連邦政府の外交権限と専占法理 : 日本企業に対する強制労働訴訟

抄録

The dormant foreign affairs preemption doctrine requires federal courts to invalidate state laws when such state laws intrude upon the federal government's exclusive power over foreign affairs. It differs from statutory preemption such as express or implied preemption in that the latter requires congressional legislation to displace state laws. The U. S. Supreme Court first applied this doctrine in Zschernig v. Miller (1968). Since Zschernig, a widely criticized decision for its lack of constitutional support and undefined scope, the Supreme Court has not decided a single case on the basis of the dormant foreign affairs preemption. Thus, several constitutional commentators have quire reasonably speculated that the Court will eventually abandon this preemption doctrine by overruling Zschernig. In light of two recent foreign affairs cases, Crosby v. National Foreign Trade Council (2000) and American Insurance Ass'n v. Garamendi (2003), however, it appears that the Court will not overrule its 1968 decision anytime soon, despite its clear preference for statutory over dormant preemption. In both cases, the Court avoided the dormant foreign affairs question and struck down the challenged state laws on implied preemption grounds. Though neither Crosby nor Garamendi resolved the status of the dormant foreign affairs preemption, the latter in effect decided the fate of §354.6 of the California Code of Civil Procedure, a provision allowing World War II slave or forced labor victims to pursue their war-related claims against Japanese corporations in California courts. Garamendi compelled a California state court of appeals (which had initially upheld §354.6 before Garamendi was decided) to invalidate that provision on the ground that the federal foreign policy embodied in the 1951 Peace Treaty with Japan conflicts with and thus preempts that provision. Garamendi, which gave preemptive effect to the federal government's foreign policy interests, is open to criticism, and the Supreme Court may eventually be forced to reevaluate the decision. In this sense, it is perhaps a little premature to think that California's noble effort to bring justice to its residents who were slave or forced labor victims during the Second World War has ended in vain.