Volume 37 Number 2 -- Fall 2003

TABLE OF CONTENTS

THE EMERGING TRANSNATIONAL CONSTITUTION

  FOREWORD

Introduction

by Allan Ides

This introduction explores the basic tenets of constitutionalism-the theory of limits on the exercise of governmental power. Professor Ides posits that there is no reason that the theory and practice of constitutionalism cannot be applied across national boundaries. As he goes on to introduce each author's article, Professor Ides explains that this symposium examines some of the benefits and difficulties confronting the translation of a domestic constitutional dialogue into a transnational context.

Constitutional Analogies in the International Legal System

by Laurence R. Helfer

This Article considers five key structural and systematic challenges that the international legal system now faces: (1) decentralization and disaggregation; (2) normative and institutional hierarchies; (3) compliance and enforcement; (4) exit and escape; and (5) democracy and legitimacy. Each of these issues raises questions of governance, institutional design, and allocation of authority paralleling the questions that domestic legal systems have answered in constitutional terms. For each of these issues, this Article surveys the international legal landscape and considers the salience of potential analogies to domestic constitutions, drawing upon and extending the writings of international legal scholars and international relations theorists. It offers a preliminary assessment of why some treaties and institutions but not others more readily lend themselves to analysis in constitutional terms. And it distinguishes those legal and political issues that may generate useful for scholars studying the growing intersections of international and constitutional law from other areas that may be more resistant to constitutional analogies.

Transnational/Domestic Constitutional Law

by Mark Tushnet

The Supreme Court's references to non-U.S. law in deciding constitutional cases, new treaty institutions associated with NAFTA and the WTO, and recent advocacy urging that U.S. courts should make non-U.S. law a rule of decision more often than they have-all these have generated a new critical literature arguing that these developments threaten domestic sovereignty and self-governance. This Essay attempts to describe precisely what the objections are, distinguishing between discrete objections focusing on particular constitutional problems and sovereignty-based objections. The author argues that the discrete objections are not terribly strong and that the sovereignty-based ones re-state familiar arguments about judicial activism. The context is new, but the nature of the arguments is not. The author concludes by suggesting that the critical literature is a form of interest-group advocacy of precisely the same kind that the literature criticizes as undermining domestic sovereignty and self-governance-which suggests that neither form of advocacy is really troubling.

Transnational Discourse, Relational Authority, and the U.S. Court: Gender Equality

Vicki C. Jackson

Scholars and jurists have taken note of "transnational judicial conversations," "dialogue" or "transjudicial communication" about human rights. Gender equality is a particularly fruitful area in which to explore transnational judicial discourse. This article discusses the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which obligates state parties to take measures to end discrimination against women and assure treatment on an equal basis with men. Furthermore, this article explores the developing practice in human rights cases, sometimes expressed as an obligation, to consider a wide range of legal sources that are not "binding" in any conventional legal sense. Moreover, the article considers arguments that resort to foreign or international law as nonbinding authority in resolving questions of domestic constitutional law is inconsistent with commitments to democratic self-rule and with the role and competence of the courts.

The Contradictions of Supranationalism: Administrative Governance and Constitutionalization in European Integration Since the 1950s

Peter L. Lindseth

In this essay, Professor Lindseth outlines a new historiographical framework for European integration that draws direct linkages to the development of administrative governance on the national level in the postwar decades.  He argues that it is no coincidence that supranationalism emerged as a viable political project at precisely the moment in history when the constitutional foundations of modern administrative governance were also secured.  He also shows, however, that integration did not merely build upon, but also seriously disrupted, the postwar constitutional settlement of administrative governance, and that these disruptions account for some of the contradictory dimensions of European integration that persist to this day.

Theories of Justice, Human Rights, and the Constitution of International Markets

Professor Doctor Ernst-Ulrich Petersmann

This article argues that constitutional democracy and the universal recognition of human rights require an "international economic constitution" protecting mutually beneficial cooperation among citizens across frontiers. International theories of justice, and the "multi-level constitutionalism" needed for limiting "market failures" as well as "government failures" at national and international levels, must be based on empowering and protecting individuals through constitutional rights, including rights to legal and judicial protection of rules-based market competition coordinating the global division of labor among producers, investors, traders, and consumers around the globe. Beyond the "inalienable core" of human rights, the constitutional definition, legislative balancing, administrative and judicial protection of constitutional rights may differ legitimately from country to country and from international organization to organization.

NOTES AND COMMENTS

The Heeding Presumption and its Application: Distinguishing No Warning from Inadequate Warning

Karin L. Bohmholdt   

The "heeding presumption" relieves a plaintiff in a failure to warn action from having to prove causation. Instead, the trier of fact presumes that the plaintiff would have followed an adequate warning, and the manufacturer bears the burden of rebutting this presumption. This Note distinguishes the application of the presumption in cases in which no warning has been given as opposed to those in which a warning has been given, but is deemed inadequate. The author concludes that where a warning has been given but has not been followed, product liability law policy goals are no longer furthered by application of the presumption. Instead, plaintiffs should be required to prove causation to the trier of fact.

Deference to the Majority: Why Isn't the Supreme Court Applying the Reasoning of Atkins v. Virginia to Juveniles?

Sharon Ongerth

This Article addresses the constitutionality of the Juvenile Death Penalty, by taking a close look at the history of the Juvenile Justice system and the Supreme Court's death penalty jurisprudence. Specifically, the article examines how the application of the Supreme Court's reasoning in Atkins v. Virginia , leads to the conclusion that the Juvenile Death Penalty should be outlawed. However, the Court is reluctant to apply the Atkins factors to juvenile executions because they do not believe a consensus by the state legislatures exists against such executions. This Article suggests that a consensus by the consensus and society as whole does exist, and that such deference to the states is a mistake as it defies the spirit of the Bill of Rights .