Bond V. United States and Information-Forcing Defaults: The Work That Presumptions Do

Bond v. United States (1) introduces a new presumption to the art of judicial interpretation of federal statutes. A court must presume that Congress did not intend for legislation implementing a treaty to regulate traditional areas of state authority in a manner that upsets the balance between federal and state power. (2) The presumption puts the burden on Congress to indicate a contrary intention. Forcing Congress to resolve a contestable issue raises the cost of enacting laws that express the presumed-against choice. The presumption thus makes it harder to adopt legislation that invades the traditional domains of state authority, even in pursuit of international law enforcement. The case involved Carol Anne Bond's conviction for knowing use of a chemical weapon in violation of the Chemical Weapons Convention Implementation Act of 1998. (3) Bond had coated a mailbox used by a romantic rival with toxic chemicals in hopes of injuring her. Local authorities declined to prosecute under state law, but federal prosecutors charged her with violation of the Act. (4) The lower courts rejected Bond's argument that the Act, as applied to her conduct, exceeded the enumerated powers of Congress under the Constitution and thus violated the Tenth Amendment. (5) The Court overturned her conviction, not on the ground that the Act violated the Constitution but instead because it should not be interpreted as reaching her conduct. " [W]e can insist on a clear indication that Congress meant to reach purely local crimes, before interpreting the statute's expansive language in a way that intrudes on the police power of the States." (6) Over the last few decades, the Court has used a number of interpretative mechanisms that have the same structure as the Bond presumption. The presumption against extraterritoriality, the presumption against violating international law, the presumption against testing constitutional limits, and the presumption against implied causes of action all have the effect of truncating the reach of statutes. This truncation leaves courts in a significant range of cases lacking either subject matter jurisdiction or a federal rule of decision to apply to the dispute. What these presumptions do is demand that Congress, at a cost, disclose more information about its preferences regarding federal judicial intervention in the status quo. A consequence is that, absent such disclosure, a possibly unwanted status quo will endure. Bond thus reflects a general trend in the Court's approach to statutory interpretation, rather than standing as an isolated instance of rumination about the effect of treaties on congressional power. What should we make of this trend? The legal academy offers many perspectives, including doctrinal analysis, constitutional theory, historical analysis, and political theory. One possibility, rare but not unheard of in the field of foreign relations law, is to turn to contract theory. (7) Contracts represent a profound mechanism for enabling cooperation through self-governance. Many contractual disputes turn on interpretation. What contract theorists think about the use of presumptions in contractual interpretation can inform how we approach presumptions in statutory interpretation. Presumptions that force relevant actors to disclose information about their preferences are well known to contract theorists. Interpretative defaults pervade contract law, with a rich literature considering optimal defaults. Most lawyers will recall Hadley v. Baxendale, (8) which obligated a shipper to reveal additional information as a condition to obtaining coverage for consequential, as opposed to out-of-pocket, damages. By refusing to award the victim of a breach compensation for the full extent of injuries absent an explicit agreement, the precedent puts the burden on shippers to disclose information not known to the carrier that, if shared, would extend the range of and improve the value of the contract. …