WHEN SUBNATIONAL MEETS INTERNATIONAL: THE POLITICS AND PLACE OF CITIES, STATES, AND PROVINCES IN THE WORLD

This panel was convened at 1:00 PM on Friday, April 11, by its moderator, Robert B. Ahdieh of Emory Law School/Princeton University, who introduced the panelists: Thomas A. Bamico, Assistant Attorney General, Massachusetts; Stephen de Boer of the Department of Foreign Affairs and International Trade, Canada; Eric L. Hirschhorn of Winston & Strawn LLP; Judith Resnik of Yale Law School; and Christina R. Sevilla of the Office of the U.S. Trade Representative. * INTRODUCTION By Robert B. Ahdieh ([dagger]) The study of jurisdiction is properly understood as an elaborate exercise in line-drawing. Reduced to its essence, its core aspiration is to delimit the bounds of relevant legal and regulatory authority. In important respects, the same might be said of law and regulation generally. Legal norms constitute lines, distinguishing the permissible from the impermissible and, of particular relevance here, demarcating the allocation of decision-making authority. Most visibly, this may be evident in our elaborate jurisprudence of conflicts of law. Among the most complex areas of law--especially if our students are to be believed--the study of conflicts ultimately boils down to a pair of simple questions: What law governs? And what court is authorized to apply it? An analogous orientation to the project of delimitation might be discerned at the inception of the Supreme Court' s federalism revolution. Behind the broad rhetoric of Justice O'Connor' s opinion in New York v. United States, (1) one finds a central objection to Congress's obscuring of the lines of authority--and hence accountability--for political choices about the handling of nuclear waste. Clear and sharply delineated realms of federal and state decision-making authority, the Court would seem to suggest, are essential prerequisites to democratic governance. Among the most rigidly delineated spheres of law in American federalism has been the realm of foreign affairs and international law. Here, the resistance to any place for state or local voice--let alone authority--has been quite firm. Whether in theory or practice, no room has been seen for permeation of the black box of the nation-state. (2) As suggested by a growing number of scholars and explored by the distinguished panelists here today, this may now be changing. In previous work, I have described the engagement of state courts with international tribunals, and the interaction of state regulatory and enforcement authorities with their counterparts abroad. (3) Judith Resnik, to similar effect, has outlined the striking array of state and local initiatives designed to promote--and even implement--the Kyoto Protocol and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). (4) Building on opening remarks by Professor Resnik, today's panel will highlight two prominent facets of the recent engagement of subnational authorities with foreign affairs and international law. The first--on which we will hear from Christina Sevilla, of the Office of the U.S. Trade Representative, and Stephen de Boer, of Canada's Department of Foreign Affairs and International Trade--concems the place of subnational authorities in shaping international economic policy and reconciling international, state, and local norms. Our second emphasis will be the increasingly prominent debate over how Congress and the federal courts should respond to state and local divestment and sanctions initiatives against foreign states. On this, we will hear from Eric Hirschhorn and Thomas Barnico, who advocated opposing positions on this question, on behalf of the National Foreign Trade Council and the State of Massachusetts, in the two most significant cases to address it to date. (5) In recent work, Professor Resnik has thrown a bit of cold water on the ongoing--and often frenzied--debate over the Supreme Court's citation of foreign authority. …

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