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.

  1. * Story Professor of Law, Harvard Law School. I am grateful to Randy Barnett, Tom Colby, Gary Lawson, Liam Murphy, Fred Schauer, Larry Solum, Cass Sunstein, and Jeremy Waldron and to participants in the NYU Colloquium in Legal Political and Social Philosophy and the 2021 Hugh & Hazel Darling Foundation Originalism Works-in-Progress Conference for extraordinarily helpful comments on prior drafts. Julianna Astarita, Max Bloom, Emily Massey, and Benjamin Miller-Gootnick provided invaluable research assistance. ↑

  2. 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). ↑

  3. 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). ↑

  4. 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). ↑

  5. 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”). ↑

  6. 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). ↑

  7. 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). ↑

  8. 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”). ↑

  9. See sources cited supra notes 1–4. ↑

  10. 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.”). ↑

  11. 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.”). ↑

  12. 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. ↑

  13. 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). ↑

  14. 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”). ↑

  15. See infra notes 52–53 and accompanying text. ↑

  16. 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”). ↑

  17. 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”). ↑

  18. 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). ↑

  19. 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. ↑

  20. My usage follows that of Professor Mark Richard, who defines interpretive common ground as shared presuppositions. See Mark Richard, Meanings as Species 3 (2019). ↑

  21. 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. ↑

  22. See infra Subsection II.A.2.a. ↑

  23. See infra notes 167–191 and accompanying text. ↑

  24. See infra Subsection III.B.1 (observing disagreement about the meanings of multiple constitutional provisions). ↑

  25. See supra note 10 and accompanying text (citing examples of such PMO adherents). ↑

  26. 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.”). ↑

  27. 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].’”). ↑

  28. U.S. Const. art. I, § 3, cl. 1. ↑

  29.  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”). ↑

  30. 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. ↑

  31. 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]. ↑

  32. See infra Section I.A. ↑

  33. 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”). ↑

  34. 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). ↑

  35. 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). ↑

  36. 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). ↑

  37. 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”). ↑

  38. 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. ↑

  39. 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.”). ↑

  40. 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. ↑

  41. 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”). ↑

  42. Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution, at xxiv (2019). ↑

  43. Id. ↑

  44. 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. ↑

  45. Foner, supra note 41, at xxiv. ↑

  46. See, e.g., Solum, supra note 12, at 18; Lawrence B. Solum, Originalism and Constitutional Construction, 82 Fordham L. Rev. 453, 528 (2013) [hereinafter Solum, Originalism and Constitutional Construction]; Greene, supra note 6, at 1687–88. ↑

  47. See Scalia, supra note 7 (arguing that originalists “ought to campaign to change the label from the Doctrine of Original Intent to the Doctrine of Original Meaning”); see also Kesavan & Paulsen, supra note 7, at 1139 (characterizing Justice Scalia as “original meaning textualism’s patron saint”). ↑

  48. See, e.g., Randy E. Barnett, Scalia’s Infidelity: A Critique of “Faint-Hearted” Originalism, 75 U. Cin. L. Rev. 7, 13–15 (2006); cf. Amy Coney Barrett, Originalism and Stare Decisis, 92 Notre Dame L. Rev. 1921, 1942 (2017) (concluding that, “[t]o the extent [Justice Scalia] was occasionally faint hearted . . . who could blame him for being human?”). ↑

  49. See Balkin, Living Originalism, supra note 30, at 31; Balkin, Construction, supra note 30, at 80 (advancing a “thin” conception of original public meaning that consists of “the original semantic meaning of the words, . . . taking into account any generally recognized terms of art, and any background context necessary to understand the text,” but not the “original expected application” of the text). ↑

  50. See Jack M. Balkin, Abortion and Original Meaning, 24 Const. Comment. 291, 294 (2007) (noting the availability of an originalist argument in support of abortion rights). ↑

  51. See Balkin, Construction, supra note 30, at 86 (“I view constitutions as frameworks—they are a basic set of rules, standards and principles that are designed to create institutions and channel political action in order to make politics possible. Constitutions are designed to put politics in motion and cause people to solve their problems through politics as opposed to through violence and civil war.”). ↑

  52. See Solum, Communicative Content, supra note 16, at 485 (“Legal communications are ‘utterances’ in the broad sense of that word, which encompasses both sayings and writings.”); Scott Soames, Deferentialism: A Post-Originalist Theory of Legal Interpretation, 82 Fordham L. Rev. 597, 598 (2013) [hereinafter Soames, Deferentialism] (“applying [the] lesson” learned from successful communication in more familiar speaker-to-listener contexts “to legal interpretation”); Soames, Originalism and Legitimacy, supra note 5, at 247 (explaining originalism’s extension of “a well-understood model of linguistic communication among individuals” to “lawmaking”). ↑

  53. Scott Soames, Toward a Theory of Legal Interpretation, 6 N.Y.U. J.L. & Liberty 231, 232 (2011). ↑

  54. Solum wrestles at length with the differences between conversational and constitutional interpretation in an unpublished paper, The Public Meaning Thesis, supra note 39 (manuscript at 12 & n. 45), but emphatically endorses what he calls the “Continuity Thesis,” which holds that constitutional interpretation is sufficiently continuous with conversational interpretation so that concepts developed to elucidate successful conversational interpretation, especially those traceable to Paul Grice, Studies in the Way of Words 3–143 (1989), should be adapted rather than abandoned. According to Solum, the principal necessary adjustment of the model of conversational interpretation involves the absence of a unitary speaker in the case of constitutional provisions. See Solum, Public Meaning Thesis, supra note 39 (manuscript at 17) In a paper published in 2013, Solum maintained that provisions’ meanings might be based on “the semantic meaning of the text” in conjunction with “the publicly available context of constitutional communication.” Solum, Communicative Content, supra note 16, at 500. In the as-yet unpublished The Public Meaning Thesis, supra note 39 (manuscript at 36), he postulates that different speakers in the complex chain that begins with a drafter and includes ultimate ratifiers have meshing second-order intentions to adopt either the communicative intentions of the initial drafter or to communicate the public meaning of the text as it would appear to members of the provision’s intended public audience. For critical discussion of this proposal, see infra notes 147–49 and accompanying text. ↑

  55. See Solum, Communicative Content, supra note 16, at 484; Soames, Originalism and Legitimacy, supra note 5, at 264 (defining “assertive content”); Soames, Deferentialism, supra note 51, at 598–600 (differentiating linguistic meaning from assertive content). ↑

  56. Soames, Deferentialism, supra note 51, at 598. ↑

  57. Solum, Originalist Methodology, supra note 15, at 277; see also Solum, Communicative Content, supra note 16, at 488 (“The full communicative content of a legal writing is a product of the semantic content (the meaning of the words and phrases as combined by the rules of syntax and grammar) and the additional content provided by the available context of legal utterance.”). In order to communicate successfully, an author must therefore anticipate what a reasonable reader will take her communicative intent to be in using the words that she uses. See Solum, Public Meaning Thesis, supra note 39 (manuscript at 14). ↑

  58. See, e.g., Solum, Communicative Content, supra note 16, at 488 (“In the philosophy of language and theoretical linguistics, the phrase ‘pragmatic enrichment’ is sometimes used to refer to the contribution that context makes to meaning.”); Andrei Marmor & Scott Soames, Introduction, in Philosophical Foundations of Language in the Law 1, 8 (Andrei Marmor & Scott Soames eds., 2011) (noting that the “assertive content” of utterances “is determined by a variety of factors, including the semantic content of the sentence uttered, the communicative intentions of the speaker, the shared presuppositions of the speaker-hearers, and obvious features of the context of utterance”). ↑

  59. Solum, Communicative Content, supra note 16, at 488. ↑

  60. Lawrence B. Solum, Intellectual History as Constitutional Theory, 101 Va. L. Rev. 1111, 1126 (2015) [hereinafter Solum, Intellectual History]; Solum, Originalist Methodology, supra note 15, at 285. ↑

  61. See Solum, Communicative Content, supra note 16, at 488 (“In the philosophy of language and theoretical linguistics, the phrase ‘pragmatic enrichment’ is sometimes used to refer to the contribution that context makes to meaning.”). ↑

  62. See Soames, Interpreting Legal Texts, supra note 12, at 403–04; Solum, Communicative Content, supra note 16, at 488. ↑

  63. See infra notes 167–74 and accompanying text. ↑

  64. Solum, Cooley’s Constitutional Limitations, supra note 10, at 57. ↑

  65. Solum, Communicative Content, supra note 16, at 497–98 (defining public meaning as “the conventional semantic meaning of the words and phrases as combined by widely shared regularities of syntax and grammar”). ↑

  66. In his forthcoming article The Public Meaning Thesis, supra note 39 (manuscript at 50 n.160), Solum writes:

    One idea is that pragmatic enrichments should be assessed from the perspective of “a reasonable member of the ratifying public at the time of enactment.” This idea is consistent with Public Meaning Originalism, so long as we understand that the idea of “a reasonable member of the public” is a heuristic and not an account of the causal mechanism by which communicative content is conveyed. ↑

  67. See, e.g., Chiafalo v. Washington, 140 S. Ct. 2136, 2335 (2020) (Thomas, J., concurring) (“[T]he Framers’ expectations aid our interpretive inquiry only to the extent that they provide evidence of the original public meaning of the Constitution. They cannot be used to change that meaning.”); Solum, Triangulating Public Meaning, supra note 6, at 1637 (“The meaning of a text is one thing; expectations about how the text will or should be applied to particular cases or issues is another.”); Steven G. Calabresi & Andrea Matthews, Originalism and Loving v. Virginia, 2012 BYU L. Rev. 1393, 1398 (arguing that “it is the semantic original public meaning of the enacted texts,” rather than expected applications that determine original meaning); Steven G. Calabresi & Julia T. Rickert, Originalism and Sex Discrimination, 90 Tex. L. Rev. 1, 7 (2011) (distinguishing meaning from expected applications by noting that “sometimes legislators misapply or misunderstand their own rules”); Randy E. Barnett, An Originalism for Nonoriginalists, 45 Loy. L. Rev. 611, 622 (1999) (noting that PMO is not concerned with “how the relevant generation of ratifiers expected or intended their textual handiwork would be applied to specific cases . . . except as circumstantial evidence of what the more technical words and phrases in the text might have meant to a reasonable listener”).

    In contrast with public meaning originalists, Professor Richard Kay has developed an approach that would fix original constitutional meanings based on overlapping intentions of majorities voting to ratify the Constitution in the various state ratifying conventions, but he identifies his approach as a version of original-intent-based, rather than OPM, originalism. See Richard Kay, Adherence to the Original Intentions in Constitutional Adjudication: Three Objections and Responses, 82 Nw. U. L. Rev. 226, 247–51 (1988). ↑

  68. See, e.g., Solum, Triangulating Public Meaning, supra note 6, at 1637. ↑

  69. This example is adapted from Mark D. Greenberg & Harry Litman, The Meaning of Original Meaning, 86 Geo. L.J. 569, 585 (1998). ↑

  70. In Triangulating Public Meaning, supra note 6, at 1665, Solum gives a complex example involving an “application belief” that the Fourteenth Amendment would not protect women’s equal rights to practice law based on “a false belief that women have intellectual capacities that are similar to those of children and, hence, that women are incapable of practicing law.” For other rejections of the equation of original public meanings with original expectations or application beliefs, see supra note 66 and accompanying text. ↑

  71. See, e.g., Solum, Triangulating Public Meaning, supra note 6, at 1638. ↑

  72. Solum, Originalist Methodology, supra note 15, at 278. ↑

  73. Solum, Fixation Thesis, supra note 15, at 12. When originalists assert positions such as these, I do not take them to claim that no judgment is necessary, but that no normative judgment is either necessary or appropriate. For example, to determine whether the Constitution permits a President to pardon him- or herself, a judge might have to use judgment in ascertaining what a reasonable person would take the assertive content of the relevant language of Article II to be in light of its legal background and relationship to other constitutional provisions. Nonetheless, the answer that emerges from application of the model of conversational interpretation (as minimally modified) should not depend on a normative judgment about whether allowing presidents to pardon themselves would be desirable. ↑

  74. See, e.g., Solum, Originalism and Constitutional Construction, supra note 45, at 458; Randy E. Barnett, Interpretation and Construction, 34 Harv. J.L. & Pub. Pol’y 65, 67 (2011) [hereinafter Barnett, Interpretation and Construction]. ↑

  75. Soames, Originalism and Legitimacy, supra note 5, at 249. ↑

  76. Solum, Originalism and Constitutional Construction, supra note 45, at 536; see also Solum, Public Meaning Thesis, supra note 39 (manuscript at 4–5) (noting the need for constitutional “construction” in cases involving linguistically underdeterminate provisions). ↑

  77. See, e.g., Barnett, Interpretation and Construction, supra note 73, at 66, 69–70; see also, e.g., Randy E. Barnett & Evan D. Bernick, The Letter and the Spirit: A Unified Theory of Originalism, 107 Geo. L.J. 1, 5–6 (2018) (proposing one originalist model of judicial construction). ↑

  78. Solum, Originalism and Constitutional Construction, supra note 45, at 472–73; Soames, supra note 52, at 243–44. ↑

  79. Solum, Originalism and Constitutional Construction, supra note 45, at 457. ↑

  80. Id. ↑

  81. Id. at 458. ↑

  82. See, e.g., Michael W. McConnell, Originalism and the Desegregation Decisions, 81 Va. L. Rev. 947, 953, 956 (1995) (finding that original meaning of the Fourteenth Amendment barred school segregation); Robert G. Natelson, Paper Money and the Original Understanding of the Coinage Clause, 31 Harv. J.L. & Pub. Pol’y 1017, 1021–22 (2008) (maintaining, contrary to the contentions of others, that originalism authorizes a reading of the “coinage” clause that permits paper money). ↑

  83. See Maximilian Crema & Lawrence B. Solum, The Original Meaning of “Due Process of Law” in the Fifth Amendment, 108 Va. L. Rev. (forthcoming 2022) (manuscript at 3–4) (on file with author). ↑

  84. Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 138–39 (1873). ↑

  85. See Lawrence B. Solum, Surprising Originalism: The Regula Lecture, 9 ConLawNOW 235, 253–55 (2018). ↑

  86. See Soames, Originalism and Legitimacy, supra note 5, at 275–85. ↑

  87. See, e.g., Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 649 (2012) (Scalia, J., dissenting) (examining “the original meaning of ‘regulate’ at the time of the Constitution’s ratification”); see also id. at 599–601, 610 (Ginsburg, J., concurring) (asserting that the Framers understood the commerce power, and the term “regulate,” more broadly). ↑

  88. Compare, e.g., Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 385–93 (2010) (Scalia, J., concurring), with id. at 425–33 (Stevens, J., concurring in part and dissenting in part) (advancing a contrasting view of the original meaning of the Free Speech Clause). See also supra note 33 and accompanying text (noting additional contributors to the debate). ↑

  89. See supra note 32. ↑

  90. See supra note 34. ↑

  91. See, e.g., Scalia & Garner, supra note 9, at 15 (“[T]his supposed distinction between interpretation and construction has never reflected the courts’ actual usage.” (emphasis omitted)). ↑

  92. Antonin Scalia, Response, in A Matter of Interpretation: Federal Courts and the Law 129, 140 (Amy Gutmann ed., 1997). ↑

  93. Solum, Originalism and Constitutional Construction, supra note 45, at 460. ↑

  94. See id. at 460–61. Solum, in a recent article, specifies the Constraint Principle as requiring “that the norms of constitutional law should be consistent with and fairly derivable from the public meaning of the constitutional text.” Lawrence B. Solum, Themes from Fallon on Constitutional Theory, 18 Geo. J.L. & Pub. Pol’y 287, 292 (2020) [hereinafter Solum, Themes from Fallon]. Originalists including Randy Barnett, Gary Lawson, and Michael Stokes Paulsen take similar if not even more uncompromising positions. See, e.g., Randy E. Barnett, Trumping Precedent with Original Meaning: Not as Radical as It Sounds, 22 Const. Comment. 257, 269 (2005); Gary Lawson, The Constitutional Case Against Precedent, 17 Harv. J.L. & Pub. Pol’y 23, 24 (1994); Michael Stokes Paulsen, The Intrinsically Corrupting Influence of Precedent, 22 Const. Comment. 289, 291 (2005). ↑

  95. Foner, supra note 41, at 11. ↑

  96. Id. at 57. ↑

  97. Id. at 78. ↑

  98. Id. ↑

  99. Id. at 6–7. ↑

  100. Id. at 73. ↑

  101. Id. at 62–65 ↑

  102. Id. at 63. ↑

  103. Id. at 63–65. ↑

  104. Id. at 63–66. ↑

  105. Id. at 66. ↑

  106. Id. at 19. ↑

  107. Id. at 89. ↑

  108. See William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine 51–53 (1988) (noting the possibility that Joint Committee on Reconstruction may have deliberately adopted “a phrasing that was sufficiently broad so that those who favored federal protection of political rights could construe it to provide such protection, and sufficiently innocuous so that those who opposed giving such power to the federal government could be reassured that the amendment did no such thing”); Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 Harv. L. Rev. 1, 61 (1955) (suggesting that “the Moderates and the Radicals reached a compromise permitting them to go to the country with language which they could, where necessary, defend against damaging alarms raised by the opposition, but which at the same time was sufficiently elastic to permit reasonable future advances”). ↑

  109. Foner, supra note 41, at 91. ↑

  110. See Jack N. Rakove, Joe the Ploughman Reads the Constitution, or, the Poverty of Public Meaning Originalism, 48 San Diego L. Rev. 575, 588 (2011) (“It is one thing, after all, to suppose that words fraught with political content retain a relatively fixed meaning in quiet times, but it is quite another to apply that assumption to a period like the late 1780s or the Revolutionary era more generally.”). ↑

  111. Id. at 593. ↑

  112. See infra Subsection III.B.1. ↑

  113. See Mary Sarah Bilder, Madison’s Hand: Revising the Constitutional Convention 240 (2015); see also Saul Cornell, Conflict, Consensus & Constitutional Meaning: The Enduring Legacy of Charles Beard, 29 Const. Comment. 383, 405 (2014) (“Given the contentious nature of Founding era legal culture it seems unreasonable to assume that one can identify a single set of assumptions and practices from which to construct an ideal reasonable reader who could serve as model for how to understand the Constitution in 1788.”). ↑

  114. See Jonathan Gienapp, The Second Creation: Fixing the American Constitution in the Founding Era 4–9 (2018). ↑

  115. Id. at 5. ↑

  116. See id. at 9–10. ↑

  117. See, e.g., Kesavan & Paulsen, supra note 7, at 1115. ↑

  118. See also Colby, supra note 36, at 535 (observing that “as a natural consequence of the constitution-making process, a constitutional provision addressing a deeply controversial subject can only hope to be enacted when it is drafted with highly ambiguous language so that, rather than possessing a single meaning, it appeals to disparate factions with divergent understandings of its terms”). ↑

  119. Solum, Triangulating Public Meaning, supra note 6, at 1624–25. ↑

  120. Solum refers to the drafting history of the Fourteenth Amendment as potentially relevant to its public meaning in his article on triangulation. Id. at 1656–57 & n.74. But Solum has also dismissed the work of another estimable historian, Jack Rakove, as largely irrelevant to the project of discerning original public meanings:

    Work by the eminent constitutional historian Jack Rakove reflects immersion in the framing period, but Rakove’s Original Meanings does not focus on the communicative content of the text—indeed, the text is rarely quoted and never (or almost never) parsed for its communicative content. Like most intellectual historians, Rakove’s primary concern is with motivations, ideology, and ideas, and not with the semantics or pragmatics of the Constitution.

    Id. at 1653–54. If a similar response were directed toward Foner, it might have a patina of plausibility, but no more. Foner specifically writes about the language of the Fourteenth Amendment, the specific concerns and motivations of the language’s authors, and about public debates in Congress about which an informed person might know. See supra notes 94–104 and accompanying text. ↑

  121. See Maggs, supra note 3, at 495, 511. ↑

  122. Id. See also Thomas B. Colby & Peter J. Smith, Living Originalism, 59 Duke L.J. 239, 300–02 (2009) (observing that Justice Thomas “seems not to contemplate any distinction among original intent, original understanding, and original textual meaning”). ↑

  123. See supra Subsection I.A.1. ↑

  124. U.S. Const. amend. XIV, § 1. ↑

  125. Compare Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality 26 (2004) (“[T]he original understanding of the Fourteenth Amendment plainly permitted school segregation.”), with McConnell, supra note 81, at 956–57 (maintaining that the original public meaning of the Fourteenth Amendment forbade school segregation), and Soames, Originalism and Legitimacy, supra note 5, at 275–85 (same). ↑

  126. See Foner, supra note 41, at 137–39 (noting debates about women’s rights under the Fourteenth Amendment). ↑

  127. See Brown v. Board of Education, 347 U.S. 483, 495 (1954) (“[S]egregation is a denial of the equal protection of the laws.”); United States v. Virginia, 518 U.S. 515, 530–46 (1996) (holding that a state’s exclusion of women from a unique educational opportunity violated the Equal Protection Clause); Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 Yale L.J. 421, 421–22 (1960) (characterizing Brown as turning on whether “a massive intentional disadvantaging” of a group on the basis is race was compatible with the commands of the Equal Protection Clause); Jed Rubenfeld, Affirmative Action, 107 Yale L.J. 427, 432 (1997) (maintaining that “nearly no one today is a true equal protection originalist, because true equal protection originalism would repudiate Brown v. Board of Education”). ↑

  128. Foner, supra note 41, at xxiv. ↑

  129. See Frank Jackson, From Metaphysics to Ethics: A Defense of Conceptual Analysis 33 (1998) (arguing “concept” refers to “the possible situations covered by the words we use to ask our questions”); see also David Plunkett, Which Concepts Should We Use?: Metalinguistic Negotiations and the Methodology of Philosophy, 58 Inquiry 828, 846 (2015) (“[I]ndividual concepts are roughly the equivalent in mental representation to what individual words are in linguistic representation.” (emphasis omitted)). ↑

  130. For the thesis that there are many such disputes that are best classified as involving “metalinguistic” disputes or negotiations about how we ought to use words, rather than involving empirical claims about semantic meanings, see Plunkett, supra note 128, at 837–38; David Plunkett & Tim Sundell, Disagreement and the Semantics of Normative and Evaluative Terms, 13 Philosophers’ Imprint 1, 2–3 (2013). See also Richard, supra note 19, at 3 (arguing that there are multiple possible conceptions of meaning, the most useful of which for many purposes will equate meaning with “interpretive common ground” among competent speakers of a language, and that meaning in this sense is “species-like” and evolving). ↑

  131. See supra notes 109–15 and accompanying text. ↑

  132. See W.B. Gallie, Essentially Contested Concepts, 56 Proceedings of the Aristotelian Society 167, 169 (1956) (defining “essentially contested concepts” as “concepts the proper use of which inevitably involves endless disputes about their proper uses on the part of their users”). ↑

  133. In the case of normative and evaluative terms, I assume that disagreement will normally involve the terms’ semantics, not pragmatics. See Plunkett & Sundell, supra note 129, at 8. ↑

  134. See John Rawls, A Theory of Justice 5 (1971). ↑

  135. See Ronald Dworkin, Taking Rights Seriously 133–36 (1977). ↑

  136. See Rawls, supra note 133. ↑

  137. See, e.g., Randy E. Barnett & Evan D. Bernick, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit 223–26, 320–21 (2021) (arguing concluding that the original meaning of the Equal Protection Clause involved a guarantee of nondiscriminatory enforcement of the laws as written and governmental protection against private lawbreaking and that guarantees against unequal distribution of rights through the content of the written laws came from the Privileges or Immunities Clause). ↑

  138. See id. at 205–26 (discussing and rejecting five rival theories about the meaning of the Privileges or Immunities Clause). ↑

  139. U.S. Const. amend. XIV, § 1. ↑

  140. Soames, Deferentialism, supra note 51, at 597–98. ↑

  141. Solum, Intellectual History, supra note 59, at 1126; Solum, Originalist Methodology, supra note 15, at 285. ↑

  142. Soames, Deferentialism, supra note 51, at 598. ↑

  143. Foner, supra note 41, at 68–71, 86–87. ↑

  144. Id. at 70. ↑

  145. Id. at 88, 91. ↑

  146. There are serious questions about whether the ratification of the Fourteenth Amendment complied with the requirements of Article V of the Constitution. See, e.g., Thomas B. Colby, Originalism and the Ratification of the Fourteenth Amendment, 107 Nw. U. L. Rev. 1627, 1629 (2013). It was drafted by a Congress from which representatives of the Southern states were excluded, and those states, which were under military rule, were required to ratify it as a condition of their regaining congressional representation. For a defense of the constitutional lawfulness of the drafting and ratification processes, see John Harrison, The Lawfulness of the Reconstruction Amendments, 68 U. Chi. L. Rev. 375, 378 (2001). ↑

  147. The problem of combining or aggregating the intentions of multiple authors or speakers was initially raised in Brest, supra note 20, at 213–14. For a more recent, insightful discussion of “the summing problem,” see, for example, Gregory Bassham & Ian Oakley, New Textualism: The Potholes Ahead, 28 Ratio Juris 127, 138–41 (2015). ↑

  148. Solum, Themes from Fallon, supra note 93, at 305–06; see also Solum, Communicative Content, supra note 16, at 500 (“Given that the framers and ratifiers believed that readers engaged in American constitutional practice would know the public context and that they would also know that the framers and ratifiers would believe that they would have such knowledge, the public context satisfies the conditions for common knowledge and can successfully determine clause meaning.”). ↑

  149. The textualist/originalist Dean John Manning adopts a similar strategy. See, e.g., John F. Manning, Without the Pretense of Legislative Intent, 130 Harv. L. Rev. 2397, 2405–12 (2017). ↑

  150. See generally Plunkett & Sundell, supra note 129, at 16 (“[I]t should be uncontroversial that at least one crucial type of data for figuring out what a speaker means by a term T are facts about the speaker’s usage of T—patterns of usage that reflect her disposition to apply that term one way or another, more generally.”). ↑

  151. See supra note 106 and accompanying text. ↑

  152. Stephen E. Sachs, Originalism: Standard and Procedure, 135 Harv. L. Rev. (forthcoming 2022), argues that the prime ambition of originalism is to provide a “standard” for constitutional correctness and that it should not be faulted for failing to furnish a detailed “decision procedure” for finding the correct answer in individual constitutional cases. Sachs, however, writes in defense of a version of originalism that equates original meanings with original legal meanings, not original public meanings. See id. (manuscript at 17, 20). I shall address versions of originalism that are concerned with original legal meanings below. My argument here is that PMO fails to furnish even a “standard” in Sachs’s sense insofar as it posits the existence of, but gives no account of what constitutes, “original public meanings” that extend beyond the “minimal” meanings on which virtually all competent language users would converge. ↑

  153. See, e.g., Scalia & Garner, supra note 9, at 15–16; Antonin Scalia, Originalism: The Lesser Evil, 57 Cin. L. Rev. 842, 862 (1989). ↑

  154. See, e.g., Edwards v. Aguillard, 482 U.S. 578, 636–37 (1987) (Scalia, J., dissenting). ↑

  155. Scalia, supra note 91, at 17 (“We look for a sort of ‘objectified’ intent—the intent that a reasonable person would gather from the text of the law, placed alongside the remainder of the corpus juris.”); see John F. Manning, Textualism and Legislative Intent, 91 Va. L. Rev. 419, 423 (2005) [hereinafter Manning, Textualism and Legislative Intent] (“[T]extualists have sought to devise a constructive intent that satisfies the minimum conditions for meaningfully tracing statutory meaning to the legislative process.”); Caleb Nelson, What Is Textualism?, 91 Va. L. Rev. 347, 353–57 (2005). ↑

  156. See Seana Valentine Shiffrin, Speech, Death, and Double Effect, 78 N.Y.U. L. Rev. 1135, 1155 (2003) (employing an “objective notion of intention as it is made manifest through the performance of actions of a certain type, actions that, because of what they involve, are typically motivated by a certain rationale and are reasonably interpreted as being so motivated”); see also Kay, supra note 39, at 708 (“Mainly, we know someone’s intended meaning by examining the typical meaning attached to the words they used.”). ↑

  157. U.S. Const. amend. I (emphasis added). ↑

  158. See Rakove, supra note 109, at 584; Kay, supra note 39, at 720. ↑

  159. Fisher v. Univ. of Tex. at Austin, 570 U.S. 297 (2013). ↑

  160. Id. at 327 (Thomas, J., concurring) (citation omitted). ↑

  161. See, e.g., supra note 146 and accompanying text. ↑

  162. Soames, Deferentialism, supra note 51, at 597–98; see also Soames, supra note 52, at 241 (“Since what language users intend to say, assert, or stipulate is a crucial factor, along with the linguistic meanings of the words they use, in constituting what they do say, assert, or stipulate, the intentions of lawmakers are directly relevant to the contents of the laws they enact.”). ↑

  163. Soames, Originalism and Legitimacy, supra note 5, at 248. ↑

  164. Leading works in developing accounts of group agency and group intention include Michael E. Bratman, Faces of Intention (1999) and Christian List & Philip Pettit, Group Agency (2011). ↑

  165. Ryan D. Doerfler, Who Cares How Congress Really Works?, 66 Duke L.J. 979, 1009 (2017). ↑

  166. See supra Subsection I.B.1. ↑

  167. See supra note 147 and accompanying text. ↑

  168. This discussion draws on Foner’s claims as introduced in supra Subsection I.B.1. ↑

  169. See Gardner, The Mysterious Case, supra note 37, at 299 (noting that “the resort to a reasonableness standard is” often a way “to reopen a bit of space for ordinary moral reasoning in a rule that would otherwise be apt to level it away”); see also Alan D. Miller & Ronen Perry, The Reasonable Person, 87 N.Y.U. L. Rev. 323, 326–28 (2012) (arguing that it is impossible to construct an analytically rigorous descriptive account of the reasonable person); Benjamin C. Zipursky, Reasonableness In and Out of Negligence Law, 163 U. Pa. L. Rev. 2131, 2150 (2015) (“[W]hat counts as a reasonable person is itself a question with significant normative content.”). ↑

  170. Cf. Ronald Dworkin, Law’s Empire 51–53 (1986) (advancing a theory of “constructive interpretation” that depends on mixed criteria of fit and normative attractiveness); Larry A. DiMatteo, The Counterpoise of Contracts: The Reasonable Person Standard and the Subjectivity of Judgment, 48 S.C. L. Rev. 293, 336, 350 (1997) (observing that “[t]he reasonable person” of contract law, who “must decide if the parties had an intent to create a contract and to give meaning to that intent,” “can be seen as a synthesis of legal and community values”). ↑

  171. See supra notes 71–72 and accompanying text. ↑

  172. Cf. Lawson & Seidman, supra note 9, at 73 (“This person is highly intelligent and educated and capable of making and recognizing subtle connections and inferences. This person is committed to the enterprise of reason, which can provide a common framework for discussion and argumentation. This person is familiar with the peculiar language and conceptual structure of the law.”); Calabresi & Rickert, supra note 66, at 8 n.33 (“The need for courts to construct an objective original public meaning of enacted texts resembles the need for courts in tort cases to ask what a reasonable person might have done in a given situation.”). ↑

  173. Solum, Triangulating Public Meaning, supra note 6, at 1667. ↑

  174. Id. at 1668. ↑

  175. See, e.g., Bassham & Oakley, supra note 146, at 141 (“[W]hen we are asking what proposition an ‘informed, reasonable reader’ would have understood a certain string of words to express, no clear answer may emerge. Equally informed and equally reasonable readers may have understood the words very differently.”). ↑

  176. See Solum, Triangulating Public Meaning, supra note 6, at 1656. ↑

  177. See Solum, Communicative Content, supra note 16, at 497–98 (equating public meaning with “the conventional semantic meaning of the words and phrases as combined by widely shared regularities of syntax and grammar”). ↑

  178. Solum, Triangulating Public Meaning, supra note 6, at 1678. ↑

  179. See id. at 1639–40. ↑

  180. Id. at 1640. ↑

  181. Solum also acknowledges that “the actual text of the U.S. Constitution contains general, abstract, and vague provisions that require constitutional construction for their application to concrete constitutional cases.” Solum, Originalism and Constitutional Construction, supra note 45, at 458. ↑

  182. See, e.g., Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 192–208 (2004) (criticizing the Slaughter-House Cases for betraying the original meaning of the Fourteenth Amendment). ↑

  183. Solum, Originalism and Constitutional Construction, supra note 45, at 530 (footnote omitted). ↑

  184. 83 U.S. (16 Wall.) 130, 139 (1873). ↑

  185. See Foner, supra note 41, at 137; see also Solum, Triangulating Public Meaning, supra note 6, at 1665–66 (rejecting “application belief” that the Fourteenth Amendment would not protect women’s equal rights to practice law predicated on “a false belief that women have intellectual capacities that are similar to those of children and, hence, that women are incapable of practicing law”). ↑

  186. Solum, Triangulating Public Meaning, supra note 6, at 1666. ↑

  187. Chief Justice Chase, who dissented in Bradwell, may have shared it. See Foner, supra note 41, at 137. ↑

  188. U.S. Const. amend. XIV, § 2. ↑

  189. See Foner, supra note 41, at 80–83, 136–39. ↑

  190. Cf. Balkin, Construction, supra note 30, at 92 (“[I]n any age or era—as in our own—reasonable people often differ about many things, especially where politics is involved.”). ↑

  191. Soames, Originalism and Legitimacy, supra note 5, at 262. ↑

  192. U.S. Const. art. I, § 3. ↑

  193. See supra note 159 and accompanying text. ↑

  194. See, e.g., Klarman, supra note 124, at 25–26, 146. ↑

  195. Solum, Triangulating Public Meaning, supra note 6, at 1656; see also Caleb Nelson, Originalism and Interpretive Conventions, 70 U. Chi. L. Rev. 519, 557 (2003) (“[M]odern originalist scholarship often uses the actual understandings expressed by individual framers or ratifiers as evidence of the ‘original meaning.’”); Gregory E. Maggs, A Guide and Index for Finding Evidence of the Original Meaning of the U.S. Constitution in Early State Constitutions and Declarations of Rights, 98 N.C. L. Rev. 779, 779 (2020) (“This Article provides a concise guide to this practice of finding evidence of the original meaning in these early state constitutions and declarations of rights.”). ↑

  196. Gary Lawson, Legal Indeterminacy: Its Cause and Cure, 19 Harv. J.L. & Pub. Pol’y 411, 418 (1995). ↑

  197. Id. at 421. ↑

  198. For a discussion, see supra Subsection I.A.2. ↑

  199. See supra Introduction. ↑

  200. U.S. Const. amend. IV, § 1. ↑

  201. In a discussion of my criticism of PMO in The Public Meaning Thesis, supra note 39, Professor Solum labors at length to refute the proposition that “successful pragmatic enrichment and contextual disambiguation are impossible (or very rare)” in the constitutional context because “the public lacked needed information about the drafters of individual constitutional provisions.” Id. (manuscript at 45). Although I agree with much of his discussion of this point, I have not argued that successful pragmatic enrichment is impossible or necessarily even “very rare” in the case of the Constitution, only that proponents of PMO have failed to establish how claims that determinate constitutional meanings exist as matters of linguistic fact could extend beyond minimally necessary and noncontroversial meanings and non-meanings. In The Public Meaning Thesis, the central examples on which Professor Solum relies to show that pragmatic enrichment can occur even when listeners have only minimal biographical information about a speaker or drafter involve inferences by imagined audiences that he expects all of his readers to concur in. Such examples elide the difficulty of specifying truth conditions for disputed claims about constitutional provisions’ pragmatically enriched meanings.

    With respect to the contextually enriched meanings of disputed provisions, Solum’s fullest statement in Public Meaning Originalism is as follows:

    As a matter of interpretation, the actual communicative content of the constitutional text is what it is—as a matter of fact. Some contextual enrichments are publicly accessible even though they may not have been “obvious” in the sense that recognizing them might require thought and reflection. Other contextual enrichments may exist, even though they were controversial—because controversy can be generated by motivated reasoning or bad faith argumentation driven by ideology or interest. Finally, many pragmatic enrichments are not based on the particular language of the specific constitutional provision, but instead arise the interaction between the purpose of the provision and background assumptions or between one provision and overall constitutional structure.

    Solum, Public Meaning Thesis, supra note 39 (manuscript at 51).

    By beginning this passage with an assertion that the communicative content of a constitutional provision is both a “a matter of fact” and “a matter of interpretation,” Solum appears to acknowledge that the “fact” of an original public meaning, going beyond minimally necessary and noncontroversial meaning, depends on a theory that permits the judging of proposed interpretations as correct or incorrect, but he never articulates what in the world makes it true that one interpretation is correct and another incorrect in reasonably disputed cases (not involving motivated reasoning or the like). ↑

  202. See supra notes 25–26 and accompanying text. ↑

  203. See, e.g., Josh Pasek & Jon A. Krosnick, Optimizing Survey Questionnaire Design in Political Science: Insights From Psychology, in The Oxford Handbook of American Elections and Political Behavior 32, 35–36, 38–39 (Jan E. Leighley ed., 2010). ↑

  204. See supra notes 66–67 and accompanying text. ↑

  205. See, e.g., Solum, supra note 84, at 253–55; Calabresi & Matthews, supra note 66, at 1398 (arguing that “it is the semantic original public meaning of the enacted texts,” rather than expected applications, that determines original public meaning). ↑

  206. Cf. Bostock v. Clayton County, 140 S. Ct. 1731, 1750–54 (2020) (distinguishing original linguistic meaning from expected applications in the context of statutory interpretation). ↑

  207. The classic source on modalities of constitutional argument is Philip Bobbitt, Constitutional Fate: Theory of the Constitution (1982). ↑

  208. Williams, supra note 29, at 532–33. ↑

  209. Id. at 544. ↑

  210. Solum, Public Meaning Thesis, supra note 39 (manuscript at 51) (acknowledging that “in a prior version of this paper, I stated that my position was ‘very close’ to Williams”). ↑

  211. Id. ↑

  212. See supra notes 174–88 and accompanying text. ↑

  213. See Foner, supra note 41, at 145–74 (discussing Fourteenth Amendment cases coming before the Supreme Court during Reconstruction and its aftermath). ↑

  214. See generally Randy E. Barnett & Evan D. Bernick, The Privileges or Immunities Clause, Abridged: A Critique of Kurt Lash on the Fourteenth Amendment, 95 Notre Dame L. Rev. 499, 507 (2019) (critiquing Lash’s “enumerated-rights-only” theory of the Privileges or Immunities Clause on originalist grounds); Kurt T. Lash, The Enumerated-Rights Reading of the Privileges or Immunities Clause: A Response to Barnett and Bernick, 95 Notre Dame L. Rev. 591, 593 (2019) (drawing on a “substantial body of preratification evidence” to advance contrary arguments, and contending that “[a]ll postratification evidence is necessarily weak as a source of original understanding”); Randy E. Barnett & Evan D. Bernick, The Difference Narrows: A Reply to Kurt Lash, 95 Notre Dame L. Rev. 679, 679 (2019) (offering a sur-reply to Lash and, in recognition of the historically complex dueling claims, “forgiv[ing] readers for having difficulty adjudicating this dispute”). ↑

  215. 410 U.S. 113 (1973). ↑

  216. See, e.g., Antonin Scalia, Session Three: Religion, Politics and the Death Penalty, Pew Rsch. Ctr. (Jan. 25, 2002), https://www.pewforum.org/2002/01/25/session-three-religion-politics-and-the-death-penalty/ [https://perma.cc/FK5N-WZV2] (quoting Justice Scalia as saying: “[M]y difficulty with Roe v. Wade is a legal rather than a moral one. I do not believe—and no one believed for 200 years—that the Constitution contains a right to abortion.”). ↑

  217. See Balkin, supra note 49, at 292 (maintaining that conventional critiques of Roe as unmoored from constitutional text are wrong). ↑

  218. See supra notes 66–69 and accompanying text. ↑

  219. See Balkin, supra note 49, at 292, 311–36 (elaborating these arguments); see also id. at 321–22 (“The original meaning of the Fourteenth Amendment . . . therefore presents no bar to the conclusion that sex discrimination violates the Constitution. The text of section 1 does not exclude women from its protections, and the underlying principle of equal citizenship applies to men and women equally.”). ↑

  220. See supra notes 78–80 and accompanying text. ↑

  221. See Solum, Originalist Methodology, supra note 15, at 293. ↑

  222. See Barnett & Bernick, supra note 136, at 8–9. ↑

  223. Id. at 227. ↑

  224. Id. at 228. ↑

  225. The phrase comes from Stephen E. Sachs, Originalism as a Theory of Legal Change, 38 Harv. J.L. & Pub. Pol’y 817, 874–75 (2015) (advancing a theory of originalism that calls for adherence to “the Founders’ law, as lawfully changed” since the Founding). ↑

  226. William Baude & Stephen E. Sachs, The Law of Interpretation, 130 Harv. L. Rev. 1079, 1082–83 (2017). ↑

  227. William Baude & Stephen E. Sachs, Originalism and the Law of the Past, 37 Law & Hist. Rev. 809, 818–19 (2019). ↑

  228. See Sachs, supra note 6, at 158. A close cousin of original-law originalism is the theory of original-methods originalism advanced by Professors John McGinnis and Michael Rappaport, which advocates interpreting the Constitution in accordance with the interpretive rules and methods that lawyers would have applied at the time of constitutional provisions’ adoption. John O. McGinnis & Michael B. Rappaport, Originalism and the Good Constitution 118 (2013). The authors believe that a variety of interpretive techniques that are either dictated by or consistent with the original law of interpretation would result in the size of the “construction zone” being relatively small. See John O. McGinnis & Michael B. Rappaport, The Power of Interpretation: Minimizing the Construction Zone, 96 Notre Dame L. Rev. 919 (2021). ↑

  229. See Baude & Sachs, supra note 225, at 1083 (“[C]ontrary to the skeptics, extracting legal content from a written instrument needn’t involve much direct normative judgment. In fact, it usually doesn’t.”). ↑

  230. See, e.g., Gienapp, supra note 113, at 116–23 (describing chaotic uncertainty about appropriate interpretive rules for the Constitution based on deeper uncertainty about what kind of document the Constitution was); Farah Peterson, Expounding the Constitution, 130 Yale L.J. 2, 2–3 (2020) (maintaining that litigants in early constitutional cases in the Supreme Court disputed whether the Constitution should be interpreted according to restrictive rules applicable to private legislation or the more flexible and pragmatic rules applicable to public legislation); Balkin, Construction, supra note 30, at 98; Larry Kramer, Two (More) Problems with Originalism, 31 Harv. J.L. & Pub. Pol’y 907, 912–13 (2008); Nelson, supra note 194, at 555–56, 561, 571–73. ↑

  231. See Richard H. Fallon, Jr., Law and Legitimacy in the Supreme Court 130–32 (2018) (asserting the importance of argument in good faith to the legal and moral legitimacy of judicial decision making). ↑

  232. 140 S. Ct. 2183 (2020). ↑

  233. See, e.g., Saikrishna Prakash, Removal and Tenure in Office, 92 Va. L. Rev. 1779, 1815–45 (2006) (making a “sustained case” for a presidential removal power); Christine Kexel Chabot, Is the Federal Reserve Constitutional? An Originalist Argument for Independent Agencies, 96 Notre Dame L. Rev. 1, 3, 6 (2020) (countering claims of some originalists that the Appointments Clause requires a presidential power to remove high federal officials by showing that the First Congress, with the approval of President George Washington and Treasury Secretary Alexander Hamilton, created a Sinking Fund Commission some of whose members enjoyed protection from presidential removal). Compare Seila Law, 140 S. Ct. at 2198–201 (affirming “the President’s general removal power” and noting only “two exceptions to the President’s unrestricted removal power” as articulated in Humphrey’s Executor v. United States, 295 U.S. 602 (1935) and Morrison v. Olson, 487 U.S. 654 (1988)), with id. at 2226–31 (Kagan, J., concurring in part and dissenting in part) (emphasizing that the Constitution says “nothing at all” about the President’s removal power, and accusing the majority of “extrapolat[ing] an unrestricted removal power from such general constitutional language” which is “more than the text will bear” (alteration in original) (internal quotations omitted)). For examples of Founding-era disagreement over executive removal authority, see, e.g., The Federalist No. 77, at 459 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (asserting “[t]he consent of [the Senate] would be necessary to displace as well as to appoint” officers of the United States). Compare also Seila Law, 140 S. Ct. at 2205, with id. at 2229 n.4 (Kagan, J., concurring in part and dissenting in part) (disagreeing about the importance of Federalist No. 77). ↑

  234.  567 U.S. 519 (2012). ↑

  235. Compare id. at 550–51 & n.4 (suggesting “the language of the Constitution” and the Framing’s historical context together distinguished action from inaction), with id. at 610 (Ginsburg, J., concurring in part and dissenting in part) (contesting this history). But cf. David A. Strauss, Commerce Clause Revisionism and the Affordable Care Act, 2012 Sup. Ct. Rev. 1, 8–9 (arguing Necessary and Proper Clause obviated need for such historical analysis). ↑

  236. See Alison L. LaCroix, The Shadow Powers of Article I, 123 Yale L.J. 2044, 2058–60 (2014) (discussing the scope of the Necessary and Proper Clause and whether it can be considered an enumerated power). Compare, e.g., Jack M. Balkin, Commerce, 109 Mich. L. Rev. 1, 16–18 (2010) (articulating the view that the Framers used the term “commerce” at the Constitutional Convention broadly to include things like navigation, and calling a narrower conception “anachronistic”), with Barnett, Commerce Clause, supra note 9, at 104 (arguing that at the Constitutional Convention “the term ‘commerce’ was consistently used in the narrow sense and that there is no surviving example of it being used . . . in any broader sense”). ↑

  237. U.S. Const. art. I, § 8, cl. 18. ↑

  238. See, e.g., J. Randy Beck, The New Jurisprudence of the Necessary and Proper Clause, 2002 U. Ill. L. Rev. 581, 588–603; John Harrison, Enumerated Federal Power and the Necessary and Proper Clause, 78 U. Chi. L. Rev. 1101, 1125–26 (2011); see also Gienapp, supra note 113, at 90–92 (discussing disagreements between Anti-Federalists and Federalists during ratification debates). ↑

  239. 558 U.S. 310 (2010). ↑

  240. Compare id. at 385–93 (Scalia, J., concurring) (defending “the conformity of [the majority] opinion with the original meaning of the First Amendment”), with id. at 425–33 (Stevens, J., concurring in part and dissenting in part) (disputing this analysis). ↑

  241. U.S. Const. amend. I; see Lawrence Rosenthal, First Amendment Investigations and the Inescapable Pragmatism of the Common Law of Free Speech, 86 Ind. L.J. 1, 9–22 (2011); see also Thomas F. Carroll, Freedom of Speech and of the Press in the Federalist Period; The Sedition Act, 18 Mich. L. Rev. 615, 627–37 (1920) (discussing early interpretations of the First Amendment and Congress’s ability to regulate the press). ↑

  242. See Leonard W. Levy, Emergence of a Free Press, at xii–xv (1985); see also David A. Strauss, The Living Constitution 61 (2010) (suggesting “the First Amendment was not understood to outlaw prosecutions for seditious libel”). ↑

  243. See generally, e.g., Jud Campbell, Natural Rights and the First Amendment, 127 Yale L.J. 246 (2017) (arguing that speech and press freedoms in the Founding era were expansive in scope but weak in legal effect); Genevieve Lakier, The Invention of Low-Value Speech, 128 Harv. L. Rev. 2166, 2169–71 (2015) (arguing that early American courts employed a “broad but shallow” approach to the First Amendment under which speech that was not categorically excluded from constitutional protection could be penalized if it posed a “threat to the public order”). ↑

  244. 554 U.S. 570 (2008). ↑

  245. See id. at 605 (analyzing purported original public meaning of Second Amendment); id. at 652–79 (Stevens, J., dissenting) (challenging this analysis). ↑

  246. Compare Nelson Lund, The Second Amendment, Heller, and Originalist Jurisprudence, 56 UCLA L. Rev. 1343 (2009) (arguing that while Heller reached the correct originalist result, its reasoning was incomplete), with Adam Winkler, Scrutinizing the Second Amendment, 105 Mich. L. Rev. 683, 686, 688 (2007) (arguing that a “reasonableness” standard is consistent with the original understanding of the Second Amendment). ↑

  247. Fisher v. Univ. of Tex. at Austin, 570 U.S. 297 (2013). ↑

  248. Id. at 327–28 (Thomas, J., concurring). ↑

  249. See, e.g., Klarman, supra note 124, at 25–26, 146. ↑

  250. Solum, Originalism and Constitutional Construction, supra note 45, at 530. ↑

  251. U.S. Const. art. I, § 8, cl. 1. ↑

  252. Compare Alexander Hamilton, Report on Manufacturers (1791), reprinted in History of the United States: Political, Industrial, Social 506–07 (Charles Manfred Thompson ed., 1917) (arguing that Congress’s “power to raise money is plenary and indefinite”; that “[t]he terms ‘general welfare’ were doubtlessly intended to signify more than was expressed or imported in” the preceding list of congressional powers; and that as a result “[i]t is, therefore, of necessity, left to the discretion of the National Legislature to pronounce upon the objects which concern the general Welfare, and for which, under that description, an appropriation of money is requisite and proper”), with The Federalist No. 41 (James Madison) 262–63 (Clinton Rossiter ed., 1961) (arguing for a narrow construction of the clause, and describing Hamilton’s approach as a “misconstruction” that only “might have had some color” in a counterfactual where “no other enumeration or definition of the powers of the Congress been found in the Constitution”); see also, e.g., United States v. Butler, 297 U.S. 1, 64 (1936) (noting disagreement but concluding that “[t]he true construction undoubtedly is that the only thing granted is the power to tax for the purpose of providing funds for payment of the nation’s debts and making provision for the general welfare”); 1 Joseph Story, Commentaries on the Constitution of the United States § 922, at 672–73 (Melville M. Bigelow ed., William S. Hein & Co. 5th ed. 1994) (1833); Herman J. Herbert, Jr., Comment, The General Welfare Clauses in the Constitution of the United States, 7 Fordham L. Rev. 390, 396–403 (1938). ↑

  253. See generally Julian Davis Mortenson, Article II Vests the Executive Power, not the Royal Prerogative, 119 Colum. L. Rev. 1169 (2019) (arguing for a narrow reading of the executive vesting clause); see also Saikrishna Prakash, The Essential Meaning of Executive Power, 2003 U. Ill. L. Rev. 701 (arguing the original public meaning of the executive vesting clause was merely the power to execute the law); cf. Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 Harv. L. Rev. 1153, 1175–79 (1992) (arguing that the executive vesting clause incorporates a broad understanding of executive power). ↑

  254. See David Luban, On the Commander in Chief Power, 81 S. Cal. L. Rev. 477, 483–84 (2008) (“The Commander in Chief Clause is a sphinx, and specifying its powers and the theory generating them is its riddle.”); see generally Richard A. Epstein, Executive Power, the Commander in Chief, and the Militia Clause, 34 Hofstra L. Rev. 317 (2005) (evaluating various views of the commander in chief power); Jesse H. Choper, Michael C. Dorf, Richard H. Fallon, Jr. & Frederick Schauer, Constitutional Law 213–17 (13th ed. 2019) (noting and summarizing debate over the scope of executive war powers). ↑

  255. See, e.g., Gienapp, supra note 113, at 92–95 (noting Anti-Federalists’ on Article III’s provision for judicial power as dangerously “imprecise”). Among the specific disputes that persisted after ratification involved whether the judicial power encompassed a power to develop a federal common law of crimes. See, e.g., Richard H. Fallon, Jr., John F. Manning, Daniel J. Meltzer & David L. Shapiro, Hart & Wechsler’s the Federal Courts and the Federal System 638–42 (7th ed. 2015). ↑

  256. Compare, e.g., United States v. Windsor, 570 U.S. 744, 786 (2013) (Scalia, J., dissenting) (describing the adverse-party requirement as “not a ‘prudential’ requirement that we have invented, but an essential element of an Article III case or controversy”), with James E. Pfander & Daniel D. Birk, Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisdiction, 124 Yale L.J. 1346, 1355–56 (2015) (arguing that Article III’s embrace of both adversarial hearings and ex parte hearings derives from Roman and civil law). See James E. Pfander & Emily K. Damrau, A Non-Contentious Account of Article III’s Domestic Relations Exception, 92 Notre Dame L. Rev. 117, 118–19 (2016) (arguing that the bar to Article III jurisdiction over “domestic relations” derives from the distinction between “cases” and “controversies” and the consensual relations that underrides much of domestic relations law); James E. Pfander & Daniel Birk, Adverse Interests and Article III: A Reply, 111 Nw. U. L. Rev. 1067, 1068–71 (2017) (rejecting an argument that even if “cases and controversies” do not require “adverse parties,” they require “adverse interests”). ↑

  257. Compare Akhil Reed Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. Rev. 205, 272 (1985) (arguing that Congress must confer federal jurisdiction, in either original or appellate form, over all cases arising under the Constitution), with Daniel J. Meltzer, The History and Structure of Article III, 138 U. Pa. L. Rev. 1569, 1624–30 (1990) (arguing that Amar’s thesis is unproven and that Congress has more discretion about whether to provide for either lower federal court or Supreme Court appellate jurisdiction). ↑

  258. See generally Richard H. Fallon, Jr., Implementing the Constitution (2001) (identifying implementation as a task partly distinct from interpretation). ↑

  259. See, e.g., Baude & Sachs, supra note 225, at 1094–96 (discussing legal rules for achieving determinacy in the interpretation of contracts, deeds, and wills). ↑

  260. See id. at 1083, 1125 (“[C]ontrary to the skeptics, extracting legal content from a written instrument needn’t involve much direct normative judgment. In fact, it usually doesn’t.”). ↑

  261. See Mark Greenberg, What Makes a Method of Legal Interpretation Correct? Legal Standards vs. Fundamental Determinants, 130 Harv. L. Rev. F. 105, 114–19 (2017) (explaining that the absence of consensus either about interpretive methodologies or the criteria for their validation falsifies claims for the determinacy of the law of interpretation under premises that Baude and Sachs purport to accept). ↑

  262. See Fallon, supra note 230, at 147–48. ↑

  263. On the obligation-altering implications of legitimate authority, see H.L.A. Hart, Essays on Bentham: Studies in Jurisprudence and Political Theory 243–47 (1982); Frederick Schauer, Authority and Authorities, 94 Va. L. Rev. 1931, 1939 (2008). ↑

  264. See Raz, supra note 28, at 284 (linking legislative intentions to law’s authority as well as its intelligibility). ↑

  265. See Fallon, supra note 230, at 79–82. ↑

  266. See id. at 81–82. ↑

  267. See Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 Harv. L. Rev. 1189, 1237–51 (1987). ↑

  268. See id. at 1252–68. ↑

  269. See Fallon, supra note 230, at 51. ↑

  270. See id. at 51–65. ↑

  271. See Klarman, supra note 124, at 25–26, 146 (“[T]he original understanding of the Fourteenth Amendment plainly permitted school segregation.”); Bickel, supra note 107, at 58–59 (acknowledging “[t]he obvious conclusion” that the Fourteenth Amendment was not intended to apply to school segregation). ↑

  272. See David A. Strauss, The Supreme Court, 2014 Term—Foreword: Does the Constitution Mean What It Says?, 129 Harv. L. Rev. 1, 57 (2015) (“The key point is one that Jefferson recognized: original understandings are binding for a time but then lose their force.”); id. at 58 (“[A] decision that would be lawless in the immediate wake of a constitutional amendment might be acceptable—in fact is, in our system, routinely accepted—after time has passed.”); Primus, supra note 25, at 170. ↑

  273. 347 U.S. 483 (1954). ↑

  274. Id. at 489. ↑

  275. Id. ↑

  276. Id. at 492–93. ↑

  277. See Balkin, Construction, supra note 30, at 73; Michael C. Dorf, Integrating Normative and Descriptive Constitutional Theory: The Case of Original Meaning, 85 Geo. L.J. 1765, 1766–67 (1996). ↑

  278. A prominent example involves Thomas Jefferson’s image of “a wall of separation between Church and State.” Letter from Thomas Jefferson to a Committee of the Danbury Baptist Association (Jan. 1, 1802), in 16 The Writings of Thomas Jefferson 281, 282 (A. Lipscomb ed., 1904). Jefferson’s metaphor has become a fixture of American First Amendment law. See, e.g., Everson v. Bd. of Educ., 330 U.S. 1, 16 (1947) (quoting Reynolds v. United States, 98 U.S. 145, 164 (1879)); see also Developments in the Law: Religion and the State, 100 Harv. L. Rev. 1606, 1635–37 (1987) (exploring history and impact of this metaphor). ↑

  279. As I have argued elsewhere, I believe that participants in constitutional practice do best to develop their theories on a partially rolling basis as they reflect on the attractiveness of provisional interpretive principles in light of the outcomes that those principles would yield in particular cases and seek a “reflective equilibrium” between their interpretive principles and their substantive judgments about contested issues. See Fallon, supra note 230, at 142–54 (defending a second-order Reflective Equilibrium Theory of constitutional interpretation). ↑

  280. M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819). ↑

  281. See, e.g., Balkin, Living Originalism, supra note 30, at 21–35 (articulating a theory of “framework originalism” under which constitutional language provides a framework for debate and decision while leaving many outcomes underdetermined); Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution 4 (2009) (describing how shifts in public opinion and expectations have shaped interpretation of the Constitution by the Supreme Court); see also David A. Strauss, Common Law Constitutional Interpretation, 63 U. Chi. L. Rev. 877, 911 (1996) (“On the conventionalist account, the Constitution is a focal point . . . our culture has given it a salience that makes it the natural choice when cooperation is valuable.”). ↑

  282. There are arguable exceptions. For example, although the First Amendment begins by prescribing that “Congress shall make no law,” U.S. Const. amend. I, courts interpret it as applying to the executive and judicial branches. See Strauss, supra note 271, at 30 (observing that despite its text the First Amendment “uncontroversially” applies against all three branches of the federal government); see also Curtis A. Bradley & Neil S. Siegel, Constructed Constraint and the Constitutional Text, 64 Duke L.J. 1213, 1244–47 (2015) (“American constitutional practice . . . has always viewed the First Amendment as relevant to the conduct of the entire federal government, not just Congress.”). In what many believe to be a similar deviation from original semantic meaning, the Supreme Court has held since 1954 that the Due Process Clause of the Fifth Amendment subjects the federal government to the same equal protection norms that the Fourteenth Amendment explicitly imposes on the states. See Bolling v. Sharpe, 347 U.S. 497, 499–500 (1954); Adarand Constructors v. Pena, 515 U.S. 200, 217 (1995). The Court has adopted this interpretation even though the Fourteenth Amendment refers only to the states and virtually no one, at the time of the Fifth Amendment’s ratification, understood the Due Process Clause as barring race-based discrimination. Overall, semantic content provides a presumptive mooring in identifying constitutional meaning, but one that is sensitive to other factors of recognized legitimacy in constitutional argument. See Bradley & Siegel, supra, at 1244–47; Strauss, supra note 271, at 4 (“Clear text does not always govern, as the anomalies show; there are times when established principles are simply inconsistent with the text.”). ↑

  283. See Foner, supra note 41, at 89. ↑

  284. See Strauss, supra note 241, at 111–14. ↑

  285. There is a vast literature on the mechanisms by which shifting public opinion affects appointments to and decision making by the Supreme Court. Influential contributions include Bruce A. Ackerman, We the People, Volume I: Foundations (1991); Friedman, supra note 280; Barry Friedman, Mediated Popular Constitutionalism, 101 Mich. L. Rev. 2596 (2003); and Robert Post & Reva Siegel, Popular Constitutionalism, Departmentalism, and Judicial Supremacy, 92 Calif. L. Rev. 1027 (2004). ↑

  286. See generally Robert A. Dahl, Democracy and Its Critics 190 (1989) (“[T]he views of a majority of the justices of the Supreme Court are never out of line for very long with the views prevailing among the lawmaking majorities of the country.”); Robert G. McCloskey, The American Supreme Court 224 (1960) (“[I]t is hard to find a single historical instance when the Court has stood firm for very long against a really clear wave of public demand.”). ↑

  287. See Fallon, supra note 13. ↑

  288. See, e.g., John F. Manning, The New Purposivism, 2011 Sup. Ct. Rev. 113, 120. ↑

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.

  1. * University of Virginia Law School, J.D. expected 2022. The author would like to thank Jackson Myers for his feedback throughout the completion of this Note, as well as Professor Michael Gilbert for his supervision of the project. The author supports campaign finance reform efforts as a policy matter despite the legal conclusions of this Note. ↑

  2. See Seattle, Wash., Ordinance 126,035 (Jan. 17, 2020). ↑

  3. See Seattle, Wash., Mun. Code tit. 2, ch. 4, §§ 10, 400 (2020). ↑

  4. 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]. ↑

  5.  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]. ↑

  6. 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). ↑

  7. See Seattle, Wash., Mun. Code tit. 2, ch. 4, §§ 10, 400 (2020). ↑

  8. 558 U.S. 310, 365–66 (2010). ↑

  9. 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. ↑

  10. See Michael Sozan, Ctr. for Am. Progress, Ending Foreign-Influenced Corporate Spending in U.S. Elections 42 (2019). ↑

  11. 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]. ↑

  12. 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). ↑

  13. 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. ↑

  14. 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). ↑

  15. The statute was previously codified at 2 U.S.C. § 441e, but for clarity this Note refers to the statute by its contemporary codification throughout. See 2 U.S.C. § 441e (“Section 441e was editorially reclassified as section 30121 of Title 52, Voting and Elections.”). ↑

  16. H.R. 4517, 111th Cong. § 2 (2010). ↑

  17. Actions Overview, H.R. 4517, Congress.gov, https://www.congress.gov/bill/111th-congress/house-bill/4517/all-actions-without-amendments [https://perma.cc/77Z7-FAZG] (last visited Apr. 10, 2021). ↑

  18. See H.R. 5175, 111th Cong. §§ 1(a), 102(a) (2010); S. 3295, 111th Cong. § 2 (2010) § 102(a)(3). ↑

  19. See H.R. 5175, 111th Cong. § 102(a) (2010). ↑

  20. See id. ↑

  21. Actions Overview, H.R. 5175, Congress.gov, https://www.congress.gov/bill/111th-congress/house-bill/5175/actions [https://perma.cc/NB86-NBBT] (last visited Apr. 12, 2021). ↑

  22. See David M. Herszenhorn, Campaign Finance Bill Is Set Aside, N.Y. Times (July 27, 2010), www.nytimes.com/2010/07/28/us/politics/28donate.html [https://perma.cc/V6KJ-D6KX].

    The Senate version of the DISCLOSE Act never left committee. See Actions Overview, S. 3295, Congress.gov, https://www.congress.gov/bill/111th-congress/senate-bill/3295/all-actions-without-amendments [https://perma.cc/SUC4-FNXK] (last visited Mar. 17, 2021). ↑

  23. For example, the DISCLOSE Act of 2018 contained the same language as the 2010 House version, with a 20% threshold for foreign nationals and a 5% threshold for foreign governments and officials. S. 3150, 115th Cong. § 101(a)(3) (2018); see also S. 1585, 115th Cong. § 101(a)(3) (2017) (proposing the same). ↑

  24. Although many federal proposals have considered the percentage of foreign-owned stock, legislators advanced several alternative methods to restrict foreign influence on corporate political activity. The version of the DISCLOSE Act that passed the House, for example, would have barred the independent expenditures of corporations run by majority-foreign boards. See H.R. 5175, 111th Cong. § 102(a)(3) (2010). Other bills called for bans on contributions and expenditures by political committees associated with firms majority-owned by foreign nationals. See H.R. 195, 113th Cong. § 2 (2013). Some sought to extend section 30121 to all firms controlled by foreign nationals, including United States subsidiaries of foreign corporations. See H.R 5175, 111th Cong. § 2 (2010). This legislation would overwrite FEC guidance allowing domestic subsidiaries of foreign corporations to operate political committees, provided that no foreign national controlled the committee. See, e.g., LLC Affiliated with Domestic Subsidiary of a Foreign Corporation May Administer an SSF, FEC A.O. 2009-14 (Oct. 2, 2009). ↑

  25. See, e.g., Program for Pub. Consultation, Univ. of Md. Sch. of Pub. Pol’y, Americans Evaluate Campaign Finance Reform 7 (2018), https://www.publicconsultation.org/wp-content/uploads/2018/05/Campaign_Finance_Report.pdf [https://perma.cc/3BZ9-77B2] (finding that 75% of respondents would support a proposed constitutional amendment overturning Citizens United); Hannah Hartig, 75% of Americans Say It’s Likely that Russia or Other Governments Will Try to Influence 2020 Election, Pew Rsch. Ctr. (Aug. 18, 2020), https://www.pewresearch.org/fact-tank/2020/08/18/75-of-americans-say-its-likely-that-russia-or-other-governments-will-try-to-influence-2020-election/ [https://perma.cc/7KCU-YGN7]. ↑

  26. See Getting Big Money out of Politics, Warren Democrats, https://elizabethwarren.com/‌plans/campaign-finance-reform [https://perma.cc/NQ22-QXRN] (last visited Apr. 12, 2021). ↑

  27. S. 5070, 116th Cong. § 205 (2020). ↑

  28. The Biden Plan to Guarantee Government Works for the People, Biden Harris Democrats, https://joebiden.com/governmentreform/ [https://perma.cc/5V2J-4WUU] (last visited Mar. 17, 2021). ↑

  29. See Joseph Biden & Michael Carpenter, Foreign Dark Money Is Threatening American Democracy, Politico (Nov. 27, 2018), https://www.politico.com/magazine/story/2018/11/27/‌foreign-dark-money-joe-biden-222690/ [https://perma.cc/Y2P8-PCHQ]. ↑

  30. See St. Petersburg, Fla., City Code pt. 2, ch. 10, art. iv, § 62 (2021). ↑

  31. St. Petersburg, Fla., City Code pt. 2, ch. 10, art. iii, § 51(m) (2021). ↑

  32. See N.Y.C., N.Y., Introduction No. 1074 (July 17, 2018). ↑

  33. See Seattle, Wash., Mun. Code tit. 2, ch. 4, §§ 10, 400 (2020). ↑

  34. See Alaska Stat. § 15.13.068 (2018). The Alaska law likely only applies to local election campaigns. See Alaska Stat. § 15.13.068(b) (2018); Recent Legislation, Election Law—Limits on Political Spending by Foreign Entities—Alaska Prohibits Spending on Local Elections by Foreign-Influenced Corporations—Alaska Stat. § 15.13.068 (2018), 132 Harv. L. Rev. 2402, 2405–06 (2019). ↑

  35. See Haw. Rev. Stat. § 11-356 (2010). ↑

  36. See Colo. Rev. Stat. §§ 1-45-103(10.5), 1-45-107.5(1) (2019). The Colorado statute next asserts compliance with Citizens United’s dictate that corporations and labor organizations not be prohibited from making independent expenditures, which represents either recognition of the state law’s incompatibility with the decision or an effort to stand up to it. ↑

  37. See S. 394, 190th Gen. Ct. (Mass. 2017); H. 2904, 190th Gen. Ct. (Mass. 2017). ↑

  38. See S. 401, 191st Gen. Ct. (Mass. 2019); S. 393, 191st Gen. Ct. (Mass. 2019); H. 703, 191st Gen. Ct. (Mass. 2019). ↑

  39. See Letter from Laurence H. Tribe, Professor, Harvard Law Sch., to Barry Finegold, Chairman, Mass. State House, and John L. Lawn, Jr., Chairman, Mass. State House (May 13, 2019), https://freespeechforpeople.org/wp-content/uploads/2019/05/2019-L.-Tribe-testimony-to-Mass-Election-Law-Committee.pdf [https://perma.cc/SR9T-SQQ3]; Letter from John Coates, supra note 8, at 1. ↑

  40. See H.B. 5410, 2020 Sess. (Conn.); H.B. 739, 2734–47, 133d Gen. Assemb. (Ohio 2020); S.B. 349, 2734–47, 133d Gen. Assemb. (Ohio 2020); S.B. 11, 2019 Sess. (Penn.); S.B. 497, 2018 Sess. (Conn.). ↑

  41. See H.B. 2738, 30th Leg. (Haw. 2020); H.B. 34, 441st Gen. Assemb. (Md. 2019); S.B. 87, 441st Gen. Assemb. (Md. 2019); H.F. 3405, 91st Leg. (Minn. 2020); S.B. 7578, 2020 Sess. (N.Y.). ↑

  42. See Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 394 (2010) (Stevens, J., concurring in part and dissenting in part); Tillman Act, Pub. L. No. 59-36, ch. 420, 34 Stat. 864 (1907). ↑

  43. See McConnell v. Fed. Election Comm’n, 540 U.S. 93, 116 (2003) (citing the Federal Corrupt Practices Act of 1925, ch. 368, §§ 301, 302, 313, 43 Stat. 1070, 1074). ↑

  44. Labor Management Relations Act of 1947, Pub. L. No. 80-101, 61 Stat. 136, 159. In its regulation of elections, Congress made a few stops along the way unrelated to corporate political activity, such as the Hatch Act of 1939, Pub. L. No. 76-252, 53 Stat. 1147 (prohibiting civil service employees of the United States from interfering with elections and making it illegal to promise benefits in exchange for support of or opposition to a candidate or political party). ↑

  45. See Trevor Potter, Money, Politics, and the Crippling of the FEC, 69 Admin. L. Rev. 447, 451 (2017); Bradley A. Smith, Feckless: A Critique of Critiques of the Federal Election Commission, 27 Geo. Mason L. Rev. 503, 512 (2020). ↑

  46. See McConnell, 540 U.S. at 118. ↑

  47. Pub. L. No. 92-225, 86 Stat. 3 (1972); see also Robert E. Mutch, Buying the Vote: A History of Campaign Finance Reform, 130–38 (2014) (elaborating on the reasons for renewed campaign finance reform); Anthony J. Gaughan, The Forty-Year War on Money in Politics: Watergate, FECA, and the Future of Campaign Finance Reform, 77 Ohio St. L.J. 791, 795–96 (2016) (explaining the influence of the Watergate scandal on the public’s desire for campaign finance reform). ↑

  48. Pub. L. No. 92-225, 86 Stat. 3 at 4, 8–19 (1972). ↑

  49. Federal Election Campaign Act Amendments of 1974, Pub. L. No. 93-443, 88 Stat. 1263, 1280–81 (creating the FEC); id. at 1263 (introducing a $1,000 annual limit on a person’s contributions to a federal candidate); id. at 1265 (applying the same limit to a person’s independent expenditures). ↑

  50. See Federal Election Campaign Act Amendments of 1976 § 321(a), Pub. L. No. 94-283, 90 Stat. 475, 490. ↑

  51. 424 U.S. 1, 45–48 (1976) (deciding that the right to free speech outweighs the government’s interest in preventing corruption). Buckley’s facts involved independent expenditures by individuals, meaning that the Court took no explicit position on independent expenditures by corporations. See id. at 7–8. ↑

  52. Id. at 23–29. ↑

  53. Id. at 47. The Court later employed this same rationale to strike down corporate spending limits in ballot measure elections. First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 788–95 (1978). ↑

  54. Buckley, 424 U.S. at 48–49, 57. ↑

  55. 494 U.S. 652, 655–56 (1990). ↑

  56. Id. at 660 (Michigan’s regulation targets “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas”) ↑

  57. Buckley, 424 U.S. at 48–49 (describing the idea as “wholly foreign to the First Amendment”). ↑

  58. See Pub. L. No. 107-155, 116 Stat. 81 (2002) (introducing new restrictions aimed at limiting special interest influence and new rules for electioneering communications and independent and coordinated expenditures). ↑

  59. See id. §§ 101, 201, 211; McConnell v. Fed. Election Comm’n, 540 U.S. 93, 132 (2003); Richard Briffault, The Future of Reform: Campaign Finance After the Bipartisan Campaign Reform Act of 2002, 34 Ariz. St. L.J. 1179, 1180–81 (2002). ↑

  60. See 540 U.S. at 207–08 (citing Austin, 494 U.S. at 668, and remaining “[un]persuaded that plaintiffs . . . carried their heavy burden of proving that [the amended statute] is overbroad”); Richard Briffault, McConnell v. FEC and the Transformation of Campaign Finance Law, 3 Election L.J. 147, 147 (2004). ↑

  61. Electioneering communications include “any broadcast, cable, or satellite communication that refers to a clearly identified candidate for Federal office and is made within 30 days of a primary or 60 days of a general election.” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 321 (2010) (citing 2 U.S.C. § 434(f)(3)(A) (2006)) (internal quotations removed). ↑

  62. Toni M. Massaro, Foreign Nationals, Electoral Spending, and the First Amendment, 34 Harv. J.L. & Pub. Pol’y 663, 669 (2011). ↑

  63. Citizens United, 558 U.S. at 319–21. ↑

  64. See Fed. Election Comm’n v. Mass. Citizens for Life, Inc., 479 U.S. 238, 263–65 (1986) (finding that corporations that do not engage in business activities lack the attributes that give corporations the potential to distort or corrupt political discourse, and therefore may not be prohibited from engaging in independent expenditures). ↑

  65. See Citizens United, 558 U.S. at 324–25. ↑

  66. Id. at 327. ↑

  67. See Robert C. Post, Citizens Divided: Campaign Finance Reform and the Constitution 44 (2014). ↑

  68. Citizens United, 558 U.S. at 356. ↑

  69. Id. at 341, 355. ↑

  70. Id. at 339. ↑

  71. Id. at 340–41. ↑

  72. Id. at 348–50. ↑

  73. Id. at 365. ↑

  74. Pub. L. No. 89-486, § 613, 80 Stat. 244, 248–49; United States v. Singh, 924 F.3d 1030, 1042 (9th Cir. 2019). Although Congress enacted FARA in 1938, the law’s original formulation primarily targeted foreign propaganda as opposed to activity directed at election campaigns. H.R. Rep. No. 75-1381, at 1–3 (1937) (describing the purpose of the act as uncovering propaganda that may “influenc[e] American public opinion”); Pub. L. No. 75-583, 52 Stat. 631, 632 (covering public relations activities but not political activities). ↑

  75. Federal Election Campaign Act Amendments of 1974, Pub. L. No. 93-443, 88 Stat. 1263, 1267. ↑

  76. See Comm. on Governmental Affs., Investigation of Illegal or Improper Activities in Connection with 1996 Federal Election Campaigns, S. Rep. No. 105-167, at 33–34 (1998); Singh, 924 F.3d at 1042. ↑

  77. Pub. L. No. 107-155, § 441(e), 116 Stat. 81, 96 (2002) (current version at 52 U.S.C. § 30121(a) (2018)); Pub. L. No. 107-155, § 303(2)(a)(1), 116 Stat. 81, 96 (2002). ↑

  78. See Citizens United, 558 U.S. at 362 (“We need not reach the question whether the Government has a compelling interest in preventing foreign individuals or associations from influencing our Nation’s political process.”). ↑

  79. Id. at 423 (Stevens, J., concurring in part and dissenting in part). ↑

  80. Bluman v. Fed. Election Comm’n, 800 F. Supp. 2d 281, 285 (D.D.C. 2011). ↑

  81. Id. at 283, 292. ↑

  82. Id. at 289 (“[P]laintiffs . . . concede that the government may make distinctions based on the foreign identity of the speaker when the speaker is abroad. Plaintiffs contend, however, that the government may not impose the same restrictions on foreign citizens who are lawfully present in the United States on a temporary visa. We disagree.”). ↑

  83. Id. at 290; see also Alyssa Markenson, Note, What’s at Stake?: Bluman v. Federal Election Commission and the Incompatibility of the Stake-Based Immigration Plenary Power and Freedom of Speech, 109 Nw. U. L. Rev. 209, 229 (2015) (discussing Bluman’s stake-based rationale). ↑

  84. Bluman, 800 F. Supp. 2d at 288 (“It follows, therefore, that the United States has a compelling interest for purposes of First Amendment analysis in limiting the participation of foreign citizens in activities of American democratic self-government, and in thereby preventing foreign influence over the U.S. political process.”). ↑

  85. Id. at 288, 292. ↑

  86. Id. at 292 n.4. ↑

  87. Bluman v. Fed. Election Comm’n, 565 U.S. 1104 (2012). ↑

  88. Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 140 S. Ct. 2082, 2086 (2020). ↑

  89. See John Paul Stevens, Six Amendments: How and Why We Should Change the Constitution 69–70 (2014); see also Laurence Tribe & Joshua Matz, Uncertain Justice: The Roberts Court and the Constitution 118 (2014) (noting that the Court “ducked the issue”). ↑

  90. Bluman, 800 F. Supp. 2d at 288. ↑

  91. Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 356 (2010). ↑

  92. Id. at 340–41, 364; Tribe & Matz, supra note 88, at 118. ↑

  93. While Bluman correctly identified the existence of a “risk” involved with foreign participation in the American democratic process, the opinion declined to specify what that risk is. Bluman, 800 F. Supp. 2d at 291. ↑

  94. See Massaro, supra note 61, at 675. ↑

  95. Citizens United, 558 U.S. at 360 (emphasis added). ↑

  96. See Buckley v. Valeo, 424 U.S. 1, 55–56 (1976). ↑

  97. To be clear, this position disagrees with the stance of those who support foreign-influence laws. ↑

  98. See Bluman, 800 F. Supp. 2d at 292 n.4. ↑

  99. Id. at 288. ↑

  100. Id. at 290. ↑

  101. Id. at 291. ↑

  102. Id. at 290–91; Markenson, supra note 82, at 229. ↑

  103. Bluman, 800 F. Supp. 2d at 290 (citing Cabell v. Chavez-Salido, 454 U.S. 432, 439–40 (1982)). ↑

  104. United States v. Singh, 924 F.3d 1030, 1043 (9th Cir. 2019) (citing Morse v. Republican Party of Va., 517 U.S. 186, 203 n.21 (1996)). ↑

  105. Bluman, 800 F. Supp. 2d at 288. ↑

  106. Buckley v. Valeo, 424 U.S. 1, 19 (1976). In contrast, regulations on direct contributions to candidates are subject to a form of “closely drawn” scrutiny, demanding a sufficiently important interest and a means closely drawn to that interest. Id. at 25; McConnell v. Fed. Election Comm’n, 540 U.S. 93, 137 (2003). ↑

  107. Fed. Election Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449, 464 (2007); see also Austin v. Mich. Chamber of Com., 494 U.S. 652, 658 (1990); First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 786 (1978); Buckley, 424 U.S. at 44–45; McConnell, 540 U.S. at 205. ↑

  108. Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 340 (2010). ↑

  109. Bluman, 800 F. Supp. 2d at 285. ↑

  110. See, e.g., Holder v. Humanitarian L. Project, 561 U.S. 1, 33–34 (2010) (explaining that courts are not well placed to judge issues of national security and foreign affairs); Chi. & S. Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 111 (1948) (explaining that foreign policy concerns are political and reserved to the executive and legislative branches, not the judiciary). But see Martin S. Flaherty, Restoring the Global Judiciary: Why the Supreme Court Should Rule in U.S. Foreign Affairs 191 (2019) (describing the arc of judicial deference in foreign affairs); David Rudenstine, The Age of Deference: The Supreme Court, National Security, and the Constitutional Order 308 (2016) (explaining that the Constitution allocates primary responsibility for national security to the executive and Congress, but “primary responsibility is not exclusive responsibility”). ↑

  111. David Cole, The First Amendment’s Borders: The Place of Holder v. Humanitarian Law Project in First Amendment Doctrine, 6 Harv. L. & Pol’y Rev. 147, 158 (2012). ↑

  112. Humanitarian L. Project, 561 U.S. at 10, 40. ↑

  113. See Aziz Z. Huq, Preserving Political Speech from Ourselves and Others, 112 Colum. L. Rev. Sidebar 16, 18–20, 23–27 (2012); William D. Araiza, Citizens United, Stevens, and Humanitarian Law Project: First Amendment Rules and Standards in Three Acts, 40 Stetson L. Rev. 821, 822 (2011). ↑

  114. Bluman, 800 F. Supp. 2d at 285. Of course, Bluman involved foreigners speaking from within the United States—if those individuals had spoken while abroad, the opinion may have found no constitutional bar under which to scrutinize section 30121. ↑

  115. Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 362 (2010) (“We need not reach the question whether the Government has a compelling interest in preventing foreign individuals or associations from influencing our Nation’s political process.”). ↑

  116. See Richard H. Fallon, Jr., Strict Judicial Scrutiny, 54 UCLA L. Rev. 1267, 1325 (2007). In reality, the division between the compelling interest and narrow tailoring is likely rather malleable, and a court will view these bifurcated steps in tandem. Id. at 1333. ↑

  117. Citizens United, 558 U.S. at 362. Before Bluman, political expenditures by foreigners represented “the 800-pound gorilla that the Supreme Court ha[d] never confronted.” Matt A. Vega, The First Amendment Lost in Translation: Preventing Foreign Influence in U.S. Elections After Citizens United v. FEC, 44 Loy. L.A. L. Rev. 951, 992 (2011). ↑

  118. Bluman, 800 F. Supp. 2d at 288. ↑

  119. See, e.g., Maryam Kamali Miyamoto, The First Amendment After Reno v. American-Arab Anti-Discrimination Committee: A Different Bill of Rights for Aliens?, 35 Harv. C.R.-C.L. L. Rev. 183, 184–88 (2000) (arguing that “First Amendment rights are too essential to the values of a democratic society to allow Congress or the courts to restrict them based on an individual’s citizenship status”); Massaro, supra note 61, at 665, 681–82 (“analyz[ing] whether foreign speakers can be restricted from making political campaign contributions or expenditures in ways that nonforeign speakers cannot”); David Cole, Are Foreign Nationals Entitled to the Same Constitutional Rights as Citizens?, 25 T. Jefferson L. Rev. 367, 376 (2003) (arguing that noncitizens deserve the same rights as citizens). ↑

  120. See Girouard v. United States, 328 U.S. 61, 64–65 (1946) (holding that an applicant for citizenship may not be rejected due to religious beliefs that prevent military service); see also Bridges v. Wixon, 326 U.S. 135, 148 (1945); id. at 161 (Murphy, J., concurring) (“[O]nce an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution . . . .”). ↑

  121. See, e.g., Harisiades v. Shaughnessy, 342 U.S. 580, 591–92 (1952) (holding that the First Amendment does not prohibit the deportation of legal permanent residents for membership in the Communist Party); Galvan v. Press, 347 U.S. 522, 529–32 (1954) (holding the same). ↑

  122. See Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 140 S. Ct. 2082, 2086 (2020) (“[I]t is long settled as a matter of American constitutional law that foreign citizens outside U.S. territory do not possess rights under the U.S. Constitution.”). ↑

  123. 408 U.S. 753, 765–66 (1972). ↑

  124. Bernal v. Fainter, 467 U.S. 216, 220 (1984) (“This exception has been labeled the ‘political function’ exception and applies to laws that exclude aliens from positions intimately related to the process of democratic self-government.”); Foley v. Connelie, 435 U.S. 291, 296 (1978) (“[A] State may deny aliens the right to vote, or to run for elective office, for these lie at the heart of our political institutions.”); Cabell v. Chavez-Salido, 454 U.S. 432, 439 (1982) (“The exclusion of aliens from basic governmental processes is not a deficiency in the democratic system but a necessary consequence of the community’s process of political self-definition.”). ↑

  125. See Amandeep S. Grewal, The Foreign Emoluments Clause and the Chief Executive, 102 Minn. L. Rev. 639, 644–45 (2017) (discussing Framers’ statements on foreign influence); Karl A. Racine & Elizabeth Wilkins, Enforcing the Anti-Corruption Provisions of the Constitution, 13 Harv. L. & Pol’y Rev. 449, 456–58 (2019) (describing the concerns underlying the Emoluments Clause); Vega, supra note 116, at 960 (detailing the Framers’ fears of foreign corruption); Marissa L. Kibler, Note, The Foreign Emoluments Clause: Tracing the Framers’ Fears About Foreign Influence over the President, 74 N.Y.U. Ann. Surv. Am. L. 449, 465–70 (2019) (discussing the Emoluments Clause as a bulwark against foreign influence); Zephyr Teachout, The Anti-Corruption Principle, 94 Cornell L. Rev. 341, 352–53, 358 (2009) (outlining a constitutional principle against corruption based in part on fear of foreign corruption). ↑

  126. The Federalist No. 22, at 112 (Alexander Hamilton) (Ian Shapiro ed., 2009). ↑

  127. The Farewell Address of George Washington 40 (Frank W. Pine, ed., 1911) (“Against the insidious wiles of foreign influence . . . the jealousy of a free people ought to be constantly awake, since history and experience prove that foreign influence is one of the most baneful foes of republican government.”). ↑

  128. See U.S. Const. art. I, § 9, cl. 8 (the Emoluments Clause). ↑

  129. Teachout, supra note 124, at 358. ↑

  130. See Vega, supra note 116, at 1004. ↑

  131. See generally RonNell Andersen Jones, Press Speakers and the First Amendment Rights of Listeners, 90 U. Colo. L. Rev. 499 (2019) (arguing that the “unique features” of speaker-listener relationships “should lead to greater appreciation of the press as a special institutional speaker and to greater protection for newsgathering performed on behalf of listeners” under the First Amendment); Joseph Thai, The Right to Receive Foreign Speech, 71 Okla. L. Rev. 269 (2018) (examining First Amendment coverage of speech by foreign speakers “on the listener’s end of the speech relationship”); Michael Kagan, When Immigrants Speak: The Precarious Status of Non-Citizen Speech Under the First Amendment, 57 B.C. L. Rev. 1237 (2016) (calling for the Supreme Court to revisit questions concerning immigrant free speech “because current case law is in tension with other principles of free speech law, especially the prohibition on identity-based speech restrictions as articulated in Citizens United v. FEC”); Tribe & Matz, supra note 88, at 118–19 (discussing the Supreme Court’s treatment of whether foreign corporations can spend money on American elections). ↑

  132. Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 356 (2010). The quote continues, “The First Amendment confirms the freedom to think for ourselves.” This thread continues elsewhere in the opinion, where the Court finds that “[t]he right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.” Id. at 339 (emphasis added). ↑

  133. Lamont v. Postmaster Gen., 381 U.S. 301, 307 (1965) (“This amounts in our judgment to an unconstitutional abridgment of the addressee’s First Amendment rights.”). ↑

  134. Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 454 (2008). ↑

  135. Red Lion Broad. Co. v. Fed. Commc’ns Comm’n, 395 U.S. 367, 390 (1969). ↑

  136. See Tribe & Matz, supra note 88, at 118 (“The logic of this argument seems unassailable, but if taken seriously, it suggests that we should not deny citizens access to political ideas that happen to be expressed by noncitizens.”). ↑

  137. See Bruce D. Brown, Alien Donors: The Participation of Non-Citizens in the U.S. Campaign Finance System, 15 Yale L. & Pol’y Rev. 503, 518 (1997); Vega, supra note 116, at 992; Anthony J. Gaughan, Putin’s Revenge: The Foreign Threat to American Campaign Finance Law, 62 Howard L.J. 855, 862 (2019). ↑

  138. See Massaro, supra note 61, at 666; Richard L. Hasen, Citizens United and the Illusion of Coherence, 109 Mich. L. Rev. 581, 609 (2011). ↑

  139. Harvard law professor John Coates noted that even ownership stakes smaller than 5% make the investor “theoretically capable of exerting influence on . . . corporate political spending.” Letter from John Coates, supra note 8, at 6. Coates also stated at an FEC hearing, “[T]he boards of companies that are confronted by 1% shareholders listen to them . . . . [T]hey don’t do what they say, necessarily, all the time, but they do engage with them.” John Coates, Harv. L. Sch., Federal Election Commission Forum: Corporate Political Spending and Foreign Influence 38 (June 23, 2016), https://www.fec.gov/resources/about-fec/commissioners/‌weintraub/text/Panel2-Complete.pdf [https://perma.cc/U8J5-EFN2]; see also John C. Coates IV, Thirty Years of Evolution in the Roles of Institutional Investors in Corporate Governance, in Research Handbook on Shareholder Power 79, 79–95 (Jennifer G. Hill & Randall S. Thomas eds., 2015) (discussing the increasing power of shareholders). ↑

  140. See, e.g., Blasius Indus. v. Atlas Corp., 564 A.2d 651, 659 (Del. Ch. 1988) (“The shareholder franchise is the ideological underpinning upon which the legitimacy of directorial power rests.”); Unocal Corp. v. Mesa Petroleum Co., 493 A.2d 946, 959 (Del. Ch. 1985). ↑

  141. Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 370 (2010). ↑

  142. See Blasius, 564 A.2d at 659; Unocal, 493 A.2d at 959 (“If the stockholders are displeased . . . the powers of corporate democracy are at their disposal to turn the board out.”). ↑

  143. Blasius, 564 A.2d at 659; Lucian A. Bebchuk, The Myth of the Shareholder Franchise, 93 Va. L. Rev. 675, 688 (2007); Dov Solomon, The Voice: The Minority Shareholder’s Perspective, 17 Nev. L.J. 739, 756 (2017). For additional discussion on blockholders—shareholders owning greater than 5% of a corporation—see generally Alex Edmans, Blockholders and Corporate Governance (Nat’l Bureau of Econ. Rsch., Working Paper No. 19573, 2013), www.nber.org/papers/w19573.pdf [https://perma.cc/8MQ3-BYUW]; Anita Indira Anand, Shareholder-Driven Corporate Governance and Its Necessary Limitations: An Analysis of Wolf Packs, 99 B.U. L. Rev. 1515 (2019). ↑

  144. Citizens United, 558 U.S. at 477 (2010) (Stevens, J., concurring in part and dissenting in part). ↑

  145. Id. at 476 (2010) (Stevens, J., concurring in part and dissenting in part); Richard Briffault, The Uncertain Future of the Corporate Contribution Ban, 49 Val. U. L. Rev. 397, 448 (2015) (“Given management’s complete control over the decision whether to make campaign contributions, the ‘procedures of corporate democracy’ are inadequate to protect dissenting shareholder interests.”); Adam Winkler, Beyond Bellotti, 32 Loy. L.A. L. Rev. 133, 165 (1998) (“When a ‘corporation’ speaks, it is not the owners of the corporation (shareholders) who do so, it is those who exercise control of the corporation’s assets (management).”). ↑

  146. Adam Winkler, “Other People’s Money”: Corporations, Agency Costs, and Campaign Finance Law, 92 Geo L.J. 871, 874–75 (2004). ↑

  147. Citizens United, 558 U.S. at 477 (2010). ↑

  148. Joseph K. Leahy, Corporate Political Contributions as Bad Faith, 86 U. Colo. L. Rev. 477, 486 (2015). ↑

  149. Citizens United, 558 U.S. at 477 (2010). ↑

  150. Some proposed foreign-influence laws do target firms where a foreign national retains the power to appoint board members. See supra note 23. These provisions may be more effectively tailored to combat foreign activity. ↑

  151. The mid-1990s scandal surrounding Chinese political donations to the Democratic National Committee and other politically-affiliated groups formed the impetus for BCRA. However, the offending individuals—all Chinese citizens—attempted to donate the money directly to the political entities, rather than through a corporation. See Comm. on Governmental Affs., supra note 75, at 35–41. Another report supporting foreign-influence laws points to five prosecutions where foreigners funneled money through shell corporations, foreign-controlled U.S. corporations, and straw men. Sozan, supra note 9, at 16–17. ↑

  152. See 52 U.S.C. § 30121 (2018). ↑

  153. This dearth of examples may prove irrelevant; the Court’s decision in Buckley, for example, appeared unconcerned that the government could not show significant evidence of corruption when upholding FECA’s contribution limits. Buckley v. Valeo, 424 U.S. 1, 29–30 (1976). But see Citizens United, 558 U.S. at 360–61 (finding relevant that no evidence was presented showing that independent expenditures lead to corruption). ↑

  154. John C. Coates IV, Ronald A. Fein, Kevin Crenny & L. Vivian Dong, Quantifying Foreign Institutional Block Ownership at Publicly Traded U.S. Corporations 8 (Harv. John M. Olin Ctr. for L., Econ., & Bus., Discussion Paper No. 888, 2016), http://www.law.harvard.‌edu/programs/olin_center/papers/pdf/Coates_888.pdf [https://perma.cc/B6FZ-W6GN]. ↑

  155. See Sozan, supra note 9, at 42. ↑

  156. Gwladys Fouche & Alister Doyle, Norway Wealth Fund to Assess Climate Risks in Power, Oil, Materials, Reuters (Feb. 27, 2018), https://www.reuters.com/article/us-norway-swf-idUKKCN1GB0Y7 [https://perma.cc/NHW3-BSZR]. ↑

  157. The Norwegian pension fund held stakes of at least 1% in each of these companies as of early 2021. See, e.g., CNBC Ownership Database, https://www.cnbc.com/quotes/?symbol=‌AAPL&qsearchterm=appl&tab=ownership (last accessed Mar. 25, 2021) [https://perma.cc/‌3Y43-NMXW]. ↑

  158. See Sozan, supra note 9, at 42. ↑

  159. See Rosenthal & Austin, supra note 13, at 928; Steven M. Rosenthal, Slashing Corporate Taxes: Foreign Investors Are Surprise Winners, 157 Tax Notes 559, 564 (2017). ↑

  160. Passive investors generally do not gain contractual rights to select board members, cannot access sensitive data, and do not influence decisions outside of voting through shares, among other characteristics. See 31 C.F.R. §§ 800.223, 800.211(b) (2020). ↑

  161. 31 C.F.R. § 800.302 (2019). ↑

  162. See 47 U.S.C. § 310(b)(3)–(4); see also Moving Phones P’ship L.P. v. Fed. Commc’n Comm’n, 998 F.2d 1051, 1055–56 (D.C. Cir. 1993) (upholding federal law allowing denial of applications to construct and operate cellular systems where the applicants were more than 20% foreign-owned, based on a national security rationale). ↑

  163. See 12 C.F.R. § 225.41(c)(1)–(2) (2012). ↑

  164. See Randy Elf, The Constitutionality of State Law Triggering Burdens on Political Speech and the Current Circuit Splits, 29 Regent U. L. Rev. 39, 41 (2016). ↑

  165. Buckley v. Valeo, 424 U.S. 1, 40–41. The Court found similar issues compelling in Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449, 469 (2007). ↑

  166. Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 324, 335 (2010). ↑

  167. Letter from John Coates, supra note 8, at 10. ↑

  168. Id. at 11–12. ↑

  169. See, e.g., Laird v. Tatum, 408 U.S. 1, 11 (1972). ↑

  170. See, e.g., S. 393, 191st Gen. Ct. (Mass. 2019). ↑

  171. St. Petersburg, Fl., Mun. Code ch. 10, § 10.62 (2019). ↑

  172. Seattle, Wash., Mun. Code tit. 2, ch. 2.04, § 370(E)(2) (2020). ↑

  173. Seattle, Wash., Mun. Code tit. 2, ch. 2.04, § 400 (2020). ↑

  174. This lack of narrow tailoring may be so pronounced as to indicate pretextual motives. Then-Professor Elena Kagan notes that “notwithstanding the Court’s protestations in O’Brien . . . First Amendment law . . . has as its primary, though unstated, object the discovery of improper governmental motives.” Elena Kagan, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. 413, 414 (1996). This ancillary motive may include counteracting the effects of Citizens United. ↑

  175. The laws also lead to a result allowing some corporations to speak while silencing others. The Citizens United majority criticized regulations that produce this outcome. See Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 324 (2010). ↑

  176. First Amendment controversies, and those in the campaign finance space in particular, often include claims of overbreadth, where laws leading to a “substantial number of impermissible applications” are found unconstitutional. New York v. Ferber, 458 U.S. 747, 771 (1982). Foreign-influence laws are not vulnerable to separate claims of overbreadth because the reason the law bars one firm from engaging in independent expenditures—a foreigner’s 1% stake in the company—is the exact same reason for restrictions on all other firms with similar ownership stakes. The law is either valid in all applications, or valid in no application. This means that overbreadth and narrow tailoring are two sides of the same coin in relation to foreign-influence laws. See also Citizens United, 558 U.S. at 362 (criticizing the underinclusive and overinclusive nature of legislation). ↑

  177. For example, in Buckley, the Court considered whether bribery laws alone would be effective enough to root out corruption arising from unregulated contributions to political candidates. See Buckley v. Valeo, 424 U.S. 1, 27–28 (1976). ↑

  178. See Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000). ↑

  179. Id. at 372–73; Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947); Caleb Nelson, Preemption, 86 Va. L. Rev. 225, 227–28 (2000). ↑

  180. Crosby, 530 U.S. at 368, 373–74. ↑

  181. Foreign-influence laws may also implicate foreign affairs preemption. See Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 413 (2003); Zschernig v. Miller, 389 U.S. 429, 432 (1968); Jack Goldsmith, Statutory Foreign Affairs Preemption, 2000 Sup. Ct. Rev. 175, 203–05 (2000). However, the laws do not target foreigners or foreign investors, but rather U.S. corporations. Negative effects on U.S. foreign relations are also difficult to discern. ↑

  182. This determination may also conflict with the internal affairs doctrine, under which the state of incorporation should decide core issues regarding a corporation’s internal affairs. This might include whether the corporation is in fact a U.S. entity. See Frederick Tun, Before Competition: Origins of the Internal Affairs Doctrine, 33 J. Corp. L. 33, 39–41 (2006). ↑

  183. CNBC Ownership Database, supra note 156. ↑

  184. See Bluman v. Fed. Election Com’n, 800 F. Supp. 2d 281, 290 (D.D.C. 2011). ↑

  185. Harisiades v. Shaughnessy, 342 U.S. 580, 588–89 (1952). ↑

  186. Hines v. Davidowitz, 312 U.S. 52, 65–68 (1941). ↑

  187. Toll v. Moreno, 458 U.S. 1, 17 (1982). ↑

  188. See Cristina M. Rodríguez, The Significance of the Local in Immigration Regulation, 106 Mich. L. Rev. 567, 613 (2008). ↑

  189. 130 U.S. 581, 605–06 (1889). ↑

  190. Id. at 606. ↑

  191. Although local and state governments retain significant power over elections, the Supreme Court’s relevant decisions do not reach the issue of foreign entities. James v. Bowman, 190 U.S. 127, 142 (1903), and Oregon v. Mitchell, 400 U.S. 112, 125 (1970), both champion local power over elections. Neither case applies directly to questions involving foreign citizens. See United States v. Singh, 924 F.3d 1030, 1043 (9th Cir. 2019) (vacated on other grounds). ↑

  192. 52 U.S.C. § 30143 (2018). ↑

  193. See Emily’s List v. Fed. Election Comm’n, 581 F.3d 1, 20 (D.C. Cir. 2009) (citing McConnell v. FEC, 540 U.S. 93, 122, 124 (2003)). ↑

  194. U.S. Const., art. I, § 4; McConnell v. Fed. Election Comm’n, 540 U.S. 93, 186 (2003). ↑

  195. The FEC has determined that all of the statute’s prohibitions apply to state and local elections, not just the prohibitions of section 30121(a)(1)(A). See 11 C.F.R. § 110.20(f) (2020). For the FEC’s reasoning, see Expenditures, Independent Expenditures, and Disbursements, 67 Fed. Reg. 69,945 (Nov. 19, 2002). ↑

  196. United States v. Singh, 924 F.3d 1030, 1042 (9th Cir. 2019). ↑

  197. See 22 U.S.C. § 611. ↑

  198. The Court could, for example, uphold strict foreign-influence laws based on the rationale explained in Bluman. This would represent doctrinal incoherence, and it would further entangle the disorderly environment of campaign finance law. See Hasen, supra note 137, at 610. ↑

  199. See, e.g., Leo E. Strine, Jr., Lawrence A. Hamermesh, R. Franklin Balotti & Jeffrey M. Gorris, Loyalty’s Core Demand: The Defining Role of Good Faith in Corporation Law, 98 Geo. L.J. 629, 640–45 (2010) (describing duty, loyalty, and good faith). ↑

  200. See First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 794–95 (1978); see also McConnell v. Fed. Election Comm’n, 540 U.S. 93, 324 (2003) (Kennedy, J., concurring in part and dissenting in part) (referring to the same issue raised in Bellotti). ↑

  201. Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 361–62, 370 (2010). ↑

  202. The business judgment rule is “a presumption that in making a business decision the directors of a corporation acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the company.” Aronson v. Lewis, 473 A.2d 805, 812 (Del. 1984); see also Andrew S. Gold, Dynamic Fiduciary Duties, 34 Cardozo L. Rev. 491, 499–500 (2012) (discussing the “tremendous amount of discretion” the business judgment rule affords to managers). ↑

  203. See René Reich-Graefe, Deconstructing Corporate Governance: Absolute Director Primacy, 5 Brook. J. Corp. Fin. & Com. L. 341, 370 (2011). ↑

  204. See id.; Michelle M. Harner & Jamie Marincic, The Naked Fiduciary, 54 Ariz. L. Rev. 879, 889 (2012); Kelli A. Alces, Debunking the Corporate Fiduciary Myth, 35 J. Corp. L. 239, 240 (2009). ↑

  205. Citizens United, 558 U.S. at 477 (Stevens, J., concurring in part and dissenting in part) (“In practice, however, many corporate lawyers will tell you that these rights are so limited as to be almost nonexistent . . . .” (internal quotations omitted)). ↑

  206. In this sense, foreign-influence laws may be self-refuting. If foreigners represent 5% of a firm’s ownership, the other 95% of non-foreign owners should in theory counteract that influence. ↑

  207. See Citizens United, 558 U.S. at 366–67; Buckley v. Valeo, 424 U.S. 1, 64 (1976); McConnell v. Fed. Election Comm’n, 540 U.S. 93, 201 (2003). ↑

  208. Citizens United, 558 U.S. at 366–71. ↑

  209. 52 U.S.C. § 30120 (2018). ↑

  210. 52 U.S.C. §§ 30120(a)(3), (d)(2) (2018). ↑

  211. Political activities are defined broadly in 22 U.S.C. § 611(o) (2018). ↑

  212. 22 U.S.C. § 611(c) (2018). ↑

  213. Meese v. Keene, 481 U.S. 465, 480 (1987). ↑

  214. 22 U.S.C. § 614(b) (2018). ↑

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.

  1. * Assistant Professor, Stanford Law School. For thoughtful comments and conversations, I thank Aaron Simowitz, Pam Bookman, Anu Bradford, Adam Chilton, John Coyle, William Dodge, Robin Effron, Seth Endo, Brian Fitzpatrick, Nora Freeman Engstrom, Maggie Gardner, Manuel Gomez, Andrew Hammond, Chimene Keitner, Amalia Kessler, Richard Marcus, Doug Melamed, Saul Levmore, Lisa Larrimore Ouellette, Aaron Simowitz, Yanbai Andrea Wang, Rebecca Wexler, and participants at the Berkeley Faculty Workshop, the Private International Law Workshop in U.C. Davis, the AALS Conflicts of Law Panel, and the Criser Distinguished Lecture Series at the University of Florida Levin College of Law. I am most grateful to Brian Erickson for invaluable research assistance, and I also thank Chris Meyer, Sam Telzak, and Mackenzie Austin. ↑
  2. In re Zofran (Ondansetron) Prods. Liab. Litig., 368 F. Supp. 3d 94, 98 (D. Mass. 2019). ↑
  3. Id. ↑
  4. Id. at 108 (internal quotation marks omitted). ↑
  5. Id. at 99. ↑
  6. In re Mexican Gov’t Bonds Antitrust Litig., 412 F. Supp. 3d 380, 383–84 (S.D.N.Y. 2019) (internal quotation marks omitted). ↑
  7. 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). ↑
  8. 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). ↑
  9. 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). ↑
  10. See infra Part I. ↑
  11. 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). ↑
  12. See infra Part I. ↑
  13. 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). ↑
  14. 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 also Maggie Gardner, “Foreignness”, 69 DePaul L. Rev. 469 (2020) (exploring what counts as a “foreign” case). ↑
  15. 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). ↑
  16. See, e.g., Bodum, 621 F.3d at 628, 630–31. ↑
  17. 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). ↑
  18. In re Bard IVC Filters Prods. Liab. Litig., 2020 WL 1166224, at *1–2 (D. Ariz. Mar. 6, 2020). ↑
  19. In re Seroquel Prods. Liab. Litig., 447 F. Supp. 2d 1376, 1378 (J.P.M.L. 2006). ↑
  20. 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). ↑
  21. In re Zofran (Ondansetron) Prods. Liab. Litig., 368 F. Supp. 3d 94, 94–95, 107–08 (D. Mass. 2019). ↑
  22. In re Ethicon, Inc. Pelvic Repair Sys. Prod. Liab. Litig., 299 F.R.D. 502, 509 (S.D. W. Va. 2014). ↑
  23. 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). ↑
  24. In re Xarelto (Rivaroxaban) Prods. Liab. Litig., 65 F. Supp. 3d 1402, 1404 (J.P.M.L. 2014). ↑
  25. This phenomenon is the reverse of cases in which foreign litigants seek to use our broad discovery system in aid of foreign cases. See Yanbai Andrea Wang, Exporting American Discovery, 87 U. Chi. L. Rev. 2089, 2092–93 (2020). ↑
  26. 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). ↑
  27. 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. ↑
  28. 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). ↑
  29. 2019 Carlton Fields Class Action Survey: Best Practices in Reducing Cost and Managing Risk in Class Action Litigation 4 (2019). ↑
  30. See infra Parts I & II. ↑
  31. Animal Sci. Prods., Inc. v. Hebei Welcome Pharm. Co. Ltd., 138 S. Ct. 1865, 1867 (2018). ↑
  32. In re Air Cargo Shipping Servs. Antitrust Litig., No. 06-md-1175, 2014 WL 7882100, at *1 (E.D.N.Y. Oct. 15, 2014). ↑
  33. In re Capacitors Antitrust Litig., 106 F. Supp. 3d 1051, 1058 (N.D. Cal. 2015). ↑
  34. In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., 986 F. Supp. 2d 207, 213 (E.D.N.Y. 2013). ↑
  35. In re TFT-LCD (Flat Panel) Antitrust Litig., 599 F. Supp. 2d 1179, 1183 (N.D. Cal. 2009). ↑
  36. 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. See F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 165 (2004). ↑
  37. There is an older literature on the reverse phenomenon—the application of U.S. antitrust law abroad. See Jonathan 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). ↑
  38. 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. ↑
  39. 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). ↑
  40. 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. ↑
  41. Anu Bradford, The Brussels Effect: How the European Union Rules the World 251 (2019) [hereinafter Bradford, Brussels Effect Book]. ↑
  42. Letter from F. Dennis Saylor, IV, C.J. D. Mass., to Stacy Cline Amin, Chief Counsel, FDA (Dec. 13, 2019). ↑
  43. 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. See Mark Herrmann & David B. Alden, Drug & Device Product Liability Litigation Strategy 383 (2012). ↑
  44. 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]. ↑
  45. 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). ↑
  46. 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). ↑
  47. See generally Daniel 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). ↑
  48. See generally Bradford, Brussels Effect Book, supra note 40 (chronicling this phenomenon). ↑
  49. See Galbraith & Zaring, Soft Law, supra note 46, at 737. ↑
  50. See infra Subsection II.B.1. ↑
  51. See infra Subsection II.B.2. ↑
  52. 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). ↑
  53. See infra Subsection II.A.2. ↑
  54. 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). ↑

  55. Bradford, Brussels Effect Article, supra note 53, at 5–6. ↑
  56. 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). ↑
  57. 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). ↑
  58. See, e.g., Curtis A. Bradley, International Delegations, the Structural Constitution, and Non-Self-Execution, 55 Stan. L. Rev. 1557, 1560 (2003). ↑
  59. Volokh, supra note 39, at 224. ↑
  60. See Bradford, Brussels Effect Article, supra note 53, at 3
    –

    4. ↑

  61. See supra note 37. ↑
  62. Restatement (Second) of Conflict of Laws § 2 cmt. a (Am. L. Inst. 1971); Yeazell, supra note 39, at 60–61; Volokh, supra note 39, at 227–31; Noll, Conflicts, supra note 37. ↑
  63. See, e.g., In re Tylenol (Acetaminophen) Mktg., Sales Pracs. & Prods. Liab. Litig., 181 F. Supp. 3d 278, 306–07 (E.D. Pa. 2016); In re Seroquel Prods. Liab. Litig., 601 F. Supp. 2d 1313, 1318–19 (M.D. Fla. 2009). ↑
  64. Diego Zambrano, A Comity of Errors: The Rise, Fall, and Return of International Comity in Transnational Discovery, 34 Berkeley J. Int’l L. 157, 198–99 (2016) [hereinafter Zambrano, Comity]. See also Wang, supra note 24, at 2154–55 (calling for cross-border information sharing). Much of this may also be influenced by the specifics of e-discovery which makes it easier to access information stored abroad. Cf. Seth Katsuya Endo, Discovery Hydraulics, 52 U.C. Davis L. Rev. 1317 (2019) (discussing the unexpected consequences of e-discovery). ↑
  65. See Zambrano, Comity, supra note 63, at 167 (citing First City, Tex.-Hous., N.A. v. Rafidain Bank, 281 F.3d 48, 54 (2d Cir. 2002)). ↑
  66. Fed. R. Civ. P. 26(b)(1). ↑
  67. Id. ↑
  68. Zambrano, Comity, supra note 63, at 164–65. ↑
  69. Others have noted that this area of law involves constant procedural experimentation. See, e.g., Engstrom, Lone Pine, supra note 43, at 9–10; Elizabeth Chamblee Burch, Nudges and Norms in Multidistrict Litigation: A Response to Engstrom, Yale L.J.F. 64, 67 (2019), https://www.yalelawjournal.org/forum/nudges-and-norms-in-multidistrict-litigation [https://perma.cc/TNJ7-53EL]. ↑
  70. State tort law provides an interesting and useful avenue for “fraud-on-the-FDA” claims that would normally be preempted. See Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 348 (2001). ↑
  71. See, e.g., Mathias Reimann, Liability for Defective Products at the Beginning of the Twenty-First Century: Emergence of a Worldwide Standard?, 51 Am. J. Comp. L. 751, 810 (2003). ↑
  72. Of course, there is a distinction between information generated internally by the company and information generated only to satisfy foreign regulatory requirements. For information that exists regardless of foreign regulation, the policy question discussed in Part II is whether (i) we welcome any information that increases the likelihood that courts will make fully informed decisions or (ii) mindful of the costs and benefits of such laws, we want to confine litigation to that which can be sustained by the ingenuity of the plaintiffs themselves, even at the expense of reducing punishment for bad acts. I thank Doug Melamed for some of the details here. ↑
  73. Hardy v. Pharmacia Corp., No. 4:09-cv-119, 2011 WL 2118983, at *3 (M.D. Ga. May 27, 2011). ↑
  74. See Apps. I–II. ↑
  75. In re Bard IVC Filters Prods. Liab. Litig., No. MDL 15-02651, 2020 WL 1166224, at *1 (D. Ariz. Mar. 6, 2020). ↑
  76. In re Seroquel Prods. Liab. Litig., 447 F. Supp. 2d 1376, 1378 (J.P.M.L. 2006); U.S. Jud. Panel on Multidistrict Litig., Multidistrict Litigation Terminated Through September 30, 2020, https://www.jpml.uscourts.gov/sites/jpml/files/Cumulative%20Terminated%‌202020_‌0.pdf (last visited Apr. 18, 2021) [https://perma.cc/3BT4-PPP8]. ↑
  77. In re Yasmin & YAZ (Drospirenone) Mktg., Sales Practs. & Prods. Liab. Litig., No. 09-20021, 2011 WL 6733952, at *1 (S.D. Ill. Dec. 16, 2011); U.S. Jud. Panel on Multidistrict Litig., supra note 75. ↑
  78. In re Ethicon Inc. Pelvic Repair Sys. Prod. Liab. Litig., 299 F.R.D. 502, 508–09 (S.D. W. Va. 2014); U.S. Jud. Panel on Multidistrict Litig., MDL Statistics Report—Distribution of Pending MDL Dockets by Actions Pending, https://www.jpml.uscourts.gov/sites/‌jpml/files/Pending_MDL_Dockets_By_Actions_Pending-March-15-2021.pdf (last visited Apr. 18, 2021) [https://perma.cc/3ZX9-YALU]. ↑
  79. In re Johnson & Johnson Talcum Powder Prods., Mktg., Sales Pracs. & Prods. Liab. Litig., No. 3:16-md-02738, 2017 WL 5196741, at *1 (D.N.J. Nov. 6, 2017). ↑
  80. In re Xarelto (Rivaroxaban) Prods. Liab. Litig., 65 F. Supp. 3d 1402, 1403–04 (J.P.M.L. 2014); U.S. Jud. Panel on Multidistrict Litig., supra note 77. ↑
  81. See Apps. I–II. ↑
  82. In re Tylenol (Acetaminophen) Mktg., Sales Practices & Prods. Liab. Litig., 181 F. Supp. 3d 278, 307 (E.D. Pa. 2016). ↑
  83. In re Bard IVC Filters Prods. Liab. Litig., 317 F.R.D. 562, 566 (D. Ariz. 2016). ↑
  84. 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) (internal citation omitted). ↑
  85. Yet, foreign privilege law can differ from U.S. law. For a discussion of selective waiver, see In re Pac. Pictures Corp., 679 F.3d 1121, 1127 (9th Cir. 2012). Confidentiality agreements and statutory provisions could also change this calculus. See 12 U.S.C. § 1828(x) (2018); Saito v. McKesson HBOC, Inc., No. CIV.A. 18553, 2002 WL 31657622, at *3 (Del. Ch. Nov. 13, 2002). ↑
  86. See Joseph W. Cormier, Advancing FDA’s Regulatory Science Through Weight of Evidence Evaluations, 28 J. Contemp. Health L. & Pol’y 1, 1–2 (2011). ↑
  87. Cf. Catherine M. Sharkey, The Opioid Litigation: The FDA Is MIA, 124 Dick. L. Rev. 669, 671 (2020) (discussing the regulatory shortcomings of the American FDA in light of the opioid epidemic) [hereinafter Sharkey, Opioid Litigation]. ↑
  88. See, e.g., Brunston v. Bayer Healthcare Pharm., Inc., No. EDCV 13-1904, 2014 WL 12587032, at *1–2 (C.D. Cal. May 16, 2014). ↑
  89. See, e.g., Hardy v. Pharmacia Corp., No. 4:09–cv–119, 2011 WL 2118983, at *3 (M.D. Ga. May 27, 2011). ↑
  90. Kubicki v. Medtronic, 307 F.R.D. 291, 294 (D.D.C. 2014). ↑
  91. See, e.g., In re Tylenol (Acetaminophen) Mktg., Sales Pracs. & Prods. Liab. Litig., 181 F. Supp. 3d 278, 306–07 (E.D. Pa. 2016); In re Seroquel Prods. Liab. Litig., 601 F. Supp. 2d 1313, 1316, 1318–19 (M.D. Fla. 2009). ↑
  92. Cf. In re Trasylol Prods. Liab. Litig., 709 F. Supp. 2d 1323, 1336 (S.D. Fla. 2010) (declining to admit expert testimony in part because it “merely summarizes and restates the findings of the foreign Inspection Reports” without broader context). ↑
  93. See In re Tylenol, 181 F. Supp. 3d at 306–08. ↑
  94. See Eve v. Sandoz Pharm. Corp., No. IP 98-1429, 2001 U.S. Dist. LEXIS 4531, at *60–63, *69–71 (S.D. Ind. Mar. 7, 2001). ↑
  95. See, e.g., Hodges v. Pfizer, Inc., No. 14-4855, 2016 WL 1222229, at *2–3 (D. Minn. Mar. 28, 2016) (considering the arguments that foreign regulatory evidence is irrelevant or inadmissible); In re Cathode Ray Tube (CRT) Antitrust Litig., No. C-07-5944, 2014 WL 5462496, at *4–7 (N.D. Cal. Oct. 23, 2014) (considering and rejecting the argument that a discovery request should be denied because disclosure could raise a conflict with foreign law). ↑
  96. Hodges, 2016 WL 1222229, at *3. Compare St. Jude Med. S.C., Inc. v. Sorin CRM USA, Inc., No. 14–cv–00119, 2014 WL 1056526, at *4 (D. Colo. Mar. 19, 2014) (granting plaintiff’s request), with In re Seroquel Prods. Liab. Litig., No. 6:06-md-1769, 2008 WL 508391, at *2 (M.D. Fla. Feb. 21, 2008) (dismissing such a request). ↑
  97. See Apps. I–II. ↑
  98. See App. I. ↑
  99. Hardy v. Pharmacia Corp., No. 4:09-cv-119, 2011 WL 2118983, at *3 (M.D. Ga. May 27, 2011). ↑
  100. Hodges, 2016 WL 1222229 at *3. ↑
  101. Pretrial Order at 4, In re Ethicon, Inc. Pelvic Repair Sys. Prod. Liab. Litig., MDL No. 2327 (S.D. W. Va. Sept. 18, 2013) (Pretrial order #68 granting plaintiff’s motion to compel and denying defendant’s motion for protective order). ↑
  102. Id. at 4–7. ↑
  103. In re Bard IVC Filters Prods. Liab. Litig., 317 F.R.D. 562, 566 (D. Ariz. Sep. 16, 2016). See also SmithKline Beecham Corp. v. Apotex Corp., No. 98 C 3952, 1999 WL 311697, at *7 (N.D. Ill. Mar. 13, 1999) (allowing discovery of only a portion of the documents that plaintiff requested from a prior Canadian suit); Kubicki v. Medtronic, 307 F.R.D. 291, 296–97 (D.D.C. 2014) (refusing to grant plaintiffs request for “all documents exchanged with foreign and domestic regulators for 15 years”). ↑
  104. SmithKline Beecham Corp. v. Apotex Corp., No. 98 C 3952, 1999 WL 311697, at *6 (N.D. Ill. May 13, 1999) (declining a discovery request that would require defendants to “embark on a fishing expedition in pursuit of . . . products that will never reach the United States”). ↑
  105. See, e.g., In re Yasmin & Yaz: (Drospirenone) Mktg., Sales Pracs. & Relevant Prods. Liab. Litig., No. 3:09-md-02100, 2011 WL 3759699, at *4 (S.D. Ill. Aug. 18, 2011); In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., 2010 WL 3420517, at *6–7 (E.D.N.Y. Aug. 27, 2010); Campbell v. Facebook Inc., No. 13-cv-05996, 2015 WL 4463809, at *4–5 (N.D. Cal. July 21, 2015). ↑
  106. 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); U.S. Jud. Panel on Multidistrict Litig., supra note 77. ↑
  107. In re Davol, 2019 WL 341909, at *2. ↑
  108. Id. at *1. ↑
  109. Id. at *2. ↑
  110. Id. at *2. ↑
  111. In re Bard IVC Filters Prods. Liab. Litig., 317 F.R.D. 562, 563 (D. Ariz. Sept. 16, 2016); U.S. Jud. Panel on Multidistrict Litig., supra note 77. ↑
  112. In re Bard IVC Filters, 317 F.R.D. at 563. ↑
  113. Id. at 566. ↑
  114. Id. ↑
  115. Id. ↑
  116. In re Eur. Gov’t Bonds Antitrust Litig., No. 19 CIV. 2601, 2020 WL 4273811, at *2–4 (S.D.N.Y. July 23, 2020). ↑
  117. Id. ↑
  118. Id. at *10. ↑
  119. Brenner v. Procter & Gamble Co., No. SACV 16-1093, 2016 WL 8192946, at *1 (C.D. Cal. Oct. 20, 2016) (internal citation omitted). ↑
  120. Class Action Complaint at 2, Brenner v. Procter & Gamble Co., 2016 WL 8192946 (C.D. Cal. June 13, 2016) (No. 8:16-cv-1093). ↑
  121. Brenner, 2016 WL 8192946, at *6 (emphasis added). ↑
  122. Rotondo v. Amylin Pharm., Inc., No. B275314, 2018 WL 5800780, at *4 (Cal. Ct. App. Nov. 6, 2018). ↑
  123. In re Commodity Exch., Inc., 213 F. Supp. 3d 631, 661 (S.D.N.Y. 2016). ↑
  124. Hinds Cnty., Miss. v. Wachovia Bank N.A., 790 F. Supp. 2d 106, 115 (S.D.N.Y. 2011); see, e.g., Starr v. Sony BMG Music Ent., 592 F.3d 314, 323–24 (2d. Cir. 2010). But see In re Graphics Processing Units Antitrust Litig., 527 F. Supp. 2d 1011, 1024 (N.D. Cal. 2007) (investigation itself “carries no weight”); In re Commodity Exch., 213 F. Supp. 3d at 662 (same). ↑
  125. Barry’s Cut Rate Stores Inc. v. Visa, Inc., No. 05-md-1720, 2019 WL 7584728, at *32 (E.D.N.Y. Nov. 20, 2019). ↑
  126. Id. ↑
  127. Jones v. Micron Tech. Inc., 400 F. Supp. 3d 897, 921 (N.D. Cal. 2019). ↑
  128. In re Mexican Gov’t Bonds Antitrust Litig., 412 F. Supp. 3d 380, 390 (S.D.N.Y. 2019). ↑
  129. Complaint at 6, Hardeman v. Monsanto Co., 216 F. Supp. 3d 1037 (N.D. Cal. 2016) (No. 4:16-cv-00525). ↑
  130. See id. at 11–12. ↑
  131. Id. ↑
  132. See In re Roundup Prods. Liab. Litig., 385 F. Supp. 3d 1042, 1047 (N.D. Cal. 2019). Indeed, in the midst of these cases, dozens of foreign regulators have banned glyphosate. See Where Is Glysophate Banned?, supra note 27. ↑
  133. Transcript of Proceedings of the Official Electronic Sound Recording 2:14 PM–3:01 PM at 9, Hardeman v. Monsanto Co., 216 F. Supp. 3d 1037 (N.D. Cal. argued May 3, 2016) (No. 3:16-cv-00525). ↑
  134. See In re Roundup, 385 F. Supp. 3d at 1047. ↑
  135. Id. ↑
  136. W. Gregory Voss & Kimberly A. Houser, Personal Data and the GDPR: Providing a Competitive Advantage for U.S. Companies, 56 Am. Bus. L.J. 287, 288 (2019). ↑
  137. Paul W. Schwartz, Global Data Privacy: The EU Way, 94 N.Y.U. L. Rev. 771, 776 (2019). ↑
  138. Bradford, Brussels Effect Book, supra note 40, at 237. ↑
  139. Halliburton Co. v. Erica P. John Fund, Inc. 573 U.S. 258, 263 (2014). ↑
  140. See, e.g., id. at 263–64. ↑
  141. Flynn v. Sientra, Inc., No. CV 15-07548, 2016 WL 3360676, at *1–2 (C.D. Cal. June 9, 2016). ↑
  142. Jasin v. Vivus, Inc., No. 14-cv-03263, 2016 WL 1570164, at *1 (N.D. Cal. Apr. 19, 2016), aff’d, Jasin v. Vivus, Inc., 721 F. App’x 665 (9th Cir. 2018). ↑
  143. Vallabhaneni v. Endocyte, Inc., No. 1:14-cv-01048, 2016 WL 51260, at *1, *16 (S.D. Ind. Jan. 4, 2016). ↑
  144. Class Action Complaint for Violation of the Federal Securities Laws at 9–10, Yuan v. Facebook, Inc., No. 5:18-cv-01725 (N.D. Cal. Mar. 20, 2018). ↑
  145. Class Action Complaint at 7, Ikeda v. Baidu, No. 3:20-cv-02768 (N.D. Cal. Apr. 21, 2020). ↑
  146. See, e.g., In re Facebook, Inc. Sec. Litig., 405 F. Supp. 3d 809, 846 (N.D. Cal 2019). ↑
  147. Complaint for Violation of the Federal Securities Laws at 4, Gordon v. Nielsen Holdings PLC, No. 1:18-cv-07143 (S.D.N.Y. Aug. 8, 2018). ↑
  148. See id. at 3–4. ↑
  149. Consolidated Amended Complaint for Violations of the Federal Securities Laws at 13–14, 16–17, In re Alphabet Securities Litigation, 4:18-cv-06245 (N.D. Cal. Apr. 26, 2019). ↑
  150. [Unredacted] Verified Stockholder Derivative Complaint for Violation of Securities Law, Breach of Fiduciary Duty, Waste of Corporate Assets, and Unjust Enrichment at 2, 37, Green et al. v. Page et al., No. 5:19-cv-01165 (N.D. Cal. Mar. 22, 2019). ↑
  151. See In re Facebook, 405 F. Supp. 3d at 847. ↑
  152. See Animal Sci. Prods., Inc. v. Hebei Welcome Pharm. Co. Ltd., 138 S. Ct. 1865, 1873–74 (2018) (discussing the role of foreign regulators but only in interpreting foreign law). ↑
  153. Andrew T. Guzman, Is International Antitrust Possible?, 73 N.Y.U. L. Rev. 1501, 1536 (1998). ↑
  154. Id. at 1507 n.14. ↑
  155. See, e.g., Brief for the Japan External Trade Organization as Amicus Curiae, Sumitomo Shoji Am., Inc. v. Avigliano, 457 U.S. 176 (1982) (Nos. 80-2070, 81-24), 1982 WL 608724, at *2, *7. ↑
  156. See Zambrano, Comity, supra note 63, at 170. ↑
  157. William S. Dodge, Extraterritoriality and Conflict-of-Laws Theory: An Argument for Judicial Unilateralism, 39 Harv. Int’l L.J. 101 (1998). ↑
  158. See supra Subsection I.B.1. ↑
  159. Animal Sci. Prods., Inc. v. Hebei Welcome Pharm. Co. Ltd., 138 S. Ct. 1865, 1870 (2018). ↑
  160. In re Air Cargo Shipping Servs. Antitrust Litig., No. 06-md-1175, 2014 WL 7882100, at *1 (E.D.N.Y. Oct. 15, 2014). ↑
  161. In re Capacitors Antitrust Litig., 106 F. Supp. 3d 1051, 1058 (N.D. Cal. 2015). ↑
  162. In re Payment Interchange Fee & Merch. Disc. Antitrust Litig., 986 F. Supp. 2d 207, 213 (E.D.N.Y. 2013). ↑
  163. In re Rubber Chems. Antitrust Litig., 232 F.R.D. 346, 348 (N.D. Cal. 2005). ↑
  164. In re TFT-LCD (Flat Panel) Antitrust Litig., 599 F. Supp. 2d 1179, 1183 (N.D. Cal. 2009). ↑
  165. Animal Sci. Prods., Inc. v. Hebei Welcome Pharm. Co. Ltd., 138 S. Ct. 1865,1870–71 (2018). ↑
  166. Id. ↑
  167. Id. at 1869. ↑
  168. Memorandum Order Granting Plaintiffs’ Motion to Compel Discovery of Korea Fair Trade Commission Materials at 1–2, In re Air Cargo Shipping Services Antitrust Litigation, 1:06-md-01775 (E.D.N.Y. Jan. 6, 2011). ↑
  169. In re TFT-LCD (Flat Panel) Antitrust Litig., No. 07-cv-01827, 2011 WL 13147214, at *1 (N.D. Cal. Apr. 26, 2011). ↑
  170. See, e.g., Brief of the European Commission on Behalf of the European Union as Amicus Curiae in Support of Neither Party, United States v. Microsoft Corp., 138 S. Ct. 1186 (2018) (No. 17-2); Letter from European Commission in Response to Special Master’s December 22, 2010 Order, In re TFT-LCD (Flat Panel) Antitrust Litig., No. 3:07-md-01827 (Feb. 15, 2011) [hereinafter European Commission Letter]; In re Rubber Chems. Antitrust Litig., 486 F. Supp. 2d 1078, 1081 (N.D. Cal. 2007); Defendant’s Opposition to Plaintiffs’ Motion to Compel Statement of Objections at 1, In re Payment Card Interchange Fee & Merchant Disc. Antitrust Litig., 1:05-md-01720 (E.D.N.Y. Jan. 8, 2010). ↑
  171. See e.g., In re Rubber Chems., 486 F. Supp. 2d at 1081–84; European Commission Letter, supra note 169, at 7–8 (citing several district court decisions). Interestingly, the European Court of Justice has allowed national courts to consider the discoverability of antitrust leniency agreements. See Case C-360/09, Pfleiderer AG v. Bundeskartellamt, 2011 E.C.R. I-5186, I-5199. ↑
  172. See Wang, supra note 24, at 2149 (discussing other letters); Japan Fair Trade Commission Letter, In re TFT-LCD (Flat Panel) Antitrust Litigation, No. M: 07-1827 (Feb. 3, 2011). ↑
  173. Japan Fair Trade Commission Letter at 3, In re TFT-LCD (Flat Panel) Antitrust Litig., No. 3:07-md-01827 (Feb. 3, 2011). ↑
  174. Id. ↑
  175. European Commission Letter, supra note 169, at 4. ↑
  176. Id. at 5. ↑
  177. Id. at 6. ↑
  178. Id. ↑
  179. Brief of the European Commission on Behalf of the European Union as Amicus Curiae in Support of Neither Party, United States v. Microsoft Corp., 138 S. Ct. 1186, 2–8 (2018) (No. 17-2). ↑
  180. This partly confirms Noll’s point that “the new conflicts law privileges the regulatory preferences of actors operating across jurisdictional lines over the preferences of litigants seeking to enforce U.S. law.” Noll, Conflicts, supra note 37, at 65. ↑
  181. See, e.g., In re Cathode Ray Tube (CRT) Antitrust Litig., No. C-07-5944, 2014 WL 5462496, at *4–7 (N.D. Cal. Oct. 23, 2014). ↑
  182. Special Master’s Order Denying Motion of Direct Purchaser Class Plaintiffs to Compel Hitachi to Produce Foreign Regulatory Documents at 5-6, In Re TFT (Flat Panel) Antitrust Litigation, No. 3:07-md-01827 (N.D. Cal. Apr. 26, 2011). ↑
  183. Kristen E. Eichensehr, Foreign Sovereigns as Friends of the Court, 102 Va. L. Rev. 289 (2016); Daniel Fahrenthold, Note, Respectful Consideration: Foreign Sovereign Amici in U.S. Courts, 119 Colum. L. Rev. 1597 (2019). ↑
  184. Brief of Amicus Curiae Ministry of Commerce of the People’s Republic of China in Support of Respondents at 24–25, Animal Sci. Prods., Inc. v. Hebei Welcome Pharm. Co., 138 S. Ct. 1865 (2018) (No. 16-1220). ↑
  185. Brief of the European Commission on Behalf of the European Union as Amicus Curiae in Support of Neither Party at 3, United States v. Microsoft Corp., 138 S. Ct. 1186 (2018) (No. 17-2). ↑
  186. Brief for the Japan External Trade Organization as Amicus Curiae at 2, Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176 (1982) (No. 80-2070), 1982 WL 608724. ↑
  187. See infra Section II.A. ↑
  188. See Anu Bradford, Adam Chilton, Katerina Linos & Alexander Weaver, The Global Dominance of European Competition Law Over American Antitrust Law, 16 J. Empirical Legal Stud. 731, 731–32 (2019). ↑
  189. Cf. Wang, supra note 24, at 2142–46 (noting tensions that arise when discovery requests in the United States adversely affect litigation abroad); Deborah Hensler et al., RAND Institute for Civil Justice, The Globalization of Mass Civil Litigation: Lessons from the Volkswagen “Clean Diesel” Case 58–59 (Feb. 2021) (manuscript) (documenting how American litigation impacted litigation in Chile). ↑
  190. Pamela K. Bookman, The Unsung Virtues of Global Forum Shopping, 92 Notre Dame L. Rev. 579, 580 (2016). ↑
  191. Id. at 580–81, 619. ↑
  192. See Andrea Thomas, Germany Set to Allow Collective Lawsuits Following VW Scandal, Wall St. J. (May 9, 2018), https://www.wsj.com/articles/germany-set-to-allow-collective-lawsuits-following-vw-scandal-1525869967 [https://perma.cc/M7YM-YFPV]. ↑
  193. Id; see also Pamela K. Bookman & David L. Noll, Ad Hoc Procedure, 92 N.Y.U. L. Rev. 767, 797–804 (2017) (detailing Germany’s slow adoption of consumer-initiated redress legislation). ↑
  194. I thank Amalia Kessler for this insight. ↑
  195. See, e.g., In re Facebook, Inc. Sec. Litig., 405 F. Supp. 3d 809, 847 (N.D. Cal. 2019). ↑
  196. In re Tylenol (Acetaminophen) Mktg., Sales Pracs. & Prods. Liab. Litig., 181 F. Supp. 3d 278, 283 (E.D. Pa. 2016). ↑
  197. Id. at 284–93. ↑
  198. Id. at 306–07. ↑
  199. Id. at 307. ↑
  200. Id. ↑
  201. Defendants’ Motion In Limine Number 13 at 2, In re Tylenol (Acetaminophen) Mktg., Sales Pracs. & Prods. Liab. Litig., 181 F. Supp. 3d 278 (E.D. Pa. 2016) (No. 2:12-cv-07263) (internal citation omitted). ↑
  202. Health Canada, Revised Guidance Document: Acetaminophen Labelling Standard 6 (2016). ↑
  203. In re Tylenol, 181 F. Supp. 3d at 307–08. ↑
  204. No. 3:16-md-2734, 2017 WL 4399198, at *10 (N.D. Fla. Sept. 29, 2017). ↑
  205. Complaint at 2, In re Abilify (Aripiprazole) Prods. Liab. Litig., No. 3:16-md-2734 (N.D. Fla. Dec. 2, 2016). ↑
  206. Id. at 8 (internal quotation marks omitted). ↑
  207. See id. at 2–3. ↑
  208. Omnibus Order and Amended Case Management Schedule, In re Abilify (Aripiprazole) Prods. Liab. Litig., No. 3:16-md-2734, 2017 WL 4399198, at *10 (N.D. Fla. Sept. 29, 2017). ↑
  209. In re Abilify (Aripiprazole) Prods. Liab. Litig., No. 3:16-md-2734, 2019 WL 7859557, at *3–4 (N.D. Fla. Dec. 6, 2019). ↑
  210. See id. at *4. ↑
  211. See, e.g., Mahaney ex rel. Est. of Kyle v. Novartis Pharm. Corp., 835 F. Supp. 2d 299, 318 (W.D. Ky. 2011) (holding that a plaintiff may introduce evidence of foreign warning labels for the purpose of showing that defendant had knowledge of side effects, but plaintiff may not introduce them to suggest that defendant violated FDA regulations). ↑
  212. See, e.g., David Freeman Engstrom, Agencies as Litigation Gatekeepers, 123 Yale L.J. 616 (2013) [hereinafter Engstrom, Gatekeepers]; Zachary D. Clopton, Redundant Public-Private Enforcement, 69 Vand. L. Rev. 285 (2016) [hereinafter Clopton, Redundant]. ↑
  213. See Margaret H. Lemos & Max Minzner, For-Profit Public Enforcement, 127 Harv. L. Rev. 853, 862–63 (2014) (arguing that public and private litigation “increasingly work together” to fulfill a common function: “compensating victims”). ↑
  214. Engstrom, Gatekeepers, supra note 211, at 630. ↑
  215. See John C. Coffee, Jr., Rescuing the Private Attorney General: Why the Model of the Lawyer as Bounty Hunter Is Not Working, 42 Md. L. Rev. 215, 228 (1983); William B. Rubenstein, On What a “Private Attorney General” Is—And Why It Matters, 57 Vand. L. Rev. 2129, 2151 (2004). ↑
  216. There are many cases that nudge the FDA to consider rulemaking. See, e.g., Peter Shapiro, All-Natural Class Action Suit in New York Federal Court Is Placed on Hold, Lewis Brisbois, https://lewisbrisbois.com/print/12131 [https://perma.cc/U4Y8-ZBUA] (last visited Apr. 18, 2021). ↑
  217. See, e.g., In re Tylenol (Acetaminophen) Mktg., Sales Practs. & Prods. Liab. Litig., 181 F. Supp. 3d 278, 307 (E.D. Pa. 2016). ↑
  218. In re Trasylol Prods. Liab. Litig., 709 F. Supp. 2d 1323, 1323 (S.D. Fla. 2010). ↑
  219. Id. at 1330. ↑
  220. Id. at 1351. ↑
  221. There are important limits to the failsafe argument. Under Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341 (2001), a piece of evidence cannot be admitted if it is going to be used to advance a fraud-on-the-FDA claim. See, e.g., Mahaney ex rel. Est. of Kyle v. Novartis Pharms. Corp., 835 F. Supp. 2d 299, 317 (W.D. Ky. 2011). Because the Supreme Court has disallowed fraud-on-the-FDA claims, litigants have to defend the use of foreign information on alternative grounds. ↑
  222. In re Mex. Gov’t Bonds Antitrust Litig., 412 F. Supp. 3d 380, 382–84 (S.D.N.Y. 2019). ↑
  223. Brenner v. Procter & Gamble Co., No. SACV 16-1093, 2016 WL 8192946, at *1 (C.D. Cal. Oct. 20, 2016). ↑
  224. Rotondo v. Amylin Pharm., Inc., No. B275314, 2018 WL 5800780, at *1 (Cal. Ct. App. Nov. 6, 2018). ↑
  225. Id. at *4. ↑
  226. See Bradford, Brussels Effect Article, supra note 53, at 14–16. ↑
  227. I thank Doug Melamed for this insight. ↑
  228. Cf. Olatunde C.A. Johnson, Beyond the Private Attorney General: Equality Directives in American Law, 87 N.Y.U. L. Rev. 1339, 1359–62 (2012) (discussing problems that plague public enforcement); Pamela S. Karlan, Disarming the Private Attorney General, 2003 U. Ill. L. Rev. 183, 205 (2003) (noting that agencies like the EEOC can underenforce statutory rights). ↑
  229. Michael X. Imbroscio & Paul W. Schmidt, Border Control: Keeping Foreign Regulatory Evidence Out of U.S. Pharmaceutical Litigation, Covington & Burling (2007), https://www.cov.com/-/media/files/corporate/publications/2007/01/border_control_keeping_‌foreign_‌regulatory_evidence_out_of_the_us_pharmaceuti.pdf [https://perma.cc/SLG9-NXRG]. ↑
  230. Id. ↑
  231. Andy Pasztor, Congressional Report Faults Boeing on MAX Design, FAA for Lax Oversight, Wall St. J. (Mar. 6, 2020) https://www.wsj.com/articles/‌congressional-report-says-max-crashes-stemmed-from-boeings-design-failures-and-lax-faa-oversight-11583519145 [https://perma.cc/3P8Z-HBVV]. ↑
  232. Andy Pasztor & Andrew Tangel, European Air Regulators Break From FAA on 737 MAX Timeline, Wall St. J. (Oct. 21, 2019) https://www.wsj.com/‌articles/european-air-regulators-break-from-faa-on-737-max-timeline-11571692941 [https://perma.cc/D8Y3-2S82]. ↑
  233. This may also be an outgrowth of the Brussels Effect. See Bradford, Brussels Effect Article, supra note 53, at 46–47 (hypothesizing that EU regulators may be motivated by a desire to “establish[] standards for universal conduct”). To be sure, the EUASA could itself be captured by Airbus. ↑
  234. See Kevin M. Clermont, Degrees of Deference: Applying vs. Adopting Another Sovereign’s Law, 103 Cornell L. Rev. 243, 245–46 (2018). ↑
  235. Volokh, supra note 39, at 220–27; Jackson, supra note 37, at 109–12. ↑
  236. John O. McGinnis, Medellín and the Future of International Delegation, 118 Yale L.J. 1712, 1715–17 (2009) [hereinafter McGinnis, Medellín]. But see Alan O. Sykes, Transnational Forum Shopping as a Trade and Investment Issue, 37 J. Legal Stud. 339, 340 (2008) (arguing that American courts should adjudicate the disputes of foreigners only in certain cases). ↑
  237. John O. McGinnis, Foreign to Our Constitution, 100 Nw. U. L. Rev. 303, 306–09 (2006). ↑
  238. Even more broadly, literature on the virtues of “many minds” argues that increasing the number of eyes on a problem improves solutions to a problem. See Eric A. Posner & Cass R. Sunstein, The Law of Other States, 59 Stan. L. Rev. 131, 155 (2006). ↑
  239. Jessica Bulman-Pozen, Administrative States: Beyond Presidential Administration, 98 Tex. L. Rev.
    265, 285–86

    (2019) (citing sources). ↑

  240. See infra Section II.B. ↑
  241. Id. ↑
  242. Bulman-Pozen, supra note 238, at 285–87. ↑
  243. McGinnis, Medellín, supra note 235, at 1738–39. ↑
  244. See, e.g., In re Trasylol Prods. Liab. Litig., 709 F. Supp. 2d 1323, 1330 (S.D. Fla. 2010). ↑
  245. This is especially so because of the many procedural barriers that prevent foreign litigants from suing in American courts. See Bookman, supra note 13, at 1090–99. ↑
  246. See Sean Farhang, Legislating for Litigation: Delegation, Public Policy, and Democracy, 106 Calif. L. Rev. 1529 (2018). ↑
  247. Id. at 1534. ↑
  248. See Private Securities Litigation Reform Act of 1995, Pub. L. 104-67, § 27(a), 109 Stat. 737, (1995). ↑
  249. Cf. Peter M. Haas, Introduction: Epistemic Communities and International Policy Coordination, 46 Int’l Org. 1, 3 (1992) (setting forth a theory of “epistemic communities” among multinational bodies, focused on the sharing of knowledge for international coordination). ↑
  250. Yet, since most scholars and courts agree that the objections are weak, debates focus on how to determine the content of foreign law. See, e.g., Bodum USA, Inc. v. La Cafetiere, Inc., 621 F.3d 624, 628–31 (7th Cir. 2010). To be sure, U.S. courts rarely cite foreign law. See, e.g., David Zaring, The Use of Foreign Decisions by Federal Courts: An Empirical Analysis, 3 J. Empirical Legal Stud. 297, 297 (2006). ↑
  251. See, e.g., David L. Noll, MDL as Public Administration, 118 Mich. L. Rev. 403 (2019); Richard A. Nagareda, Mass Torts in a World of Settlement 57, 60, 70 (2007). ↑
  252. See Andrew D. Bradt & D. Theodore Rave, The Information-Forcing Role of the Judge in Multidistrict Litigation, 105 Calif. L. Rev. 1259, 1262–64 (2017). ↑
  253. See, e.g., Transcript of Proceedings at 4–6, In re Nat’l Prescription Opiate Litig., No. 1:17-md-02804 (N.D. Ohio argued Jan. 9, 2018) (imploring the parties to reach a solution that would do something to “abate [the national opioid] crisis”). ↑
  254. Brian T. Fitzpatrick, The Conservative Case for Class Actions 16 (2019). ↑
  255. For a thorough discussion of MDL settlements, see D. Theodore Rave, Closure Provisions in MDL Settlements, 85 Fordham L. Rev. 2175 (2017). For a discussion of class action settlements, see Brian T. Fitzpatrick, An Empirical Study of Class Action Settlements and Their Fee Awards, 7 J. Empirical Legal Stud. 811, 819 (2010) (documenting that 68% of federal settlements from 2006 to 2007 were settlements of class actions). See also Andrew D. Bradt, Something Less and Something More: MDL’s Roots as a Class Action Alternative, 165 U. Pa. L. Rev. 1711 (2017) (discussing the relationship between the two devices). ↑
  256. See supra Subsection II.A.1. ↑
  257. See, e.g., In re Bard IVC Filters Prods. Liab. Litig., 317 F.R.D. 562, 566 (D. Ariz. 2016). ↑
  258. Daniel S. Wittenberg, Multidistrict Litigation: Dominating the Federal Docket, Am. Bar Ass’n (Feb. 19, 2020), https://www.americanbar.org/‌groups/litigation/publications/litigation-news/business-litigation/multidistrict-litigation-dominating-federal-docket/ [https://perma.cc/7QZD-RKRC]. ↑
  259. Bradford, Brussels Effect Article, supra note 53, at 16–17. ↑
  260. See Subsection I.C.1. ↑
  261. See Adam S. Zimmerman, The Global Convergence of Global Settlements, 65 U. Kan. L. Rev. 1053, 1057–58 (2017). ↑
  262. Noll, Conflicts, supra note 37, at 44–47 (discussing manners by which “U.S. regulatory systems are disabled in favor of regulation by other legal systems”). ↑
  263. Curtis A. Bradley, International Law in the U.S. Legal System 75 (2013). ↑
  264. Galbraith & Zaring, Soft Law, supra note 46, at 737 (citing Exec. Order No. 13,609, 77 Fed. Reg. 26, 413 (May 1, 2012)). ↑
  265. Id. at 737–39. ↑
  266. Press Release, U.S. and Foreign Antitrust Officials Launch International Competition Network, FTC (Oct. 25, 2001) https://www.ftc.gov/news-events/press-releases/2001/10/us-and-foreign-antitrust-officials-launch-international [https://perma.cc/B9CX-8MTL]. ↑
  267. See, e.g., Slaughter, supra note 46; Lawrence L.C. Lee, The Basle Accords as Soft Law: Strengthening International Banking Supervision, 39 Va. J. Int’l L. 1 (1998). ↑
  268. Galbraith & Zaring, Soft Law, supra note 46, at 739–40. ↑
  269. Id. at 740. ↑
  270. Id. ↑
  271. Id. ↑
  272. Id. at 780. ↑
  273. This resembles a literature on unusual transnational enforcement. See, e.g., Zachary D. Clopton, Diagonal Public Enforcement, 70 Stan. L. Rev. 1077, 1080–81 (2018); Anne-Marie Slaughter, A New World Order 3, 14 (2005). ↑
  274. See, e.g., Robert A. Kagan, Adversarial Legalism: The American Way of Law 3 (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). ↑
  275. See Diego A. Zambrano, Discovery as Regulation, 119 Mich. L. Rev. 71, 75 (2020) [hereinafter Zambrano, Discovery]. ↑
  276. Id. at 77. ↑
  277. See Clopton, Redundant, supra note 211, at 297–300. ↑
  278. Plaintiff’s Motion Addressing Production of Foreign Regulatory Files at 1–2, In re Zofran (Ondansetron) Prods. Liab. Litig., No. 1:15-md-02657 (D. Mass. July 27, 2017). ↑
  279. Memorandum and Order on Defendant’s Motion for Summary Judgment Based on Federal Preemption at 18, In re Zofran (Ondansetron) Prods. Liab. Litig., No. 1:15-md-02657 (D. Mass. Feb. 5, 2019). ↑
  280. Letter from F. Dennis Saylor, IV, C.J. D. Mass., to Stacey Cline Amin, Chief Counsel, Food and Drug Administration, In re Zofran (Ondansetron) Prods. Liab. Litig., No. 1:15-md-02657 (Dec. 13, 2019). ↑
  281. Letter from Craig Wildfang, Robins, Kaplan, Miller, & Ciresi LLP, to James Orenstein, Mag. J. E.D.N.Y., In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., 1:05-md-01720 (Jan. 5, 2010). ↑
  282. In re Payment Card Interchange Fee & Merch. Disc. Antitrust Litig., No. 05-md-1720, 2010 WL 3420517, at *9–10, (E.D.N.Y. Aug. 27, 2010). ↑
  283. Id. at *1, *9. ↑
  284. To be sure, it may be unfair to call “harmonization” what in fact seem like instances of foreign frustration of American antitrust litigation. But I’m referring here to a kind of rough harmonization that promotes convergence. ↑
  285. Brian T. Fitzpatrick, Do Class Actions Deter Wrongdoing?, in The Class Action Effect 197 (Catherine Piché ed., 2018). ↑
  286. Brief of Antitrust Scholars as Amici Curiae in Support of Respondents at 12, Apple Inc. v. Pepper, 139 S. Ct. 1514 (2018) (No. 17-204). ↑
  287. See Steven Shavell, The Fundamental Divergence Between the Private and the Social Motive to Use the Legal System, 26 J. Legal Stud. 575, 575 (1997); Steven Shavell, The Level of Litigation: Private Versus Social Optimality of Suit and of Settlement, 19 Int’l Rev. L. & Econ. 99, 99 (1999). ↑
  288. Cf. George A. Bermann, Regulatory Cooperation with Counterpart Agencies Abroad: The FAA’s Aircraft Certification Experience, 24 Law & Pol’y Int’l Bus. 669 (1993) (arguing for the superiority of transnational cooperation in aeronautical regulation). ↑
  289. See Marisam, supra note 39, at 1915–17. ↑
  290. I thank Anu Bradford for this insight. ↑
  291. Cf. Julian G. Ku, International Delegations and the New World Court Order, 81 Wash. L. Rev. 1, 5–8 (2006) (arguing that allowing U.S. courts to recognize international tribunal judgments would be constitutionally problematic, since that authority lies with the other two branches). ↑
  292. Galbraith & Zaring, Soft Law, supra note 46, at 767–68. ↑
  293. Ingrid Wuerth, The Future of the Federal Common Law of Foreign Relations, 106 Geo. L.J. 1825, 1830–33 (2018). ↑
  294. See Timothy Meyer & Ganesh Sitaraman, Trade and the Separation of Powers, 107 Calif. L. Rev. 583, 662–66 (2019). ↑
  295. One may also worry that litigation-led harmonization limits the ability of regulated entities to adjust compliance to each country. ↑
  296. Bradford, Brussels Effect Article, supra note 53, at 64. ↑
  297. Comm’n Eur. Cmties., Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions: A Single Market for Citizens 7 (Feb. 21, 2007). ↑
  298. Bradford, Brussels Effect Book, supra note 40, at 131–32. ↑
  299. Bradford, Brussels Effect Article, supra note 53, at 29–30. ↑
  300. I thank Anu Bradford for some of this language. ↑
  301. Bradford, Brussels Effect Article, supra note 53, at 4. ↑
  302. 2 Max Huffman & Andre Fiebig, Antitrust and American Business Abroad § 15:24 (4th ed. 2020). ↑
  303. See Bradford, Brussels Effect Book, supra note 40, at 251. ↑
  304. David L. Noll, Administrative Sabotage, 120 Mich. L. Rev. (forthcoming 2021) (manuscript at 4) (on file with author). ↑
  305. See Section I.A. ↑
  306. See, e.g., In re Incretin-Based Therapies Prods. Liab. Litig., 721 F. App’x 580, 583 (9th Cir. 2017). ↑
  307. See Zambrano, Comity, supra note 63, at 206–07. ↑
  308. Manual for Complex Litigation, Fourth § 11.494 (2004). ↑
  309. Zambrano, Comity, supra note 63, at 164–67. ↑
  310. See, e.g., In re Rezulin Prods. Liab. Litig., 309 F. Supp. 2d 531, 551–53 (S.D.N.Y. 2004). ↑
  311. See, e.g., In re Viagra Prods. Liab. Litig., 658 F. Supp. 2d 950, 965–66 (D. Minn. 2009). But see In re Rezulin Prods. Liab. Litig., 309 F. Supp. 2d 531, 553 (S.D.N.Y. 2004) (“The Court finds no legal basis upon which now to rule . . . that testimony regarding foreign regulatory actions is irrelevant as a matter of law in a United States products liability case governed by American law.”). ↑
  312. Mahaney ex rel. Est. of Kyle v. Novartis Pharm., 835 F. Supp. 2d 299, 318 (W.D. Ky. 2011). ↑
  313. Schedin v. Ortho-McNeil-Janssen Pharms., 808 F. Supp. 2d 1125, 1138 (D. Minn. 2011). ↑
  314. In re Xarelto (Rivaroxaban) Prods. Liab. Litig., 2017 WL 4168410, at *3 (E.D. La. 2017); see, e.g., In re Seroquel Prods. Liab. Litig., 601 F. Supp. 2d 1313, 1318 (M.D. Fla. 2009); In re Trasylol Prods. Liab. Litig., 709 F. Supp. 2d 1323, 1336 (S.D. Fla. 2010). ↑
  315. Cf. Maggie Gardner, Parochial Procedure, 69 Stan. L. Rev
    .

    941, 958–67 (2017) (discussing how judges approach foreign cases). ↑

  316. See, e.g., Jones v. Micron Tech. Inc., 400 F. Supp. 3d 897, 921 (N.D. Cal. 2019). ↑
  317. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557–58 (2007). ↑
  318. Alexis Kramer, Securities Fraud Claims Get Boost From EU Data Privacy Rules, Bloomberg L. (Feb. 1, 2019), https://www.bloomberglaw.com/bloomberglawnews/tech-and-telecom-law/XFD6V9SC000000?bna_news_filter=tech-and-telecom-law#jcite [https://perma.cc/W5QW-Z36F]. ↑
  319. See e.g., In re Zofran (Ondansetron) Prods. Liab. Litig., 368 F. Supp. 3d 94, 108 (D. Mass. 2019). ↑
  320. See In re Roundup Prods. Liab. Litig., 385 F. Supp. 3d 1042, 1047 (N.D. Cal. 2019). ↑
  321. See supra Section I.C. ↑
  322. See In re Rubber Chems. Antitrust Litig., 486 F. Supp. 2d 1078, 1082 (N.D. Cal. 2007). ↑
  323. See Animal Sci. Prods., Inc. v. Hebei Welcome Pharm. Co. Ltd., 138 S. Ct. 1865, 1868 (2018). ↑
  324. See, e.g., In re Rubber Chemicals, 486 F. Supp. 2d at 1081–84; European Commission Letter, supra note 169, at 8 (citing several district court decisions). ↑
  325. Animal Sci. Prods., 138 S. Ct. at 1875 (limiting the Court’s holding to foreign letters that seek to aid in interpreting foreign law). ↑
  326. Catherine M. Sharkey, Products Liability Preemption: An Institutional Approach, 76 Geo. Wash. L. Rev. 449, 477 (2008) [hereinafter Sharkey, Products Liability Preemption]; Sharkey, Opioid, supra note 86, at 686. In the international context, the closest work comes from Jenny S. Martinez, Towards an International Judicial System, 56 Stan. L. Rev. 429, 434 (2003) (calling for more transnational communications among judiciaries). ↑
  327. Sharkey, Products Liability Preemption, supra note 325, at 485. ↑
  328. See Engstrom, Gatekeepers, supra note 211, at 657. ↑
  329. David Zaring, Sovereignty Mismatch and the New Administrative Law, 91 Wash. U. L. Rev. 59, 74–75 (2013). ↑
  330. Stanley M. Gorinson & Robert Pambianco, U.S. and European Merger Policies Move Towards Convergence, Wash. Legal Found. (Aug. 9, 2002), https://www.wlf.org/‌2002/08/09/publishing/u-s-and-european-merger-policies-move-towards-convergence/ [https://perma.cc/MJ2C-J255]. ↑
  331. See Robert V. Percival, The EPA as a Catalyst for the Development of Global Environmental Law, 70 Case W. Res. L. Rsrv. 1151, 1152–85 (2020). ↑
  332. Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 414 (2003) (“[I]n foreign affairs the President has a degree of independent authority to act.”). ↑
  333. Galbraith & Zaring, Soft Law, supra note 46, at 768. ↑
  334. Id. at 770–73. ↑
  335. Id. at 771. ↑
  336. See Engstrom, Gatekeepers, supra note 211, at 674–80. ↑
  337. Monsanto Company’s Notice of Motion for Scheduling Order Regarding General Causation and Memorandum of Points and Authorities in Support at 6, Hardeman v. Monsanto Co., (N.D. Cal. 2016) (No. 3:16-cv-00525); Transcript of Proceedings of the Official Electronic Sound Recording 2:14 PM–3:01 PM at 21–22, Hardeman v. Monsanto Co., 216 F. Supp. 3d 1037 (N.D. Cal. argued May 3, 2016) (No. 3:16-cv-00525). ↑
  338. Sharkey, Products Liability Preemption, supra note 325, at 471–80 (highlighting many examples of agency amicus briefs). ↑
  339. See Diego A. Zambrano, Foreign Dictators in U.S. Court, 89 U. Chi. L. Rev. (forthcoming) (manuscript at 31) (on file with author). ↑
  340. Engstrom, Agency Gatekeepers, supra note 211, at 652. ↑
  341. Id. at 648. ↑
  342. Sharkey, Opioid Litigation, supra note 86, at 670–71. ↑
  343. Engstrom, Gatekeepers, supra note 211, at 644. ↑
  344. Id. at 649–50. ↑
  345. Id. at 649. ↑
  346. In re Nat’l Prescription Opiate Litig., No. 1:17-md-2804 (N.D. Ohio Apr. 11, 2018) (order granting discovery request). ↑
  347. See Catherine M. Sharkey, CAFA Settlement Notice Provision: Optimal Regulatory Policy?, 156 U. Pa. L. Rev. 1971, 1972 (2008). ↑
  348. Id. ↑
  349. The Class Action Fairness Act of 2005, S. Rep. No. 109-14, at 32 (2005). ↑
  350. Engstrom, Gatekeepers, supra note 211, at 687. ↑
  351. Sharkey, Opioid Litigation, supra note 86, at 686. ↑
  352. Engstrom, Gatekeepers, supra note 211, at 646. ↑
  353. Sharkey, Opioid Litigation, supra note 86, at 686. ↑
  354. This is not necessarily a representative sample of MDL cases but just all the discovery or evidentiary decisions I could find on Bloomberg Law/Westlaw using search terms related to foreign regulatory evidence. ↑

  355. This is not necessarily a representative sample of MDL cases but just all the discovery or evidentiary decisions I could find on Bloomberg Law/Westlaw using search terms related to foreign regulatory evidence. ↑

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