P. 1
Ratifying Kyoto at the Local Level

Ratifying Kyoto at the Local Level

|Views: 10|Likes:
Published by stormrunner002
YALE LAW SCHOOL

Public Law & Legal Theory Research Paper No. 174 John M. Olin Center for Studies in Law, Economics, and Public Policy Research Paper No. 372 Ratifying Kyoto at the Local Level: Sovereigntism, Federalism, and Translocal Organizations of Government Actors (TOGAS) by Judith Resnik Yale Law School and Joshua Civin Hogan & Hartson L.L.P. and Joseph B. Frueh Arizona Law Review, Vol. 50, p. 709, 2008 This paper can be downloaded without charge from the Social Science Research Network P
YALE LAW SCHOOL

Public Law & Legal Theory Research Paper No. 174 John M. Olin Center for Studies in Law, Economics, and Public Policy Research Paper No. 372 Ratifying Kyoto at the Local Level: Sovereigntism, Federalism, and Translocal Organizations of Government Actors (TOGAS) by Judith Resnik Yale Law School and Joshua Civin Hogan & Hartson L.L.P. and Joseph B. Frueh Arizona Law Review, Vol. 50, p. 709, 2008 This paper can be downloaded without charge from the Social Science Research Network P

More info:

Categories:Types, Research, Science
Published by: stormrunner002 on Jul 16, 2012
Copyright:Attribution Non-commercial

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
download as PDF, TXT or read online from Scribd
See more
See less

03/14/2014

pdf

text

original

Claims in support of exclusive sovereigntism (such as the COMPASS
report‘s criticisms of the Kyoto Protocol) are often grounded in arguments that rely
on democratic majoritarianism and the structure of American federalism, both of

which posit an engagement with ―foreign‖ law to be problematic. A first step in

that argument is that the regulation of a particular subject matter (in this context,

13.

Military Commissions Act of 2006, Pub L. No. 109-366, 120 Stat. 2600
(2006) (codified in scattered sections of titles 10, 18, and 28 of the United States Code).

14.

18 U.S.C. § 2441(a)(2) (2006).

15.

See S. AFR. CONST. 1996, pmbl.; id. ch. 2, § 39; see also Kaunda v. President
of S. Afr. and Others
, 2004 (10) BCLR 1009 (CC) at ¶ 222 (S. Afr.) (O‘Regan, J.,
concurring) (―[O]ur Constitution recognises and asserts that, after decades of isolation,

South Africa is now a member of the community of nations, and a bearer of obligations and
responsibilities in terms of international law.‖); Resnik, Law as Affiliation, supra note 8, at
43–45. Some have argued that the U.S. Constitutional tradition requires similar regard for
the law of nations. See, e.g., Vicki C. Jackson, Transnational Discourse, Relational
Authority and the U.S. Court: Gender Equality
, 37 LOY. L.A. L. REV. 271, 335–37, 336
nn.227–28 (2003); see also Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64,
117–18 (1804) (―[A]n act of Congress ought never to be construed to violate the law of
nations if any other possible construction remains.‖).

16.

See generally Judith Resnik, Living Their Legal Commitments: Paideic
Communities, Courts, and Robert Cover
, 17 YALE J.L. & HUMAN. 17 (2005).

716

ARIZONA LAW REVIEW

[VOL. 50:709

Arizona, Ratifying Kyoto at the Local Level Sept. 22, 2008 final

climate control and energy policy) belongs to a certain level of government (in this

instance, ―domestic‖ decisionmaking rather than ―foreign‖ affairs).

How can one tell what problems fall within either the arena of the

―domestic‖ or the ―foreign,‖ and whether characterizing a problem as ―domestic‖
necessarily precludes it from also being described as ―foreign‖? These questions

have been posed in many legal contexts, often prompting litigation. Examples
include lawsuits about whether Massachusetts has the power to decide not to use

its taxpayers‘ dollars to buy goods made with forced labor in Burma,17

and
whether legislatures or executive officials in Illinois—appalled at genocide in
Darfur—can divest their state‘s assets from Sudan.18

Like the question of energy

policy, these examples illustrate that problems are often ―domestic‖ and ―foreign.‖
Allocating a citizenry‘s tax dollars to control one‘s own fisc is a local political

decision that can (depending on where dollars are spent) have global ramifications,
just as how one consumes oil affects both domestic and foreign interactions.

In contrast, the kind of categorical approach adopted by the COMPASS
report assigns a topic to a particular jurisdiction as if it self-evidently and naturally
inhered.19

Feminist theorists call this ―essentialism,‖ and use the term to discuss
claims about gender that presume some qualities to be intrinsically ―female‖ or
―male.‖ Essentialists ignore how practices and ideas about the distinctions between
women and men are shaped by the interaction between social forces and human

beings; rather, essentialists rely on ―nature‖ as the primary source of differences.20

A parallel exists in the context of jurisdictional classifications on climate control

and energy policy. The categories ―domestic‖ or ―foreign‖ are, like many

attributions of the intrinsic effects of gender, human constructions rather than
artifacts of nature alone.21

17.

See, e.g., Crosby v. Nat‘l Foreign Trade Council, 530 U.S. 363 (2000).

18.

See, e.g., Nat‘l Foreign Trade Council, Inc. v. Giannoulias, 523 F. Supp. 2d
731 (N.D. Ill. 2007) (striking Illinois‘ divestment act as an infringement on the foreign

affairs authority of the national government); Combating Genocide in Darfur: The Role of
Divestment and Other Policy Tools: Hearing Before the S. Comm. on Banking, Housing,
and Urban Affai
rs, 110th Cong. (Oct. 3, 2007) (statement of Frank T. Caprio, General
Treasurer of the State of Rhode Island), available at http://banking.
senate.gov/public/_files/caprio.pdf.
19.

See generally Judith Resnik, Categorical Federalism: Jurisdiction, Gender,

and the Globe, 111 YALE L.J. 619 (2001).
20.

See generally ELIZABETH V. SPELMAN, INESSENTIAL WOMAN: PROBLEMS OF

EXCLUSION IN FEMINIST THOUGHT (1988).
21.

The claim that laws of particular genres are ―state‖ or ―federal‖ has been

asserted with some regularity in recent legal controversies, as has the rebuttal that the
distinctions are overdrawn and result from decisions that are neither inevitable nor stable

over time. For example, when finding unconstitutional the ―Civil Rights Remedy‖ of the

Violence Against Women Act, the majority in United States v. Morrison, 529 U.S. 598
(2000), insisted on categorical and mutually exclusive boundaries. Chief Justice Rehnquist

concluded that the ―Constitution requires a distinction between what is truly national and
what is truly local.‖ Id. at 617–18. A parallel effort to delineate by using the terms
―internal‖ and ―external‖ comes from the Medellin litigation about consular notification. See
Ex Parte
Medellin, 223 S.W.3d 315, 333–34 (Tex. Crim. App. 2006). More poignant are
debates over how to characterize Medellin himself (the petitioner was born in Mexico but

2008] RATIFYING KYOTO AT THE LOCAL LEVEL 717

Arizona, Ratifying Kyoto at the Local Level Sept. 22, 2008 final

At stake in the effort to categorize something as either ―domestic‖ or
―foreign‖ are questions of power and process. The COMPASS report argued that
the Kyoto Protocol‘s attempt to ―convert decisions usually classified as ‗domestic‘
for purposes of U.S. law and politics into ‗foreign,‘‖ gave more power to the
President and limited the powers of Congress, local governments, and private
entities.22

Further, COMPASS charged that the Protocol could reallocate power to
state and federal courts, which could then use customary international law to create
a new ―super-national source of binding legal rules.‖23

These concerns about
transnational influences on domestic law and about international lawmaking in

general are often bundled as evidence of a ―democratic deficit.‖24

The premise is
that international lawmaking undercuts both the majoritarian procedures and the
separation of powers embedded in the U.S. Constitution. Exclusivist sovereigntism
is thus equated with constitutionalism and popular will.

You're Reading a Free Preview

Download
scribd
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->