of the Brussels Effect. On the other hand, perhaps a better way to view this phenomenon is that American courts and litigants are voluntarily importing foreign regulations through complex litigation, giving judges and litigants a large role in determining the reach of the Brussels Effect.

Foreign regulations, in short, can have an array of legal, economic, and political effects on U.S. law and institutions. This sustained focus on foreign regulations is timely. The weakening of multilateralism and the U.S. administrative state calls for new avenues of cross-border legal interaction.55 55.These developments have prompted a substantial body of literature that has called for such interaction in a variety of contexts. See, e.g.,Harold James, International Order after the Financial Crisis, 1 Penn. St. J.L. & Int’l Affs. 275, 283–84 (2012) (calling for cross-border collaboration in the economic regulation context); Paul M. Schwartz & Karl-Nikolaus Peifer, Transatlantic Data Privacy Law, 106 Geo. L.J. 115, 179 (2017) (calling for cross-border collaboration in the data privacy context).Show More The Article demonstrates the power and promise of litigation-led harmonization.

After analyzing the implications of litigation as a tool for importing foreign regulation, Part III of the Article focuses on prescriptions, arguing that courts should invite domestic agencies to submit letters in these cases. Much of the literature frames the influence of foreign law on American courts as an either-or phenomenon: the internationalists encourage U.S. courts to use foreign law,56 56.See Martinez, Who’s Afraid?, supra note 37, at 1583; Harold Hongju Koh, Is International Law Really State Law?, 111 Harv. L. Rev. 1824, 1824 (1998).Show More while the nationalists decry the legitimacy of such an exercise.57 57.See, e.g.,Curtis A. Bradley, International Delegations, the Structural Constitution, and Non-Self-Execution, 55 Stan. L. Rev. 1557, 1560 (2003).Show More But this has always been, and continues to be, a false dichotomy in the context of litigation. We cannot decide ex ante that it is universally proper or improper to draw on foreign regulations. Rather, we should create better procedures to channel and control foreign regulatory input. The Article argues that domestic agencies can help courts understand—through the submission of letters or amicus briefs—the use and implications of foreign regulations in litigation.

Lastly, a word about this Article’s methodology is appropriate. I draw unique insights here from an in-depth examination of hundreds of MDL cases, dozens of foreign regulatory enforcement actions, a review of legal documents citing foreign regulation or regulators, and unstructured correspondence and interviews with plaintiffs’ attorneys who appeared in the relevant cases. The Article further explains the specific methods applied in each section below.

The Article proceeds in three parts. Part I discusses the three channels of interaction between U.S. litigation and foreign regulation. Part II argues that these interactions have a wide array of effects on U.S. law, courts, and institutions. Finally, Part III argues that courts should invite domestic agency input in these cases.

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