INTRODUCTION - UniTrento



INTRODUCTION

Alexis de Tocqueville, Democracy in America, (1831)

Chapter XVI: CAUSES WHICH MITIGATE THE TYRANNY OF THE MAJORITY IN THE UNITED STATES

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ABSENCE OF CENTRALIZED ADMINISTRATION. The national majority does not pretend to do everything--Is obliged to employ the town and county magistrates to execute its sovereign will.

I HAVE already pointed out the distinction between a centralized government and a centralized administration. The former exists in America, but the latter is nearly unknown there. If the directing power of the American communities had both these instruments of government at is disposal and united the habit of executing its commands to the right of commanding; if, after having established the general principles of government, it descended to the details of their application; and if, having regulated the great interests of the country, it could descend to the circle of individual interests, freedom would soon be banished from the New World.

But in the United States the majority, which so frequently displays the tastes and the propensities of a despot, is still destitute of the most perfect instruments of tyranny.

***

This point deserves attention; for if a democratic republic, similar to that of the United States, were ever founded in a country where the power of one man had previously established a centralized administration and had sunk it deep into the habits and the laws of the people, I do not hesitate to assert that in such a republic a more insufferable despotism would prevail than in any of the absolute monarchies of Europe; or, indeed, than any that could be found on this side of Asia.

THE TEMPER OF THE LEGAL PROFESSION IN THE UNITED STATES, AND HOW IT SERVES AS A COUNTERPOISE TO DEMOCRACY.

IN visiting the Americans and studying their laws, we perceive that the authority they have entrusted to members of the legal profession, and the influence; that these individuals exercise in the government, are the most powerful existing security against the excesses of democracy. This effect seems to me to result from a general cause, which it is useful to investigate, as it may be reproduced elsewhere.

The members of the legal profession have taken a part in all the movements of political society in Europe for the last five hundred years. At one time they have been the instruments of the political authorities, and at another they have succeeded in converting the political authorities into their instruments. In the Middle Ages they afforded a powerful support to the crown; and since that period they have exerted themselves effectively to limit the royal prerogative. In England they have contracted a close alliance with the aristocracy; in France they have shown themselves its most dangerous enemies. Under all these circumstances have the members of the legal profession been swayed by sudden and fleeting impulses, or have they been more or less impelled by instincts which are natural to them and which will always recur in history? I am incited to this investigation, for perhaps this particular class of men will play a prominent part in the political society that is soon to be created.

Men who have made a special study of the laws derive from this occupation certain habits of order, a taste for formalities, and a kind of instinctive regard for the regular connection of ideas, which naturally render them very hostile to the revolutionary spirit and the unreflecting passions of the multitude.

The special information that lawyers derive from their studies ensures them a separate rank in society, and they constitute a sort of privileged body in the scale of intellect. This notion of their superiority perpetually recurs to them in the practice of their profession: they are the masters of a science which is necessary, but which is not very generally known; they serve as arbiters between the citizens; and the habit of directing to their purpose the blind passions of parties in litigation inspires them with a certain contempt for the judgment of the multitude. Add to this that they naturally constitute a body; not by any previous understanding, or by an agreement that directs them to a common end; but the analogy of their studies and the uniformity of their methods connect their minds as a common interest might unite their endeavors.

Some of the tastes and the habits of the aristocracy may consequently be discovered in the characters of lawyers. They participate in the same instinctive love of order and formalities; and they entertain the same repugnance to the actions of the multitude, and the same secret contempt of the government of the people. I do not mean to say that the natural propensities of lawyers are sufficiently strong to sway them irresistibly; for they, like most other} men, are governed by their private interests, and especially by the interests of the moment.

In a state of society in which the members of the legal profession cannot hold that rank in the political world which they enjoy in private life, we may rest assured that they will be the foremost agents of revolution. But it must then be asked whether the cause that then induces them to innovate and destroy results from a permanent disposition or from an accident. It is true that lawyers mainly contributed to the overthrow of the French monarchy in 1789; but it remains to be seen whether they acted thus because they had studied the laws or because they were prohibited from making them.

***

I do not, then, assert that all the members of the legal profession are at all times the friends of order and the opponents of innovation, but merely that most of them are usually so. In a community in which lawyers are allowed to occupy without opposition that high station which naturally belongs to them, their general spirit will be eminently conservative and anti-democratic. When an aristocracy excludes the leaders of that profession from its ranks, it excites enemies who are the more formidable as they are independent of the nobility by their labors and feel themselves to be their equals in intelligence though inferior in opulence and power. But whenever an aristocracy consents to impart some of its privileges to these same individuals, the two classes coalesce very readily and assume, as it were, family interests.

I am in like manner inclined to believe that a monarch will always be able to convert legal practitioners into the most serviceable instruments of his authority. There is a far greater affinity between this class of persons and the executive power than there is between them and the people, though they have often aided to overturn the former; just as there is a greater natural affinity between the nobles and the monarch than between the nobles and the people, although the higher orders of society have often, in concert with the lower classes, resisted the prerogative of the crown.

Lawyers are attached to public order beyond every other consideration, and the best security of public order is authority. It must not be forgotten, also, that if they prize freedom much, they generally value legality still more: they are less afraid of tyranny than of arbitrary power; and, provided the legislature undertakes of itself to deprive men of their independence, they are not dissatisfied.

I am therefore convinced that the prince who, in presence of an encroaching democracy, should endeavor to impair the judicial authority in his dominions, and to diminish the political influence of lawyers, would commit a great mistake: he would let slip the substance of authority to grasp the shadow. He would act more wisely in introducing lawyers into the government; and if he entrusted despotism to them under the form of violence, perhaps he would find it again in their hands under the external features of justice and law.

The government of democracy is favorable to the political power of lawyers; for when the wealthy, the noble, and the prince are excluded from the government, the lawyers take possession of it, in their own right, as it were, since they are the only men of information and sagacity, beyond the sphere of the people, who can be the object of the popular choice. If, then, they are led by their tastes towards the aristocracy and the prince, they are brought in contact with the people by their interests. They like the government of democracy without participating in its propensities and without imitating its weaknesses; whence they derive a twofold authority from it and over it. The people in democratic states do not mistrust the members of the legal profession, because it is known that they are interested to serve the popular cause; and the people listen to them without irritation, because they do not attribute to them any sinister designs. The lawyers do not, indeed, wish to overthrow the institutions of democracy, but they constantly endeavor to turn it away from its real direction by means that are foreign to its nature. Lawyers belong to the people by birth and interest, and to the aristocracy by habit and taste; they may be looked upon as the connecting link between the two great classes of society.

The profession of the law is the only aristocratic element that can be amalgamated without violence with the natural elements of democracy and be advantageously and permanently combined with them. I am not ignorant of the defects inherent in the character of this body of men; but without this admixture of lawyer-like sobriety with the democratic principle, I question whether democratic institutions could long be maintained; and I cannot believe that a republic could hope to exist at the present time if the influence of lawyers in public business did not increase in proportion to the power of the people.

This aristocratic character, which I hold to be common to the legal profession, is much more distinctly marked in the United States and in England than in any other country. This proceeds not only from the legal studies of the English and American lawyers, but from the nature of the law and the position which these interpreters of it occupy in the two countries. The English and the Americans have retained the law of precedents; that is to say, they continue to found their legal opinions and the decisions of their courts upon the opinions and decisions of their predecessors. In the mind of an English or American lawyer a taste and a reverence for what is old is almost always united with a love of regular and lawful proceedings.

***

The French codes are often difficult to comprehend, but they can be read by everyone; nothing, on the other hand, can be more obscure and strange to the uninitiated than a legislation founded upon precedents. The absolute need of legal aid that is felt in England and the United States, and the high opinion that is entertained of the ability of the legal profession, tend to separate it more and more from the people and to erect it into a distinct class. The French lawyer is simply a man extensively acquainted with the statutes of his country; but the English or American lawyer resembles the hierophants of Egypt, for like them he is the sole interpreter of an occult science.

The position that lawyers occupy in England and America exercises no less influence upon their habits and opinions. The English aristocracy, which has taken care to attract to its sphere whatever is at all analogous to itself, has conferred a high degree of importance and authority upon the members of the legal profession. In English society, lawyers do not occupy the first rank, but they are contented with the station assigned to them: they constitute, as it were, the younger branch of the English aristocracy; and they are attached to their elder brothers, although they do not enjoy all their privileges. The English lawyers consequently mingle the aristocratic tastes and ideas of the circles in which they move with the aristocratic interests of their profession.

*** In America there are no nobles or literary men, and the people are apt to mistrust the wealthy; lawyers consequently form the highest political class and the most cultivated portion of society. They have therefore nothing to gain by innovation, which adds a conservative interest to their natural taste for public order. If I were asked where I place the American aristocracy, I should reply without hesitation that it is not among the rich, who are united by no common tie, but that it occupies the judicial bench and the bar.

The more we reflect upon all that occurs in the United States the more we shall be persuaded that the lawyers, as a body, form the most powerful, if not the only, counterpoise to the democratic element. In that country we easily perceive how the legal profession is qualified by its attributes, and even by its faults, to neutralize the vices inherent in popular government. When the American people are intoxicated by passion or carried away by the impetuosity of their ideas, they are checked and stopped by the almost invisible influence of their legal counselors. These secretly oppose their aristocratic propensities to the nation's democratic instincts, their superstitious attachment to what is old to its love of novelty, their narrow views to its immense designs, and their habitual procrastination to its ardent impatience.

The courts of justice are the visible organs by which the legal profession is enabled to control the democracy. The judge is a lawyer who, independently of the taste for regularity and order that he has contracted in the study of law, derives an additional love of stability from the inalienability of his own functions. His legal attainments have already raised him to a distinguished rank among his fellows; his political power completes the distinction of his station and gives him the instincts of the privileged classes.

Armed with the power of declaring the laws to be unconstitutional,1 the American magistrate perpetually interferes in political affairs. He cannot force the people to make laws, but at least he can oblige them not to disobey their own enactments and not to be inconsistent with themselves. I am aware that a secret tendency to diminish the judicial power exists in the United States; and by most of the constitutions of the several states the government can, upon the demand of the two houses of the legislature, remove judges from their station. Some other state constitutions make the members of the judiciary elective, and they are even subjected to frequent re-elections. I venture to predict that these innovations will sooner or later be attended with fatal consequences; and that it will be found out at some future period that by thus lessening the independence of the judiciary they have attacked not only the judicial power, but the democratic republic itself.

It must not be supposed, moreover, that the legal spirit is confined in the United States to the courts of justice; it extends far beyond them. As the lawyers form the only enlightened class whom the people do not mistrust, they are naturally called upon to occupy most of the public stations. They fill the legislative assemblies and are at the head of the administration; they consequently exercise a powerful influence upon the formation of the law and upon its execution. The lawyers are obliged, however, to yield to the current of public opinion, which is too strong for them to resist; but it is easy to find indications of what they would do if they were free to act. The Americans, who have made so many innovations in their political laws, have introduced very sparing alterations in their civil laws, and that with great difficulty, although many of these laws are repugnant to their social condition. The reason for this is that in matters of civil law the majority are obliged to defer to the authority of the legal profession, and the American lawyers are disinclined to innovate when they are left to their own choice.

It is curious for a Frenchman to hear the complaints that are made in the United States against the stationary spirit of legal men and their prejudices in favor of existing institutions.

The influence of legal habits extends beyond the precise limits I have pointed out. Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question. Hence all parties are obliged to borrow, in their daily controversies, the ideas, and even the language, peculiar to judicial proceedings As most public men are or have been legal practitioners, they introduce the customs and technicalities of their profession into the management of public affairs. The jury extends this habit to all classes. The language of the law thus becomes, in some measure, a vulgar tongue; the spirit of the law, which is produced in the schools and courts of justice, gradually penetrates beyond their walls into the bosom of society, where it descends to the lowest classes, so that at last the whole people contract the habits and the tastes of the judicial magistrate. The lawyers of the United States form a party which is but little feared and scarcely perceived, which has no badge peculiar to itself, which adapts itself with great flexibility to the exigencies of the time and accommodates itself without resistance to all the movements of the social body. But this party extends over the whole community and penetrates into all the classes which compose it; it acts upon the country imperceptibly, but finally fashions it to suit its own purposes.

CIVIL LITIGATION MATERIALS

The Stella Awards were inspired by Stella Liebeck. In 1992, Stella, then 79, spilled a cup of McDonald's coffee onto her lap, burning herself. A New Mexico jury awarded her $2.9 million in damages, but that's not the whole story. Ever since, the name "Stella Award" has been applied to any wild, outrageous, or ridiculous lawsuits -- including bogus cases.

The 2005 True Stella Awards Winners

by Randy Cassingham

Issued 31 January 2006

#7: Bob Dougherty. A prankster smeared glue on the toilet seat at the Home Depot store in Louisville, Colo., causing Dougherty to stick to it when he sat down. "This is not Home Depot's fault," he proclaimed, yet the store graciously offered him $2,000 anyway. Dougherty complained the offer is "insulting" and filed suit demanding $3 million.

#6: Barbara Connors of Medfield, Mass. Connors was riding in a car driven by her 70-year-old(!) son-in-law when they crashed into the Connecticut River, and Connors sank with the car. Rescue divers arrived within minutes and got her out alive, but Connors suffered brain damage from her near-drowning. Sue the driver? Sure, we guess that's reasonable. But she also sued the brave rescue workers who risked their lives to save hers.

#5: Michelle Knepper of Vancouver, Wash. Knepper picked a doctor out of the phone book to do her liposuction, and went ahead with the procedure even though the doctor was only a dermatologist, not a plastic surgeon. After having complications, she complained she never would have chosen that doctor had she known he wasn't Board Certified in the procedure. (She relied on the phonebook listing over asking the doctor, or looking for a certificate on his wall?!) So she sued ...the phone company! She won $1.2 million plus $375,000 for her husband for "loss of spousal services and companionship."

#4: Rhonda Nichols. She says a wild bird "attacked" her outside a home improvement store in Fairview Heights, Ill., causing head injuries. That's right: outside the store. Yet Nichols still held the Lowe's store responsible for "allowing" wild birds to fly around free in the air. She never reported the incident to the store, but still sued for "at least" $100,000 in damages. In January 2006, the case was thrown out of court.

#3: Barnard Lorence of Stuart, Fla. Lorence managed to overdraw his own bank account. When the bank charged him a service fee for the overdraft, he filed suit over his "stress and pain" and loss of sleep over the fee. A few hundred thousand bucks, he says, will only amount to a "slap on the wrist", whereas the $2 million he's suing for is more like being "paddled". Kinky!

#2: Wanita "Renea" Young of Durango, Colo. Two neighborhood teens baked cookies for their neighbors as an anonymous gesture of good will, but Young got scared when she heard them on her front porch. They apologized, in writing, but Young sued them anyway for causing her distress, demanding $3,000. When she won(!!) $900, she crowed about it in the newspaper and on national TV. Now, she's shocked (shocked!) that everyone in town hates her for her spite, and is afraid she may have to move. But hey: she won.

And the winner of the 2005 True Stella Award: Christopher Roller of Burnsville, Minn. Roller is mystified by professional magicians, so he sued David Blaine and David Copperfield to demand they reveal their secrets to him -- or else pay him 10 percent of their lifelong earnings, which he figures amounts to $50 million for Copperfield and $2 million for Blaine. The basis for his suit: Roller claims that the magicians defy the laws of physics, and thus must be using "godly powers" -- and since Roller is god (according to him), they're "somehow" stealing that power from him.

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The 2004 True Stella Awards Winners

by Randy Cassingham

Issued 31 January 2005

#6: The Tribune Co. of Chicago, Ill. The newspaper chain owns several newspapers, as well as the Chicago Cubs baseball team. One of its newspaper carriers was Mark Guthrie, 43, of Connecticut. One of its ball players was Mark Guthrie, 38, of Illinois. The company's payroll department mixed the two up, putting the ballplayer's paycheck into the paper carrier's bank account. The carrier allowed them to take back 90 percent of the improperly paid salary, and said they could have the rest after they gave him a full accounting to ensure he not only got his own pay, but wouldn't have any tax problems for being paid $300,000(!) extra. The Tribune Co., rather than provide that reasonable assurance, instead sued him for the rest of the money.

#5: "High Tech" retailer Sharper Image sells a lot of its "Ionic Breeze" air filters. As part of a comparative review of many air filters, Consumer Reports magazine found the "Ionic" unit was the worst performer. SI complained, saying it didn't do a "fair" test. CU asked what sort of test should be done, but SI never replied -- until it sued CU. A federal judge ruled the suit not only had no merit, but was actually an illegal attempt to squelch public discussion. SI was ordered to pay CU $400,000 to cover its legal defense costs.

#4: Edith Morgan, mother of Kansas City Chiefs football star Derrick Thomas, who died after being thrown from his SUV in a crash while speeding in a snowstorm. Morgan said Thomas's neck was broken because the SUV's roof collapsed a few inches -- not from rolling down the highway because he wasn't wearing a seatbelt -- and sued General Motors. Her lawyer begged jurors to award more than $100 million in damages, perhaps more -- he "did not want to put an upper limit on it." GM pointed out that Thomas's oversize SUV was exempt from federal roof crush standards, yet it met them anyway. The jury sent a message: of that $100 million, it awarded Morgan ...nothing.

#3: Tanisha Torres of Wyndanch, N.Y. The woman sued Radio Shack for misspelling her town as "Crimedanch" on her cell phone bill. She didn't even ask them to change it; she just sued. "I'm not a criminal," she whined. "My son plays on the high school football team." Yeah, that makes sense. The name "Crimedanch" is a common joke; police in the area confirm it's a high-crime area. Still, Torres claimed she suffered "outrage" and "embarrassment" at having to see that spelling on her private phone bill. The suit seeks unspecified damages.

#2: Homecomings Financial, a subsidiary of GMAC Financial Services, which is a division of General Motors. The finance company accepted a change of address notice from identity thieves for the account belonging to Robert and Suzanne Korinke. The thieves ran up a $142,000 debt, and the Korinkes notified Homecomings of the fraud the moment they discovered it. Homecomings sued them two years later, saying the couple's "negligence" is what "caused the injury to Homecomings," not the fact that the company accepted a change of address from fraudsters -- and then gave them all the money they could drain. The victims got the company to drop the suit, which demanded $74,000 plus attorney's fees, after shelling out $5,000 in legal fees -- an outcome the couple's lawyer called "really lucky".

And the winner of the 2004 True Stella Award: Mary Ubaudi of Madison County, Ill. Ubaudi was a passenger in a car that got into a wreck. She put most of the blame on the deepest pocket available: Mazda Motors, who made the car she was riding in. Ubaudi demands "in excess of $150,000" from the automaker, claiming it "failed to provide instructions regarding the safe and proper use of a seatbelt." One hopes Mazda's attorneys make her swear in court that she has never before worn a seatbelt, has never flown on an airliner, and that she's too stupid to figure out how to fasten a seatbelt.

• * *

The punch line. But wait… was the McDonald’s story really true? See

Torts

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FOR EDUCATIONAL USE ONLY

West Reporter Image (PDF) [pic]

159 F.2d 169

Circuit Court of Appeals, Second Circuit.

UNITED STATES et al.

v.

CARROLL TOWING CO., Inc., et al.

Nos. 96 and 97, Dockets 20371 and 20372.

Jan. 9, 1947.

Appeal from the District Court of the United States for the Eastern District of New York.

Libel by Conners Marine Company, Inc., against Pennsylvania Railroad Company, charterer of the covered barge Anna C, for damages to such barge, wherein the Grace Line, Inc., was impleaded, and proceedings in the matter of the petition of the Carroll Towing Company, Inc., as owner of the steamship Joseph F. Carroll, for exoneration from, or limitation of, liability. From two decrees, Conners Marine Co. v. Pennsylvania R. Co., 66 F.Supp. 396, which in conjunction disposed of the liabilities arising out of the sinking of the barge of the Conners Marine Company, Inc., in the harbor of New York on January 4,1944, the Grace Line, Inc., appeals and the Carroll Company and the Pennsylvania Railroad Company filed assignments of error.

Reversed and remanded.

West Headnotes

Before L. HAND, CHASE and FRANK, Circuit Judges.

L. HAND, Circuit Judge.

These appeals concern the sinking of the barge, ‘Anna C,’ on January 4, 1944, off Pier 51, North River. The Conners Marine Co., Inc., was the owner of the barge, which the Pennsylvania Railroad Company had chartered; the Grace Line, Inc., was the charterer of the tug, ‘Carroll,’ of which the Carroll Towing Co., Inc., was the owner. The decree in the limitation proceeding held the Carroll Company liable to the United States for the loss of the barge's cargo of flour, and to the Pennsylvania Railroad Company, for expenses in salving the cargo and barge; and it held the Carroll Company also liable to the Conners Company for one half the damage to the barge; these liabilities being all subject to limitation. …

The facts, as the judge found them, were as follows. On June 20, 1943, the Conners Company chartered the barge, ‘Anna C.’ to the Pennsylvania Railroad Company at a stated hire per diem, by a charter of the kind usual in the Harbor, which included the services of a bargee, apparently limited to the hours 8 A.M. to 4 P.M. On January 2, 1944, the barge, which had lifted the cargo of flour, was made fast off the end of Pier 58 on the Manhattan side of the North River, whence she was later shifted to Pier 52. At some time not disclosed, five other barges were moored outside her, extending into the river; her lines to the pier were not then strengthened. At the end of the next pier north (called the Public Pier), lay four barges; and a line had been made fast from the outermost of these to the fourth barge of the tier hanging to Pier 52. The purpose of this line is not entirely apparent, and in any event it obstructed entrance into the slip between the two piers of barges. The Grace Line, which had chartered the tug, ‘Carroll,’ sent her down to the locus in quo to ‘drill’ out one of the barges which lay at the end of the Public Pier; and in order to do so it was necessary to throw off the line between the two tiers. On board the ‘Carroll’ at the time were not only her master, but a ‘harbormaster’ employed by the Grace Line. Before throwing off the line between the two tiers, the ‘Carroll’ nosed up against the outer barge of the tier lying off Pier 52, ran a line from her own stem to the middle bit of that barge, and kept working her engines ‘slow ahead’ against the ebb tide which was making at that time. The captain of the ‘Carroll’ put a deckhand and the ‘harbormaster’ on the barges, told them to throw off the line which barred the entrance to the slip; *171 but, before doing so, to make sure that the tier on Pier 52 was safely moored, as there was a strong northerly wind blowing down the river. The ‘harbormaster’ and the deckhand went aboard the barges and readjusted all the fasts to their satisfaction, including those from the ‘Anna C.’ to the pier.

After doing so, they threw off the line between the two tiers and again boarded the ‘Carroll,’ which backed away from the outside barge, preparatory to ‘drilling’ out the barge she was after in the tier off the Public Pier. She had only got about seventy-five feet away when the tier off Pier 52 broke adrift because the fasts from the ‘Anna C,’ either rendered, or carried away. The tide and wind carried down the six barges, still holding together, until the ‘Anna C’ fetched up against a tanker, lying on the north side of the pier below- Pier 51- whose propeller broke a hole in her at or near her bottom. Shortly thereafter: i.e., at about 2:15 P.M., she careened, dumped her cargo of flour and sank. The tug, ‘Grace,’ owned by the Grace Line, and the ‘Carroll,’ came to the help of the flotilla after it broke loose; and, as both had syphon pumps on board, they could have kept the ‘Anna C’ afloat, had they learned of her condition; but the bargee had left her on the evening before, and nobody was on board to observe that she was leaking. The Grace Line wishes to exonerate itself from all liability because the ‘harbormaster’ was not authorized to pass on the sufficiency of the fasts of the ‘Anna C’ which held the tier to Pier 52; the Carroll Company wishes to charge the Grace Line with the entire liability because the ‘harbormaster’ was given an over-all authority. Both wish to charge the ‘Anna C’ with a share of all her damages, or at least with so much as resulted from her sinking. The Pennsylvania Railroad Company also wishes to hold the barge liable. The Conners Company wishes the decrees to be affirmed.

[1] [pic]The first question is whether the Grace Line should be held liable at all for any part of the damages. The answer depends first upon how far the ‘harbormaster's' authority went, for concededly he was an employee of some sort. Although the judge made no other finding of fact than that he was an ‘employee,’ in his second conclusion of law he held that the Grace Line was ‘responsible for his negligence.’ Since the facts on which he based this liability do not appear, we cannot give that weight to the conclusion which we should to a finding of fact; but it so happens that on cross-examination the ‘harbormaster’ showed that he was authorized to pass on the sufficiency of the facts of the ‘Anna C.’ He said that it was part of his job to tie up barges; that when he came ‘to tie up a barge’ he had ‘to go in and look at the barges that are inside the barge’ he was ‘handling’; that in such cases ‘most of the time’ he went in ‘to see that the lines to the inside barges are strong enough to hold these barges'; and that ‘if they are not’ he ‘put out sufficient other lines as are necessary.’ That does not, however, determine the other question: i.e., whether, when the master of the ‘Carroll’ told him and the deckhand to go aboard the tier and look at the fasts, preparatory to casting off the line between the tiers, the tug master meant the ‘harbormaster’ to exercise a joint authority with the deckhand. As to this the judge in his tenth finding said: ‘The captain of the Carroll then put the deckhand of the tug and the harbor master aboard the boats at the end of Pier 52 to throw off the line between the two tiers of boats after first ascertaining if it would be safe to do so.’ Whatever doubts the testimony of the ‘harbormaster’ might raise, this finding settles it for us that the master of the ‘Carroll’ deputed the deckhand and the ‘harbormaster,’ jointly to pass upon the sufficiency of the ‘Anna C's' fasts to the pier. The case is stronger against the Grace Line than Rice v. The Marion A. C. Meseck,FN1 was against the tug there held liable, because the tug had only acted under the express orders of the ‘harbormaster.’ Here, although the relations were reversed, that makes no difference in principle; and the ‘harbormaster’ was not instructed what he should do about the fast, but was allowed *172 to use his own judgment. The fact that the deckhand shared in this decision, did not exonerate him, and there is no reason why both should not be held equally liable, as the judge held them.

[2] [pic]We cannot, however, excuse the Conners Company for the bargee's failure to care for the barge, and we think that this prevents full recovery. First as to the facts. As we have said, the deckhand and the ‘harbormaster’ jointly undertook to pass upon the ‘Anna C's' fasts to the pier; and even though we assume that the bargee was responsible for his fasts after the other barges were added outside, there is not the slightest ground for saying that the deckhand and the ‘harbormaster’ would have paid any attention to any protest which he might have made, had he been there. We do not therefore attribute it as in any degree a fault of the ‘Anna C’ that the flotilla broke adrift. Hence she may recover in full against the Carroll Company and the Grace Line for any injury she suffered from the contact with the tanker's propeller, which we shall speak of as the ‘collision damages.’ On the other hand, if the bargee had been on board, and had done his duty to his employer, he would have gone below at once, examined the injury, and called for help from the ‘Carroll’ and the Grace Line tug. Moreover, it is clear that these tugs could have kept the barge afloat, until they had safely beached her, and saved her cargo. This would have avoided what we shall call the ‘sinking damages.’ Thus, if it was a failure in the Conner Company's proper care of its own barge, for the bargee to be absent, the company can recover only one third of the ‘sinking’ damages from the Carroll Company and one third from the Grace Line. For this reason the question arises whether a barge owner is slack in the care of his barge if the bargee is absent.

As to the consequences of a bargee's absence from his barge there have been a number of decisions; and we cannot agree that it it never ground for liability even to other vessels who may be injured. As early as 1843, Judge Sprague in Clapp v. Young,FN2 held a schooner liable which broke adrift from her moorings in a gale in Provincetown Harbor, and ran down another ship. The ground was that the owners of the offending ship had left no one on board, even though it was the custom in that harbor not to do so. Judge Tenney in Fenno v. The Mary E. Cuff,FN3 treated it as one of several faults against another vessel which was run down, to leave the offending vessel unattended in a storm in Port Jefferson Harbor. Judge Thomas in The On-the-Level,FN4 held liable for damage to a stake-boat, a barge moored to the stake-boat ‘south of Liberty Light, off the Jersey shore,’ because she had been left without a bargee; indeed he declared that the bargee's absence was ‘gross negligence.’ In the Kathryn B. Guinan,FN5 Ward, J., did indeed say that, when a barge was made fast to a pier in the harbor, as distinct from being in open waters, the bargee's absence would not be the basis for the owner's negligence. However, the facts in that case made no such holding necessary; the offending barge in fact had a bargee aboard though he was asleep. In the Beeko,FN6 Judge Campbell exonerated a power boat which had no watchman on board, which boys had maliciously cast loose from her moorings at the Marine Basin in Brooklyn and which collided with another vessel. Obviously that decision has no bearing on the facts at bar. In United States Trucking Corporation v. City of New York, FN7 the same judge refused to reduce the recovery of a coal hoister, injured at a foul berth, because the engineer was not on board; he had gone home for the night as was apparently his custom. We reversed the decree, FN8 but for another reason. In The Sadie,FN9 we affirmed Judge Coleman's holdingFN10 that it was actionable negligence to leave without a bargee on board a barge made fast outside another barge, in the face of storm warnings. The damage was done to the *173 inside barge. In The P. R. R. No. 216,FN11 we charged with liability a lighter which broke loose from, or was cast off, by a tanker to which she was moored, on the ground that her bargee should not have left her over Sunday. He could not know when the tanker might have to cast her off. We carried this so far in The East Indian, FN12 as to hold a lighter whose bargee went ashore for breakfast, during which the stevedores cast off some of the lighter's lines. True, the bargee came back after she was free and was then ineffectual in taking control of her before she damaged another vessel; but we held his absence itself a fault, knowing as he must have, that the stevedores were apt to cast off the lighter. The Conway No. 23FN13 went on the theory that the absence of the bargee had no connection with the damage done to the vessel itself; it assumed liability, if the contrary had been proved. In The Trenton,FN14 we refused to hold a moored vessel because another outside of her had overcharged her fasts. The bargee had gone away for the night when a storm arose; and our exoneration of the offending vessel did depend upon the theory that it was not negligent for the bargee to be away for the night; but no danger was apparently then to be apprehended. In Bouker Contracting Co. v. Williamsburgh Power Plant CorporationFN15 , we charged a scow with half damages because her bargee left her without adequate precautions. In O'Donnell Transportation Co. v. M. & J. Tracy,FN16 we refused to charge a barge whose bargee had been absent from 9 A.M. to 1:30 P.M., having ‘left the vessel to go ashore for a time on his own business.'

[3] [pic][4] [pic]It appears from the foregoing review that there is no general rule to determine when the absence of a bargee or other attendant will make the owner of the barge liable for injuries to other vessels if she breaks away from her moorings. However, in any cases where he would be so liable for injuries to others obviously he must reduce his damages proportionately, if the injury is to his own barge. It becomes apparent why there can be no such general rule, when we consider the grounds for such a liability. Since there are occasions when every vessel will break from her moorings, and since, if she does, she becomes a menace to those about her; the owner's duty, as in other similar situations, to provide against resulting injuries is a function of three variables: (1) The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions. Possibly it serves to bring this notion into relief to state it in algebraic terms: if the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B less than PL. Applied to the situation at bar, the likelihood that a barge will break from her fasts and the damage she will do, vary with the place and time; for example, if a storm threatens, the danger is greater; so it is, if she is in a crowded harbor where moored barges are constantly being shifted about. On the other hand, the barge must not be the bargee's prison, even though he lives aboard; he must go ashore at times. We need not say whether, even in such crowded waters as New York Harbor a bargee must be aboard at night at all; it may be that the custom is otherwise, as Ward, J., supposed in ‘The Kathryn B. Guinan,’ supra;FN17 and that, if so, the situation is one where custom should control. We leave that question open; but we hold that it is not in all cases a sufficient answer to a bargee's absence without excuse, during working hours, that he has properly made fast his barge to a pier, when he leaves her. In the case at bar the bargee left at five o'clock in the afternoon of January 3rd, and the flotilla broke away at about two o'clock in the afternoon of the following day, twenty-one hours afterwards. The bargee had been away all the time, and we hold that his fabricated story was affirmative evidence *174 that he had no excuse for his absence. At the locus in quo- especially during the short January days and in the full tide of war activity- barges were being constantly ‘drilled’ in and out. Certainly it was not beyond reasonable expectation that, with the inevitable haste and bustle, the work might not be done with adequate care. In such circumstances we hold- and it is all that we do hold- that it was a fair requirement that the Conners Company should have a bargee aboard (unless he had some excuse for his absence), during the working hours of daylight.

The decrees will be modified as follows. In the libel of the Conners Company against the Pennsylvania Railroad Company in which the Grace Line was impleaded, since the Grace Line is liable in solido, and the Carroll Company was not impleaded, the decree must be for full ‘collision damages' and half ‘sinking damages,’ and the Pennsylvania Railroad Company will be secondarily liable. In the limitation proceeding of the Carroll Company (the privilege of limitation being conceded), the claim of the United States and of the Pennsylvania Railroad Company will be allowed in full. Since the claim of the Conners Company for ‘collision damages' will be collected full in the libel against the Grace Line, the claim will be disallowed pro tanto. The claim of the Conners Company for ‘sinking damages' being allowed for one half in the libel, will be allowed for only one sixth in the limitation proceeding. The Grace Line has claimed for only so much as the Conners Company may recover in the libel. That means that its claim will be one half the ‘collision damages' and for one sixth the ‘sinking damages.’ If the fund be large enough, the result will be to throw one half the ‘collision damages' upon the Grace Line and one half on the Carroll Company; and one third of the ‘sinking damages' on the Conners Company, the Grace Line and the Carroll Company, each. If the fund is not large enough, the Grace Line will not be able altogether to recoup itself in the limitation proceeding for its proper contribution from the Carroll Company.

Decrees reversed and cause remanded for further proceedings in accordance with the foregoing.

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FOR EDUCATIONAL USE ONLY

59 Brook. L. Rev. 961

Brooklyn Law Review

Fall, 1993

Symposium: Reinventing Civil Litigation: Evaluating Proposals For Change

*961 UNDERSTANDING MASS PERSONAL INJURY LITIGATION: A SOCIO-LEGAL ANALYSIS

Deborah R. Hensler [FNa1]

Mark A. Peterson [FNaa1]

Copyright © 1993 by the Brooklyn Law Review; Deborah R. Hensler and Mark A.

Peterson

INTRODUCTION

The 1980s marked the era of mass personal injury litigation. Hundreds of thousands of people sued scores of corporations for losses due to injuries or diseases that they attributed to catastrophic events, pharmaceutical products, medical devices or toxic substances (see Figure 1). [FN1] In some parts of the country, mass tort claims threatened to overwhelm the civil justice system, accounting for more than one-quarter of the entire civil caseload in certain courts. [FN2] As a result of this wave of litigation, some businesses found that products once regarded as significant marketing successes now had the potential to drive them into bankruptcy. The specter of mass liability frightened insurers from some markets, and manufacturers from research and development in some product lines. [FN3]

*962 The mass litigation of the 1980s involved enormous stakes. Hundreds of thousands of plaintiffs received compensation for their injuries. Businesses and their insurers paid billions of dollars in indemnification. Plaintiffs', defense, and insurance lawyers received billions of dollars more. [FN4] As a result of mass personal injury litigation, trusts that were established to pay asbestos claimants now effectively own the Manville Corporation and several other major asbestos manufacturers. [FN5] Similarly, as a consequence of their mass litigation, the Dalkon Shield Claimants Trust received over seventy-five percent of the proceeds of the sale, in bankruptcy, of A.H. Robins, Co., the manufacturer of the Shield. [FN6] Asbestos and other mass tort claimants soon may own a dozen other businesses that are in or face possible bankruptcy. [FN7]

Although there is disagreement about the causes and legitimacy of this litigation, [FN8] almost all of those involved would agree that the civil justice system has not performed well in *963 response to the challenge of mass torts. The litany of criticisms is long and familiar: cases take an inordinately long time to reach disposition, sometimes concluding long after a plaintiff's death; outcomes are highly variable, often seeming to have little relationship to plaintiffs' injuries or defendants' culpability; transaction costs are excessive, far outstripping the amounts paid out in compensation. [FN9]

Why the civil justice system has had such problems responding to mass personal injury litigation is itself a matter of some controversy. Some attribute these problems to a lack of fit between traditional civil procedure, with its reliance on individualized case treatment, and the demands imposed on courts by massive numbers of claims which, in practice, cannot be treated individually. [FN10] This view has led to myriad proposals to facilitate aggregative treatment of mass tort claims, by amending Rule 23; [FN11] extending multidistricting to include trial as well as pretrial preparation and state as well as federal cases; [FN12] encouraging informal coordination between state and federal courts; [FN13] creating a new "national disaster court," [FN14] or removing some or all mass torts from the court system entirely. [FN15]

*964 At present, mass torts seem to have become a fixture on the litigation landscape. The specialized mass tort plaintiffs' bar that emerged during the 1980s has accumulated capital as a result of its success in litigating earlier mass claims, and is skillful and aggressive in identifying new investment opportunities. A mass tort defense bar has developed to counter these plaintiffs' attorney efforts. An elite of trial judges has come forward, ready to set aside traditional case-at-a-time disposition procedures in favor of aggregative procedures for disposing of hundreds or even thousands of cases. [FN16] A cottage industry of experts and special masters supports their efforts by designing complex procedures and crafting complex settlements. [FN17] Appellate courts wrestle with collective disposition of mass claims. Lawyers, judges, and business executives no longer wonder whether or not there will be another mass tort, but rather what the next mass tort will be.

What distinguishes mass personal injury torts from ordinary high volume civil litigation? What explains the emergence of this litigation in the 1980s? Why are mass personal injury torts so difficult to resolve? Can we devise methods for dealing with this litigation more equitably and more efficiently?

This article offers some answers to these questions.

II. PROFILES OF MASS TORTS

Figure 1 lists the major mass personal injury claims that have been filed in the United States from 1960 through *970 1992. [FN28] In this section, we briefly describe each of these.

A. Mass Accident Cases

***

2. The Hyatt Skywalk Collapse

On July 17, 1981, two skywalks in the lobby of the Hyatt Regency Hotel in Kansas City collapsed on a dance floor crowded with about 1400 people. The hotel owner and developer was Hallmark Cards, Inc. One hundred thirteen people were killed and another 186 were injured. [FN40] The National Bureau of Standards conducted an independent investigation of the collapse and determined that the connection beams of the skywalks were not designed to hold the weight of the thirty-five ton skywalks. [FN41]

Within one month, one hundred suits had been filed in state court against twenty defendants, including Hallmark, Hyatt Hotels, the building's architects, structural engineers and contractors and the city of Kansas City. All cases were assigned to Judge Timothy O'Leary, who effected a de facto consolidation through coordinated discovery, and by appointing a plaintiffs' management committee; he also persuaded plaintiffs' lawyers to limit their fees to twenty-five percent. Judge O'Leary further ordered that committee members would be compensated only through their fee arrangements with clients and not through fees for committee service. As a result of this judicial order, the state litigation was controlled by local lawyers, rather than "national" mass tort plaintiffs' lawyers.

Two nationally recognized class action experts then filed a mandatory class action in the federal court, claiming that defendants' exposure to punitive damages created a limited fund. These lawyers, Irving Younger and Professor Arthur Miller, were associated with Robert Gordon, a Kansas City lawyer, who represented four clients with minor Skywalk injuries. District Court Judge Scott O. Wright certified the mandatory *973 class in January 1982. [FN42] State court plaintiffs and defendants responded by joining in a mandamus petition to the Eighth Circuit Court of Appeals. That court struck the mandatory class action, ruling that it violated the Federal Anti-Injunction Act, [FN43] which limits federal courts' injunctions against previously filed state court law suits. [FN44] Noting that half of the state suits had been settled prior to the federal class certification, the Eighth Circuit found that the federal class action was an intrusive interruption of individual litigation which had been proceeding in the state courts. [FN45]

On remand, Judge Wright certified an opt-out, federal class action. Soon after, Judge O'Leary certified plaintiffs' motion for a state, opt-out class action that was coextensive with the federal class. Both classes settled, and plaintiffs had the option of participating in either or neither class settlement. Plaintiffs in the federal class action received a total of $3.5 million for compensatory damages, plus a multiplier for punitive damages. Under the state court settlement, defendants agreed as to liability and plaintiffs retained the right to settle or try the amount of their compensatory damages. In lieu of punitive damages, defendants created a twenty million dollar fund, which was added to compensatory damages.

The settlement of the state court class included an innovative feature that has since become a staple of mass tort litigation--an offer to settle claims for small amounts quickly, based on only minimal supporting information from plaintiffs. [FN46] The Skywalk defendants paid $1000 each to 1500 persons who claimed to have been at the hotel at the time of the accident and demonstrated some knowledge of the events of the accident. [FN47] Most claimants opted out of the federal class, and either accepted the $1000 payment or tried their claims for damages under the state class action.

Juries awarded substantial damages in the individual opt-out cases: $4 million to a third-year law student crippled in the collapse, [FN48] and $15 million to a woman who became a quadriplegic as a result of the accident. [FN49] By 1986, Hallmark Cards, Inc., had paid $120 million in settlements in individual and class action cases, and all of the suits filed on behalf of the dead and injured had been resolved. [FN50]

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B. Pharmaceutical Products and Medical Devices

2. Bendectin

In 1956, the FDA approved Bendectin for the treatment of "morning sickness" (nausea and vomiting) during pregnancy. [FN75] Richardson-Merrell (subsequently Merrell Dow) manufactured and marketed the drug from 1956 to 1983. During that time period, more than thirty million pregnant women used Bendectin. [FN76] Litigation began with a 1977 Florida lawsuit claiming that the mother's use of Bendectin during pregnancy caused limb defects in a newborn infant. [FN77] A 1979 National Enquirer article describing the case stimulated subsequent claims and public concern about the drug. [FN78] The FDA responded to these concerns by convening its Advisory Committee on Fertility and Maternal Health to re-evaluate the safety of the drug. [FN79] The Committee concluded that there was no conclusive evidence that the drug was a teratogen (i.e., caused birth defects) and, therefore, decided that the drug should not be removed from the market. [FN80] Notwithstanding, the number of claims continued to rise [FN81] and, in 1983, Merrell Dow ceased *979 manufacturing and marketing the drug. [FN82]

In 1982, the Judicial Panel on Multidistrict Litigation transferred all Bendectin cases then pending in the federal courts to Judge Carl Rubin of the District Court for Southern District of Ohio. [FN83] Judge Rubin had previously managed the Beverly Hills Supper Club fire litigation. By 1985, more than 1100 Bendectin claims were before Judge Rubin. [FN84] The parties negotiated a settlement of all claims, which would have required Merrell Dow to pay $120 million over twenty years. Because Merrell Dow insisted that the settlement bind all claims, both present and future, the settlement was implemented through a mandatory class action. Judge Rubin certified the class even though court-appointed experts could not estimate the number of future claims and the court had made no findings that Merrell Dow was a limited fund. The Sixth Circuit reversed the certification because of the absence of limited fund findings.

Judge Rubin then ordered a consolidated trial for February 1985, which ultimately and effectively ended Bendectin as a mass tort. Although the trial was mandatory only for lawsuits filed in Ohio, most plaintiffs chose to be included in the trial. Indeed, the number of filings, which had doubled every year between 1981 and 1984, increased greatly in the months before the consolidated trial as plaintiffs' lawyers chose to have their clients' cases determined at the trial. [FN85] The trial was trifurcated, with the issues of causation, liability and damages to be heard and decided separately, in sequence. After the jury ruled that plaintiffs had not established that use of Bendectin during pregnancy was a proximate cause of birth defects by a preponderance of the evidence, [FN86] the litigation dwindled away. *980 Over 1200 of the 1800 claims that had been filed by the time of the consolidated trial were resolved by that trial. [FN87] The defense verdict in the consolidated trial effectively settled many more claims. Many plaintiffs' lawyers concluded that the cases were unwinnable and dismissed their claims or stipulated to be bound by the defense verdict. [FN88] A few cases, however, continued to progress individually, in both state and federal courts. Most were decided in favor of defendants, often by summary judgment, [FN89] and the few plaintiff verdicts were successfully appealed in state and federal courts. [FN90]

By 1993, courts generally had adopted the position that the plaintiffs' experts and their scientific evidence could not support a finding that Bendectin causes birth defects. However, given the conflict among the Circuits on the appropriateness of admitting the plaintiffs' evidence, the Supreme Court, in 1992, agreed to hear a Ninth Circuit case, Daubert v. Merrell Dow Pharmaceuticals, Inc., which upheld the trial court's granting of summary judgment to Merrell Dow on the grounds that plaintiffs had insufficient evidence to establish causation. [FN91] The Ninth Circuit held that the plaintiffs' metaanalysis of previous epidemiological studies [FN92] was inadmissible, in part because it had not been published in "peer reviewed" journals.

Daubert became the vehicle for raising the fundamental question of standards of admissibility for scientific evidence before the Supreme Court. More than a dozen amici briefs were filed with the court, on behalf of nobel laureates, professional scientific journals, special commissions and professional *981 and trade associations, recommending diverse criteria for assessing scientific validity. In its ruling, the Court rejected formulaic approaches to assessing scientific evidence and laid the responsibility for deciding admissibility squarely on the trial judges' shoulders. [FN93]

***

7. Silicone breast implants

First marketed by Dow Corning in 1963, [FN158] silicone breast implants were considered to be an improvement over liquid silicone injections, which 50,000 women had received to augment their breasts. [FN159] By 1992, an estimated two million women had silicone implants inserted, about twenty percent for reconstructive purposes, after mastectomies or to correct congenital deformities, and eighty percent for cosmetic reasons. [FN160]

In 1977, a plaintiff who had suffered acute inflammation in her breast tissues after her implants ruptured was awarded $170,000 in the first successful breast implant lawsuit against Dow Corning. [FN161] Between 1982 and December 1991, six silicone gel implant cases went to trial; five resulted in plaintiff's verdicts. [FN162]

When the silicone breast implants came on the market, the FDA lacked the authority to regulate medical devices. As a result, it did not evaluate silicone gel and saline breast implants for safety and effectiveness. [FN163] In 1976, Congress passed legislation that was aimed at closing the loophole in the Food, Drug and Cosmetic Safety Act that excluded medical devices from FDA regulation. Under the new legislation, however, implants were allowed to stay on the market while FDA considered *993 their safety. [FN164] In 1982, the FDA proposed classifying the silicone gel implants as Class III devices. This classification would have required the manufacturer to prove the safety of the implants in order to keep them on the market. [FN165] However, the silicone implants were not classified as Class III until 1988. The decision to classify the implants as Class III devices was prompted by scientific data suggesting that silicone may migrate throughout the body of an implant recipient with unknown long-term effects. [FN166]

In November 1988, the consumer group, "Public Citizen," called for a ban on silicone gel implants, citing internal documents from the FDA and Dow Corning, Inc., (the largest implant manufacturer with thirty percent of the market), that stated that the gel caused malignant cancers in twenty-three percent of the animals tested. [FN167] Public Citizen revealed that the FDA had been debating the safety of the implants for several months and leaked FDA memoranda suggesting that some FDA scientists considered the evidence alarming enough for the agency to issue a public warning and distribute informational leaflets to all past, current and future patients. [FN168] After unsuccessfully petitioning the FDA to ban the implants, Public Citizen filed a lawsuit under the Freedom of Information Act in 1989 to force the FDA to release the results of animal tests of silicone implants. In November 1990, a federal judge ordered the FDA to release the results of the tests. [FN169]

One year later, in November 1991, an advisory panel of outside experts recommended to the FDA that the silicone gel *994 breast implants should stay on the market while the manufacturers conducted additional tests, even though there was an "appalling" lack of information about their safety. [FN170] A month later, in December 1991, a San Francisco federal jury awarded $7.3 million to a woman who claimed that her implants had caused a permanent auto-immune disorder. [FN171] The jury based its verdict on internal Dow Corning memoranda suggesting that the company had known since the early 1970's that there may be health problems associated with the silicone implants; the jury found that Dow had acted with fraud, oppression and malice. [FN172]

Soon afterward, Dr. Norman Anderson, a member of the FDA General Devices and Plastic Surgery Devices panel stated in a letter to the FDA that the company had improperly withheld data about safety problems associated with the implants. [FN173] Dr. Anderson's charges were based upon information revealed during discovery in the San Francisco lawsuit. The documents were made available to the FDA but were not released to the general public because of a protective court order which sealed the documents.

On January 7, 1992, the FDA called for a forty-five day moratorium on the sale and implantation of silicone gel breast implants to allow time to review new data about the safety of the devices. [FN174] The FDA imposed the voluntary moratorium after reviewing internal memoranda in which Dow Corning personnel questioned the safety of the devices. Some of the sealed documents were leaked to the New York Times, which reported that the documents suggested that Dow Corning had conducted inadequate research. [FN175] Dow Corning responded that the memoranda represented an internal conversation about the safety of the implants and that although the company knew about the silicone leaks in the early 1970s it believed silicone *995 would not have any serious health effects. [FN176]

Prohibited by law from releasing the contents of Dow Corning's internal memoranda, the FDA publicly requested that Dow release the documents to the public. [FN177] Dow Corning released the internal memoranda in February 1992. [FN178] The memoranda confirmed that the company had known for years that its silicone gel implants often ruptured and leaked silicone into women's bodies. Dow Corning replaced its CEO the same week.

A week later the FDA reported that new scientific evidence about the implants showed that they leaked more than was previously believed and that the gel may cause health problems. [FN179] The FDA advisory stated that it may take years for the leaks to begin and there is no way to determine how many women with implants and without symptoms may have suffered undetected leaks. The panel also stated that some evidence indicates that gel leaks may cause immune diseases and neurological disorders. [FN180] Rheumatologists also reported a possible link between silicone implants, lupus and connective tissue disorder. The advisory panel also stated that Dow Corning documents raised questions about the strength of silicone envelopes that contain the gel. [FN181] The FDA report was based upon preliminary findings from five weeks of intensive inspections of four implant makers, Dow, Bioplasty, McGhan and Mentor.

On February 21, 1992, the advisory panel recommended that the use of silicone gel implants be substantially restricted. The panel reported that there was no conclusive evidence linking silicone with a particular disease but that time was needed to examine the evidence. [FN182] In March, Dow Corning announced *996 that it would no longer manufacture the implants. [FN183] In November 1992, Dow Corning disclosed in discussions with the FDA that an unknown number of silicone gel implant quality control records had been faked. [FN184]

In April 1992, the FDA lifted the moratorium on gel implants but placed strict limitations on their use. All breast cancer patients and women with deformed or injured breasts were to have full access to the implants if they agree to participate in a research study. But only a few hundred women who desire implants for cosmetic reasons have been allowed to participate in the clinical trials. [FN185]

In December 1992, a Texas state jury awarded a woman $5 million in compensatory damages and $20 million in punitive damages for injuries due to silicone breast implants. With an additional $2 million award in attorney fees and $1 million in prejudgment interest, the total verdict amounted to $28 million. [FN186]

By Spring 1993, there were approximately 1000 cases pending in federal court. [FN187] By order of the Judicial Panel on Multi-District Litigation, the federal cases have been assigned to Alabama federal Judge Sam C. Pointer Jr., for pretrial management. [FN188] About 12,000 suits had been filed in state and federal courts by spring, 1994, approximately 6800 against Dow Corning alone. [FN189] The most common injuries claimed by the plaintiffs are: acute inflammation, auto-immune disorders, lupus, scleroderma and chronic arthropathy. [FN190] Most suits are *997 against Dow Corning, Bioplasty, McGhan, Mentor, Bristol-Myers Squibb, General Electric and Baxter International Inc. [FN191]

In July 1993 Dow Corning and other implant manufacturers sued more than seventy insurance companies in California state court for failure to defend and indemnify them in breast implant litigation. The implant manufacturers asked that insurers be ordered to fund whatever amount breast implant claimants ultimately secure in settlement or at trial; they also requested compensatory damages and unspecified punitive damages for breach of contract and breach of the implied covenant of good faith and fair dealing. [FN192]

In September 1993 Dow Corning proposed a $4.75 billion settlement of all pending and future breast implant cases. Funds for the settlement would be provided by Dow Corning, other implant manufacturers and suppliers of the raw materials used to manufacture the implants, as well as doctors, hospitals and insurers. Exactly how costs would be allocated had not been decided at the time the settlement offer was announced; nor was it clear how many plaintiffs the settlement would cover. Plaintiff lawyers supporting the settlement in concept asserted that it would provide claimants amounts ranging between $200,000 to $2 million. Other attorneys, however, noting that one to two million women in the United States have had breast implants and that the latency period of claimed injuries may range up to twenty-five years, contended that the $4.75 billion settlement offer would fall far short of the amount needed to compensate women. [FN193]

The number of persons possibly injured by silicone implants may be beyond that covered by the proposed class action. For example, a study reported in January 1991 found health problems among children who had been nursed by mothers with silicone implants. In October 1993, newspaper *998 accounts questioned the safety of silicone penile implants, [FN194] and indicated that litigation involving male implantees is underway. [FN195] Approximately 28,000 men receive penile implants annually. [FN196]

***

2. Asbestos

One of the most effective insulation materials, asbestos was used for many years in numerous industrial settings, in ships, in schools, and in homes across the country. [FN229] Consumption grew steadily in the United States through World War II, and peaked in 1974. [FN230] It is now known that inhalation of asbestos fibers can cause asbestosis, lung cancer, and mesothelioma. [FN231] Estimates of the ultimate health effects of asbestos are highly controversial, but there is little doubt that exposure was widespread. [FN232]

Barred from suing their employers by the workers' compensation exclusivity doctrine, asbestos workers turned to asbestos manufacturers to compensate them for their injuries. Successful product liability litigation against asbestos manufacturers is generally traced to the 1973 decision in Borel v. Fibreboard Paper Products Corp., in which the Fifth Circuit ruled that manufacturers could be held strictly liable for injuries *1004 caused by asbestos exposure. [FN233] Filings grew steadily through the late 1970s, appeared to level off for a time, and then surged anew in the late 1980s. By 1992, an estimated 200,000 asbestos personal injury claims, naming one to a dozen defendants apiece, had been filed or were pending nationwide. As a result of the litigation, some dozen or so asbestos manufacturers have sought the protection of the bankruptcy courts. [FN234] Asbestos litigation has become the mass tort that dwarfs all others.

Asbestos litigation has been concentrated in about one-quarter of the states, primarily those that are coastal. Initially, the courts in these states attempted to deal with asbestos cases on an individualized basis. But as caseloads mounted, courts turned increasingly to aggregative procedures, using an array of informal and formal mechanisms for dispositions. These efforts became more aggressive as courts used consolidation and class actions to group, and then dispose of, thousands of cases at a time in Texas, Virginia, Mississippi, West Virginia and Maryland. [FN235]

Until recently, no efforts were made to coordinate asbestos litigation across different courts. Attempts at collecting federal court cases under MDL were repeatedly rejected by the MDL panel until 1991, when the panel transferred all federal cases to Judge Charles Weiner of the Eastern District of Pennsylvania. [FN236] In further efforts at coordination, state court judges have recently begun meeting together. [FN237]

Increasingly, asbestos claims have been coordinated through bankruptcy proceedings, which require valuation of present and future asbestos claims against a bankrupt defendant, *1005 along with all other claims, and then a reorganization plan to compensate equitably all claims from the defendant's assets. Typically these plans fund settlement trusts to resolve all asbestos claims while reducing involvement in the tort system. The first wave of bankruptcies in the early 1980s involved Manville, UNARCO and several smaller companies. Manville, the dominant asbestos manufacturer and primary defendant, was the first major defendant to seek bankruptcy protection because of its expected mass tort liabilities. Manville's filing stayed its asbestos litigation, disrupted all other asbestos litigation and created great controversy and indignation. The reorganization plan confirmed in 1986 created a $2.5 billion trust that owned almost 90 percent of Manville Corporation and assured plaintiffs that they could continue to litigate their claims in the tort system and would receive the full value of their claims. These assurances quickly proved false about a year after the Trust began to pay claims. [FN238] Judge Jack B. Weinstein stayed payments by the Manville Trust in July 1990 when it became apparent that the Trust would soon run out of money and could pay present and future claimants only ten percent of the value of their claims. [FN239] Since November 1990 the Trust and its beneficiaries have struggled to restructure the Trust's distribution process. A second wave of bankruptcies occurred in the late 1980s and early 1990s as one defendant after another was driven to insolvency by increasing numbers of claims, the massive exposure associated with consolidated and class action claims and the requirement to make up for the by-then-insolvent Manville's share.

Some defendants who remained in the tort system formed defense consortia in attempts to reduce their litigation costs and to control their liabilities and access to insurance. The Center for Claims Resolution ("CCR"), a consortium of twenty small to moderate defendants has operated since 1988, following the break-up of a larger consortium, the Asbestos Claims Facility. In January 1993, the CCR agreed to settle a class *1006 action of future claimants brought by several major asbestos plaintiffs' lawyers. [FN240] CCR members and most of their insurers agreed to provide certain compensation for each of the next ten years under procedures that would limit the number and amount of payments each year, deny payments to claims that do not meet specified medical and exposure requirements and limit the number of future claimants who may enter the tort system. The proposed settlement, which is now pending in the Eastern District of Pennsylvania, has created angry divisions within the asbestos plaintiffs' bar.

III. WHAT EXPLAINS THE EMERGENCE OF MASS INJURY LITIGATION IN THE 1980S?

The emergence of mass personal injury litigation in the 1980s was a consequence of the interaction of diverse social and legal trends. Mass marketing of products increased the population's exposure to potentially injurious products and substances. Mass injuries created a need for compensation for medical expense and work loss, which is not universally available in the United States. [FN275] Medical researchers became more adept at detecting links between injury and product use or exposure to chemical substances. Mass media became more attentive to consumer and environmental safety issues and more prone to publicizing alleged links between products and injuries. Plaintiffs' lawyers gained permission to advertise their availability to represent claims and became more assertive in seeking out potential victims of mass injuries. More importantly, legal rules and procedures became more favorable to plaintiffs seeking compensation from product manufacturers.

Many of these trends began decades ago, but the pace of change seemed to quicken after 1960. [FN276] Now, multiple aspects *1014 of American culture and the legal system combine to create a high potential for continuing mass personal injury litigation. In this section, we discuss the factors that contribute to mass injuries, the social forces that encourage mass injury victims to pursue legal claims for compensation and the substantive and procedural rules that facilitate mass tort litigation.

B. Factors Facilitating Claiming

Mass injuries, by themselves, do not produce mass tort litigation. For litigation to arise, injured individuals must: (1) believe that their injuries were caused by either their presence at a catastrophic event or their product use or exposure--or at least that the courts can be persuaded that this is the case; (2) believe that someone associated with the catastrophe or product can and should be held responsible for compensating them for their losses; and (3) know how to obtain legal representation and succeed in doing so. Contrary to contemporary portrayals of Americans as overly litigious, only a small fraction of injured individuals move through all three of these steps.

A recent Institute for Civil Justice study found that fewer than one in five injured Americans even considered the possibility of obtaining compensation from others for their accidental injuries. Only one in ten took any action to attempt to obtain such compensation. Only about one third of these or less than three percent of all injured persons filed a liability lawsuit. [FN295] A primary factor explaining these low rates of claiming is an individuals' tendency to attribute causation and blame for their injuries to themselves or natural forces. [FN296]

A variety of economic and social factors influence whether or not an injured person will file a lawsuit: the availability of other sources of compensation, media and advertising, the experience and recommendations of friends, suggestions by unions and health care providers and the ability to locate legal *1020 counsel. In recent years these social influences have facilitated the filing of mass tort claims.

***

*1027 C. The Contribution of Substantive and Procedural Law

Plaintiffs' attorneys' willingness to represent mass tort claimants depends, of course, on their assessment of the odds of winning such cases. Over the past several decades, changes in legal doctrine and procedure have increased these odds considerably. Until the 1960s, consumers rarely sued and less often won personal injury suits against product manufacturers. But by the end of the 1970s, the almost universal spread of strict liability enabled plaintiffs to recover without showing manufacturers' negligence if a product carried inadequate warnings or was defectively designed or manufactured. Although legal scholars differ in their characterizations of this doctrinal revolution, [FN322] the empirical evidence indicates that both the number of product liability claims and plaintiffs' success in those claims increased greatly through the mid-1980s. [FN323]

The explosion of mass tort litigation in the 1980s illustrated in Figure 1 could not have taken place were it not for this revolution in product liability doctrine during the two prior decades. Modern product liability law gave persons who suffered mass injuries in circumstances other than catastrophic accidents the opportunity to sue the same defendants, product manufacturers. In the absence of modern product liability doctrine, accident victims either could claim workers' compensation from their employers (for workplace injuries) or could sue their physicians for medical malpractice (for injuries due to drugs and medical devices). Under either scenario, claims would be dispersed among many different defendants, thereby *1028 diluting their numerical power, obscuring their commonality and mitigating interdependencies among case values--the defining characteristics of mass torts. It was the opportunity for multiple suits against a single or few manufacturers that created the conditions for mass torts outside of the context of catastrophic accidents.

Strict product liability was not the only legal doctrine that supported the development of mass litigation. Liberal construction of statutes of limitations and, in some jurisdictions, special statutes, enabled individuals to file claims for injuries associated with product exposure that began decades earlier. [FN324] The "market share liability" doctrine allowed some mass tort plaintiffs to recover even if they were unable to demonstrate which of several companies' products caused their injury [FN325]--a likely circumstance when injuries occur years before recognition of the causal link between products and injuries. Another important *1029 change has been the judicial acceptance of "fear of" future injuries as compensable damages, even in the absence of current illness or impairment. For example, fear of cancer resulting from asbestos exposure or fear of heart failure resulting from failure of the Shiley Heart Valve, may entitle a plaintiff to damages, [FN326] thus expanding the pool of potential mass tort claimants from those with a current impairment that can be linked to product use or exposure to (in principle) all those who could document product usage or exposure. Liberal construction of "successor liability" doctrine assured the availability of assets to compensate injured individuals' claims when the ownership of product manufacturers had changed--as is particularly likely when products blamed for injuries were designed and manufactured many years ago. Indeed, where a product manufacturer has been acquired and its operations merged into the acquiring business, the entire business assumes liability for injuries, thereby increasing the pool of assets available for compensation. [FN327] In addition, courts have often construed manufacturers' insurance contracts to maximize coverage available to compensate mass tort claimants. Under the "triple trigger" theory, defendants can call on each insurance policy in force from the time that a plaintiff was first exposed to a product until the plaintiff's product-related disease manifests itself, again increasing the pool of assets available for compensation. [FN328]

In parallel with these doctrinal developments, there was an evolution of civil procedures which ultimately facilitated mass tort litigation. By the early 1960s, federal judges had in *1030 place an array of procedures, including Rule 23 class actions and multidistricting and consolidation under Rule 42, that permitted them to process civil cases collectively for some or all purposes. These procedures had the potential to reduce the costs of litigating mass claims and expedite disposition. [FN329] But their use in mass tort litigation was controversial, and through the early 1980s courts proved reluctant to apply them to this litigation, preferring to rely on a variety of ad hoc, informal aggregative procedures. [FN330] In the absence of formal aggregation, both plaintiffs' attorneys' and defendants' strategies had to incorporate the possibility that they would be called on to try myriad individual cases, with attendant high costs and uncertain outcomes.

With the passage of time, and as mass litigation caseloads mounted, some judges began to challenge the traditional thinking about the applicability of class actions, consolidated trials and multidistricting to mass torts. By the end of the decade, all of these formal aggregative devices had been used to resolve mass tort litigation. In addition, some mass tort claims had been resolved in bankruptcy proceedings and in some jurisdictions state and federal judges were coordinating the disposition of mass tort litigation. [FN331] Now plaintiffs' attorneys and defendants might proceed with the understanding that thousands of cases--indeed, tens or hundreds of thousands of cases--might be resolved as a result of a single negotiated agreement or trial outcome. These changes in stakes and parties' expectations had powerful effects on the dynamics of mass tort litigation, and may have further fueled the growth of mass litigation in the late 1980s and early 1990s.

***

CONCLUSION

In the early 1980s, as asbestos filings mounted, some observers suggested that despite their numbers, they were merely another example of product liability litigation, which courts would soon learn to handle efficiently and expeditiously. When asbestos filings continued to rise at an exponential pace, and litigation involving mass marketed drugs and medical devices crowded the dockets, the rhetoric surrounding mass personal injury litigation became more heated. Defendants saw greedy plaintiffs' attorneys as solely to blame for the litigation, while plaintiffs' attorneys and consumer activists pointed to irresponsible and intransigent manufacturers and a flawed regulatory process.

A review of the history of mass personal injury litigation over the past two decades reveals a more complex story of the emergence of the litigation and court efforts to resolve it. Plaintiff attorneys do play a central role in the story of mass personal injury litigation, both as advocates of injured parties and as risk-taking entrepreneurs. Juries and judges have found repeatedly that manufacturers marketed inadequately tested or unsafe products, or provided inadequate information about product risks and benefits. Regulators have often done too little, too late. But the character of the litigation reflects the structure of the legal process, including substantive and *1061 procedural rules and judicial attitudes and behaviors, as much as it reflects the character of attorneys and defendants. And the emergence of mass tort litigation owes as much or more to changes in science and technology, marketing, information diffusion and cultural attitudes as it does to changes in the legal system. Perhaps most importantly, mass tort litigation reflects the fundamental decision of American society to rely on the civil justice system to compensate individuals for injury and disease, to deter corporate wrong-doing and to achieve corrective justice.

If we are to continue to rely on the legal system to achieve these aims with regard to mass injuries, decisionmakers need to fashion procedures that provide compensation, in adequate amounts, to those who are truly injured, when they are injured, and that allocate the bulk of available resources to injured claimants, rather than to attorneys for plaintiffs and defendants. Decisionmakers need to assume that liability rules and procedures for applying them that hold manufacturers and service providers to high safety standards, while also insuring that beneficial products are developed and remain on the market at a reasonable price. Finally, decisionmakers need to fashion processes that properly align attorneys' and clients' interests, that provide vehicles for plaintiffs to have a voice in the resolution of their claims and for non-culpable defendants to vindicate themselves. Currently, despite considerable efforts and creativity on the part of judges, attorneys and parties, the legal system too often fails these tests in its approach to resolving mass personal injury litigation.

Administrative Law and Regulation

The U.S. Constitution, 14th Amendment says, “No person shall be deprived of life, liberty or property without due process of law…”

Top of Form

[pic]

FOR EDUCATIONAL USE ONLY

397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287

Supreme Court of the United States

Jack R. GOLDBERG, Commissioner of Social Services of the City of New York, Appellant,

v.

John KELLY et al.

No. 62.

Argued Oct. 13, 1969.

Decided March 23, 1970.

New York City residents receiving financial aid under federally-assisted program of Aid to Families with Dependent Children or under New York State's general Home Relief program brought suit challenging adequacy of procedures for notice and hearing in connection with termination of such aid. The three-judge United States District Court for the Southern District of New York, 294 F.Supp. 893, entered judgment in favor of plaintiffs, and defendant appealed. The Supreme Court, Mr. Justice Brennan, held that procedural due process requires that pretermination evidentiary hearing be held when public assistance payments to welfare recipient are discontinued, and further held that procedures followed by city of New York in terminating public assistance payments to welfare recipients were constitutionally inadequate in failing to permit recipients to appear personally with or without counsel before official who finally determined continued eligibility and failing to permit recipient to present evidence to that official orally or to confront or cross-examine adverse witnesses.

Affirmed.

Mr. Chief Justice Burger and Mr. Justice Black dissented.

For dissenting opinions of Mr. Chief Justice Burger and Mr. Justice Stewart see 397 U.S. 282, 285, 90 S.Ct. 1028, 1029.

Mr. Justice BRENNAN delivered the opinion of the Court.

The question for decision is whether a State that terminates public assistance payments to a particular recipient without affording him the opportunity for an evidentiary hearing prior to termination denies the recipient procedural due process in violation of the Due Process Clause of the Fourteenth Amendment.

This action was brought in the District Court for the Southern District of New York by residents of New *256 York City receiving financial aid under the federally assisted program of Aid to Families with Dependent Children (AFDC) or under New York State's general Home Relief program.FN1 Their complaint alleged that the New York State and New York City officials administering these programs terminated, or were about to terminate, such aid without prior notice and hearing, thereby denying them due process of law.FN2 At the time *257 the suits were filed there was no requirement of prior notice or hearing of any kind before termination of financial aid. However, the State and city adopted procedures for notice and hearing after the suits were brought, and the plaintiffs, appellees here, then challenged the constitutional adequacy of those procedures.

The constitutional issue to be decided, therefore, is the narrow one whether the Due Process Clause requires that the recipient be afforded an evidentiary hearing before the termination of benefits.FN7 The District Court held *261 that only a pretermination evidentiary hearing would satisfy the constitutional command, and rejected the argument of the state and city officials that the combination of the post-termination ‘fair hearing’ with the informal pre-termination review disposed of all due process claims. The court said: ‘While post-termination review is **1017 relevant, there is one overpowering fact which controls here. By hypothesis, a welfare recipient is destitute, without funds or assets. * * * Suffice it to say that to cut off a welfare recipient in the face of * * * ‘brutal need’ without a prior hearing of some sort is unconscionable, unless overwhelming considerations justify it.' Kelly v. Wyman, 294 F.Supp. 893, 899, 900 (1968). The court rejected the argument that the need to protect the public's tax revenues supplied the requisite ‘overwhelming consideration.’ ‘Against the justified desire to protect public funds must be weighed the individual's overpowering need in this unique situation not to be wrongfully deprived of assistance. * * * While the problem of additional expense must be kept in mind, it does not justify denying a hearing meeting the ordinary standards of due process. Under all the circumstances, we hold that due process requires an adequate hearing before termination of welfare benefits, and the fact that there is a later constitutionally fair proceeding does not alter the result.’ Id., at 901.

Appellant does not contend that procedural due process is not applicable to the termination of welfare benefits.*262 Such benefits are a matter of statutory entitlement for persons qualified to receive them.FN8 Their termination involves state action that adjudicates important rights. The constitutional challenge cannot be answered by an argument that public assistance benefits are ‘a ‘privilege’ and not a ‘right. “ Shapiro v. Thompson, 394 U.S. 618, 627 n. 6, 89 S.Ct. 1322, 1327 (1969). Relevant constitutional restraints apply as much to the withdrawal of public assistance benefits as to disqualification for unemployment compensation.

***

FN8. It may be realistic today to regard welfare entitlements as more like ‘property’ than a ‘gratuity.’ Much of the existing wealth in this country takes the form of rights that do not fall within traditional common-law concepts of property. It has been aptly noted that

‘(s)ociety today is built around entitlement. The automobile dealer has his franchise, the doctor and lawyer their professional licenses, the worker his union membership, contract, and pension rights, the executive his contract and stock options; all are devices to aid security and independence. Many of the most important of these entitlements now flow from government: subsidies to farmers and businessmen, routes for airlines and channels for television stations; long term contracts for defense, space, and education; social security pensions for individuals. Such sources of security, whether private or public, are no longer regarded as luxuries or gratuities; to the recipients they are essentials, fully deserved, and in no sense a form of charity. It is only the poor whose entitlements, although recognized by public policy, have not been effectively enforced.’Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale L.J. 1245,

It is true, of course, that some governmental benefits may be administratively terminated without affording the recipient a pre-termination evidentiary hearing.FN10*264 But we agree with the District Court that when welfare is discontinued, only a pre-termination evidentiary hearing provides the recipient with procedural due process. For qualified recipients, welfare provides the means to obtain essential food, clothing, housing, and medical care. Thus the crucial factor in this context-a factor not present in the case of the blacklisted government contractor, the discharged government employee, the taxpayer denied a tax exemption, or virtually anyone else whose governmental entitlements are ended-is that termination of aid pending resolution of a controversy over eligibility may deprive an eligible recipient of the very means by which to live while he waits. Since he lacks independent resources, his situation becomes immediately desperate. His need to concentrate upon finding the means for daily subsistence, in turn, adversely **1019 affects his ability to seek redress from the welfare bureaucracy. FN12

Moreover, important governmental interests are promoted by affording recipients a pre-termination evidentiary hearing. From its founding the Nation's basic *265 commitment has been to foster the dignity and well-being of all persons within its borders. We have come to recognize that forces not within the control of the poor contribute to their poverty.FN13

***

We also agree with the District Court, however, that the pre-termination hearing need not take the form of a judicial or quasi-judicial trial. We bear in mind that the statutory ‘fair hearing’ will provide the recipient *267 with a full administrative review.FN14 Accordingly, the pre-termination hearing has one function only: to produce an initial determination of the validity of the welfare department's grounds for discontinuance of payments in order to protect a recipient against an erroneous termination of his benefits.

Thus, a complete record and a comprehensive opinion, which would serve primarily to facilitate judicial review and to guide future decisions, need not be provided at the pre-termination stage. We recognize, too, that both welfare authorities and recipients have an interest in relatively speedy resolution of questions of eligibility, that they are used to dealing with one another informally, and that some welfare departments have very burdensome caseloads. These considerations justify the limitation of the pre-termination hearing to minimum procedural safeguards, adapted to the particular characteristics of welfare recipients, and to the limited nature of the controversies to be resolved. We wish to add that we, no less than the dissenters, recognize the importance of not imposing upon the States or the Federal Government in this developing field of law any procedural requirements beyond those demanded by rudimentary due process.

FN14. Due process does not, of course, require two hearings. If, for example, a State simply wishes to continue benefits until after a ‘fair’ hearing there will be no need for a preliminary hearing.

***

[13] [pic][14] [pic]We are not prepared to say that the seven-day notice currently provided by New York City is constitutionally insufficient per se, although there may be cases where fairness would require that a longer time be given. Nor do we see any constitutional deficiency in the content or form of the notice. New York employs both a letter and a personal conference with a caseworker to inform a recipient of the precise questions raised about his continued eligibility. Evidently the recipient is told the legal and factual bases for the Department's doubts. This combination is probably**1021 the most effective method of communicating with recipients.

Chapter Six

“The Role of the US Congress in International Law”

This chapter is in four sections:

US Legislation and International Law

The US Senate and the Ratification of Treaties

The US Senate and the Termination of Treaties

The US Congress and the Ratification of Treaties

The purpose of this chapter is to examine the interaction between domestic constitutional law (as reflected by actions of the Congress) and international law. The first section of the chapter focuses on the Helms-Burton Act as an example of domestic US legislation with important ramifications on international politics, economics, and law. The second and third sections of the chapter examine the particularly prominent role of one chamber of Congress, the Senate, in the process by which the United States indicates which treaty texts the US considers binding upon it. (The second section of the chapter emphasizes the United Nations Convention on the Law of the Sea and whether the US will take on the new international legal obligations contained therein, while the third section of the chapter emphasizes the Senate and the termination of existing treaty obligations of the United States.) The fourth section of the chapter examines whether the text of the US Constitution—which states that the Senate shall give its advice and consent to treaties by the vote of a two-thirds majority before a treaty signed by the President binds the United States—has been implicitly amended also to include the possibility that a simple majority of both chambers of the Congress may bind the United States to a treaty signed by the President.

Section One

US Legislation and International Law

This section of the chapter begins with a recitation of certain portions of the US Constitution especially relevant to the powers of the US Congress to enact legislation, especially as related to international affairs.

United States Constitution

Signed (in Philadelphia): September 17, 1787

Entered into Force: July 2, 1788

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Article I.

Section 1.

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Section 7.

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

Section 8.

The Congress shall have Power

To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; — And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Section 9.

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken. [Note: The underlined passage, which was not underlined in the original Constitution, has been modified by later amendments to the Constitution.]

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

Section 10.

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Questions

(1) Section 7 of Article I of the Constitution describes the legislative process. What is that process?

(2) Section 8 of Article I of the Constitution enumerates the affirmative powers of the US Congress. Do any of those powers relate to international affairs? If so, which ones?

(3) Section 9 of Article I of the Constitution sets forth various prohibitions on congressional action. Do any of those prohibitions relate to international affairs? If so, which ones?

(4) Section 10 of Article I of the Constitution sets forth various prohibitions on action by the States of the United States. Do any of those prohibitions relate to international affairs? If so, which ones?

Section Two

The US Senate and the Ratification of Treaties

The House and Senate act as complete equals in ordinary legislation. Article I of the Constitution differentiates the two chambers of Congress in a few ways, however: only the House may introduce tax bills or bring articles of impeachment against a federal officer, while only the Senate may try an impeached official. Article II of the Constitution chiefly involves the President, but the members of Congress do not go entirely unmentioned. They are prohibited from serving in the Electoral College. A Senator is to open the ballots of the College in the presence of both houses, while the House of Representatives is to elect the President when no candidate receives a majority of the votes of the College. (Thomas Jefferson, of course, is primarily famous for being one of two Presidents elected by the House.) Since the House has not served this function since 1824, the most relevant mention in Article II of the Congress is probably the role for the Senate set forth in clause two of section two of Article Two:

[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law

The remainder of the chapter explores the ramifications of the first portion of this clause, itself sometimes called “the Treaty Clause”: “[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur ….” Section Two examines a case in which the President has referred to the Senate a new Treaty, i.e., the United Nations Convention on the Law of the Sea. Section Three examines a case in which the President wishes, without the Advice or Consent of the Senate, to terminate an already-existing Treaty, i.e., a mutual-defense treaty with Taiwan. Section Four examines whether, so long as a simple majority of the House of Representatives concurs, the President may make treaties when only a simple majority of the Senate concurs.

Arrival of the

Convention on the Law of the Sea

[on the Floor of the US Senate]

(and Associated Documents from the US Executive Branch)

From the Congressional Record, October 6, 1994, Page S14467

Online at ::

Note: Remarks of the Presiding Officer, who simply noted a lack of objections when Senator Pell moved to include items in the record/Record, are omitted from the text below without ellipsis.

Mr. PELL. Mr. President [of the Senate], I am very pleased to inform my colleagues that today, the President [of the United States] transmitted to the Senate for its advice and consent, the United Nations Convention on the Law of the Sea and the Agreement Relating to the Implementation of Part XI of the Convention. I ask unanimous consent that the President’s Letter of Transmittal and the Secretary of State’s Letter of Submittal appear immediately following my remarks in the Record. [This exhibit is included in these materials after the conclusion of Senator Pell’s remarks.]

Next year, Mr. President, this body will be called upon to decide if the Convention and Agreement serve our national interest. In my view, the answer to that question is an emphatic yes. In essence, the Convention is a constitution to guide the use of the world’s oceans. As a coastal and maritime nation, the United States has a vital interest in such a constitution.

From a national security perspective, the Convention establishes as a matter of international law, navigational freedoms that are fundamental to the effective operation of our military forces. As a representative from the Department of Defense testified before the Foreign Relations Committee, the Department “considers the legal framework which the Convention establishes to be essential to its mission.”

I ask unanimous consent that a Department of Defense study of the Convention entitled `National Security and the Convention on the Law of the Sea’ appear following my remarks in the Record. [Unanimous consent was granted, but this document is not included in these materials.]

From an economic perspective, the Convention helps guarantee American jobs and economic growth. Seaborne commerce accounts for 80 percent of trade among nations, and a tremendous percentage of U.S. imports and exports. This commerce is critically dependent on the navigational freedoms formally established in the Convention. The United States has a vital interest in the stability of the international legal order that serves as the basis for this commerce. Universal adherence to the Law of the Sea Convention provides that stability.

From an environmental perspective, the Convention provides a foundation for addressing such challenges as the depletion of many of the world’s major fisheries. Just last week, the Committee on Foreign Relations reported favorably the Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea, commonly known as the Donut Hole Convention. By establishing a management regime to preserve Pollock resources, the Convention will help ensure the livelihood of thousands of U.S. fishermen in Alaska and the Pacific Northwest. The foundation for the Donut Hole Convention lies in the Law of the Sea Convention, and in particular the latter’s provisions coupling the right to fish on the high seas with the responsibility to conserve high seas fishery resources. As Ambassador David Colson noted in his testimony the Donut Hole Convention is precisely the sort of agreement envisioned in the Law of the Sea Convention.

Mr. President, these are just a few examples of the benefits of the Law of the Sea Convention to the United States. We must recognize, however, that the Convention will not be a static document. Just as form and substance have been given our Constitution by the courts, so too will future uses of the oceans by influenced and shaped by decisions made under the Convention. As much as for what is in the Convention now, our country has an interest in participating in the Convention for what it may become. To be part of that process, the United States must become a party to the Convention.

Mr. President, the Convention and the Agreement transmitted to the Senate today are the culmination of over two decades of effort by Democratic and Republican Administrations. They are a triumph for American foreign policy, and I will make their consideration one of my highest priorities for the Committee on Foreign Relations, in the 104th Congress.

I yield the floor.

Letter of Presidential Transmission to the Senate of the Law of the Sea Convention

To the Senate of the United States:

I transmit herewith, for the advice and consent of the Senate to accession, the United Nations Convention on the Law of the Sea, with Annexes, done at Montego Bay, December 10, 1982 (the “Convention”), and, for the advice and consent of the Senate to ratification, the Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, with Annex, adopted at New York, July 28, 1994 (the “Agreement”), and signed by the United States, subject to ratification, on July 29, 1994. Also transmitted for the information of the Senate is the report of the Department of State with respect to the Convention and Agreement, as well as Resolution II of Annex I and Annex II of the Final Act of the Third United Nations Conference on the Law of the Sea.

The United States has basic and enduring national interests in the oceans and has consistently taken the view that the full range of these interests is best protected through a widely accepted international framework governing uses of the sea. Since the late 1960s, the basic U.S. strategy has been to conclude a comprehensive treaty on the law of the sea that will be respected by all countries. Each succeeding U.S. Administration has recognized this as the cornerstone of U.S. oceans policy. Following adoption of the Convention in 1982, it has been the policy of the United States to act in a manner consistent with its provisions relating to traditional uses of the oceans and to encourage other countries to do likewise.

The primary benefits of the Convention to the United States include the following:

—–The Convention advances the interests of the United States as a global maritime power. It preserves the right of the U.S. military to use the world’s oceans to meet national security requirements and of commercial vessels to carry sea-going cargoes. It achieves this, inter alia, by stabilizing the breadth of the territorial sea at 12 nautical miles; by setting forth navigation regimes of innocent passage in the territorial sea, transit passage in straits used for international navigation, and archipelagic sea lanes passage; and by reaffirming the traditional freedoms of navigation and overflight in the exclusive economic zone and the high seas beyond.

—–The Convention advances the interests of the United States as a coastal State. It achieves this, inter alia, by providing for an exclusive economic zone out to 200 nautical miles from shore by securing our rights regarding resources and artificial islands, installations and structures for economic purposes over the full extent of the continental shelf. These provisions fully comport with U.S. oil and gas leasing practices, domestic management of coastal fishery resources, and international fisheries agreements.

—–As a far-reaching environmental accord addressing vessel source pollution, pollution from seabed activities, ocean dumping, and land-based sources of marine pollution, the Convention promotes continuing improvement in the health of the world’s oceans.

—–In light of the essential role of marine scientific research in understanding and managing the oceans, the Convention sets forth criteria and procedures to promote access to marine areas, including coastal waters, for research activities.

—–The Convention facilitates solutions to the increasingly complex problems of the uses of the ocean—solutions that respect the essential balance between our interests as both a coastal and a maritime nation.

—–Through its dispute settlement provisions, the Convention provides for mechanisms to enhance compliance by Parties with the Convention’s provisions.

Notwithstanding these beneficial provisions of the Convention and bipartisan support for them, the United States decided not to sign the Convention in 1982 because of flaws in the regime it would have established for managing the development of mineral resources of the seabed beyond national jurisdiction (Part XI). It has been the consistent view of successive U.S. Administrations that this deep seabed mining regime was inadequate and in need of reform if the United States was ever to become a Party to the Convention.

Such reform has now been achieved. The Agreement, signed by the United States on July 29, 1994, fundamentally changes the deep seabed mining regime of the Convention. As described in the report of the Secretary of State, the Agreement meets the objections the United States and other industrialized nations previously expressed to Part XI . It promises to provide a stable and internationally recognized framework for mining to proceed in response to future demand for minerals.

Early adherence by the United States to the Convention and the Agreement is important to maintain a stable legal regime for all uses of the sea, which covers more than 70 percent of the surface of the globe. Maintenance of such stability is vital to U.S. national security and economic strength.

I therefore recommend that the Senate give early and favorable consideration to the Convention and to the Agreement and give its advice and consent to accession to the Convention and to ratification of the Agreement. Should the Senate give such advice and consent, I intend to exercise the options concerning dispute settlement recommended in the accompanying report of the Secretary of State.

William J. Clinton.

The White House, October 6, 1994.

Letter from the US Secretary of State Submitting the Law of the Sea Convention to the US President

(September 23, 1994)

… I have the honor to submit to you the United Nations Convention on the Law of the Sea, with Annexes, done at Montego Bay, December 10, 1982 (the Convention) and the Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law of the Sea of 10 December 1982, with Annex, adopted at New York, July 28, 1994 (the Agreement), and signed by the United States on July 29, 1994, subject to ratification. I recommend that the Convention and the Agreement be transmitted by the Senate for its advice and consent to accession and ratification, respectively.

The Convention sets forth a comprehensive framework governing uses of the oceans. It was adopted by the Third United Nations Conference on the Law of the Sea (the Conference), which met between 1973 and 1982 to negotiate a comprehensive treaty relating to the law of the sea.

The Agreement, adopted by United Nations General Assembly Resolution A/RES/48/263 on July 28, 1994, contains legally binding changes to that part of the Convention dealing with the mining of the seabed beyond the limits of national jurisdiction (Part XI and related Annexes) and is to be applied and interpreted together with the Convention as a single instrument. The Agreement promotes universal adherence to the Convention by removing obstacles to acceptance of the Convention by industrialized nations, including the United States.

I also recommend that Resolution II of Annex I, governing preparatory investment in pioneer activities relating to polymetallic nodules, and Annex II, a statement of understanding concerning a specific method to be used in establishing the outer edge of the continental margin, of the Final Act of the Third United Nations Conference on the Law of the Sea be transmitted to the Senate for its information.

THE CONVENTION

The Convention provides a comprehensive framework with respect to uses of the oceans. It creates a structure for the governance and protection of all marine areas, including the airspace above and the seabed and subsoil below. After decades of dispute and negotiation, the Convention reflects consensus on the extent of jurisdiction that States may exercise off their coasts and allocates rights and duties among States.

The Convention provides for a territorial sea of a maximum breadth of 12 nautical miles and coastal State sovereign rights over fisheries and other natural resources in an Exclusive Economic Zone (EEZ) that may extend to 200 nautical miles from the coast. In so doing, the Convention brings most fisheries under the jurisdiction of coastal States. (Some 90 percent of living marine resources are harvested within 200 nautical miles of the coast.) The Convention imposes on coastal States a duty to conserve these resources, as well as obligations upon all States to cooperate in the conservation of fisheries populations on the high seas and such populations that are found both on the high seas and within the EEZ (highly migratory stocks, such as tuna, as well as `straddling stocks’). In addition, it provides for special protective measures for anadromous species, such as salmon, and for marine mammals, such as whales.

The Convention also accords the coastal State sovereign rights over the exploration and development of non-living resources, including oil and gas, found in the seabed and subsoil of the continental shelf, which is defined to extend to 200 nautical miles from the coast or, where the continental margin extends beyond that limit, to the outer edge of the geological continental margin. It lays down specific criteria and procedures for determining the outer limit of the margin.

The Convention carefully balances the interests of States in controlling activities off their own coasts with those of all States in protecting the freedom to use ocean spaces without undue interference. It specifically preserves and elaborates the rights of military and commercial navigation and overflight in areas under coastal State jurisdictional and on the high seas beyond. It guarantees passage for all ships and aircraft through, under and over straits used for international navigation and archipelagos. It also guarantees the high seas freedoms of navigation, overflight and the laying and maintenance of submarine cables and pipelines in the EEZ and on the continental shelf.

For the non-living resources of the seabed beyond the limits of national jurisdictional (i.e., beyond the EEZ or continental margin, whichever is further seaward), the Convention establishes an international regime to govern exploration and exploitation of such resources. It defines the general conditions for access to deep seabed minerals by commercial entities and provides for the establishment of an international organization, the International Seabed Authority, to grant title to mine sites and establish necessary ground rules. The system was substantially modified by the 1994 Agreement, discussed below.

The Convention sets forth a comprehensive legal framework and basic obligations for protecting the marine environment from all sources of pollution, including pollution from vessels, from dumping, from seabed activities and from land-based activities. It creates a positive and unprecedented regime for marine environmental protection that will compel parties to come together to address issues of common and pressing concern. As such, the Convention is the strongest comprehensive environmental treaty now in existence or likely to emerge for quite some time.

The essential role of marine scientific research in understanding and managing the oceans is also secured. The Convention affirms the right of all States to conduct marine scientific research and sets forth obligations to promote and cooperate in such research. It confirms the rights of coastal States to require consent for such research undertaken in marine areas under their jurisdiction. These rights are balanced by specific criteria to ensure that coastal States exercise the consent authority in a predictable and reasonable fashion to promote maximum access for research activities.

The Convention establishes a dispute settlement system to promote compliance with its provisions and the peaceful settlement of disputes. These procedures are flexible, in providing options as to the appropriate means and fora for resolution of disputes, and comprehensive, in subjecting the bulk of the Convention’s provisions to enforcement through binding mechanisms. The system also provides Parties the means of excluding from binding dispute settlement certain sensitive political and defense matters.

Further analysis of provisions of the Convention’s 17 Parts, comprising 320 articles and nine Annexes, is set forth in the Commentary that is enclosed as part of this Report [but not included in these materials].

Similar objections to Part XI also deterred all other major industrialized nations from adhering to the Convention. However, as a result of the important international political and economic changes of the last decade—including the end of the Cold War and growing reliance on free market principles—widespread recognition emerged that the seabed mining regime of the Convention required basic change in order to make it generally acceptable. As a result, informal negotiations were launched in 1990, under the auspices of the United Nations Secretary-General, that resulted in adoption of the Agreement on July 28, 1994.

The legally binding changes set forth in the Agreement meet the objections of the United States to Part XI of the Convention. The United States and all other major industrialized nations have signed the Agreement.

The provisions of the Agreement overhaul the decision-making procedures of Part XI to accord the United States, and others with major economic interests at stake, adequate influence over future decisions on possible deep seabed mining. The Agreement guarantee[s] a seat for the United States on the critical executive body and requires a consensus of major contributors for financial decisions.

The Agreement restructures the deep seabed mining regime along free market principles and meets the U.S. goal of guaranteed access by U.S. firms to deep seabed minerals on the basis of reasonable terms and conditions. It eliminates mandatory transfer of technology and production controls. It scales back the structure of the organization to administer the mining regime and links the activation and operation of institutions to the actual development of concrete commercial interest in seabed mining. A future decision, which the United States and a few of its allies can block, is required before the organization’s potential operating arm (the Enterprise) may be activated, and any activities on its part are subject to the same requirements that apply to private mining companies. States have no obligation to finance the Enterprise, and subsidies inconsistent with GATT are prohibited.

The Agreement provides for grandfathering the seabed mine site claims established on the basis of the exploration work already conducted by companies holding U.S. licenses on the basis of arrangements `similar to and no less favorable than’ the best terms granted to previous claimants; further, it strengthens the provisions requiring consideration of the potential environmental impacts of deep seabed mining.

The Agreement provides for its provisional application from November 16, 1994, pending its entry into force. Without such a provision, the Convention would enter into force on that date with its objectionable seabed mining provisions unchanged. Provisional application may continue only for a limited period, pending entry into force. Provisional application would terminate on November 16, 1998, if the Agreement has not entered into force due to failure of a sufficient number of industrialized States to become Parties. Further, the Agreement provides flexibility in allowing States to apply it provisionally in accordance with their domestic laws and regulations.

In signing the agreement on July 29, 1994, the United States indicated that it intends to apply the agreement provisionally pending ratification. Provisional application by the United States will permit the advancement of U.S. seabed mining interests by U.S. participation in the International Seabed Authority from the outset to ensure that the implementation of the regime is consistent with those interests, while doing so consistent with existing laws and regulations.

Further analysis of the Agreement and its Annex, including analysis of the provisions of Part XI of the Convention as modified by the Agreement, is also set forth in the Commentary that follows.

STATUS OF THE CONVENTION AND THE AGREEMENT

One hundred and fifty-two States signed the Convention during the two years it was open for signature. As of September 8, 1994, 65 States had deposited their instruments of ratification, accession or succession to the Convention. The Convention will enter into force for these States on November 16, 1994, and thereafter for other States 30 days after deposit of their instruments of ratification or accession.

The United States joined 120 other States in voting for adoption of the Agreement on July 28, 1994; there were no negative votes and seven abstentions. As of September 8, 1994, 50 States and the European Community have signed the Agreement, of which 19 had previously ratified the Convention. Eighteen developed States have signed the Agreement, including the United States, all the members of the European Community, Japan, Canada and Australia, as well as major developing countries, such as Brazil, China and India.

….

Respectfully submitted,

Warren Christopher [Secretary of State].

[Note: A letter from then-Secretary of Defense William J. Perry, also endorsing the Convention and Agreement, immediately follows the letter from the Secretary of State in the Congressional Record.]

Section Three

The US Senate and the Termination of Treaties:

Foreign-Relations Law and Goldwater v. Carter

The case below, Goldwater v. Carter, was generated by President Carter’s recognition of the People’s Republic of China as the government of China—more specifically, by his announcement, just days after recognizing the PRC and de-recognizing Taiwan, that the US intended to terminate its Mutual Defense Treaty with Taiwan.

As previously discussed, Article 2, section 2 of the US Constitution provides, inter alia, that the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur … .”

In the mid-1950s, President Eisenhower had signed, and the Senate had approved, the Mutual Defense Treaty with Taiwan in the mid-1950s. When President Carter notified Taiwanese authorities that he was terminating the Mutual Defense Treaty, he had not obtained prior Senate approval, nor did he seek subsequent Senate approval. Senator Barry Goldwater (R, AZ) brought suit, alleging that not only the making but also the un-making of this particular treaty required Senate approval. Goldwater v. Carter is therefore not a case about the application of a rule of international law in a US court, but rather a case in a US court about US law concerning the relative powers of the US executive and US legislative branches to make US foreign policy, i.e., to terminate a treaty to which the US is bound. Such an issue is typically called one of “foreign-relations law.”

The DC Circuit ruled that President Carter’s termination of the Mutual Defense Treaty was constitutionally valid without Senate approval. The US Supreme Court granted certiorari and effectively validated the outcome of the DC Circuit’s opinion. The Supreme Court did so, however, without reaching the substantive questions addressed by the DC Circuit. Instead, the Supreme Court decided the case on the procedural ground that the case presented a “nonjusticiable political question.” The Supreme Court therefore vacated and remanded the DC Circuit’s opinion with instructions to dismiss the case. With Senator Goldwater’s legal challenge dismissed, President Carter’s termination of the treaty stood.

Below is a very brief discussion related to the DC Circuit’s opinion in the case, followed by excerpts from the DC Circuit’s opinion and then by excerpts from the Supreme Court’s opinion.

The DC Circuit’s decision in Goldwater v. Carter, excerpted immediately below, is fairly complex for an opinion of a circuit court. The case involved both procedural and substantive issues. Additionally, because the case was heard en banc, the odds of having a multiplicity of separate opinions presumably increased—and, in this instance, those odds “paid out” with three separate opinions, two of which are excerpted below.

Because the US Supreme Court vacated the DC Circuit’s opinion, the DC Circuit’s opinion is not valid precedent. The DC Circuit opinion is nonetheless a very useful discussion of the relevant law, as well as a useful illustration of the method employed by judges deciding many foreign-relations cases involving constitutional law. In other words, the DC Circuit opinion is a good illustration of how foreign-relations law is made, even though the opinion did not itself wind up making foreign-relations law.

Senator Barry Goldwater et al.

v. James Earl Carter,

President of the United States, et al.

617 F.2d 697

Reproduced for Educational Purposes Only.

No Charge for Distribution.

Copr. © West 1997 No Claim to Orig. U.S. Govt. Works

United States Court of Appeals, District of Columbia Circuit.

Argued en banc Nov. 13, 1979.

Decided Nov. 30, 1979.

As Amended Dec. 5, 1979.

Judgment Vacated [by US Supreme Court] Dec. 13, 1979.

Various members of Congress filed suit seeking declaratory and injunctive relief to prevent termination of a mutual defense treaty with the Republic of China without senatorial or congressional consent. The United States District Court for the District of Columbia, dismissed the suit for lack of standing. Subsequently, [that court] granted a motion to alter and amend and granted plaintiffs’ cross-motion for summary judgment and appeal was taken. The Court of Appeals held that: (1) plaintiffs had standing, and (2) in light of President’s power to recognize People’s Republic of China as sole legal government of China and to de-recognize Republic of China, President did not exceed his authority in terminating mutual defense treaty with Republic of China in accordance with treaty’s termination clause, which was without conditions and without designation as to who was empowered to terminate it, without obtaining two-thirds Senate consent or majority consent in both houses.

Reversed.

...

Before WRIGHT, Chief Judge, and McGOWAN, TAMM, LEVENTHAL,[1] ROBINSON, MacKINNON, WILKEY and WALD, Circuit Judges.

Opinion for the court PER CURIAM.

Opinion concurring in the result, in which Circuit Judge TAMM joins, filed by Chief Judge WRIGHT.

Opinion dissenting in part and concurring in part filed by Circuit Judge MacKINNON.

PER CURIAM:

The court en banc has before it for review the judgment of the District Court that the notice of termination given by the President pursuant to the terms of the Mutual Defense Treaty with the Republic of China is ineffective absent either (1) a manifestation of the consent of the Senate to such termination by a two-thirds vote or (2) an approving majority vote therefor by both houses of Congress. The preliminary questions we confront are, first, whether the District Court was without jurisdiction because appellees lacked standing, and, second, whether it should in any event have declined to exercise jurisdiction by reason of the political nature of the question it was called upon to decide. Since a majority of the court does not exist to dispose of the appeal on either of these bases[2], we reach the merits and reverse.

…

In doing so, however, we think it important at the outset to stress that the Treaty, as it was presented to the Senate in 1954 and consented to by it, contained an explicit provision for termination by either party on one year’s notice. The Senate, in the course of giving its consent, exhibited no purpose and took no action to reserve a role for itself by amendment, reservation, or condition in the effectuation of this provision. Neither has the Senate, since the giving of the notice of termination, purported to take any final or decisive action with respect to it, either by way of approval or disapproval. The constitutional issue we face, therefore, is solely and simply the one of whether the President in these precise circumstances is, on behalf of the United States, empowered to terminate the Treaty in accordance with its terms. It is our view that he is, and that the limitations which the District Court purported to place on his action in this regard have no foundation in the Constitution.

BACKGROUND

In the aftermath of the Chinese Revolution and the Korean War, the United States and the Republic of China (ROC) negotiated a Mutual Defense Treaty, primarily directed against the perceived threat from the People’s Republic of China (PRC). The Treaty was signed by representatives of both nations on December 2, 1954. It was approved by the Senate, and finally signed by the President on February 11, 1955. Article V of the Treaty provided that, in the event of an attack on Taiwan, the Pescadores, or United States territories in the western Pacific, each nation “would act to meet the common danger in accordance with its constitutional processes.” Article X of the Treaty provided that it would remain in force “indefinitely,” but said that “[e]ither Party may terminate it one year after notice has been given to the other Party.”

At that time both the ROC and PRC claimed—and still claim—to be the sole legitimate government of China; both considered Taiwan a part of China. Since then over 100 nations, including all of our NATO allies and Japan, have officially recognized the PRC as the sole government of China, breaking off relations with Taiwan. In 1971 the United Nations admitted delegates from the PRC to the seats reserved for China in the General Assembly and Security Council, and expelled those from the ROC.

In the early 1970’s the United States began to pursue a policy of closer relations with the PRC. The early stage of this effort culminated in President Nixon’s visit to the mainland of China, during which the two nations released the “Shanghai Communiqué,” “declaring the goal of “normalization of relations between China and the United States.” The PRC stipulated that full mutual diplomatic recognition was preconditioned on United States agreement to cease all diplomatic and other official relations with the ROC, to withdraw United States military units from Taiwan, and to terminate the Mutual Defense Treaty with the ROC.

In September 1978 Congress passed and the President signed the International Security Assistance Act of 1978, Pub. L. No. 95-384, 92 Stat. 746. Section 26 of that Act, called the “Dole-Stone Amendment,” provided:

It is the sense of the Congress that there should be prior consultation between the Congress and the executive branch on any proposed policy changes affecting the continuation in force of the Mutual Defense Treaty of 1954.

On December 15, 1978 President Carter announced that the United States would recognize the PRC as the sole government of China, effective January 1, 1979, and would simultaneously withdraw recognition from the ROC. In addition, the United States announced that the ROC would be notified that “the Mutual Defense Treaty is being terminated in accordance with the provisions of the Treaty.” On December 23, 1978 the State Department formally notified the ROC that the Treaty would terminate on January 1, 1980.

While severing all official ties with the ROC, the United States has sought to preserve “extensive, close, and friendly commercial, cultural, and other relations between the people of the United States and the people on Taiwan.”[3] The Taiwan Relations Act, Pub. L. No.96-8, 93 Stat. 14, signed into law on April 10, 1979, established the statutory framework for such relations.[4] It provided:

For all purposes, including actions in any court in the United States, the Congress approves the continuation in force of all treaties and other international agreements, including multilateral conventions, entered into by the United States and the governing authorities on Taiwan recognized by the United States as the Republic of China prior to January 1, 1979, and in force between them on December 31, 1978, unless and until terminated in accordance with law.

Id. section 4(c).

On December 22, 1978 plaintiffs-appellees filed this suit in District Court, seeking declaratory and injunctive relief to prevent termination of the Treaty without senatorial or congressional consent. The complaint alleged that the President violated his sworn duty to uphold the laws, including the treaties, of the United States. It asserted that the President has no unilateral power under the Constitution to abrogate treaties, and that the United States, not the President, is the party invested by Article X of the Treaty with the power of termination.

…

***

II

Various considerations enter into our determination that the President’s notice of termination will be effective on January 1, 1980. The result we reach draws upon their totality, but in listing them hereinafter we neither assign them hierarchical values nor imply that any one factor or combination of factors is determinative.

1. We turn first to the argument, embraced by the District Court, drawn from the language of Article II, section 2, of the Constitution.[5] It is that, since the President clearly cannot enter into a treaty without the consent of the Senate, the inference is inescapable that he must in all circumstances seek the same senatorial consent to terminate that treaty. As a matter of language alone, however, the same inference would appear automatically to obtain with respect to the termination by the President of officers appointed by him under the same clause of the Constitution and subject to Senate confirmation. But the Supreme Court has read that clause as not having such an inevitable effect in any and all circumstances. [citations omitted] In the area of foreign relations in particular, where the constitutional commitment of powers to the President is notably comprehensive, it has never been suggested that the services of Ambassadors—appointed by the President, confirmed by the Senate, and of critical importance as they are to the successful conduct of our foreign relations—may not be terminated by the President without the prior authorization of that body.

…

2. The District Court’s declaration, in the alternative, that the necessary authority in this instance may be granted by a majority of each house of Congress presumably has its source in the Supremacy Clause of Article VI.[6] The argument is that a treaty, being a part of the “supreme Law of the Land,” can only be terminated at the least by a subsequent federal statute.

The central purpose of the Supremacy Clause has been accepted to be that of causing each of the designated supreme laws—Constitution, statute, and treaty—to prevail, for purposes of domestic law, over state law in any form. Article VI speaks explicitly to the judges to assure that this is so. But these three types of supreme law are not necessarily the same in their other characteristics, any more than are the circumstances and terms of their creation the same. Certainly the Constitution is silent on the matter of treaty termination. And the fact that it speaks to the common characteristic of supremacy over state law does not provide any basis for concluding that a treaty must be unmade either by (1) the same process by which it was made, or (2) the alternative means by which a statute is made or terminated.

…

4. The Constitution specifically confers no power of treaty termination on either the Congress or the Executive. We note, however, that the powers conferred upon Congress in Article I of the Constitution are specific, detailed, and limited, while the powers conferred upon the President by Article II are generalized in a manner that bespeaks no such limitation upon foreign affairs powers. “Section 1. The executive Power shall be vested in a President . . . .”[7] Although specific powers are listed in Section 2 and Section 3, these are in many instances not powers necessary to an Executive, while “The executive Power” referred to in Section 1 is nowhere defined. There is no required two-thirds vote of the Senate conditioning the exercise of any power in Section 1.

...

The President is the constitutional representative of the United States with respect to external affairs. It is significant that the treaty power appears in Article II of the Constitution, relating to the executive branch, and not in Article I, setting forth the powers of the legislative branch. It is the President as Chief Executive who is given the constitutional authority to enter into a treaty; and even after he has obtained the consent of the Senate it is for him to decide whether to ratify a treaty and put it into effect. Senatorial confirmation of a treaty concededly does not obligate the President to go forward with a treaty if he concludes that it is not in the public interest to do so.

Thus, in contrast to the lawmaking power, the constitutional initiative in the treaty-making field is in the President, not Congress. It would take an unprecedented feat of judicial construction to read into the Constitution an absolute condition precedent of congressional or Senate approval for termination of all treaties, similar to the specific one relating to initial approval. And it would unalterably affect the balance of power between the two Branches laid down in Articles I and II.

5. Ultimately, what must be recognized is that a treaty is sui generis. It is not just another law. It is an international compact, a solemn obligation of the United States and a “supreme Law” that supersedes state policies and prior federal laws. For clarity of analysis, it is thus well to distinguish between treaty-making as an international act and the consequences which flow domestically from such act. In one realm the Constitution has conferred the primary role upon the President; in the other, Congress retains its primary role as lawmaker. The fact that the Constitution, statutes, and treaties are all listed in the Supremacy Clause as being superior to any form of state law does not mean that the making and unmaking of treaties can be analogized to the making and unmaking of domestic statutes any more than it can be analogized to the making or unmaking of a constitutional amendment.

...

6. If we were to hold that under the Constitution a treaty could only be terminated by exactly the same process by which it was made, we would be locking the United States into all of its international obligations, even if the President and two-thirds of the Senate minus one firmly believed that the proper course for the United States was to terminate a treaty. Many of our treaties in force, such as mutual defense treaties, carry potentially dangerous obligations. These obligations are terminable under international law upon breach by the other party or change in circumstances that frustrates the purpose of the treaty. In many of these situations the President must take immediate action. The creation of a constitutionally obligatory role in all cases for a two-thirds consent by the Senate would give to one-third plus one of the Senate the power to deny the President the authority necessary to conduct our foreign policy in a rational and effective manner.

7. Even as to the formal termination of treaties, as the District Court pointed out, “a variety of means have been used to terminate treaties.”[8] There is much debate among the historians and scholars as to whether in some instances the legislature has been involved at all; they are agreed that, when involved, that involvement with the President has taken many different forms. It appears moreover that the Senate may wish to continue to determine the nature of its involvement on a case by case basis. 125 Cong.Rec. S16683-S16692 (daily ed. Nov. 15, 1979).

The District Court concluded that the diversity of historical precedents left an inconclusive basis on which to decide the issue of whether the President’s power to terminate a treaty must always be “shared” in some way by the Senate or Congress. We agree. Yet we think it is not without significance that out of all the historical precedents brought to our attention, in no situation has a treaty been continued in force over the opposition of the President.

There is on the other hand widespread agreement that the President has the power as Chief Executive under many circumstances to exercise functions regarding treaties which have the effect of either terminating or continuing their vitality. Prominent among these is the authority of the President as Chief Executive (1) to determine whether a treaty has terminated because of a breach, Charlton v. Kelly, 229 U.S. 447, 473-476, 33 S.Ct. 945, 57 L.Ed. 1274 (1913); and (2) to determine whether a treaty is at an end due to changed circumstances.

...

In short, the determination of the conduct of the United States in regard to treaties is an instance of what has broadly been called the “foreign affairs power” of the President. We have no occasion to define that term, but we do take account of its vitality. The Curtiss-Wright opinion, written by a Justice who had served in the United States Senate, declares in oft-repeated language that the President is “the sole organ of the federal government in the field of international relations.” That status is not confined to the service of the President as a channel of communication, as the District Court suggested, but embraces an active policy determination as to the conduct of the United States in regard to a treaty in response to numerous problems and circumstances as they arise.

...

9. The circumstances involved in the termination of the Mutual Defense Treaty with the Republic of China include a number of material and unique elements. Prominent is assertion by the officials of both the Republic of China and the People’s Republic of China that each of them is the government of China, intending the term China to comprehend both the mainland of China and the island of Taiwan. In the 1972 Shanghai Communiqué, the United States acknowledged that position and did not challenge it.[9] It is in this context that the recent Joint Communiqué set forth as of January 1, 1979 that the United States recognizes the People’s Republic of China as “the sole legal government of China.”[10] This action made reference to “the people of Taiwan,” stating that the peoples of the United States and Taiwan “will maintain cultural, commercial and other unofficial relations.” This formulation was confirmed by the Taiwan Relations Act.

It is undisputed that the Constitution gave the President full constitutional authority to recognize the PRC and to de-recognize the ROC.[11] What the United States has evolved for Taiwan is a novel and somewhat indefinite relationship, namely, of unofficial relations with the people of Taiwan. The subtleties involved in maintaining amorphous relationships are often the very stuff of diplomacy—a field in which the President, not Congress, has responsibility under our Constitution. The President makes a responsible claim that he has authority as Chief Executive to determine that there is no meaningful vitality to a mutual defense treaty when there is no recognized state.[12] That is not to say that the recognition power automatically gives the President authority to take any action that is required or requested by the state being recognized. We do not need to reach this question. Nevertheless, it remains an important ingredient in the case at bar that the President has determined that circumstances have changed so as to preclude continuation of the Mutual Defense Treaty with the ROC; diplomatic recognition of the ROC came to an end on January 1, 1979, and now there exists only “cultural, commercial and other unofficial relations” with the “people on Taiwan.”

10. Finally, and of central significance, the treaty here at issue contains a termination clause. The existence of Article X of the ROC treaty, permitting termination by either party on one year’s notice, is an overarching factor in this case, which in effect enables all of the other considerations to be knit together.

...

MacKINNON, Circuit Judge, dissenting in part and concurring in part.

I concur in the decision of a majority of my colleagues that the Senators and Representatives who are the plaintiffs in this action possess standing to have their grievance decided by this court, and that the question raised is not a “political” one that we should decline to adjudicate. We are not deciding a political question, but merely determining the procedure to be followed under the Constitution for the termination of a treaty. I disagree, however, with the majority’s conclusion on the merits that the Constitution confers the absolute power on the President, acting alone, to terminate this Mutual Defense Treaty. No prior President has ever claimed the absolute power to terminate such a treaty.

...

My interpretation is based on the admitted fact that the termination of treaties is not one of the enumerated powers of the Constitution. Rather it is an implied power vested in the government. As such, under the “Necessary and Proper” clause of Article I, Section 8, which the majority decision avoids like the plague, power is conferred upon “[t]he Congress” to pass a law to terminate treaties. Since the Constitution makes treaties along with other laws the “Law of the Land,” Article II, Section 2, a treaty is to be terminated in the same manner as any other “law”—by a formal act of Congress approved by the President. The language of the Constitution, its interpretation by the Framers, and historical precedent overwhelmingly support such a conclusion.

...

I The Enumerated Powers of the Constitution and the Power to Terminate Treaties.

The Constitution of the United States establishes a government of three departments, each with enumerated powers. One of the enumerated powers vested in the President is the power to “make Treaties, . . . provided two thirds of the Senators present concur . . .” Art. II, Section 2.[13] . . . “Treaties” so made and ratified, together with the Constitution and laws of the United States, become “the supreme Law of the Land . . .” Art. VI (Emphasis added).[14] While the power to “make treaties” is a constitutionally enumerated power, the power to repeal or terminate treaties is not one of the enumerated powers. Yet it is manifest that the termination of treaties is frequently necessary. It must thus be recognized that the power to terminate treaties is one of the implied powers that the Constitution implicitly vested in the Government when it provided for the “making” of treaties. The facts here present another case involving the power of Congress to legislate under the Necessary and Proper clause, as in Wayman v. Southard, 10 Wheat. (23 U.S.) 1, 20, 6 L.Ed. 253 (1825), where Chief Justice Marshall said: [it] “seems to be one of those plain propositions which reasoning cannot make plainer. The terms of the clause neither require nor admit of elucidation . . . .” Later, Justice Harlan in Neely v. Henkel, 180 U.S., 120, 21 S.Ct. 302, 45 L.Ed. 457 (1901), which held for a unanimous court that the necessary and proper clause applied to the treaty power and treaties executed thereunder, said:

The power of Congress to make all laws necessary and proper for carrying into execution as well the powers enumerated in section 8 of article I of the Constitution, as all others vested in the Government of the United States, or in any Department or the officers thereof, includes the power to enact such legislation as is appropriate to give efficacy to any stipulations which it is competent for the President by and with the advice and consent of the Senate to insert in a treaty with a foreign power.

180 U.S. at 121, 21 S.Ct. at 306 (Emphasis added). This clearly recognizes the power of Congress to enact legislation pursuant to the termination clause that President Eisenhower had inserted in the Taiwan Treaty. Missouri v. Holland, 252 U.S. 416, 432, 49 S.Ct. 382, 64 L.Ed. 641 (1920) also squarely holds that the necessary and proper clause applies to treaty provisions.

It is thus submitted that since the exercise of the power to terminate treaties, which have the status of law of the land, requires passage of a repealing law, it is Congress’ responsibility under the Necessary and Proper Clause to do so. In Article I, Section 8, the Clause provides:

The Congress shall have Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing [enumerated] Powers, and all other [implied] Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof. (Emphasis added).

When Congress passes an act terminating a treaty, it makes a law, as is illustrated by the Act of July 7, 1798,[15] the first instance of treaty termination by the United States.

It is significant that Thomas Jefferson interpreted the Constitution as placing the power to terminate treaties in Congress and so declared in his “Manual,” which as a guide for Congressional procedure persists to this day:

Treaties being declared, equally with the laws of the United States, to be the supreme law of the land, it is understood that an act of the legislature alone can declare them infringed and rescinded. This was accordingly the process adopted in the case of France in 1798.

Jefferson’s Manual, Rules and Practices, House of Representatives, 96th Congress, section 599, at 274 (1979). (Emphasis added).

...

...

Although no court has directly addressed the issue of the constitutionality of a unilateral Presidential treaty termination, several courts have addressed the issue tangentially. In Ware v. Hylton, 3 Dallas (3 U.S.) 199, 260, 1 L.Ed. 568 (1796), Justice Iredell was asked to find that a treaty with Great Britain had been breached by that party and was therefore unenforceable against US citizens. Justice Iredell declined to hold that the treaty was vacated, stating that this decision “must be grounded on the solemn declaration of congress alone (to whom, I conceive, the authority is intrusted).” This could only be grounded on the necessary and proper clause and Congressional power to legislate.

...

Treaties are not supreme over acts of Congress but by the Constitution are made of like obligation as an act of legislation. Whitney v. Robertson, 124 U.S. 190, 195, 8 S.Ct. 456, 459, 31 L.Ed. 386 (1888): (“[s]o far as a treaty made by the United States with any foreign nation can be the subject of judicial cognizance in the courts of this country, it is subject to such acts as congress may pass for its enforcement, modification, or repeal.” (Emphasis added)); Boudinot v. U. S. (Cherokee Tobacco), 11 Wall. (78 U.S.) 616, 620-621, 20 L.Ed. 227 (1870) (“A treaty may supersede a prior act of Congress, and an act of Congress may supersede a prior treaty.”)

By giving treaties the status of supreme law of the land, equivalent to acts of Congress, the Framers rectified one of the weaknesses of the Articles of Confederation.[16] Although Congress had been delegated the treaty making power by that instrument, Congress had to depend upon the ratification and cooperation of state legislatures, which was not always forthcoming.

The equivalence of statutes and treaties as law of the land is of tremendous importance to this case. Because the Constitution makes treaties the law of the land, courts have consistently held that Congress has the right to amend or repeal treaties, as it has the power to amend or repeal statutes.

...

III The Historical Practice of Treaty Termination

A. The Termination of Treaties by Congress

The President’s review of the historical practice of treaty termination stands in direct conflict with that of Appellees. The President’s brief asserts:

There have been 26 instances of treaty termination actions taken by the President, App. 405-39, 683-98. In 13 of those instances the President acted without the participation of Congress . . . 11 of the 13 cases of presidential termination have occurred since the end of World War I.

Even accepting this statement as a correct description of the historical practice, on its face it admits that there have been 13 instances where the President acted with the participation of Congress.

...

B. The President’s Claim of Absolute Power to Terminate Treaties.

The President contends: “Past Practice of Treaty Termination confirms the President’s Power to Act Alone”, Appellant’s Br. 53. This claim of sole Presidential power is not supported by the examples set forth above. In support of his contention, however, he makes as his principal argument that “[i]n 13 of those [26] instances [of treaty terminations], the President acted without the participation of Congress . . .” Appellant’s Br. 54-55. (Emphasis added).

...

To summarize the 13 instances in which the appellant asserts that Presidents acted alone to such an extent that the courts should recognize that the President now has absolute power alone to terminate the Taiwan Treaty, the North Atlantic Treaty, the SALT Treaty, the Japanese Security Treaty and other treaties of similar magnitude: In five instances Congress by direct authorization, or inconsistent legislation supplied the basis for the President’s action; in two instances the putative abrogation was withdrawn and no termination resulted; one treaty was already terminated by the demise of the country; one treaty had become void by a change in the basic facts upon which the treaty was grounded; four treaties had already been abrogated by the other party; and of the two that were non-functioning the Trademark Treaty was not terminated. ...

...

In almost 200 years of American history these are the only instances that appellant has been able to dredge up in an effort to support his claim to absolute power. Analysis of such instances, however, does not support appellant’s contentions. It is almost farcical for appellant to contend that the President, acting alone, has absolute power to terminate a major United States defense treaty, and by the same token hereafter any defense treaty, because a few earlier Presidents withdrew financial support of a treaty bureau because of non-filing of trademarks by El Salvador, Honduras, Paraguay, et al., and terminated several violated treaties, or terminated treaties relating to a light house museum in Morocco, nomenclature in economic reports, smuggling with a country with whom we had no commercial treaty, or with respect to which notices of termination had been given and then withdrawn. On examination it appears that among the 13 instances upon which the President relies, there were only two minor treaties in which the President could be said to have acted alone since 1788. Reliance upon such miniscule precedent forcibly illustrates the great weakness in the President’s claim to absolute power in the present circumstances involving a Defense Treaty.

...

IV Foreign Affairs within the Constitutional Scheme

A. The Curtiss-Wright Case.

The President asks this court to provide him with absolute power to terminate all treaty obligations of the United States. This claim of absolute Presidential power is of the same breadth as the power to seize the steel mills that President Truman claimed and was denied in Youngstown Steel & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952). President Carter argues that this unchecked power is a necessary incident of his power to recognize foreign governments, and is consistent with the panoply of foreign affairs powers that the Supreme Court in United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255 (1936) held that he was authorized to exercise. Although the President as our national actor on the world stage plays the lead, Congress too, has been cast by the Constitution in an important role. Neither the Curtiss-Wright decision nor the President’s constitutional authority in foreign affairs should be construed to infringe upon Congress’ exercise of its constitutional right to exercise “all legislative powers . . . granted” by the Constitution, or allowed to undermine our constitutional scheme of checks and balances.

The President’s authority in foreign affairs is that of head of state. Through his office the actual contacts involved in international relations are carried out. But this power, as Justice Sutherland stated in Curtiss-Wright, “must be exercised in subordination to the applicable provisions of the Constitution.” 299 U.S. at 320, 57 S.Ct. at 221. Hence, when in the conduct of foreign affairs, a legislative function is implicated, the President’s power must be accommodated to a congressional exercise of power. The negotiation of treaties, being an executive function by the Constitution, is within the presidential prerogative, subject to Senate approval, or possible amendment. So too, the negotiation to end treaties, if negotiations there be, may be a presidential function. Yet when the negotiations, or other determinations, lead to a presidential decision to terminate a treaty, a law is necessary and thus the next required step is legislative. As law of the land, a treaty must be repealed by Congress as the body charged by our Constitution with the legislative function.

...

V Conclusion

As modern communications, transportation, and military power increasingly bring the perils and problems of the entire globe into our daily consciousness, our national concerns become international. Foreign affairs become our national affairs. Hence, to the extent that we complacently grant to the President unbridled power in the international realm, we increase his power nationally, to an ever expanding degree.

...

The appetite of the presidential office will be whetted by the court’s decision today. In future years, a voracious President and Department of State may easily use this grant of absolute power to the President to develop other excuses to feed upon congressional prerogatives that a Congress lacking in vigilance allows to lapse into desuetude.

I would instead preserve the congressional function of treaty termination, recognizing that exercise of this power requires a majority vote of Congress and the approval of the President. Accordingly, I respect fully dissent and would affirm the decision of the District Court to the extent that it requires an act of Congress and approval thereto by the President. It is erroneous for the majority opinion to assert that my “position . . . requires a reversal of the District Court.”

Questions

(1) Do the various opinions in this case use any legal texts (constitutions, statutes, cases, etc.) as support for their arguments? If so, which kinds of legal texts do they use?

(2) Do the legal texts resolve the question before the court?

(3) Do the various opinions in this case use any non-legal sources for their arguments? If so, do these sources resolve the question before the court?

Below is the opinion of the US Supreme Court in this case. There are at least five different positions taken in the case by members of the Court. Some reflect differences of opinion concerning the proper way to proceed with the case within the rules of the Supreme Court itself (i.e., whether the case should be decided summarily by the Court or only after full argument), while other differences are of the more traditional variety.

The crucial opinion in the way that the case actually came out appears to be that of Justice Powell. (Four other Justices joined in an opinion resolving the case with the judgment supported by Justice Powell; a fifth Justice concurred in the result but filed no opinion.) Justice Powell was often the crucial (or “swing”) vote in cases decided while he served on the Supreme Court.

Barry Goldwater et al.

v.

James Earl Carter,

President of the United States, et al.

444 U.S. 996 (1979)

Reproduced for Educational Purposes Only.

No Charge for Distribution.

Copr. © West 1997 No Claim to Orig. U.S. Govt. Works

Footnotes have been re-designated.

Certiorari Granted—Vacated and Remanded

… Certiorari granted, judgment vacated, and case remanded with directions to dismiss the complaint. Mr. Justice Marshall concurs in the result. Mr. Justice Powell concurs in the judgment and filed a statement. Mr. Justice Rehnquist concurs in the judgment and filed a statement in which The Chief Justice, Mr. Justice Stewart, and Mr. Justice Stevens join. Mr. Justice White and Mr. Justice Blackmun join in the grant of the petition for writ of certiorari but would set the case for argument and give it plenary consideration. Mr. Justice Blackmun filed a statement in which Mr. Justice White joins. Mr. Justice Brennan would grant the petition for writ of certiorari and affirm the judgment of the Court of Appeals and filed a statement. Reported below: 199 U.S. App. D. C. 115, 617 F. 2d 697.

Mr. Justice REHNQUIST, with whom THE CHIEF JUSTICE, Mr. Justice STEWART, and Mr. Justice STEVENS join, concurring in the judgment.

I am of the view that the basic question presented by the petitioners in this case is “political” and therefore non-justiciable because it involves the authority of the President in the conduct of our country’s foreign relations and the extent to which the Senate or the Congress is authorized to negate the action of the President. In Coleman v. Miller, 307 U.S. 433 (1939), a case in which members of the Kansas Legislature brought an action attacking a vote of the State Senate in favor of the ratification of the Child Labor Amendment, Mr. Chief Justice Hughes wrote in what is referred to as the “Opinion of the Court”:

We think that . . . the question of the efficacy of ratifications by state legislatures, in the light of previous rejection or attempted withdrawal, should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the Amendment.

The precise question as now raised is whether, when the legislature of the State, as we have found, has actually ratified the proposed amendment, the Court should restrain the state officers from certifying the ratification to the Secretary of State, because of an earlier rejection, and thus prevent the question from coming before the political departments. We find no basis in either Constitution or statute for such judicial action. Article V, speaking solely of ratification, contains no provision as to rejection. . . .

Id., at 450.

Thus, Mr. Chief Justice Hughes’ opinion concluded that “Congress in controlling the promulgation of the adoption of a constitutional amendment has the final determination of the question whether by lapse of time its proposal of the amendment had lost its vitality prior to the required ratifications.” Id., at 456.

I believe it follows a fortiori from Coleman that the controversy in the instant case is a non-justiciable political dispute that should be left for resolution by the Executive and Legislative Branches of the Government. Here, while the Constitution is express as to the manner in which the Senate shall participate in the ratification of a treaty, it is silent as to that body’s participation in the abrogation of a treaty. In this respect the case is directly analogous to Coleman, supra. As stated in Dyer v. Blair, 390 F.Supp. 1291, 1302 (N.D.Ill.1975) (three-judge court):

A question that might be answered in different ways for different amendments must surely be controlled by political standards rather than standards easily characterized as judicially manageable.

In light of the absence of any constitutional provision governing the termination of a treaty, and the fact that different termination procedures may be appropriate for different treaties (see, e. g., n. 1, infra), the instant case in my view also “must surely be controlled by political standards.”

I think that the justifications for concluding that the question here is political in nature are even more compelling than in Coleman because it involves foreign relations—specifically a treaty commitment to use military force in the defense of a foreign government if attacked. In United States v. Curtiss-Wright Corp., 299 U.S. 304[, 315] (1936), this Court said:

Whether, if the Joint Resolution had related solely to internal affairs it would be open to the challenge that it constituted an unlawful delegation of legislative power to the Executive, we find it unnecessary to determine. The whole aim of the resolution is to affect a situation entirely external to the United States, and falling within the category of foreign affairs. . . . [citation omitted]

The present case differs in several important respects from Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), cited by petitioners as authority both for reaching the merits of this dispute and for reversing the Court of Appeals. In Youngstown, private litigants brought a suit contesting the President’s authority under his war powers to seize the Nation’s steel industry, an action of profound and demonstrable domestic impact. Here, by contrast, we are asked to settle a dispute between coequal branches of our Government, each of which has resources available to protect and assert its interests, resources not available to private litigants outside the judicial forum. Moreover, as in Curtiss-Wright, the effect of this action, as far as we can tell, is “entirely external to the United States, and [falls] within the category of foreign affairs.” Finally, as already noted, the situation presented here is closely akin to that presented in Coleman, where the Constitution spoke only to the procedure for ratification of an amendment, not to its rejection.

Having decided that the question presented in this action is non-justiciable, I believe that the appropriate disposition is for this Court to vacate the decision of the Court of Appeals and remand with instructions for the District Court to dismiss the complaint.

Mr. Justice BLACKMUN, with whom Mr. Justice WHITE joins, dissenting in part.

In my view, the time factor and its importance are illusory; if the President does not have the power to terminate the treaty (a substantial issue that we should address only after briefing and oral argument), the notice of intention to terminate surely has no legal effect. It is also indefensible, without further study, to pass on the issue of justiciability or on the issues of standing or ripeness. While I therefore join in the grant of the petition for certiorari, I would set the case for oral argument and give it the plenary consideration it so obviously deserves.

Mr. Justice BRENNAN, dissenting.

I respectfully dissent from the order directing the District Court to dismiss this case, and would affirm the judgment of the Court of Appeals insofar as it rests upon the President’s well-established authority to recognize, and withdraw recognition from, foreign governments. App. to Pet. for Cert. 27A- 29A.

In stating that this case presents a non-justiciable “political question,” Mr. Justice REHNQUIST, in my view, profoundly misapprehends the political-question principle as it applies to matters of foreign relations. Properly understood, the political-question doctrine restrains courts from reviewing an exercise of foreign policy judgment by the coordinate political branch to which authority to make that judgment has been “constitutional[ly] commit[ted].” Baker v. Carr, 369 U.S. 186, 211-213 (1962). But the doctrine does not pertain when a court is faced with the antecedent question whether a particular branch has been constitutionally designated as the repository of political decision-making power. Cf. Powell v. McCormack, 395 U.S. 486, 519-521 (1969). The issue of decision-making authority must be resolved as a matter of constitutional law, not political discretion; accordingly, it falls within the competence of the courts.

Questions

(1) (a) How many judges participated in deciding the DC Circuit’s version of Goldwater v. Carter? How many of them thought that the political-question doctrine was crucial to the outcome in the case?

(2) Goldwater v. Carter raised a question of constitutional law: Can the President terminate an unbreached treaty without the Senate’s consent? Because the Supreme Court considered this question to be a non-justiciable political question, the Supreme Court refused to answer that question.

(a) Isn’t deciding issues of constitutional law the whole point of having a Supreme Court ?

(b) If the question of whether the President can unilaterally terminate a treaty is a nonjusticiable political question, is such a question of constitutional law really “law” at all?

(c) If the Supreme Court isn’t going to decide questions like those raised in Goldwater v. Carter, who will?

-----------------------

[1] Circuit Judge Leventhal participated in the consideration of this case but died before the decision and judgment were announced.

[2] In a separate concurring opinion, Judges Wright and Tamm have limited their consideration to the question of standing; and, finding that none exists, vote to reverse the District Court. There are no votes to reverse founded upon the political-question doctrine.

[3] Taiwan Relations Act, Pub. L. No.96-8, 93 Stat. 14, section 2(b)(1) (April 10, 1979). Relations between the United States Government and the authorities on Taiwan are conducted through a nonprofit corporation, the American Institute in Taiwan. Id. section 6.

[4] Section 3 of the Act authorizes the United States to provide defense material to Taiwan, and says that “(t)he President and the Congress shall determine the nature and quantity of such defense articles and services based solely upon their judgment of the needs of Taiwan.” It further directs the President to report to the Congress on “any threat to the security or the social or economic system of the people on Taiwan and any danger to the interests of the United States arising therefrom.” The President and the Congress then “shall determine * * * appropriate action by the United States in response to any such danger.” Id. section 3.

[5] The President’s powers are there stated in the following terms: “He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls ... .”

[6] “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding”.

[7] Contrastingly, Article I, Section 1, provides: “All legislative Powers herein granted shall be vested in a Congress of the United States . . . .” (emphasis supplied).

[8] “Since the first treaty to which the United States was a party was terminated in 1798 by an act of Congress, a variety of means have been used to terminate treaties: by statute directing the President to deliver notice of termination; by the President acting pursuant to a joint resolution of Congress or otherwise acting with the concurrence of both houses of Congress; by the President acting with senatorial consent; and by the President acting alone.”

Goldwater v. Carter, 481 F.Supp. at 959 (D.D.C.1979) (footnotes omitted).

[9] The United States declared: “The United States acknowledges that all Chinese on either side of the Taiwan Strait maintain there is but one China and that Taiwan is a part of China. The United States Government does not challenge that position.” 66 Dep’t State Bull. 435 (1972).

[10] “The United States of America recognizes the Government of the People’s Republic of China as the sole legal Government of China. Within this context, the people of the United States will maintain cultural, commercial, and other unofficial relations with the people of Taiwan.” 14 Weekly Comp. of Pres. Doc. 2264 (Dec. 18, 1978).

[11] See United States v. Pink 315 U.S. 203,229-230, 62 S.Ct. 552, 86 L.Ed. 796 (1942); United States v. Belmont, 301 U.S. 324, 330, 57 S. Ct. 758, 81 L. Ed. 1134 (1937); U.S. Const. art. II section 3 (the President “shall receive Ambassadors and other public Ministers”).

[12] Appellees urge that the Treaty had continuing validity because of the de facto existence of Taiwan. What government de facto or de jure is representative of a foreign state is a question to be determined by the political department, and thus is beyond the ambit of judicial review. United States v. Pink, 315 U.S. 203, 229, 62 S.Ct. 552, 86 L.Ed. 796 (1942); Jones v. United States, 137 U.S. 202,212-14, 11 S.Ct. 80, 34 L.Ed. 691 (1890).

[13] Article II, Section 2 of the U.S. Constitution provides: “The President . . . shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; . . .”

[14] Article VI of the U.S. Constitution provides: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; . . .”

[15] The Act of July 7, 1798 provided: “Chap. LXVII. An Act to declare the treaties heretofore concluded with France, no longer obligatory on the United States. Whereas the treaties concluded between the United States and France have been repeatedly violated on the part of the French government; and the just claims of the United States for reparation of the injuries so committed have been refused, and their attempts to negotiate an amicable adjustment of all complaints between the two nations, have been repelled with indignity: ... Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the United States are of right freed and exonerated from the stipulations of the treaties, and of the consular convention, heretofore concluded between the United States and France; and that the same shall not henceforth be regarded as legally obligatory on the government or citizens of the United States”. Approved, July 7, 1798. 1 Stat. 578.

[16] Article IX of the Articles of Confederation granted the treaty making power to Congress and: provided that no treaty of commerce shall be made whereby the legislative power of the respective “states shall be restrained from imposing such imposts and duties on foreigners, as their own people are subjected to, or from prohibiting the exportation or importation of any species of goods or commodities whatsoever . ...”

After the Constitution had replaced the Articles of Confederation, Mr. Justice Bradley noted the rectification of the problems sighted by Hamilton: ” The United States is not only a … government, but it is a National government. It is invested with power over all the foreign relations of the country, war, peace and negotiations with other nations; all of which are forbidden to the State governments”. Knox v. Lee, 12 Wall. (79 U.S.) 457, 555, 20 L.Ed. 287.

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