Friday, October 3, 2008

Stephan: Open Doors

Paul B. Stephan III (Univ. of Virginia - Law) has posted Open Doors (Lewis & Clark Law Review, forthcoming). Here's the abstract:
The Supreme Court's decision in Medellin v. Texas has attracted great attention and much criticism from international law specialists. It is unclear, however, how much the opinion constrains future judicial decisions. This article addresses two issues that the Court did not resolve. It argues that, as a general manner, the claim that U.S. courts should accord comity to the decisions of international tribunals rests on a false premise, namely that international tribunals have the capacity to engage in reciprocal relations with domestic judiciaries. Second, the Court has not fully considered in what manner a treaty might delegate authority to the Executive to engage in lawmaking, and what factors a court might depend on to determine that such a delegation has occurred.