The supremacy clause of the U.S. Constitution (Article VI, paragraph 2), states that: "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." Show
The clause entails that, in cases where state laws conflict with or impede the enforcement of federal laws or interfere with the federal government’s exercise of its express or implied powers under the U.S. Constitution, state laws are preempted. The supremacy clause is important and necessary because without it the inevitable conflict between state and federal laws would render the federal government hopelessly unstable and ineffective. As James Madison argued in Federalist 44, “Restrictions on the Authority of the Several States”, "...as the constitutions of the States differ much from each other, it might happen that a treaty or national law, of great and equal importance to the States, would interfere with some and not with other constitutions, and would consequently be valid in some of the States, at the same time that it would have no effect in others. In fine, the world would have seen, for the first time, a system of government founded on an inversion of the fundamental principles of all government; it would have seen the authority of the whole society every where subordinate to the authority of the parts; it would have seen a monster, in which the head was under the direction of the members."
Today, it is widely accepted that the Constitution authorizes courts to review and invalidate state laws that conflict with federal statutes. At the same time, prominent commentators and even some judges maintain that courts should not seriously review the constitutionality of federal statutes alleged to exceed the scope of Congress' enumerated powers. In their view, the constitutional structure protects the states (and thereby reduces the need for judicial review of federal power), but establishes no comparable safeguards to deter states from interfering with federal prerogatives. Contrary to this position, there is an express textual basis for judicial review of federal statutes alleged to exceed Congress' enumerated powers. The Supremacy Clause establishes a rule of decision for courts adjudicating the rights and duties of parties under both state and federal law. Under our federal system, the States possess sovereignty concurrent with that of the Federal Government, subject only to limitations imposed by the Supremacy Clause. The Clause, in turn, designates as the supreme Law of the Land only those Laws of the United States . . . made in Pursuance of the Constitution. If a federal statute satisfies this condition, courts must apply the statute notwithstanding contrary state law. If the federal statute fails this condition, however, it does not qualify as the supreme Law of the Land and courts remain free to apply state law. Thus, in order to apply the Supremacy Clause, courts must necessarily consider and resolve challenges to the constitutionality of federal statutes. The text, history, and structure of the Constitution confirm that the Supremacy Clause authorizes judicial review of federal statutes alleged to exceed the scope of federal power. The Founders considered three alternative mechanisms for resolving conflicts between state and federal law: coercive military force, congressional power to negative state laws, and adjudication under the Supremacy Clause. The decision to enlist courts - rather than Congress or the President - indicates that the Founders preferred to treat conflicts between state and federal law as judicial, rather than political questions. In addition, by expressly conditioning the supremacy of federal statutes on their constitutionality, the Supremacy Clause reassured the states that courts (both federal and state) would keep the federal government within the bounds of its assigned powers. Thus, in effect, the Clause reserves all remaining powers to the states, or to the people. These conclusions find support in the Supreme Court's early invocation of the Supremacy Clause to explain judicial review of federal statutes in cases like McCulloch v. Maryland and Gibbons v. Ogden.
Bradford R. Clark, The Supremacy Clause as a Constraint on Federal Power, 71 Geo. Wash. L. Rev. 91 (2003). Page 2
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Corporate governance (gongsi zhili) is a concept whose time seems definitely to have come in China. Chinese definitions of corporate governance in the abstract tend to cover the system regulating relationships among all parties with interests in a business organization, usually spelling out shareholders as a particularly important group (e.g., Liu, 1999; Yin, 1999). But Chinese corporate governance discourse in practice focuses almost exclusively on agency problems and within only two types of firms: state-owned enterprises (SOEs), particularly after their transformation into one of the corporate forms provided for under the Company Law,1 and listed companies, which must be companies limited by shares (CLS) under the Company Law. This article discusses Chinese corporate governance in this narrow sense and attempts to explain some perplexing features of its discourse, laws, and institutions (abbreviated hereinafter as ‘‘corporate governance laws and institutions’’ or CGLI). A fundamental dilemma of Chinese CGLI stems from the state policy of maintaining a full or controlling ownership interest in enterprises in several sectors. The state wants the enterprises it owns to be run efficiently, but not solely for the purpose of wealth maximization. If the state owned simply for the purpose of maximizing the economic value of its holdings, there would be no need for a policy mandating state ownership of enterprises. If the enterprise would be worth more managed by another, the state should seek a share of that increased value by selling. A policy of wealth maximization for the state requires simply that the state acquire, maintain, or relinquish control according to whatever will realize the most wealth for the state. Because the Chinese government clearly does not have such a policy, it follows that a necessary element of state control of an enterprise must be the use of that control for purposes other than the maximization of its wealth as a shareholder–purposes such as the maintenance of urban employment levels, direct control over sensitive industries, or politically motivated job placement. This in turn creates several problems. First, many of these goals are not easily measured and there is no obvious way of balancing them one against the other. This creates monitoring difficulties. Second, the policy of continued state involvement sets up a conflict of interest between the state as controlling shareholder and other shareholders. In using its control for purposes other than value maximization, the state exploits minority shareholders who have no other way to benefit from their investment. The major theme of this article is that the state wants to make SOEs operate more efficiently by subjecting them to a new and different set of rules—the rules of organization under the ‘‘modern enterprise system.’’ This is what the policy of corporatization is chiefly about. Policymakers then find, however, that they must change and adjust the rules to take account of continuing state ownership. Moreover, the need to provide for the special circumstances of state sector enterprises ends up hijacking the entire Company Law so that instead of state sector enterprises being made more efficient by being forced to follow the rules for private sector enterprises (the original ambition), potential private sector enterprises are hamstrung by having to follow rules that make sense only in a heavily stateinvested economy. Finally, corporate governance is about more than simply getting the rules right. The necessary supporting institutions must be present as well. Yet as I will argue, their existence in China cannot always be taken for granted.
14 China Econ. Rev. 494 (2003). Page 4
An important school of thought in institutional economics (the "Rights Hypothesis") holds that economic growth requires a legal order offering stable and predictable rights of property and contract because the absence of such rights discourages investment and specialization. Without the security of expectations offered by such a legal order, according to the Rights Hypothesis, the risks of a great number of otherwise beneficial transactions far outweigh their expected return, and as a result such transactions simply do not occur. Society is mired in an economy of short-term deals between actors bound by non-legal ties such as family solidarity which by their nature cannot bind large numbers of strangers. The history of China's post-Mao economic reform has provided interesting material against which to test the Rights Hypothesis. Two features of that history in particular stand out. First, the institutions by which rights are enforced, in particular courts, are perceived to be weak, and thus rights are perceived to be unenforceable. (It is perception, which determines whether persons are willing to invest and make deals, that counts for purposes of the Rights Hypothesis.) Second, China has indeed enjoyed substantial economic growth in recent years. There are many ways to interpret these observations. First, the hypothesis could be right and the observation of weak legal institutions wrong: rights are enforced in the system, but in a way that is not immediately apparent. Second, the hypothesis could be right and the observation of growth wrong: either the statistics are misleading, or growth is actually low relative to what it would have been with stronger legal institutions. Third, the hypothesis could simply be wrong: there is no strong link between legal institutions and economic growth. Each of the above interpretations has a certain plausibility. On the other hand, they cannot all be correct. In this paper I propose an understanding of Chinese legal institutions and their impact on economic transactions (and on investment in particular) that will allow us, if not to reconcile, at least to refine these different interpretations to make them less mutually inconsistent. More broadly, I will propose a reformulation of the Rights Hypothesis that retains the emphasis on security of property but substantially downgrades the importance of a formal legal system that provides effective enforcement of contract rights.
51 Am. J. Comp. L 89 (2003) Page 5
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A thorough examination of the much ballyhooed Sarbanes-Oxley Act reveals dominantly a federal codification of extant rules, regulations, practices, and norms. Despite advertising it as "the most far-reaching reforms of American business practices since the time of FDR," a soberly apolitical view sees the Act as more sweep than reform. Important are provisions calling for nine studies; redundant but much publicized were the certification requirements imposed during the summer of 2002; other moves are mere patchwork responses to precise transgressions present in the popularized scandals. The Act is far from trivial, however. A silver bullet relates to the structure and funding of those who set the standards for auditing and accounting in the United States. Stripped of power is the AICPA, and altered in funding structure is the FASB. All parties but Congress are singled out for a wrist-slapping (auditors, accountants, officers, directors and committee members, lawyers, securities analysts, credit rating agencies, investment banks and financial advisors, state corporate lawmakers, the SEC, the Federal Sentencing Commission and even the Supreme Court). No reexamanation of Congressional reforms relating to private securities litigation or the erstwhile barrier between investment and commercial banking appear. In fact there is implicit endorsement of the Congressional approach, rooted in the process and control philosophy of the Foreign Corrupt Practices Act, which the Act follows. This reading of the Act as modest is advanced in three stages of this Article. The first sets the background by summarizing the salient features of the dominant precipitating scandals and their times. The second stage dissects every material provision of the Act in context. The third and final stage suggests why the political rhetoric and substance diverged so widely, with illustrations of what a substantively bold Act might have looked like. Explaining the Act's rhetoric-reality yawn requires speculation but informed hunches readily emerge. On the one hand, Congress may have understood that the visible debacles were not chronic epidemics but discrete pathologies and their root causes were market psychology beyond its regulatory reach (hence a reformless Act). On the other, Congress knew that the public perceived an acute systemic crisis of power abuse they had no responsibility for creating (hence the "sweeping" rhetoric). Another explanation, which also explains the Act's call for so many studies, is that it is too soon to diagnose deep causes or broad shortcomings but that immediate action was politically expedient. The studies bridge the gap between action and knowledge, constituting continuing threats to their targets to abide by the spirit of the Act, a threat to make the "sweeping" rhetoric real "reform."
Lawrence A. Cunningham, The Sarbanes-Oxley Yawn: Heavy Rhetoric, Light Reform (And it Might Just Work), 35 Conn. L. Rev. 915 (2003). Page 14
The Promise of Hybrid Courts
Over the past decade, issues of accountability and reconciliation in the aftermath of mass atrocities have increasingly dominated the field of international human rights. Much of the discussion among scholars and policy-makers has focused on the relative merits of international tribunals - such as the International Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, and the newly created International Criminal Court (ICC) - and domestic approaches, such as local trials or truth commissions. Comparatively little attention has been paid, however, to a newly emerging form of accountability and reconciliation: hybrid domestic-international courts. Such courts are "hybrid" because both the institutional apparatus and the applicable law consist of a blend of the international and the domestic. Foreign judges sit alongside their domestic counterparts to try cases prosecuted and defended by teams of local lawyers working with those from other countries. The judges apply domestic law that has been reformed to accord with international standards. This hybrid model has developed in a range of settings, generally post-conflict situations where no politically viable full-fledged international tribunal exists, as in East Timor or Sierra Leone, or where an international tribunal exists but cannot cope with the sheer number of cases, as in Kosovo. Most recently, an agreement to create a hybrid court in Cambodia has been reached, and there is discussion about creating a such a court in post-war Iraq. Hybrid courts have not yet been the subject of sustained analysis, even among scholars and policy-makers who focus on transitional justice issues. This article seeks to fill that gap by identifying hybrid courts as an important area of future study and making a preliminary assessment of their potential strengths and weaknesses. I look at the Kosovo, East Timor, and Sierra Leone courts, and I suggest that such courts, while not perfect, hold considerable promise as a model, particularly with regard to their perceived legitimacy (among both international and domestic constituencies), their ability to catalyze local efforts to establish rule of law institutions, and their potential to foster the development of human rights norms within emerging legal systems. Finally, I discuss ways in which hybrid courts might fit into the ICC's complementarity regime. I argue that such courts are best seen not as alternative to international or local justice, but rather as an important complement to both.
Laura Dickinson, The Promise of Hybrid Courts, 97 Am. J. Int'l L. 295 (2003). Page 15
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Within a decade, the Internet has transformed into a global medium of mass communication and expression of all kinds. The Internet Corporation for Assigned Names and Numbers (ICANN), the body that governs the Internet's infrastructure, assured the United States that it would govern the Internet's infrastructure democratically and would implement governance structures to take into account the interests of affected Internet users around the world. In particular, ICANN promised to employ deliberative and representative democratic structures in its decision-making bodies. Even though ICANN has (arguably) implemented such procedural democratic norms, it has failed to implement substantive norms of democratic governance, most importantly, protection for freedom of expression. In this Article, I challenge the prevailing idea that ICANN's governance of the Internet's infrastructure does not threaten free speech and that ICANN's governance of the Internet therefore need not embody special protections for free speech. I argue that ICANN's authority over the Internet's infrastructure empowers it to enact regulations affecting speech within the most powerful forum for expression ever developed. ICANN cannot remain true to the democratic norms it was designed to embody unless it adopts policies to protect freedom of expression. While ICANN's recent self-evaluation and proposed reforms are intended to ensure compliance with its obligations under its governance agreement, these proposed reforms will render it less able to embody the norms of liberal democracy and less capable of protecting individuals' fundamental rights. Unless ICANN reforms its governance structure to render it consistent with the procedural and substantive norms of democracy articulated herein, ICANN should be stripped of its decision-making authority over the Internet's infrastructure. ICANN has two significant roles in regulating speech on the Internet. First, ICANN has established a policy that essentially prohibits websites from being maintained anonymously, which erects substantial barriers to individuals' ability to freely engage in anonymous Internet speech. Second, ICANN's policy for adjudicating disputes between intellectual property owners and domain name holders restricts Internet users' ability to engage in critical speech. These policies significantly affect Internet users' right to free speech, and thus ICANN serves a significant public ordering function with respect to speech on the Internet. As the functional equivalent of a public actor, ICANN should be held to the normative procedural and substantive ideals of democracy that we generally require of governments. In this Article, I set forth my conception of the normative procedural and substantive ideals of liberal democracy, with an eye toward how these ideals should be implemented in the context of Internet governance. I then examine whether ICANN's governance structure embodies the normative ideals of liberal democracy. While ICANN's framers committed it to procedural democratic norms, they failed to commit ICANN to substantive normative ideals integral to liberal democracy such as the protection of freedom of expression. Next, I provide concrete recommendations for ICANN to implement meaningful protections for freedom of expression by looking to the general themes and principles embodied within the United States' First Amendment jurisprudence. These First Amendment themes and principles should guide ICANN as it revises its policies to incorporate the liberal democratic norm of freedom of expression. I propose several ways in which ICANN should revise its policies to accord meaningful protection for freedom of expression. First, ICANN should allow Internet users' to maintain websites without requiring them to disclose personal identifying information. Second, ICANN should incorporate meaningful protections for the right to engage in critical speech into its policy applying to the resolution of disputes between trademark owners and domain name holders. Finally, ICANN should constitute an Independent Review Panel responsible for evaluating ICANN policy making for adherence to the procedural and substantive commitments articulated in its foundational documents. ICANN should be held to its commitment to normative procedural ideals of liberal democracy, and its governance structure should be revised to accord meaningful protections for the substantive norms of liberal democracy, including protections for freedom of expression. In particular, ICANN should revise its speech-related policies to accord meaningful protection for Internet users' right to engage in anonymous speech and their right to engage in critical speech.
GWU Legal Studies Research Paper No. 323; GWU Law School Public Law Research Paper No. 323
Dawn C. Nunziato, Freedom of Expression, Democratic Norms, and Internet Governance, 52 Emory L.J. 187 (2003). |
What is the Supremacy Clause and why is it important to the authority of a national government?
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