A Response to Mr. Li and Professor Wang

by Margaret K. Lewis

I am grateful to Mr. Li and Professor Wang for their thoughtful comments and am flattered by their praise. The very fact that a lawyer and a law professor speak of their criminal justice system with such insight and candor highlights one of the most laudatory aspects of Taiwan’s legal reform project: A transparent, open debate over the best path for Taiwan. During the course of my research, I was deeply impressed by the transcripts of lengthy legislative debates during which a number of experts from the judiciary, executive branch, and academia appeared to present reports and field legislators’ questions regarding proposed reforms. Moreover, these transcripts are readily available from government websites.

While I agree with Mr. Li that the “perception of prosecutors as judge-equivalent” remains strong, I would not go so far as to say that Taiwan’s current path is pointing towards “a way of no return.” Perhaps I am naïve or Pollyannaish, but I am an incorrigible optimist and believe that there remains room to chart a different path. Certainly the dramatic changes to Taiwan’s legal system in the relatively short period of two decades suggest reason for hope that reformers can once again muster momentum for further changes. For example, as Professor Wang indicates, people might “rethink” the timing of when counsel is appointed. It is certainly possible that some sort of brief initial appearance will not suit Taiwan’s civil-law based system. However, at a minimum, a renewed debate over the possibility of initial appearances would at least draw attention to the concern that, under current procedures, lawyers are often appointed too late in the game to have a significant impact on the case’s resolution. Come what may, I am confident that with the likes of Mr. Li and Professor Wang spearheading reform efforts, vibrant debate will continue. I look forward to following reforms in the years to come.

A Response to Margaret Lewis by Professor Jaw-perng Wang

by Jaw-perng Wang

[Jaw-perng Wang is Professor of Law at National Taiwan University]

I am very impressed that a foreign scholar, especially a common-law trained one, could have a precise picture of Taiwan’s criminal procedure and its history and recent reforms.  Without spending tremendous time and effort, an article that accurately and meticulously reports Taiwan’s criminal procedure, like this one, could not possibly be produced.  In addition, I must confess that several parts of the detailed report of Taiwan’s practice did not come to my attention until after reading this article.  It is the best article in American literature reporting Taiwan’s criminal procedure in sense of its depth, breadth, and accuracy.

I personally like Parts IV and V of this article the most.  In Part IV, the article provides concrete proposals for Taiwan to achieve the desired adversarial model.  It divides cases into serious offenses and non-serious offenses for different proposals.  For serious offenses, the article proposes that, when the prosecutor seeks pretrial detention following arrest, the court could appoint counsel at this preliminary stage.  When the prosecutor does not seek pretrial detention, a brief initial appearance could be used to appoint counsel.  I believe the proposal is absolutely right in theory.  As a matter of fact, some scholars and defense lawyers made the same requests in Taiwan.  However, the government simply turned a blind eye to it.  As to the “initial appearance,” it might be common in common law countries, but it is unfamiliar or unheard of in civil law countries.  The great, great majority of the people have no idea of this concept.  Nonetheless, this article’s proposal could cause the people in power in Taiwan to rethink these problems.

In Taiwan’s legal history, we always learn lessons from foreign countries, such as Germany, Japan, and the United States.  When we devoted our efforts to reforming the criminal process in Taiwan, we moved bravely to get rid of wrong aspects and adopt right ones.  However, it is impossible to be successful in every aspect of reforms no matter how hard we plan and try.  In close observation of Taiwan’s experience, this article raises some very good and insightful questions and proposals that Taiwan should reconsider and adopt.  The same might apply to other countries that have already committed to incorporating adversarial reforms.  It is great to know that Taiwan’s experience could offer some contributions to the world of comparative law.

A Response to Margaret Lewis by Nigel Li

by Nigel Li

[Nigel Li is a prominent lawyer and legal scholar in Taiwan]

Professor Lewis’ article comes timely as a 10-year review of the half-baked criminal procedure reforms in Taiwan, particularly in a vacuum of rigorous academic attention to an ambitious attempt to transplant the common-law adversarial system to a soil of civil-law inquisitorial adjudication by a rising young democracy seeking a new identity in the global village.  Professor Lewis unveils with remarkable, insightful precision the hard fact that the reforms may have adopted a two-track system that was not fully conceived at the outset.  The overlooked challenge of efficiency-driven reforms, in tandem with the adversarial system, highlights a compromise between the reformers and their powerful and persistent opponents that creates the appearance of a serious reform but leaves substantially intact the turf that had been occupied by the prosecution before the Grand Justices’ 1995 decision stripped off the prosecutors’ monopoly on imposing pre-indictment detention.

The outgrowth of the 1995 decision, among others, was the 1999 conference launching judicial reform and setting the stage for the new adversarial system, but the needed infrastructure for its success was neglected.  Most in all the relevant four sectors, including the judges, the prosecutors, the lawyers and the law professors who provide law-school education, are not prepared in both the spirit and skills that the new system demands.  To date, strict application of newly introduced evidence rules is still a novel idea in the day-to-day judicial practice.  Many judges and lawyers are not well versed in the rules for cross examination.  Meanwhile, government-employed stenographers are not trained to produce verbatim transcripts in court without the aid of any apparatus to ensure real time, mechanical recordation, which frustrates the swift operation of cross examination.

With the prevalent perception of prosecutors as judge-equivalent within the legal community, institutional resistance from within has been a core problem in the course of cultivating the new system that distinguishes judges and prosecutors in all respects.  The common thread of several “efficiency-driven procedures” is to retain the dominance of the prosecution’s power in the criminal justice system.  In a nutshell, introducing the adversarial system is a part of the serious judicial reform to redefine the powers and functions of the court.  The judiciary is to recover its domain originally reserved under the Constitution but once wrested away by the executive branch via the over-expanded functions of the prosecution.  Far from claiming any complacency that the new system now requires no more than a fine tuning, as Professor Lewis rightly points out, the new system must be scrutinized.  Serious commitments must be made for the reform to charge ahead.  Changing course and charting a different path is not an alternative, however, since the momentum generated by the Grand Justices through many critical constitutional interpretations points to a way of no return.

Taiwan’s New Adversarial System and the Overlooked Challenge of Efficiency-Driven Reforms

by Margaret K. Lewis

[Margaret K. Lewis is a Senior Research Fellow at NYU Law School's U.S.-Asia Law Institute.]

Thank you to the editors of the Virginia Journal of International Law and to Opinio Juris for providing this forum. My article grew out of work on legal reforms in Mainland China, which led to a cross-Strait project. As I learned more about Taiwan’s criminal justice system, I realized that Taiwan’s reform path presents an intriguing story of a legal transplant at a time when systems around the world are increasingly unmoored from the traditional adversarial/inquisitorial divide.

By way of brief background, over the past twenty years, Taiwan has transformed from a repressive, martial law state into a vibrant, multi-party democracy, and wide-sweeping reforms to the legal system have accompanied these political changes. Prior to the current reform project, the criminal justice system had a strong inquisitorial flavor. What Taiwan chose to adopt at the turn of the century is what they call a “reformed adversarial system.” The desired new system is adversarial in that it is rooted in the idea that the criminal process is structured as a contest between the competing views of the defense and prosecution, and the case is ultimately resolved by a neutral adjudicator.

When talking with Jaw-perng Wang, a friend who is a prominent Taiwanese criminal procedure scholar (and respondent to this post), he told me that Taiwan had introduced plea bargaining as part of its transition towards an adversarial system. This surprised me because plea bargaining had traditionally been frowned upon as going against the prevailing view in Taiwan that the criminal process involved a search for objective truth and that justice is not open to negotiation. Despite these objections, in order to speed cases through the system, Taiwan has promoted not only plea bargaining, but also three other alternatives to the full trial process, what I collectively term “efficiency-driven procedures”; namely, plea bargaining, deferred prosecution, file-based adjudication, and simplified trials. What really struck me was Professor Wang’s explanation that because the new trial procedures were putting greater strain on this new adversarial system, expedited procedures were necessary to resolve cases rapidly.

This type of case-load pressure argument in support of plea bargaining is not novel to Taiwan. What is different and important is how a growing reliance on plea bargaining and other streamlined procedures plays out in a jurisdiction that is attempting to fundamentally shift to an adversarial system. And beyond a straightforward efficiency rationale, outside of the context of Taiwan, scholars have proposed that plea bargaining could actually encourage a new adversarial spirit because it is a party-controlled procedural form of resolving cases.
The problem is that the scenario that appears to be developing in Taiwan is a different one. Instead of enhancing robust interaction between the prosecution and defense, these trial-avoiding and trial-condensing procedures have created a separate track of expedited, prosecutor-dominated justice alongside the adversarial one. The vast majority of defendants see their cases decided at the prosecutor-controlled investigation stage or directed through an abbreviated adjudication stage with little activity by either the judge or defense.

Admittedly, that most cases are decided without a contested trial is not shocking. What is concerning is that the trumpeted adversarial reforms are not permeating into efficiency-driven procedures and these procedures are increasingly coming to dominate in Taiwan. My claim is that these procedures, which are seen as necessary for Taiwan’s new system to even function, are actually impeding the development of the desired adversarial approach. This observation is important not only to Taiwan, but also to other transitional jurisdictions by sounding a note of caution that focusing on the minority of cases in which defense lawyers spar with prosecutors in the courtroom may lead reformers to overlook how the overall reform package is increasingly channeling cases through very different processes.

Exploring Diagonals Further: A Response to Professors Ruhl and Sayre

by Hari Osofsky

I very much appreciate the thoughtful commentary of Professors J.B. Ruhl and Nathan Sayre on my article.  They are engaged in tremendously interesting thinking on questions of environmental scale and governance, and I find their comments insightful.  I agree with both of them that this article opens further research questions about what diagonals are, how they have been constituted over time, the ways in which law and political economy interact through them, and how they might fit into panarchical conceptions of governance.  More broadly, their comments speak to the value of bringing law and geography together to address complex environmental problems.

My exploration of diagonals in the context of climate litigation raises questions for me about the benefits and limitations of such cross-cutting approaches.  As I, like Ruhl and Jim Salzmann, reflect on the messiness of problems like climate change, I agree with them that our approaches need to engage the panarchical nature of the formal and informal interactions taking place.  However, I also struggle with the scalar stickiness of law, which is subdivided into relatively fixed levels of governance.  When we try to craft governance structures that encompass the messiness of climate change, what I would term fully integrated diagonal approaches, their complexity becomes daunting.  In a companion piece to this one, tentatively entitled Diagonal Climate Regulation: Implications for the Obama administration, which I hope to have in full draft by the end of the summer, I am thus considering the vectors that comprise diagonal interactions and the possibilities for crafting integrative approaches through combinations of partial diagonal regulation.  Specifically, I am considering regulatory scale (small scale v. large scale), axis (vertical v. horizontal), hierarchy (top-down v. bottom-up), and cooperativeness (cooperative v. conflictual).   I think that a study of these vectors and how regulatory approaches at different points along them might be combined in the context of the Obama administration’s efforts may help to get at the complexity Ruhl rightly highlights.

Moreover, I agree with Sayre that history and political economy are key elements for understanding how effective diagonal regulatory approaches might be developed.  I had the pleasure of participating this spring in a Washington University Journal of Law & Policy symposium organized by Dan Mandelker and Dan Tarlock on New Directions in Environmental Law.  The symposium explored how U.S. environmental regulation should develop through paired presentations on the history of major statutes and possibilities for the future.  One thing that struck me throughout the dialogue was the complex interplay of science, scale, and law taking place in each of these substantive contexts.  I think that we can learn from the experiments in horizontal, vertical, and diagonal governance that these statutes create—both in the provisions themselves and in the formal and informal interactions regarding their creation, interpretation, and implementation—as we consider what the next generation of environmental governance should be.  For example, the Clean Air Act has a number of provisions that create diagonal interactions, such as the waiver provision discussed in depth in Is Climate Change “International”?: Litigation’s Diagonal Regulatory Role.  An engagement of the rich federalism literature regarding these statutes through the lens of geography’s nuanced exploration of scale provides many possibilities for future inquiry.

These historical questions are made more difficult by the way in which time interacts with the problem of climate change.  Current levels of greenhouse gases in the atmosphere result from emissions allowed under past regulatory regimes, and future levels will be influenced by past, present, and future laws.  As noted in Is Climate Change “International”?, different parts of the climate system respond at varying paces; for example, the ocean and atmosphere do not evolve at the same rate.  Similarly, impacts and adaptation needs vary simultaneously across time and space, which create policy and justice dilemmas.  To make things even more complex, scientific uncertainty is greater at smaller spatial and temporal scales.  Efforts to craft diagonal approaches will need to be grounded in the historical contests and their resolution that Sayre describes, as well as these spatio-temporal interactions.

I similarly concur with Sayre’s assessment of the critical role that the scales of the political economy play.  In my earlier work on climate change litigation, particularly The Geography of Climate Change Litigation: Implications for Transnational Regulatory Governance, I explored these cases as multiactor, multiscalar, multibranch interactions which center around state-corporate regulatory dynamics regarding climate change.  These suits generally focus either on whether or not government should be regulating major corporate emitters or directly on the auto and power plant industries.  More broadly, the complex legal, political, and economic scales of governmental and nongovernmental entities, as Sayre notes, influence the possibilities for effective diagonal regulatory strategies.  Some local governments, such as San Bernardino County for example, are larger than many states and even smaller nations, and the most significant U.S. state emitters would rank among the countries with the greatest emissions if they were so categorized.  Major corporate emitters are simultaneously local, state, national, and transnational.  These complex identity issues blurs a description of a diagonal as small or large scale, top down or bottom up, and vertical or horizontal.

The nuances that the commentaries by Ruhl and Sayre highlight thus reinforce the role that law and geography can play in crafting more effective regulatory strategies for complex problems like climate change.  Geography’s engagement of place, space, and scale can add depth to legal analysis, and law’s understanding of regulatory intricacy can do the same for geographic analysis.  An exploration of diagonal regulatory strategies in this context forms one piece of that larger project.

Have we always been diagonal? A response to Osofsky’s “Is Climate Change ‘International’?”

by Nathan Sayre

[Nathan Sayre is Assistant Professor in the Department of Geography at the University of California at Berkeley]

I join J.B. Ruhl in applauding Hari Osofsky’s effort to bring geographical and legal scholarship into a constructive dialogue to address climate change. Her analysis draws important empirical and theoretical lessons from two case studies by illuminating the complex role of litigation in driving processes of regulatory rescaling—a critical role given the unprecedented and urgent challenges that global warming poses to existing legal and institutional frameworks. To meet these challenges, society—at every level—needs not only new laws and regulations, not only new approaches to governance, but also new ways of thinking about society and the environment altogether. Professor Osofsky’s work contributes valuably to this endeavor.

I would also concur with Ruhl’s suggestion, however, that we should take Osofsky’s analysis and conclusions still further, in at least two additional directions. The first would ask whether the intrinsically diagonal character of environmental regulation—and perhaps regulation as a whole—is a recent phenomenon, linked to climate change, or if, instead, it has always been there. In other words, might we fruitfully use Osofsky’s conceptual framework to improve our understanding of historical contests over the environment? (And environment, here, should be construed broadly to encompass urban and rural, human and wild, built and natural environments.) This is not merely a historiographical issue, moreover, because the legal and regulatory landscapes that climate change is rescaling are themselves historical products of prior processes; in other words, to understand current rescaling we must also understand how the existing scales came into being in the first place.

Consider the US federal government, for example, which sits in the middle of many discussions of climate change regulation—a “fulcrum” between international treaties and state and local laws. Its preeminent role in environmental regulations in this country derives from landmark legislation enacted in the 1960s and 70s, such as the National Environmental Policy Act, the Endangered Species Act, and the Clean Air and Clean Water Acts. As in the current contests over climate change, the actors that shaped those statutes were myriad, including both private and public, for-profit and not-for-profit institutions, arrayed across numerous levels of government and linked through both formal and informal networks. By mobilizing action at the federal level, environmental activists by-passed or overrode obstacles that could not so easily be overcome at state or local levels. After all, how could state legislatures effectively regulate pollution from industrial facilities located in other states? Their efforts were multi-scaled, moreover—think of how Rachel Carson dramatized the perils of chemical pesticides by depicting events unfolding out ordinary housewives’ kitchen windows, for example. Pushing this history back further, to the early 20th century, one could examine the networked efforts of local groups in pushing for state level regulations to protect wildlife, enacted at a time when the federal government’s role was much more circumscribed than it has been in our own lifetimes. Even then, both national and international legal factors played important roles in processes of rescaling—how would the federal government have become such an important player without the Commerce Clause, for example? And what about international treaties protecting migratory birds, which further buttressed claims for federal jurisdiction?

The second direction that warrants greater attention under Osofsky’s diagonal framework is political economy. Perhaps, as in her article, it goes without saying that many, if not all, of the actors involved are motivated by concerns about economic growth: corporations, local developers and businesses, to be sure, but also municipal and county planners and, for that matter, employees concerned that regulating carbon may impact their jobs. Here again, questions of scale are of central importance. The opposition of the auto industry to state-level climate regulation, for example, rests largely on concerns that a “patchwork” of different regulatory regimes would undermine the economies of scale built into their production systems. And one can scarcely appreciate the importance of Massachusetts v. EPA without considering California’s outsized significance to the US economy in general, as well as its unique statutory position under the Clean Air Act. Economic production is fundamentally shaped by the scales at which it is organized, and institutions of governance are internally related to the resulting dynamics.

These are not flaws in Osofsky’s argument so much as further research directions, whose importance extends beyond legal scholarship but should not for that reason be neglected by legal scholars. Bridging disciplinary divides is of the utmost importance for addressing climate change, and thinking diagonally will require collaborative efforts among many different scholars, each bringing expertise not only in terms of substance but also in terms of the scales at which they are most adept at thinking and communicating. As Ruhl correctly notes, a diagonal approach is not merely a matter of being both horizontal and vertical at the same time, but of expecting and explaining complex, non-linear, and emergent properties and dynamics in both social and ecological systems. This complexity has long been a property of the world we seek to understand and affect, but perhaps only now are we beginning to recognize and appreciate it.

From Hierarchy to Diagonality to Panarchy: A Comment on Hari Osofsky’s Is Climate Change “International”?

by J.B. Ruhl

[J.B. Ruhl is Matthews & Hawkins Professor of Property at Florida State University College of Law]

By asking us to think diagonally about institutional frameworks for formulating and implementing responses to climate change, Professor Hari Osofsky challenges law and policy to confront the reality of climate change as a hugely complex multi-scalar phenomenon. The conventional wisdom has been that climate change, given its global dimensions, is inherently an international problem demanding institutional responses at the international scale. True enough, most everyone agrees, but many also argue this should not be to the exclusion of national and subnational responses. For the United States, once the discussion drifts down to those levels the federalism debate opens in full gear. A mountain of legal scholarship has risen from the collision between the pro-federal, pro-state, and pro-local climate change policy camps. Declining to join this Goldilocks search for the “just right” balance, Osofsky joins those, including myself, who see a need for an interconnected multi-scalar policy response that is equally as complex as the climate change problem itself.  What sets her apart from work advancing this perspective is her use of climate change litigation as a lens through which to observe the forces pushing toward a rescaling of climate change law and policy from the bottom up and top down. Through her case studies illustrating contested rescalings in both directions, Osofsy paints a picture of an emerging institutional network that cuts across governance scales both vertically (to connect federal, state, and local actors) and horizontally (to connect actors at each scale)—thus diagonally.

I find much appealing about Osofsky’s portrayal of climate change litigation’s diagonal rescaling function, no doubt due in large measure to our common bond of being formally trained in geography. Geographers think about scales—all scales—and climate change law must as well. In this respect, while I applaud Osofsky’s diagonal thinking, I wonder whether it goes far enough. In a forthcoming California Law Review article I co-authored with Professor Jim Salzman, Massive Problems in the Administrative State, we argue that the kind of networked multi-agency, multi-scale institutional arrangements Osofsky envisions are necessary for effective responses to climate change and other massively-scaled problems confronting the administrative state. Yes, these transgovernmental networks are messy, redundant, unwieldy, and decentralized, yet these are the very attributes that give them adaptive staying power compared to the rigid institutional frameworks we conventionally throw at such problems. They also are less hierarchical than even Osofsky’s diagonality suggests—they are panarchical, depending far more for their work on the relationships and resources of people in the networks than on the formal legal status of the institutions employing them.

Most legal scholarship on institutional design for climate change policy is stuck in the conventional two-dimensional horizontal and vertical conceptualization of federalism. But when we say climate change is multi-scalar, we don’t mean it behaves according to some multi-tiered hierarchy of physical events; rather, we mean that it plays out through a complex network of feedback loops, nonlinear causal chains, and emergent properties that interconnect over different temporal, spatial, and cultural scales, but not that any one scale is running the show. Our governance response to such a phenomenon can be no less complex. Perhaps, therefore, the litigation-driven bottom up and top down rescaling Osofsky identifies as contributing to growing diagonality in climate change policy is a first step toward breaking away from governance hierarchy and moving toward complex transgovernmental networks for formulating and implementing climate change policy. With Osofsky’s lead, then, we should all start thinking diagonally.

Is Climate Change “International”? Litigation’s Diagonal Regulatory Role

by Hari Osofsky

[Hari M. Osofky is Associate Professor at the Washington and Lee University School of Law]

I would like to thank both the Virginia Journal of International Law and Opinio Juris for providing this forum to discuss my new article, Is Climate Change “International”?: Litigation’s Diagonal Regulatory Role.  I also am grateful to both J.B. Ruhl and Nathan Sayre for their thoughtful commentary on the piece.

This Article argues that the scale of climate regulation must fit the scale of the problem.  More specifically, the Article claims that because greenhouse gas emissions and impacts are multiscalar—individual, local, state, national, regional, and international—focusing predominantly on any one level of governance limits solutions.  Although existing analyses and regulatory efforts often recognize the multiscalar nature of this problem, translating that recognition into meaningful policy solutions is extremely difficult, as exemplified in treaty negotiations, piecemeal policy initiatives, and pending litigation.

This challenge is made harder by efforts that treat climate change as a predominantly “international” legal problem in order to block smaller scale regulation.  Variations on these “too big” arguments are proffered repeatedly in climate change litigation currently taking place in U.S. state and federal courts.  Regulatory opponents argue that the spatial and temporal scope of climate change and its resulting scientific uncertainties make particular local, state, or national regulatory steps inappropriate.  The Article explores two examples of these scalar contests—California’s suit against San Bernardino County for its failure to regulate and the U.S. EPA’s denial of California’s Clean Air Act waiver request—and their implications for regulatory scale.
The Article then considers the lessons from these disputes for what more effective multiscalar governance of climate change might look like.  It examines the dangers of “scaling up” climate regulation and the “diagonal” regulatory role that these lawsuits play. Bringing together the scholarly literature on transnational legal process and geographic network theory, grounded in dynamic federalism and new governance approaches, it situates the two case examples within multiscalar networks that form the basis for informal and formal efforts to enhance or undermine regulatory efforts.

The Article argues more broadly that the nature of the problem and of the public and private entities engaging it provides the basis for diagonal regulatory strategies that simultaneously incorporate vertical and horizontal networks; this litigation serves as one such mechanism, and more analysis of other appropriate contexts for diagonal approaches is needed.  In so doing, the Article introduces my ongoing research and writing on diagonal regulation, in which I am exploring in further depth the elements of such approaches and their implications for the Obama administration’s efforts to address climate change.

Political Commitments: A Response to Professor Ramsey

by Joshua Newcomer

As with the earlier comments by Ed Swaine, I greatly appreciate Michael Ramsey’s astute observations regarding how political commitments fit into the constitutional discourse. I’ve endeavored to provide my initial responses to each of his suggestions below, although surely Duncan and I will build from his comments as we develop our theories going forward.

We are pleased that Professor Ramsey agrees with our overarching proposition that the practice of making political commitments should be subject to analysis on a constitutional dimension. Our disagreements, therefore, primarily lie in constitutional methodology. How we define political commitments goes a long way toward resolving the differences between our analysis and Professor Ramsey’s. To the extent that Professor Ramsey suggests that we are re-packaging “non-binding personal pledges by the President” as political commitments, we emphasize that the nation, not the President, incurs the obligation. Political commitments came out of the late nineteenth and early twentieth century practice of entering into gentlemen’s agreement, but that was a much more personal phenomenon—binding its makers, not the state. As the practice developed, it became more of a vehicle for encompassing state commitments. The Newfoundland Fishery Agreement and Horseshoe Reef Agreement were hardly the stuff of personal promises, and political commitments now include the Helsinki Accords, the NATO-Russia Founding Act, and the London Guidelines. All of these implicate national credibility, not that of an individual President. Personal promises by the President and other heads of state, of course, remain, but we wanted to analyze the distinct concept of political commitments that purport to represent the agreement of a state or its agencies. With that clarification in mind, I hope to answer Professor Ramsey’s more substantive comments.

1. Political commitments as a constitutional work-around.
Professor Ramsey situates political commitments in relation to other executive acts by noting that they are one tool at the President’s disposal to avoid the rigidity of the treaty-making process. We do not disagree that political commitments offer a useful, flexible tool to avoid the Constitution’s rigidity in making treaties. But, the ability to substitute this tool in place of a treaty is all the more reason to place some constitutional checks on their use. In this way, Professor Ramsey’s critique partially answers Professor Swaine’s observation that we “need a theory of constitutional proximity (or an argument about the dynamic effects of leaving substitutes unregulated).” If unregulated, political commitments may sometimes facilitate end-runs around constitutional mechanisms, distorting democratic processes and the rule of law (for example, FDR completed the Atlantic Charter as a political commitment in part to avoid any need for Senate approval).

Political Commitments and Executive Power

by Michael Ramsey

[Michael D. Ramsey is a Professor of Law at the University of San Diego Law School and author of “The Constitution’s Text in Foreign Affairs” (Harvard Univ. Press, 2007).]

Duncan Hollis and Joshua Newcomer have written a fascinating article on an important and underappreciated topic. I agree with their basic propositions, especially that “political commitments” (as they call non-binding personal pledges by the President) are a distinct and crucial form of diplomacy, and that we need to understand how political commitments fit into the Constitution’s foreign affairs framework.

The article inspires two reactions. The first is that political commitments are a constitutional work-around. Arguably the Constitution’s framers erred in making international agreements too hard to undertake (by requiring two-thirds of the Senate to approve) and too inflexible once undertaken (by giving them automatic status as domestic law). In any event, the framers imposed a rigid international agreement process that the executive branch has found unsatisfactory. Over time, executive agreements and non-self-executing treaties emerged as ways to work around the framers’ formalistic diplomatic system to make it more flexible and more suited to executive branch desires. Political commitments similarly seem to respond to the Constitution’s inflexibility in international agreement-making. They are, in this sense, akin to executive agreements and non-self-executing treaties, with similar benefits to the executive branch.

My second reaction is that, unlike executive agreements and non-self-executing treaties, political commitments fit relatively easily into the Constitution’s text and original meaning. Duncan and Joshua don’t seem to agree, because they spend a good part of their article straining to give political commitments a constitutional defense. It’s true, of course, that the Constitution’s text doesn’t expressly mention political commitments and that the framers didn’t seem to have had them in mind. But the Constitution was designed to provide general principles that could encompass specifics not directly contemplated.

Political Commitments: A Response to Professor Swaine

by Duncan Hollis

[This post was jointly authored by Duncan Hollis and Joshua Newcomer] Ed Swaine brings his typical thoughtful (and rigorous) method to our article, and we greatly appreciate his insights, not only for engaging with our ideas but also for suggesting how we might advance them in future scholarship. Since Ed has framed his comments as questions, we’ve endeavored to provide responses to each of his five questions below.

1. What is the international significance of political commitments? Our research produced lots of anecdotal evidence on the widespread use of political commitments. Add to that the experience that one of us (Hollis) had in the State Department Treaty Office, where he spent as much time working on political commitments as actual treaty-making, and we’re hard pressed to deny that this is a pretty regular tool of international relations (a point on which Tony Aust, a former legal official in the British Foreign Office, readily concurs). That said, we take Ed’s point that there are no comprehensive surveys of the political commitment practice. Nor are there collections of these instruments; indeed, no mechanism exists for states to record or publicize them. By placing political commitments under the Constitution, however, we hope to generate information-forcing actions from Congress and the executive branch to develop a better picture of when, how, and with whom the United States concludes political commitments.

In any case, although we resist the notion that political commitments are rare (at least for the United States), we readily concede that some of them may comprise “cheap talk.” At the same time, however, our article emphasizes that other political commitments have provided significant constraints on state behavior (e.g., the Helsinki Accords or the FATF regime). Thus, our article reveals a political commitment practice far more diverse than previously acknowledged. And, as discussed below, we devised our typology to figure out what criteria distinguish “cheap talk” political commitments from those that are meaningful. To get at the domestic constitutional question, we wanted to show not only that this instrument has become a significant tool of U.S. foreign relations, but also that it can be employed to perform an array of functions that vary widely in terms of implications for U.S. credibility, reputation, flexibility, and foreign relations more generally. Moreover, whatever the breadth and depth of the political commitment practice, we need not concede that these instruments have international legal effect. While sometimes they might, we aimed to illustrate that, whatever their legal effect, the potential political significance of these instruments alone warrants constitutional scrutiny.

Questioning Political Commitments

by Edward Swaine

Thanks to Opinio Juris for hosting this discussion and to the editors of the Virginia Journal of International Law for their discerning taste in publishing such an excellent article.

Duncan Hollis (who has published widely both on the international aspects of treaties and on their domestic significance, and so is expertly situated to address this question) and Joshua Newcomer (already publishing like an old hand) have written an important article on an underappreciated phenomenon. On the theory that if it’s good enough for Derek, it’s good enough for me, I will structure my comments in a series of questions. The questions may seem critical, but they really pale in comparison to the article’s obvious strengths.

1. What is the international significance of political commitments?

Hollis and Newcomer (HN) begin their article by noting prominent examples of political commitments (PCs) (pp. 510-11), and add “[t]he popularity of political commitments reflects their utility to nation-states.” The ambiguity of that observation reflects a problem common to the understanding of international agreements. On the one hand, if such a device is used often, that might signal that it is useful – no activity is wholly costless, so it must be worth something. On the other hand, it may be inexpensive relative to its alternatives; employing a special sense of “utility,” we might say that the popularity of PCs reflects their utility in the same way that cheap talk does. In either event, I’m not confident that we have a robust sense of popularity. If every member of the UN struck one and only one bilateral arrangement with every other member, we should see over 18,000 of them; we could just as easily be struck by how rare PCs really are. And we do not know, of course, how significant they are in shaping state conduct. Forced to guess, one might hazard that PCs do much less than treaties that attach formal legal consequences, and that this is all by design.

There’s something else going on in the article’s argument that’s worth observing. HN clearly regard PCs as having international political significance – that is the premise for regarding them as having domestic legal significance. But they essentially dismiss, or at least decided not to resolve, the international legal significance of these arrangements. Because they duck the whole “soft law” depiction of PCs (while indicating doubts about it, see p. 520), we are left in the unusual posture of deeming something to have domestic legal significance – to our Constitution, no less – without any international legal significance, under CIL or otherwise. This is the polar opposite of most incorporation problems, in which dualist states fail to reflect completely in their domestic schemes the legal force of rules on the international plane. Offhand, I cannot think of many other issues in foreign relations law that fit that profile, and none with the constitutional attributes they give PCs (essentially, a defeasible executive branch authority). I bet there are some, though, and reflecting on those examples might help in thinking about the class of problem they address here.