¹ See, generally, Grutter v. Bollinger, 123 S.Ct. 2325 (2003) and Gratz v. Bollinger, 123 S.Ct. 2411 (2003).Google Scholar

² 123 S.Ct. 2374 (2003).Google Scholar

³ Cal. Ins. Code Ann. §§ 13800–13807 (West Cum. Supp. 2003).Google Scholar

⁴ Garamendi, supra note 2, at 2379.Google Scholar

⁵ Cal. Ins. Code Ann. § 13804 (West Cum. Supp. 2003).Google Scholar

⁶ Cal. Ins. Code Ann. § 13804 (West Cum. Supp. 2003).Google Scholar

⁷ Cal. Ins. Code Ann. § 13806 (West Cum. Supp. 2003).Google Scholar

⁸ Cal. Ins. Code Ann. § 13801 (c) (West Cum. Supp. 2003).Google Scholar

⁹ Cal. Ins. Code Ann. § 13801 (d) (West Cum. Supp. 2003).Google Scholar

¹⁰ Cal. Ins. Code Ann. § 13801 (f) (West Cum. Supp. 2003).Google Scholar

¹¹ California also granted its courts jurisdiction to hear claims against German corporations by former slave laborers of the Reich, extending the statute of limitations to 2010. Cal. Code Civ. Proc. § 354.6 (West 2000). See, also, Russell A. Miller, Much Ado, But Nothing: California's New World War II Slave Labor Law: Statute of Limitations and Its Place in the Increasingly Futile Effort to Obtain Compensation from American Courts, 23 Whittier L. Rev. 121 (2001), and Diane Richard Foos, Righting Past Wrongs or Interfering in International Relations? World War II-Era Slave Labor Victims Receive State Legal Standing After Fifty Years, 31 McGeorge L. Rev. 221 (2000).Google Scholar

¹² Bazyler, Michael J., Nuremberg in America: Litigating the Holocaust in United States Courts, 34 U. Rich. L. Rev. 1, 93-101 (2000).Google Scholar

¹³ Id. at 95-96.Google Scholar

¹⁴ Cal. Ins. Code Ann. § 12967 (West Cum. Supp. 2003).Google Scholar

¹⁵ Cal. Code Civ. Proc. § 354.5 (c) (West Cum. Supp. 2003).Google Scholar

¹⁶ Garamendi, supra note 2, at 2397 (Ginsburg, J. dissenting).Google Scholar

¹⁷ Id. at 2385.Google Scholar

¹⁸ Garamendi, supra note 2, at 2381; Agreement Between the Government of the United States and the Government of the Federal Republic of Germany Concerning the Foundation “Remembrance, Responsibility and the Future” (July 17, 2000)[hereinafter “Executive Agreement”], at http://www.state.gov/www/regions/eur/holocaust/000717_agreement.html.Google Scholar

¹⁹ See, Executive Agreement, Art. 2(1). It is worth noting, however, that the United States did not promise that its Statement of Interest would bind American courts. It understood its own authority to be limited by the American tripartite system. See Stuart Eizenstat, Imperfect Justice 272-273 (2003).Google Scholar

²⁰ See, Executive Agreement, Art. 2(2).Google Scholar

²¹ Garamendi, supra note 2, at 2382.Google Scholar

²² The ICHEIC has faced charges of having “so far produced little.” Insurance and the Holocaust: Line to Nowhere, The Economist Aug 2-8, 2003 at 61-62.Google Scholar

²³ See, Garamendi, supra note 2, at 2382.Google Scholar

²⁴ See, id.Google Scholar

²⁵ See, id. at 2386. Accord id. at 2395, (Ginsburg, J. dissenting): “Absent a clear statement aimed at disclosure requirements by the ‘one voice’ to which courts properly defer in matters of foreign affairs, I would leave intact California's enactment.” The necessity for a single voice is unanimously accepted, but Justice Ginsburg would not have found that the voice had spoken.Google Scholar

²⁶ See, id. at 2386.Google Scholar

²⁷ Id. at 2387.Google Scholar

²⁸ Id.Google Scholar

²⁹ See, id.Google Scholar

³⁰ See, Erwin Chemerinsky, Constitutional Law: Principles and Policies § 5.2.1 (2d ed. 2002).Google Scholar

³¹ Id. (citing Gade v. National Solid Waste Management Association, 505 U.S. 88, 98 (1992)).Google Scholar

³² See, e.g., Fallon, Richard H., The “Conservative” Paths of the Rehnquist Court's Federalism Decisions, 69 U. Chi. L. Rev. 429 (2002).Google Scholar

³³ See, Garamendi, supra note 2, at 2399 (Ginsburg, J. dissenting).Google Scholar

³⁴ Id. at 2382.Google Scholar

³⁵ Id. at 2390.Google Scholar

³⁶ Id. at 2388.Google Scholar

³⁷ Id. at 2390.Google Scholar

³⁸ Id.Google Scholar

³⁹ Id.Google Scholar

⁴⁰ Id. at 2393.Google Scholar

⁴¹ Id. at 2398 (Ginsburg, J. dissenting).Google Scholar

⁴² See, id. at 2399 (Ginsburg, J. dissenting). The exception is a case from 1968 striking down a bizarre Oregon statute that denied inheritance rights to claimants residing communist bloc countries. See id. at 2399-2400 discussing Zschernig v. Miller, 389 U.S. 429 (1968). As Justice Ginsburg notes in her dissent, the case has never been relied upon to justify implied preemption for foreign affairs and was unique in that the statute at issue contained a “‘state policy critical of foreign governments and involve[d] ‘sitting in judgment’ on them.’” Id. at 2400, citing L. Henkin, Foreign Affairs and the United States Constitution 164 (2d ed. 1996).Google Scholar

⁴³ Id. at 2384-85.Google Scholar

⁴⁴ See, id.Google Scholar

⁴⁵ Id. at 2401 (Ginsburg, J. dissenting).Google Scholar

⁴⁶ Id. at 2397, n.1 (Ginsburg, J. dissenting).Google Scholar

⁴⁷ Id. at 2392.Google Scholar

⁴⁸ Id. at 2397, n.1 (Ginsburg, J. dissenting).Google Scholar

⁴⁹ Id. at 2379-80.Google Scholar

⁵⁰ Id. at 2380.Google Scholar

⁵¹ Id. at 2381. See, also, Treaty on the Final Settlement with Respect to Germany, Sept. 12, 1990; Bazyler, supra note 12, at 5-9.Google Scholar

⁵² See, Garamendi, supra note 2, at 2381. For more elaboration on this point, but in the context of Nazi slave and forced labor suits, see, Libby Adler and Peer Zumbansen, The Forgetfulness of Noblesse: A Critique of the German Foundation Law Compensating Slave and Forced Laborers of the Third Reich, 39 Harv. J. on Legis. 1, 41-49 (2002); also in NS-Zwangsarbeit: Erinnerung und Verantwortung/NS-Forced Labor: Remembrance and Responsibility 333 (P. Zumbansen ed., Nomos 2002).Google Scholar

⁵³ Garamendi, supra note 2, at 2391.Google Scholar

⁵⁴ See, id. at 2395, (Ginsburg, J. dissenting).Google Scholar

⁵⁵ Id. (Ginsburg, J. dissenting).Google Scholar

⁵⁶ Id. (Ginsburg, J. dissenting).Google Scholar

⁵⁷ Id. at 2396 (Ginsburg, J. dissenting). Accord id. at 2382.Google Scholar

⁵⁸ Id. at 2392.Google Scholar

⁵⁹ Relatedly, disclosures made pursuant to HVIRA could enable a claimant to identify a policy that could form the basis for a claim with the ICHEIC. See, id. at 2397 (Ginsburg, J. dissenting).Google Scholar

⁶⁰ It should be noted that Justice Ginsburg maintained that executive power was compromised rather than preserved by the majority because the Court did not “reserve foreign affairs preemption for circumstances where the President%. has spoken clearly to the issue at hand.” Id. at 2401 (Ginsburg, J. dissenting).Google Scholar

⁶¹ See, e.g., Gratz, supra note 1.Google Scholar

⁶² Notice, however, that this case could have been decided on foreign commerce clause grounds and was not; whether HVIRA violated that clause was among the three questions in the grant of certiorari. Garamendi, supra note 2, at 2385, n. 7. The extension of the foreign aspect of the commerce clause to strike down a state insurance law might not have sat well with the Chief Justice after his opinions limiting federal power in such interstate commerce cases as U.S. v. Lopez, 514 U.S. 549 (1995) (striking down the Gun-Free School Zones Act of 1990 as beyond the scope of Congressional power under the Commerce Clause), and U.S. v. Morrison, 529 U.S. 598 (2000) (striking down the civil rights cause of action under the Violence Against Women Act as beyond the scope of Congressional power under the Commerce Clause and the § 5 of the Fourteenth Amendment).Google Scholar

⁶³ See, (then Associate) Justice Rehnquist's majority opinion in Nat'l League of Cities v. Usery, 426 U.S. 833 (1976) (relying on a traditional state function analysis to hold that the federal government was limited in its competence to regulate the states as employers). The Court overruled Nat'l League of Cities in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), from which Justice Rehnquist dissented.Google Scholar

⁶⁴ See, Rehnquist, William H., All the Laws But One: Civil Liberties in Wartime 224 (1998) (recalling the maxim “Inter arma silent leges,” – in time of war, the law is silent – and noting, apparently without disturbance, that “apart from the added authority that the law itself may give the President in time of war, presidents may act in ways that push their legal authority to its outer limits, if not beyond.”).Google Scholar

⁶⁵ See, e.g., Grutter, supra note 1, at 2365- 2370 (Rehnquist, CJ. dissenting from the Court's approval of the affirmative action program employed by the University of Michigan Law School, on the grounds that the program amounted to “racial balancing.”)Google Scholar

⁶⁶ See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 239 (1995) (Scalia, J. concurring, but urging that “[i]ndividuals who have been wronged by unlawful racial discrimination should be made whole” in the manner of a private suit, rather than a legislative program of social engineering.)Google Scholar

⁶⁷ Some of the negotiated compensation arrangements arising out of the Holocaust do bear a resemblance to the more “social” and less “private” approach of affirmative action, such as the Swiss bank settlement. See, e.g., Bazyler, supra note 12, at 86-87, (observing that “almost all of the individuals and organizations who will be receiving a share of the $1.25 billion paid by the Swiss banks have not been harmed, at least directly, by the Swiss banks’ actions during and after World War II.”)Google Scholar

⁶⁸ I have left out Justices Kennedy and O'Connor here due to their recurrent roles as “swing voters” on federalism cases.Google Scholar

⁶⁹ See, e.g., Lopez, supra note 61, at 603-615 (Souter, J. dissenting), and id. at 615-631, (Breyer, J. dissenting).Google Scholar

⁷⁰ Garamendi, supra note 2, at 2393.Google Scholar

⁷¹ Id.Google Scholar

⁷² Id. at 2396 (Ginsburg, J. dissenting).Google Scholar

⁷³ Id. at 2393.Google Scholar

⁷⁴ Id.Google Scholar