Parties’ choice of a seat of arbitration has especially important ramifications with respect to the law to be applied in disputes that may arise.  As the New York Convention reflects,² the jurisdiction in which the seat of arbitration lies determines the lex arbitri to be applied, meaning that the chosen jurisdiction’s courts will determine the existence, validity, and scope of the parties’ arbitration agreement.  Thus, the choice of a seat of arbitration, in addition to determining the choice of substantive law and the law to be applied to the arbitration agreement, will determine the tools available to a party to enforce an arbitration agreement and the costs associated with dispute resolution.

When used to enforce an arbitration agreement, an antisuit injunction usually arises under the following scenario: Parties A and B enter into a contract that includes an agreement to settle any disputes in arbitration to be held in Country 1, which is often a neutral country.  Party B, either ignoring the arbitration agreement or contesting its validity, brings or threatens to bring a parallel proceeding in Country 2, which is likely to be Party B’s home jurisdiction.  In response, Party A petitions a court of Country 1 to enjoin Party B from continuing with its action in Country 2 on the basis of their arbitration agreement.  Country 1’s court may issue an antisuit injunction against Party B, meaning that the court will hold Party B in contempt if Party B continues its Country 2 action.  If Party B ignores the injunction, it puts any assets or future business prospects that it may have in Country 1 at risk.

Technically, a court does not direct an antisuit injunction to a foreign court.  The effect of an antisuit injunction to enforce an arbitration agreement is to encourage the party that brings a parallel action in violation of the arbitration agreement to submit to arbitration and to save the party seeking the injunction the costs of litigating that parallel action.  The availability of an antisuit injunction can reassure parties whose agreement contains an arbitration clause that their disputes will likely stay in arbitration and not devolve into a multijurisdictional litigation nightmare.  If a party can bring a parallel action in violation of an arbitration agreement with impunity, the most frequently cited advantages of arbitration—namely confidentiality, neutrality of the arbitral tribunal, choice of procedure, and the ability to enforce an arbitral award worldwide—suddenly evaporate.

Civil-law jurisdictions have historically viewed antisuit injunctions as a violation of international comity and interference with a foreign court’s jurisdiction.  Common-law jurisdictions typically consider antisuit injunctions to be acceptable if certain criteria are met.  Following the common-law tradition, U.S. federal courts are willing, to varying degrees depending on the circuit, to issue antisuit injunctions to enforce arbitration agreements.  In this Editorial, after a brief discussion of West Tankers, I point to recent U.S. case law that demonstrates the lamentable lack of clear criteria by which a court can determine whether to grant such an injunction.  I then argue that it may be wise for a discernable group of parties, in light of the West Tankers decision, to choose a U.S. location as the seat of arbitration in the event of a dispute.

I.
West Tankers

A.     The House of Lords’ Defense of Antisuit Relief to Enforce Arbitration Agreements

Confronting the question of the compatibility of antisuit injunctions to enforce arbitration agreements with the Brussels Regulation,³ the House of Lords, rather than deciding the issue itself, referred the question to the ECJ.  In the House of Lords’ opinion, after acknowledging the ECJ’s demonstrated scorn for any measure taken by a court of a member state that has the effect of limiting the jurisdiction of another member state, Lord Leonard Hoffmann attempted to use the ECJ’s own jurisprudence to carve out an exception for antisuit injunctions to enforce arbitration agreements.  He drew upon the doctrine of Kompetenz-Kompetenz, arguing that member states should trust arbitrators and the court exercising supervisory jurisdiction to determine whether an arbitration agreement is binding and, if so, whether a given dispute falls under that arbitration agreement.  He also noted that the Brussels Regulation specifically excludes arbitration from its sphere of application.

Perhaps more interesting than the legal aspects of his argument, however, was Lord Hoffmann’s practical appeal regarding the utility of antisuit relief in the realm of arbitration.  In his view, such injunctions serve “as an important and valuable weapon . . .[,] promot[ing] legal certainty and reduc[ing] the possibility of conflict between the arbitration award and the judgment of a national court.”⁴ London—and by extension, Europe—could lose its attractiveness as a seat for international commercial arbitration if the ECJ lost sight of the fact that “[t]he courts are there to serve the business community rather than the other way round.”⁵ Specifically, Lord Hoffmann pointed to New York, Bermuda, and Singapore as jurisdictions willing to issue antisuit injunctions in support of arbitration agreements and worried that Europe would “handicap itself by denying its courts the right to exercise the same jurisdiction.”⁶

B.     The ECJ Decision

As is typical of ECJ jurisprudence, the Advocate General’s opinion, although it does not have the force of law, provides a clearer picture of the ECJ’s rationale than the ECJ decision itself.  The Advocate General stressed the importance of the concept of mutual trust among the courts of EU member states and insisted that member states’ courts be entitled to determine for themselves whether the Brussels Regulation’s arbitration exclusion is applicable.  This is in line with the civilian view that the fundamental subject matter of a dispute, rather than the existence of an arbitration agreement, determines the competence of a court.

In the final portion of the Advocate General’s opinion, she dismissed in a single sentence Lord Hoffmann’s concerns that Europe could lose a competitive edge if the ECJ were to prohibit antisuit injunctions to enforce arbitration agreements: “To begin with it must be stated that aims of a purely economic nature cannot justify infringements of Community law.”⁷ Attempting to lessen the harshness of the opinion, the Advocate General insisted that parallel litigation in a forum other than the seat of arbitration would only ensue if the parties disagreed as to the validity and scope of their arbitration agreement.  This makes light of the very real possibility that a party with superior resources to pay for a protracted legal battle in multiple forums might be inclined to bring parallel litigation simply to delay arbitration proceedings or obstruct a future enforcement attempt by the other party.  In the end, mutual trust and effet utile (effective judicial protection) won out over such worries.  The Advocate General did leave some consoling words for parties considering arbitration in an EU member state who now find themselves without recourse to an antisuit injunction to enforce an arbitration agreement: “If an arbitration clause is clearly formulated and not open to any doubt as to its validity, the national courts have no reason not to refer the parties to the arbitral body appointed in accordance with the New York Convention.”⁸ As any student of international commercial arbitration knows, this is easier said than done.

II.
The Availability of Antisuit Relief to Enforce Arbitration Agreements in U.S. Courts

In 2004, the Second Circuit decided the most recent significant appellate cases influencing the availability of antisuit injunctions to enforce arbitration agreements.  Judge Dennis Jacobs penned the opinions of both Paramedics Electromedicina Comercial, Ltda. v. GE Medical Systems Information Technologies, Inc.⁹ and LAIF X SPRL v. Axtel, S.A. de C.V.¹⁰ At first glance, the court appears to have employed differing standards in determining whether to issue an antisuit injunction to enforce an arbitration agreement.  In Paramedics, the Second Circuit, relying heavily on the federal policy in favor of arbitration, enjoined a party from continuing its parallel action in a Brazilian court.  In LAIF X, the same court gave much greater deference to comity concerns and rejected a party’s request for an antisuit injunction to stop a Mexican action from proceeding.  An examination of these cases and their progeny reveals that antisuit injunctions are certainly available as a remedy to enforce an arbitration agreement.  Unfortunately, parties interested in ensuring the availability of such relief may have trouble deciphering the formula required to do so.

Identifying some common threads in recent case law, however, creates a clearer picture of the current availability of antisuit relief to enforce an arbitration agreement.  The first is the vexatiousness of the parallel litigation that a party seeks to enjoin.  U.S. courts have shown little tolerance for parties that bring a parallel proceeding in violation of an arbitration agreement with the aim of delaying adjudication of a dispute or seeking preferential treatment in their home jurisdiction.  Another factor that enters into U.S. courts’ calculus in determining whether to issue an antisuit injunction to enforce an arbitration agreement is the substantive law of the parties’ agreement.  For example, if parties choose the law of New York State to govern their agreement and New York City as their seat of arbitration, a U.S. court is less likely to hesitate before issuing an antisuit injunction against a party that brings a parallel action in a foreign jurisdiction.  Comity concerns in this scenario are minimal, as the foreign court could hardly complain that a U.S. court was improperly applying U.S. law.

III.
Potential Beneficiaries of Antisuit Relief from U.S. Courts and How Parties Can Ensure Its Availability

A.     Potentially Interested Parties

As a result of the ECJ’s decision in West Tankers, a discernable class of parties would benefit from choosing a U.S. location rather than a European location as a seat of arbitration.  As a threshold matter, the contract in question must be commercial in nature and must not implicate any serious public policy.  Additionally, the parties must be in a financial position to participate in arbitration and litigation in either the United States or Europe.  Quite obviously, regional European parties with little or no experience in the United States will be loath to participate in arbitration or seek enforcement of an arbitral award in a U.S. city because options such as Geneva, London, or Paris are far more convenient.  The cost of participating in arbitration in the United States may well be prohibitive for such parties.  For multinational corporations with greater resources and experience hiring counsel on both sides of the Atlantic, such a problem would not be present.

For an antisuit injunction to have its intended effect, both parties must also have somewhat substantial and nonfungible assets in both the United States and Europe.  An antisuit injunction from a U.S. court will not necessarily persuade a party with no assets in the United States and no interest in developing business there to cease a parallel action in an EU member state.  Again, multinational corporations with significant operations in the United States and Europe will easily fulfill this requirement.

Parties that satisfy these threshold criteria would do well to consider the United States as a seat for arbitration largely for the same reasons that parties choose arbitration over public litigation in the first place.  Parties see the neutrality of arbitral tribunals as one of the main advantages of arbitration as compared to public litigation.  If parallel proceedings are brought in violation of an arbitration agreement in one party’s home jurisdiction, suddenly the other party faces exactly the risk that it sought to avoid by agreeing to arbitrate: the risk of bias.  A U.S. party engaged in arbitration with a non-U.S. party might conceivably benefit from such bias in seeking an antisuit injunction from a U.S. court, but this concern evaporates if neither of the parties involved is American.  In that situation, both the arbitral tribunal and the U.S. court entertaining a petition for antisuit relief would presumably be neutral.

B.     Maximizing the Availability of Antisuit Relief

After parties have determined that the availability of antisuit relief is important enough a factor to choose a U.S. city as the seat of their potential arbitration, what can they do to increase the likelihood that, should a dispute arise, a U.S. court will enjoin any attempt to bring parallel proceedings in violation of the arbitration agreement?  Unfortunately, as described in Part II, given the current state of the law regarding antisuit injunctions to enforce arbitration agreements, there is no guaranteed way to have access to antisuit injunctions.  Taking a lesson from the recent antisuit-relief jurisprudence in U.S. courts, however, parties are able to take some steps to increase the likelihood of access to antisuit relief.

Drafting an arbitration agreement is no simple task.  To ensure that arbitration takes place as the parties envision, parties must give serious consideration to drafting as airtight a clause as possible.  Under the New York Convention, the law of the seat of arbitration serves as the lex arbitri and partially governs the enforceability of an arbitral award.  Thus, if parties are explicit in choosing a location within the United States as their seat of arbitration, U.S. courts will not hesitate to apply U.S. lex arbitri and will entertain the possibility of antisuit relief.

Parties desiring the availability of antisuit injunctions from U.S. courts may also want to specify that U.S. law governs the arbitration agreement itself.  This precision will lessen the likelihood that U.S. courts will defer to other jurisdictions in determining the validity of an arbitration clause.  If parties choose another country’s law to govern their contract and choose a seat of arbitration within the United States without specifying that U.S. law shall govern the arbitration agreement, a court will likely apply the law governing the container contract to decide whether the arbitration clause is valid.  Moreover, a clause identifying the law governing the arbitration agreement will permit a court to regard an arbitration agreement purely as a contractual term and potentially reduce comity concerns.  Parties could go even further and specify in their arbitration agreement that any proceedings contesting the existence, validity, or scope of the arbitration agreement shall be held in the courts of the chosen seat of arbitration.  This language would render courts of other forums incapable of complaining that their jurisdiction had been usurped, unless a significant public policy issue was at stake.

Finally, if parties choose the law of a U.S. jurisdiction as the substantive law governing their contract, a U.S. court will be less likely to tolerate parallel proceedings brought in violation of an arbitration agreement.  With the law of a U.S. jurisdiction governing the agreement, the diminished relevance of a foreign jurisdiction’s input lessens comity concerns.  Obviously, many considerations enter into the fray when parties choose the substantive law that will govern performance of a contract.  However, parties identified in Part III.A with commercial contracts that do not implicate a specialized domain of law in which the United States is not as highly developed as another jurisdiction may not hesitate to choose, for example, New York law over the commercial law of a European jurisdiction.

Conclusion

Considering the attention that West Tankers has received, the bark of the ECJ decision may end up having more impact than its bite.  It is possible that the reputational costs that London may suffer as an arbitration venue will be larger than they should be.  Paradoxically, Lord Hoffmann’s plea to the ECJ to preserve the availability of antisuit injunctions to enforce arbitration agreements could actually do more harm than good to London’s status as an arbitration venue.  Lord Hoffman’s opinion gives arbitration counsel who argue that such equitable relief is important for parties wishing to avoid parallel litigation ammunition to convince their clients that the result of West Tankers makes London a less arbitration-friendly venue.  Thus, in the manner of a self-fulfilling prophecy, parties may choose jurisdictions that do offer antisuit relief not for substantive reasons, but simply because of Lord Hoffmann’s prediction that parties would do so if the ECJ disallowed such relief.

Despite the lack of a clear standard in U.S. courts for the issuance of an antisuit injunction to enforce an arbitration agreement, parties can expend the resources necessary at the outset of their contractual relationship to ensure that antisuit relief will be available by drafting their arbitration agreements carefully.  Presumably, if more parties choose to seat their arbitration in the United States as a result of West Tankers, U.S. courts will consider more petitions for antisuit relief.  Perhaps this will push courts, in the interest of judicial expediency, to adopt a clearer standard to which parties can refer when crafting their arbitration agreements.

Acknowledgments:

Copyright © 2010 Cornell Law Review.

Daniel Rainer is a 2011 J.D. candidate at Cornell Law School and a 2011 Master en Droit candidate at Université Paris 1 Panthéon-Sorbonne.

This Legal Workshop Editorial is based on the following Student Note: Daniel Rainer, The Impact of West Tankers on Parties’ Choice of a Seat of Arbitration, 95 CORNELL L. REV. 431 (2010).

The Tax Reform Act of 1986 (the “Act”), for example, contained “transition rules” that selected one or a very few number of taxpayers for reprieve from new tax increases.  One such transition rule exempted Merrill Lynch from the Act’s repeal of the investment tax credit.  This  meant that the company could take the credit, in spite of its repeal as applied to other taxpayers, for a lease on a future building that would serve as its new global head office.  Instead of naming the investment bank outright, the exception applied to the following:

[T]he lessee or an affiliate is the original lessee of each building in which such property is to be used, such lessee is obligated to lease the building under an agreement to lease entered into before September 26, 1985, and such property is provided for such building, and such buildings are to serve as world headquarters of the lessee and its affiliates.¹

One cannot ascertain the true beneficiary of this provision from its face.  In what has been a remarkable response to unearthing hidden special interest provisions like this, the Senate and the House each recently enacted internal “earmark rules” requiring their members to disclose such provisions, including their special interest beneficiaries, in both the tax and spending contexts.  In my article Listening To Congress: Earmark Rules and Statutory Interpretation, I discuss these earmark rules and detail why their problems stem largely from Congress’s constitutional power to interpret and enforce its own rules.  I then examine the possible use of extra-congressional forces to strengthen the rules.  Given the constitutional limitations upon such means, I arrive at a method of statutory interpretation—that judges should interpret ambiguous legislation that falls within the ambit of the earmark rules as if Congress had followed the rules.  In so doing, judges should assume Congress has disclosed any special interest provisions and identified all nominally intended beneficiaries.  Thus, any ambiguous special interest legislation that has not been adequately disclosed by legislators should be narrowly construed, against the beneficiaries, imposing costs on lawmakers, as well as the special interests they support, if they defect. 

 
I.
Earmark Rules

Simplifying a bit, earmark rules require disclosure of any special interest provisions, defined as earmarks or limited tax benefits.  Both the House and Senate define “earmarks” as providing a specific amount of spending for an entity, or targeted to a specific locale, other than through a competitive process.  “Limited tax benefits” are like “tax earmarks” and are defined to provide tax benefits to fewer than a small number of beneficiaries, among other requirements.  In the Senate, this means that benefits are provided “to a particular beneficiary or limited group of beneficiaries” and in the house, to “ten or fewer beneficiaries.”

Earmark rules are examples of legislative rules or internal rules that govern congressional lawmaking.  Why do legislators agree to be bound at all to such rules that curtail their future lawmaking options?  Legislative rules are akin to what Jon Elster has labeled precommitment devices.  That is, actions a person takes in order to ensure that she will perform a certain act, by making it either impossible or costly to defect from the committed path.  To illustrate the concept of precommitment, Elster uses the example of Ulysses ordering his crew to tie himself to the mast, sealing all of their ears with wax, to avoid the temptation of the sirens’ song.  Earmark rules, like many precommitment devices, also help to overcome classic collective action problems.  Although each member of Congress may value transparency for the collective whole as a means to deliberation and accountability, any given member may be incentivized to defect from the rules because she will reap all of the benefits of defection and only her disproportionate share of the harm.  Collective action problems may worsen as other members detect their colleagues’ defection.  By agreeing as a whole to disclose hidden interest group deals, earmark rules serve to bind congressional members to the common goal of transparent legislation. 

Predictably, however, individual members may later find the constraints imposed by the earmark rules undesirable, and hence may develop methods to evade them.  Circumvention from legislative rules is easy; each house adopts its own set of rules and has enormous flexibility over them—few constitutional limitations exist upon their content, and each house can unilaterally change or waive the rules.  Generally, legislative rules are enforced only within Congress.  The Ulysses metaphor thus fails in the legislative rule context because legislators, lacking external checks, can afterward defect from the rules without much cost.  It is as if Ulysses had discovered tools to later untie himself. 

 
II.
The Endogeneity of Earmark Rules

The largest threat to the proper functioning of the earmark rules is simply that lawmakers will not follow them.  The Senate majority leader and the House Appropriations Chair have taken the position that they can falsely certify as to the contents of legislation—for example, by simply stating that there are no earmarks or limited tax benefits—and Senators can only object if the majority leader failed to provide certification altogether, not if they believe the certification is false or incomplete.  Senator McCain bemoans this state of affairs, stating that although “earmarks should be disclosed in theory,” the disclosure can only be “policed” by the committee chair or the majority leader.²  If these members “say all the earmarks are identified,” McCain argues, “[Congress] take[s] it as gospel.”³

The House Appropriations Chairman David Obey has also aggressively interpreted the rules in other ways by arguing that the earmark rules do not apply to provisions inserted by himself.  When a representative sought clarification about the omission of a NASA earmark from a disclosure list in a bill, the Chairman responded, “The fact is, that an earmark is something that is requested by an individual member.  This item was not requested by any individual member.  It was put in the bill by me!”⁴

Congress needs assistance to stay the course in their precommitment to transparent special interest legislation.  Under our constitutional scheme, however, opportunities for extra-congressional involvement in the lawmaking process are quite limited.  The Rulemaking Clause states that “each House may determine the Rules of its Proceedings.”  Courts generally interpret this clause to mean that legislative rules are beyond scrutiny from the other branches unless the legislative rules ignore constitutional restraints or violate fundamental rights of non-congressional members.  Thus, direct challenges against deficiencies in the earmark rules or defections from the rules are not available to plaintiffs.

 
III.
My Proposal

As an alternative to direct review of the earmark rules, I propose another form of extra-congressional involvement—namely, that courts should reinforce Congress’s rulemaking authority by interpreting ambiguous legislation that falls within the ambit of the earmark rules as if Congress had followed the rules.  In other words, courts should construe narrowly, against special interests, ambiguous statutory benefits that were not disclosed in accordance with the earmark disclosure rules.  Courts should do this even though we have every reason to believe that legislators will seek to avoid the application of the rules when they confer targeted benefits on special interests. 

The proposal will apply primarily in certain tax and spending litigation scenarios.  A special interest defendant in a tax enforcement proceeding may claim offsetting tax benefits or relief from a provision enforced by the IRS.  For instance, suppose that a corporation, Corp. X, sues the government for entitlement to investment tax credits, either by claiming a tax refund or a reduction in taxes owed.  Suppose Corp. X relied upon the transition relief provision mentioned above to argue that the lease on one of its buildings, entered into in the 1960s, was exempted from the Act’s repeal of such credits.  In response, the government argues that the provision is only applicable to newly constructed world headquarters, citing the provision’s prospective language, including “is to be used,” “agreement to lease,” and “are to serve.”⁵

Assuming the court concludes that the statutory language is ambiguous, then the next step under the proposal would be for the court to determine whether or not the provision—as interpreted by the taxpayer seeking relief—would fall within the ambit of the earmark rules.  If so, then the court would look to see whether Corp. X actually was disclosed as required under the rules.  If not so disclosed, the proposal prescribes an interpretive presumption against a construction of the statute in which Corp. X receives a limited tax benefit, in this case the investment tax credit, covered by the rules.⁶

Note that this result should follow even if Corp. X had lobbied its representative to include language ambiguously drafted in its favor.  In this manner, the proposal strengthens congressional adherence to the rules by imposing costs upon lawmakers, as well as the special interests they support, when the lawmakers do not adhere to their own rules.  It does this by providing that judges should refuse to interpret ambiguous statutes in ways that would create undisclosed special interest deals. 

 
IV.
Doctrinal and Theoretical Support for the Proposal

My approach to statutory interpretation in this context is consistent with the caselaw regarding the Rulemaking Clause of the Constitution.  First, the D.C. Circuit has stated that it “must assume that [a house of Congress] acted in the belief that its conduct was permitted by its rules, and deference rather than disrespect is due that judgment.”  Thus, like in my proposal, many courts assume that Congress had followed its rules.  Second, courts generally do not second-guess Congress’s determination of the validity of its documents.  In Marshall Field v. Clark, the Court refused to question the truthfulness of the presiding officer’s certification that a bill presented to the President was the same as the one enacted by the House.  Similar to the Court’s conclusion in Marshall Field, my proposal requires simply that judges accept as true the Majority leader’s or committee member’s certification of a bill’s composition and its compliance with the earmark rules. 

Direct judicial review of the rules poses separation of powers concerns.  Many argue that judicial incompetence concerning the legislative process justifies the conclusion that each house has authority over its own rules, or that Congress’s lawmaking power relies on such authority.  My proposal recognizes that courts are not necessarily better suited to inject their own view of the ideal legislative process by judging the content of the earmark rules or to strike down legislation not passed in accordance with the rules.  Instead, the proposal avoids separation of powers concerns by simply using the legislature’s own internal rules to cure the problems Congress perceives within itself.  One might even argue that a court’s interpretation of a statute to confer special interest benefits when Congress had not by its own rules disclosed it as such, would be a greater intrusion upon the legislative function.

In addition to having doctrinal support, my proposal fits within several academic views of statutory interpretation.  Textualists would presumably object to the use of non-statutory materials in interpreting statutes.  However, one of their primary objections for using such materials—that consulting legislative history encourages members to insert hidden or vague provisions at the benefit of special interests—falls away because the purpose of the earmark rules is to highlight the insertion of such provisions.  Additionally, unlike committee reports or other examples of legislative history, the rules were adopted by the entire house and are not undemocratic—use of the earmark rules in the proposal actually prevents a defecting minority from co-opting the statute.  Finally, although textualists argue that society is governed by law rather than legislative history, procedures that govern lawmaking, like the earmark rules, exert profound influence over the laws that ultimately determine the rights and obligations of the citizenry and should not be ignored when Congress does not so wish.

Intentionalists will also likely see the virtues of this proposal.  By consulting materials that are central to Congress’s chosen lawmaking process, judges, under the proposal, defer to the accuracy of Congress’s own statement regarding the content of legislation thereby illuminating congressional intent.  Through the earmark rules, Congress has attempted to settle upon a collectively shared, explicit meaning of enacted statutes.  My proposal simply counsels judges to defer to that intent, as expressed in the disclosure lists mandated by earmark rules. 

Other scholars divide the statutory interpretation literature into two strains, influenced by pluralism or republicanism.  Pluralists suggest that interest group competition for scarce resources results in a political equilibrium; hence courts must enforce statutes as if they were contracts between private parties and lawmakers.  At first glance, my proposal offends such thinkers by refusing to uphold certain interest group deals—that critique falls away, however, when the deals are invisible to all of the participants and if the lawmakers have put in place rules that mandate disclosure of such deals.  In such an instance, there simply is no legislative bargain, according to Congress’s own rules of bargaining. 

By contrast, republican theorists generally embrace the notion that laws be supported by reason and do not accept out of hand the products of the political process.  Republicanism strives towards deliberation and the suppression of hidden deals between lawmakers and special interests.  Accordingly, republicans argue for the adoption of canons of statutory interpretation that promote such modes of lawmaking.  By supporting a congressional precommitment to shine light upon such special interest deals, my proposal is one such canon.   

 
V.
Conclusion

In summary, I propose that courts should defer to the certifications of Congressional members, as required by earmark rules, when interpreting ambiguous legislation.  At the risk of over-playing Ulysses metaphors, my proposal navigates, like Ulysses in the Odyssey, between a rock and a hard place.  On the one hand, Congress has enacted legislative rules that have little staying power due to the lack of external governing forces.  On the other hand, Congress’s status as a lawmaking body and its derivative power over its legislative rules provide few avenues to assist it in reinforcing those rules.  My proposal attempts to strengthen Congress’s precommitment to transparent special interest tax and spending legislation, without intruding upon its lawmaking function.  The proposal thus challenges the commonly held notion that Congress cannot truly precommit itself due to the endogeneity of its legislative rules.  In future work, I intend to further question the constitutional inevitability, as well as the wisdom, of a wholly internal set of legislative rules.  In so doing, this larger project will explore the threat of such instable, non-binding rules upon the rule of law, citing various examples of this encroachment in the tax legislative process.

Acknowledgments:

Copyright © 2009 Cornell Law Review.

Rebecca Kysar is Assistant Professor of Law, Brooklyn Law School.

For helpful comments, I am grateful to Lily Batchelder, Meredith Conway, Steven Dean, Peter Devine, Kelly Dunbar, Miranda Fleischer, Vic Fleischer, Bob Green, Kristin Hickman, Anthony Infanti, Carlos Gonzalez, Heidi Kitrosser, Anita Krishnakumar, Doug Kysar, Sarah Lawsky, Richard Lazarus, Michael Livingston, Trevor Morrison, Eduardo Peñalver, Jeff Rachlinski, Kirk Stark, Larry Solan, Sarah Varet.

This Editorial is based on the following full-length Article:   Rebecca Kysar, Listening To Congress: Earmark Rules And Statutory Interpretation, 94 CORNELL L. REV. 519 (2009). Click Here for the Full Version.