Vol. 134 No. 2 This Article is accompanied by a set of data visualizations, developed in collaboration with TWO-N, that are available here. The Constitution specifies only one...
Vol. 131 No. 5 Presidents have come to dominate the making, interpretation, and termination of international law for the United States. Often without specific congressional concurrence, and sometimes...
Response to The Normalization of Foreign Relations Law
Vol. 128 No. 7 The field of “foreign relations law” encompasses a variety of constitutional, statutory, and common law rules and doctrines that regulate how the United States...
Vol. 126 No. 2 Arguments based on historical practice are a mainstay of debates about the constitutional separation of powers. Surprisingly, however, there has been little sustained academic attention to the proper role of historical practice in this context. The scant existing scholarship is either limited to specific subject areas or focused primarily on judicial doctrine without addressing the use of historical practice in broader conceptual or theoretical terms. To the extent that the issue has been discussed, accounts of how historical practice should inform the separation of powers often require “acquiescence” by the branch of government whose prerogatives the practice implicates. Such acquiescence is commonly seen as critical for historical practice to have the force of law. Yet the concept of acquiescence has been treated much too casually in the literature.
Vol. 120 No. 4 This Article analyzes the Supreme Court’s 2004 decision in Sosa v. Alvarez-Machain against the backdrop of the post-Erie federal common law. The Article shows that, contrary to the assertion of some commentators, Sosa did not embrace the “modern position” that customary international law (CIL) has the status of self-executing federal common law to be applied by courts without any need for political branch authorization and, indeed, is best read as rejecting that position. Commentators who construe Sosa as embracing the modern position have confounded the automatic incorporation of CIL as domestic federal law in the absence of political branch authorization (that is, the modern position) with the entirely different issue of whether and to what extent a particular statute, the Alien Tort Statute (ATS), authorizes courts to apply CIL as domestic federal law. The Article also explains how CIL continues to be relevant to domestic federal common law despite Sosa’s rejection of the modern position. The fundamental flaw of the modern position is that it ignores the justifications for, and limitations on, post-Erie federal common law. As the Article shows, however, there are a number of contexts in addition to the ATS in which it is appropriate for courts to develop federal common law by reference to CIL, including certain jurisdictional contexts not amenable to state regulation (namely, admiralty and interstate disputes), as well as gap-filling and interpretation of foreign affairs statutes and treaties. The Article concludes by considering several areas of likely debate during the next decade concerning the domestic status of CIL: corporate aiding and abetting liability under the ATS, application of CIL to the war on terrorism, and the use of foreign and international materials in constitutional interpretation.