Wednesday, March 19, 2008

Sullivan: Rethinking Treaty Interpretation

Scott M. Sullivan (Univ. of Texas - Law) has published Rethinking Treaty Interpretation (Texas Law Review, Vol. 86, no. 4, p. 777, March 2008). Here's the abstract:
In this Article, Professor Sullivan examines the problem of Judicial deference to treaty interpretations by the Executive Branch. This problem has enormous implications for United States policy in conducting the "war on terror" as well as in dealing with an increasingly globalized world in which multinational treaties reach deeply into areas that have in the past been purely domestic concerns. In this context, the current judicial doctrine of giving "great weight" to executive-branch treaty interpretations is dangerously vague. The Judiciary's failure to explicate the contours of this test has led to confusing and irregular application of judicial deference. Professor Sullivan criticizes recent scholarly proposals to import the administrative law doctrine of Chevron deference into this area: he argues that such "fixed-point" approaches, although more disciplined than the current test, suffer from too much rigidity in their application and do not properly take into account unique issues arising in the context of treaty interpretations. He proposes that the new model of deference should look to the administrative law doctrine of Skidmore and argues that application of the Skidmore factors provides a flexible test that would allow the Judiciary to better calibrate the level of deference to underlying facts. Furthermore, this approach would best respect the institutional competencies of the Executive and Judicial Branches while preserving the balance between the values of judicial review and executive discretion in foreign affairs.