Volume 11 / Number 1 / Spring 2007



Introduction: Sanchez-Llamas in Context

John T. Parry

11 Lewis & Clark L. Rev. 1 (2007)

Sanchez-Llamas v. Oregon:
Stepping Back from the New World Court Order

Julian G. Ku

11 Lewis & Clark L. Rev. 17 (2007)

Over the past few decades, international law scholars and advocates have widely supported the use of domestic United States courts to independently enforce and implement international tribunal judgments, even over the opposition of the President. The Supreme Court’s decision in Sanchez-Llamas v. Oregon represents a potentially serious setback for this burgeoning movement. This contribution defends and elaborates the reasons for the Court’s refusal in Sanchez-Llamas to give effect to judgments of an international tribunal absent a clear and explicit authorization by Congress or the Senate.

Sanchez-Llamas v. Oregon: The Glass is Half Full

Janet Koven Levit

11 Lewis & Clark L. Rev. 29 (2007)

Although the Supreme Court’s recent decision in Sanchez-Llamas v. Oregon limited the remedies available under the Vienna Convention, all is not lost. First, by avoiding the question of the judicial enforceability of the treaty, the Court fundamentally preserved a role for courts in vindicating Vienna Convention transgressions. State courts, often the foreign national’s initial touch point with the criminal justice system, will thus remain a significant venue for Vienna Convention claims. However, international legal scholars and practitioners often neglect the role of state courts in the making and enforcing of international law. Thus, the international legal community should focus additional attention on educating state court judges, as well as preparing practitioners to address such international issues that will inevitably arise in state court. Second, while the Sanchez-Llamas Court eliminated some criminal remedies, it did not curtail civil remedies that might be available for foreign nationals who have not been afforded Vienna Convention protections. Third, diffuse transnational legal processes, involving a multitude of judicial and non-judicial actors, have helped entrench Vienna Convention rights over the past decade; in maintaining a role for the judiciary and thus preserving the underlying institutional status quo, the Court did little to stymie or disrupt these constitutive processes.

Sanchez-Llamas, American Human Rights
Exceptionalism and the VCCR Norm Portal
Margaret E. McGuinness

11 Lewis & Clark L. Rev. 47 (2007)

This Essay examines Sanchez-Llamas v. Oregon within the line of cases challenging U.S. non-compliance with the notification requirements of the Vienna Convention on Consular Relations (VCCR). The VCCR litigations arose as a response to American death penalty exceptionalism. Viewed through the lens of transnational efforts to integrate international human rights norms into the United States, Sanchez-Llamas illuminates the ways in which American human rights exceptionalism—in its many forms—is being actively contested and how judges—implicitly and explicitly—respond to arguments for and against exceptionalism.

Private Remedies for Treaty Violations After Sanchez-Llamas

Paul B. Stephan

11 Lewis & Clark L. Rev. 65 (2007)

Sanchez-Llamas did not decide when a private person may invoke a treaty provision in a case properly before a U.S. court. This Article argues that existing Supreme Court jurisprudence on this question is unsettled, and that the approach advanced by the four dissenters on this question—essentially a variant on the nineteenth century concept of “vested rights”—is unsatisfactory. Instead, the Court should enlist the techniques it uses to determine when private litigants may invoke legislative enactments.

Treaty Dialogue in Sanchez-Llamas:
Is Chief Justice Roberts a Transnationalist, After All?

Melissa A. Waters

11 Lewis & Clark L. Rev. 89 (2007)

Chief Justice John Roberts is generally considered to be a “nationalist” with respect to transnational judicial dialogue: for example, he has expressed skepticism as to the value of foreign authority in constitutional interpretation. In his majority opinion in Sanchez-Llamas v. Oregon, however, Roberts eagerly engages in treaty dialogue, by considering foreign and international sources in interpreting U.S. treaty obligations. This Essay examines Roberts’ use of both “direct” and “indirect” treaty dialogue in interpreting the Vienna Convention on Consular Relations. By engaging in dialogue with both treaty partners and the International Court of Justice, Roberts allows foreign precedent and practice to influence the Court’s interpretation of the treaty provisions while at the same time using dialogue to “educate” the ICJ on the American adversarial system.



The State Secrets Privilege:
Expanding Its Scope Through Government Misuse

Carrie Newton Lyons

11 Lewis & Clark L. Rev. 99 (2007)

In this Article, the author examines the current use, or rather misuse, as she argues, of the State Secrets Privilege. The author begins with a detailed examination of United States v. Reynolds, which defined the privilege and held that a complaint against the United States could proceed despite the invocation of the privilege. The author then examines how the courts have deviated from the holding of Reynolds. The author traces these deviations through six recent cases where the privilege was invoked, and announces four ways in which current State Secrets Privilege jurisprudence has deviated from Reynolds. She argues that the privilege is (1) being used to completely dismiss cases without review on the merits, (2) expanding into the realm of the Totten privilege, (3) interfering with private constitutional and statutory rights, and (4) interfering with public rights. The author concludes by suggesting three explanations for these deviations from Reynolds and argues that returning to the Reynolds doctrine is the best way to balance government and private interests.

The Hybrid State-Corporate Enterprise and Violations of Indigenous Land Rights: Theorizing Corporate Responsibility and Accountability Under International Law

Lillian Aponte Miranda

11 Lewis & Clark L. Rev. 135 (2007)

Despite the significant achievements of the contemporary indigenous rights movement, the protection of indigenous peoples’ land rights continues to pose a challenge at the operational level. This challenge is due, in part, to the corporate interests that impact indigenous land rights yet bear little accountability to the indigenous peoples involved. This Article seeks to set forth the analytical foundation for developing approaches to corporate responsibility and accountability in the context of indigenous land rights. Part II evaluates the primary developments in contemporary conceptualizations of indigenous land rights that raise implications for theorizing corporate responsibility and accountability. Part III analyzes both the limitations and possibilities of grounding a theory of corporate responsibility and accountability within the discourse of human rights. Part IV suggests and evaluates three specific approaches for imposing responsibilities on corporate actors and for guaranteeing compliance with such responsibilities: a voluntarist approach, a state-centered approach, and a hybrid state-corporate approach. This Article proposes that there are possibilities within the framework of human rights for designing a regime of corporate responsibility and accountability that specifically addresses the protection of indigenous peoples’ land rights. It ultimately concludes that a hybrid state-corporate approach potentially offers the more effective means of operationalizing indigenous peoples’ land rights vis-à-vis corporate actors.

Legislating from the Bench: A Definition and a Defense

Bruce G. Peabody

11 Lewis & Clark L. Rev. 185 (2007)

The past few decades have seen a rise in the frequency, intensity, and prominence of attacks against the courts by politicians, commentators, scholars and interest groups. This project begins exploring the significance, cogency, and relevant political context of these criticisms by examining the particular claim that judges “legislate from the bench”—somehow acting more like lawmakers than jurists. My research is based on two primary components, the first consisting of an empirical analysis of how the legislating from the bench term is invoked, the second entailing a systematic normative assessment of these various critiques. Ultimately, I claim that traditional political and scholarly judgments about legislating from the bench need to be supplemented with a more thorough and rigorous account of this vilified practice. Given the nature of our separation of powers system and the evolution of the judiciary’s role, some aspects of legislating from the bench are both inevitable and desirable. By appreciating the different forms that legislating from the bench can assume, this practice can be defended against the nearly unanimous negative views of scholars and politicians.

Escape from the Battle of the Forms: Keep it Simple, Stupid

Corneill A. Stephens

11 Lewis & Clark L. Rev. 233 (2007)

This Article reviews the history of the “battle of the forms” issue arising when contracting parties submit conflicting terms to each other in attempting to form a contract and how courts have resolved issues arising from this, both under the original Uniform Commercial Code (UCC) Article 2 and the Revised Article 2. The author reviews the economic circumstances that gave rise to the current use of standard form contracts, such as lower transaction costs and the ability of a company to control the terms and the discretion of its personnel. He discusses how battle of the forms issues were resolved before Article 2 of the UCC was adopted, using common law interpretation tools such as the “last shot” and “mirror image” rules. The author then reviews the motivations for implementing UCC § 2-207, and surveys the problems that this section has created for the ability of courts to provide consistent resolution to battle of the forms disputes given ambiguities in the code’s wording. He then reviews the Revised § 2-207, comparing the old and new versions of the section, and discusses both how the revision may change how courts resolve battle of the forms disputes and the problems that still remain. The author ultimately proposes a more straightforward solution to the battle of the forms problem that has the advantages of the certainty provided by common law rules with the flexibility to consider the particular circumstances of a given transaction.