Van Alstine: Stare Decisis and Foreign Affairs

Michael P. Van Alstine (Univ. of Maryland - Law) has published Stare Decisis and Foreign Affairs (Duke Law Journal, Vol. 61, no. 5, p. 941, February 2012). Here's the abstract:

This Article examines whether the jurisprudential and institutional premises of the doctrine of stare decisis retain their validity in the field of foreign affairs. The proper role of the judicial branch in foreign affairs has provoked substantial scholarly debate—historical, institutional, and normative—since the founding of the Republic. Precisely because of the sensitivity of the subject, the Supreme Court has both warned about the judicial branch’s comparative lack of expertise in the field and established a web of deference doctrines designed to protect against improvident judicial action. Notwithstanding all of this discussion, however, neither the Supreme Court nor any scholar has ever examined the complicated relationship between stare decisis and foreign affairs.

This Article first contextualizes the discussion with an analysis of the foundations of stare decisis. After a review of the values that animate the doctrine, it explores the subtly important jurisdictional premises of stare decisis. Almost entirely overlooked by both courts and scholars, these inherent jurisdictional limitations on the force of precedent have direct implications for the proper role of stare decisis in foreign affairs law. The Article then examines the special constitutional arrangement of powers in the field, in particular the respective roles of Congress and the executive. Just as significant, the Article also canvasses the multiplicity of avenues by which the American legal system channels foreign affairs issues to the federal courts. This growing interbranch tension highlights the significance of reflexively cloaking the resultant judicial precedents with full stare decisis effect.

The analysis in this Article demonstrates that in fact a more nuanced and accommodating understanding of precedent is required with respect to certain fundamental aspects of foreign affairs law. For purely domestic statutes, fidelity to the value judgments first made by Congress within and for the domestic legal system should avoid both the fact and appearance of independent judicial agency. Moreover, when Congress takes it upon itself to define the entire content of the law—without importing international legal norms—the courts need look only to familiar domestic sources and materials in their interpretive inquiries. Matters are different, however, for the broad and expanding field of controversies that likewise fall within the Article III “judicial Power” but that involve the courts in the enforcement of rights or obligations grounded in international law. Within this field, the analysis in this Article demonstrates that the likelihood and consequences of judicial error are greater, that precedents are particularly susceptible to rapid erosion by exogenous forces of change, and that institutional considerations make judicial leadership that has been fortified by rigid precedent particularly problematic. It ultimately concludes that these distinct considerations should function as an additional “special justification” for reexamining international law precedents. Consistent with the systemic values of stare decisis, however, the reexamination power should exist only for the issuing court; lower courts in the hierarchically integrated judicial branch—courts that are subject to the vertical dimension of stare decisis—should remain bound by precedents to the full extent of existing law.