Institutional Settlement in a Globalizing Judicial System

This article argues that the field of “Federal Courts” scholarship ought to expand to consider the relations not just between state and federal courts, but also between domestic courts and judicial institutions operating at the international level. Both relationships raise similar sorts of “interjurisdictional” problems—issues of standards of review, abstention, procedural defaults, and the like. Moreover, the study of supranational courts would benefit from the Legal Process jurisprudence that dominates the field of domestic Federal Courts law. In particular, I emphasize Henry Hart and Al Sacks’ notion of “institutional settlement,” which holds that decisions should be allocated to particular institutions on the basis of institutional competence and that decisions by the primary institution, once made, should generally be respected absent a sufficiently good reason for overruling them. I illustrate how a Legal Process approach to supranational courts might work through two primary sets of examples. The first involves the tug of war between American domestic courts and the International Court of Justice over foreign nationals convicted of capital crimes in state courts after failure by local authorities to notify the accused of his rights to consular notification under the Vienna Copyright © 2005 by Ernest A. Young. † Judge Benjamin H. Powell Professor of Law, the University of Texas at Austin. J.D., Harvard Law School, 1993; B.A., Dartmouth College, 1990. I have presented versions of this paper at conferences held by the J.B. Moore Society at the University of Virginia School of Law on March 20, 2004, and jointly by the Universities of Texas and Siena at Siena, Italy, on May 31, 2004. I am grateful to the Moore Society, Sandy Levinson, and Francesco Francioni for the opportunities to participate, to my fellow panelists for their feedback, to Sarah Cleveland, Doug Laycock, Ronald Mann, Jenny Martinez, Dan Meltzer, Steve Ratner, Jenia Turner, Joel Trachtmann, Mark Tushnet, and Detlev Vagts for comments on the manuscript, to Carina Cuellar, David Han, Kim Olson, and William Rahm for research assistance, and to Allegra Young for friendly forbearance. Comments are welcome at eyoung@law.utexas.edu. 110305 YOUNG.DOC 12/19/2005 3:04 PM 1144 DUKE LAW JOURNAL [Vol. 54:1143 Convention on Consular Relations. This issue recently came to a head in the Medellin case, which the Supreme Court elected not to resolve last Term but is likely to see again. The central question in these cases is whether the ICJ should respect domestic rules of procedural default, which bar litigation of Vienna Convention claims in domestic habeas corpus proceedings where those claims were not first presented to the state trial court. The second set of examples involves arbitration proceedings under Chapter 11 of the North American Free Trade Agreement. In the Mondev and Loewen cases, NAFTA panels engaged in what was, for all practical purposes, appellate review of state courts on questions of state law. The question here is whether international law should sanction “denial of justice”-type claims that make domestic law questions re-litigable at the supranational level, and, if so, whether supranational tribunals should adopt a more deferential standard of review. Institutional settlement, I argue, has a good deal to say about both sets of questions. The last part of the article speculates more generally about what a Legal Process approach can tell us about supranational adjudication. It considers some international law principles—like the “margin of appreciation” in the jurisprudence of the European Court of Human Rights, as well as the principle of “complementarity” in the statute of the International Criminal Court—that already incorporate norms of institutional settlement. I argue that institutional settlement has something to offer both skeptics and enthusiasts of supranational adjudication: it can moderate the intrusiveness of such adjudication, while at the same time increasing its legitimacy.