Mandell: Venezuela v. Helmerich & Payne International Drilling Co.: The Supreme Court Makes It Harder to Bring Claims Against Foreign Sovereigns in U.S. Courts

Daniel Mandell (Cohen & Gresser LLP) has posted an ASIL Insight on Venezuela v. Helmerich & Payne International Drilling Co.: The Supreme Court Makes It Harder to Bring Claims Against Foreign Sovereigns in U.S. Courts.

Bradley: The Supreme Court as a Filter between International Law and American Constitutionalism

Curtis A. Bradley (Duke Univ. - Law) has posted The Supreme Court as a Filter between International Law and American Constitutionalism (California Law Review, forthcoming). Here's the abstract:

As part of a symposium on Justice Stephen Breyer’s book, “The Court and the World,” this essay describes and defends a particular role for the Supreme Court in the area of foreign relations law, which is to act as a filter between international law and the American constitutional system. In such a role, the Court does not act as an impermeable barrier to international law but rather ensures that when international law passes into the U.S. legal system, it does so in a manner consistent with the structure and values of the constitutional system. This filtering role is appropriate, the essay contends, because international law is generated through processes that often make it ill-suited for direct application in the U.S. legal system, and because international law is frequently designed to perform functions different from the ones demanded of domestic law. Using a number of the cases discussed in Justice Breyer’s book, the essay provides examples of the Supreme Court’s filtering role in four scenarios: First, the intersection of treaties and individual constitutional rights; second, the relationship between the treaty power and American federalism; third, delegations of authority to international institutions; and fourth, the domestic application of customary international law.

AJIL Unbound Agora: Reflections on Zivotofsky v. Kerry (Part II)

AJIL Unbound has posted the second part of a two-part agora on "Reflections on Zivotofsky v. Kerry." Part II includes an introduction by Curtis A. Bradley and Carlos Vázquez, and essays by Julian Mortenson, Catherine Powell, Campbell McLachlan, and John Torpey. Part I can be found here.

AJIL Unbound Agora: Reflections on Zivotofsky v. Kerry (Part I)

AJIL Unbound is holding a two-part agora on "Reflections on Zivotofsky v. Kerry." Part I includes an introduction by Curtis A. Bradley and Carlos Vázquez, and essays by Curtis A. Bradley, Harlan Grant Cohen, Jean Galbraith, and Peter J. Spiro. Part II will appear in a few weeks.

Wuerth: Zivotofsky v. Kerry: A Foreign Relations Law Bonanza

Ingrid B. Wuerth (Vanderbilt Univ. - Law) has posted Zivotofsky v. Kerry: A Foreign Relations Law Bonanza (American Journal of International Law, forthcoming). Here's the abstract:

This short paper on Zivotofsky v. Kerry gives an overview of the case and analyzes its significance for international law in constitutional interpretation and for the Supreme Court’s “normalization” of foreign relations law.

In terms of the overall significance of the case, it is a bonanza of foreign relations issues and doctrine: the executive Vesting Clause, the President as the “sole organ” of the nation, the need for the nation to speak with “one voice,” Curtiss-Wright, Youngstown, diplomatic history and practice, the Republic of Texas, secrecy and dispatch, Citizen Genet, the Spanish-American war, international law in constitutional interpretation, formalism and functionalism, the list goes on and on! Although the actual impact of the case on the outcome of inter-branch disputes remains to be seen, the case will be cited and debated in so many areas of foreign relations law that it is destined to become a classic in the field.

The case also provides strong support for the use of international law in constitutional interpretation. All of the Justices write or join opinions which rely on modern international law to define “recognition,” a category of conduct which now has great constitutional significance because the Court holds that the President’s power over it is exclusive. With the exception of Justice Thomas, the Justices rely on contemporary international law to define the scope of recognition without providing a methodological reason for doing so, and often without tracing or linking contemporary international law back to 18th international law.

As for the normalization of foreign relations law – a trend recently identified and explored at length by Ganesh Sitaraman and myself -- the case is a decidedly mixed bag. Contrary to the normalization trend, the case holds for the government and it also favorably cites some exceptionalist cases. On the other hand, the case is ultimately decided on quite narrow reasoning, the famous Curtiss-Wright dicta is roundly criticized, and much of the Court’s functional reasoning is narrowly tailored to the context of recognition.

Bettauer: Supreme Court Limits Holding in Bond, Not Reaching Constitutional Treaty Implementation Authority

Ronald J. Bettauer (George Washington Univ. - Law; formerly, U.S. Dept. of State) has posted an ASIL Insight on Supreme Court Limits Holding in Bond, Not Reaching Constitutional Treaty Implementation Authority.

Cohen: Formalism and Distrust: Foreign Affairs Law in the Roberts Court

Harlan Grant Cohen (Univ. of Georgia - Law) has posted Formalism and Distrust: Foreign Affairs Law in the Roberts Court (George Washington Law Review, forthcoming). Here's the abstract:

When it comes to foreign relations, the Roberts Court has trust issues. As far as the Court is concerned, everyone — the President, Congress, the lower courts, plaintiffs — has played hard and fast with the rules, taking advantage of the Court’s functionalist approaches to foreign affairs issues. This seems to be the message of the Roberts Court foreign affairs law jurisprudence.

The Roberts Court has been active in foreign affairs law, deciding cases on the detention and trial of enemy combatants, foreign sovereign immunity, the domestic effect of treaties, the extraterritorial reach of federal statutes, the preemption of state laws, and the scope of the political question doctrine, among others. Looking back at those decisions, this Article notes and explores a stark and surprising trend. Across a string of decisions, from Hamdan v. Rumsfeld through Medellin v. Texas, Morrison v. National Australia Bank, Zivotofsky v. Clinton, Kiobel v. Royal Dutch Petroleum Co., and potentially soon Bond v. United States, the Court has jettisoned its traditional foreign affairs functionalism in favor of formalism.

The shift, as the Article explains, is not merely rhetorical or stylistic. Embedded within these opinions is a deep distrust of the Executive Branch, Congress, and the courts. And embraced by a surprising number of Justices across different wings of the Court, this formalism of distrust has brought constraints on the discretion of federal government deeper and more powerful than have been seen in some time. Foreign affairs formalism, with all of its implications, is the new reality — one that must be understood and watched.

Young: Universal Jurisdiction, the Alien Tort Statute, and Transnational Public Law Litigation after Kiobel

Ernest A. Young (Duke Univ. - Law) has posted Universal Jurisdiction, the Alien Tort Statute, and Transnational Public Law Litigation after Kiobel. Here's the abstract:

The Alien Tort Statute, enacted in 1789 as part of the first Judiciary Act, provides that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations. . . .” Although the statute lay dormant until the 1980s, the ATS has since become the font of transnational public law litigation in American courts. This litigation, frequently involving largely foreign parties and events, has become a form of civil-side universal jurisdiction. Like more traditional forms of universal jurisdiction, it allows American courts to hear human rights claims based on the enormity of the offense, even when the claims lack any significant ties to the United States. But unlike traditional universal jurisdiction, which is overwhelmingly a criminal phenomenon, the ATS places control over initiation and conduct of the litigation in private hands and engages the exceptional machinery of American civil justice.

The Supreme Court sharply limited ATS suits last year in Kiobel v. Royal Dutch Petroleum Co. This article defends the Court’s rejection of universal jurisdiction in Kiobel and assesses the future of human rights litigation in American courts. I make three main sets of arguments. First, I submit that the the scope of human rights litigation under the ATS is best viewed not as a sui generis problem of foreign relations law, as most lawyers and scholars have treated it, but within the more traditional federal courts framework of implied rights of action and federal common law. Kiobel’s concerns about extraterritorial application of the ATS fit comfortably within this framework, and they suggest that the Court will be extremely cautious about expanding the scope of ATS litigation in future cases. Second, I contend that scholarly exploration of the ATS’s terse text and limited history has reached the point of diminishing returns. The Framers of the First Judiciary Act could not have anticipated what ATS litigation would become, and they left us very few useful clues to answer, for example, whether aiders-and-abettors of human rights violations should be liable. The best hope for adequate answers to such questions lies with Congress, and the article proposes a number of reforms that should be addressed in a new statute amending or replacing the ATS. Third, I place the ATS in the context of broader debates about enforcement of international human rights. In this context, we confront two crucial questions of institutional design: reliance on supranational or national institutions, and public or private control of enforcement. I suggest that this debate, too, can be usefully informed by domestic debates about regulatory enforcement. But the international context affords a unique middle option, which is decentralized public enforcement of international human rights by national governments.

Wuerth: The Supreme Court and the Alien Tort Statute: Kiobel v. Royal Dutch Petroleum Co.

Ingrid B. Wuerth (Vanderbilt Univ. - Law) has posted The Supreme Court and the Alien Tort Statute: Kiobel v. Royal Dutch Petroleum Co. (American Journal of International Law, forthcoming). Here's the abstract:

Alien Tort Statute litigation has generated a growing number of questions about the the scope of statute, but in Kiobel v. Royal Dutch Petroleum Co. the Supreme Court finally answered one of them: the presumption against extraterritoriality applies to the statute. Going forward, courts may apply a robust version of the presumption, effectively ending ATS litigation as we currently know it. Or, they may not. The Court’s citations to Morrison v. Nat’l Austl. Bank Ltd. suggest the former; some language in the various opinions suggests the latter. This article explores these uncertainties and also discusses additional factors that may be significant for the courts’ application of the presumption in future cases: a potential analogy between the ATS and the Sherman Act, the purpose of the ATS, and the appropriate deference to accord the executive branch in ATS litigation. Finally, it considers the significance of Kiobel to the development and enforcement of international law and argues that the uncertain course charted by the Court in ATS litigation is in many respects unexceptional.

Bradley: Supreme Court Holds That Alien Tort Statute Does Not Apply to Conduct in Foreign Countries

Curtis A. Bradley (Duke Univ. - Law) has posted an ASIL Insight on Supreme Court Holds That Alien Tort Statute Does Not Apply to Conduct in Foreign Countries.

Keitner: The Reargument Order in Kiobel v. Royal Dutch Petroleum and Its Potential Implications for Transnational Human Rights Cases

Chimène I. Keitner (Univ. of California - Hastings College of the Law) has posted an ASIL Insight on The Reargument Order in Kiobel v. Royal Dutch Petroleum and Its Potential Implications for Transnational Human Rights Cases.

Koh: Foreign Official Immunity After Samantar: A United States Government Perspective

Harold Hongju Koh (Legal Adviser, U.S. Department of State) has published Foreign Official Immunity After Samantar: A United States Government Perspective (Vanderbilt Journal of Transnational Law, Vol. 44, no. 5, p. 1141, November 2011). Here's the opening paragraph:

I am delighted to speak here at Vanderbilt regarding the U.S. Government’s perspective on Foreign Official Immunity after Samantar v. Yousuf. In the Samantar case, the U.S. Supreme Court unanimously held that the immunity of foreign government officials sued in their personal capacity in U.S. courts, including for alleged human rights violations, is not controlled by the Foreign Sovereign Immunities Act of 1976, but rather, by immunity determinations made by the Executive Branch. Let me break my topic today into three parts: first, the world of foreign official immunity as it existed before the Samantar case; second, the Supreme Court’s decision in Samantar and its implications; and third, the State Department’s “New Samantar Process,” which has been emerging since the Supreme Court’s decision—focusing, in particular, on distinguishing what we call Samantar issues from non-Samantar issues, the effect of a State Department suggestion of immunity, and the effect of State Department silence with respect to a foreign official’s claim of immunity.

Michaels: Empagran’s Empire: International Law and Statutory Interpretation in the US Supreme Court of the 21st Century

Ralf Michaels (Duke Univ. - Law) has posted Empagran’s Empire: International Law and Statutory Interpretation in the US Supreme Court of the 21st Century (in The U.S. Supreme Court and International Law: Continuity or Change?, David L. Sloss, Michael D. Ramsey & William S. Dodge eds., forthcoming). Here's the abstract:

In its Empagran decision in 2004, the US Supreme Court decided that purchasers on foreign markets could not invoke US antitrust law even against a global cartel that affects also the United States. This article, forthcoming in a volume dedicated to the history on international law in the US Supreme Court, presents three radically different readings of the opinion. The result is that Empagran is a decision that is transnationalist in rhetoric, isolationist in application, and hegemonial in its effect. A decision with a seemingly straightforward argument is found riddled in the conflict between these different logics. A decision with few references to international law displays deep links to some of the most pressing international law issues. A decision with a forward‑looking globalization rhetoric finds itself mired in history. A decision praising harmony displays somber parallels to decisions refusing interference with the evil of slave trade. This has implications for our understanding of international law today, and for its place in its own history.

Dodge: Loose Canons: International Law and Statutory Interpretation in the Twenty-First Century

William S. Dodge (Univ. of California - Hastings College of the Law) has posted Loose Canons: International Law and Statutory Interpretation in the Twenty-First Century. Here's the abstract:

This short paper discusses international law and statutory interpretation in the Supreme Court’s recent decisions. It argues that the last decade has been one of ferment. Some Justices, most prominently Breyer and Ginsburg, have invented new canons to determine the extraterritorial reach of statutes. Other Justices, most prominently Scalia and Thomas, have relied on the presumption against extraterritoriality, though shifting it in important ways. Neither camp has made much use of the Charming Betsy canon because it would allocate prescriptive jurisdiction in a way that neither finds desirable. The paper will appear in a forthcoming book on the history of international law in the U.S. Supreme Court to be published by Cambridge University Press in 2011.

Knox: A Presumption Against Extrajurisdictionality

John H. Knox (Wake Forest Univ. - Law) has posted A Presumption Against Extrajurisdictionality (American Journal of International Law, forthcoming). Here's the abstract:

This article describes the Supreme Court’s jurisprudence on the geographic reach of federal statutes. It argues that the Court’s decisions are a parade of inconsistencies that fail to give clear guidance to lower courts, the executive branch, and Congress. The result is that no one can know with any certainty whether a statute of general application will be construed to extend to places outside U.S. boundaries but under U.S. control, such as Guantanamo Bay, or to foreign activities with domestic effects, or to foreign ships within U.S. territory. The article proposes that the Court return its jurisprudence to coherence by adopting a new canon: a presumption against extrajurisdictionality. Under the proposal, the Court would look for guidance to the body of international law that allocates legislative jurisdiction among countries. If that law provides the United States with sole or primary legislative jurisdiction over a situation, the Court would have a green light to construe the statute without any presumption against its application. If the United States has no basis for jurisdiction, the light would be red. There would be a strict presumption against application of the statute, which could be overcome only by a clear statement in the law itself. Finally, situations in neither of these categories would fall under a yellow light: if the United States has some basis for jurisdiction, but not the sole or primary basis, then the Court would employ a soft presumption against application of the statute, which could be overcome by any indication of legislative intent to do so.

Stephan: Abbott v. Abbott: A New Take on Treaty Interpretation by the Supreme Court

Paul B. Stephan (Univ. of Virginia - Law) has posted an ASIL Insight on Abbott v. Abbott: A New Take on Treaty Interpretation by the Supreme Court.

Stephan: Morrison v. Nat’l Australia Bank Ltd.: The Supreme Court Rejects Extraterritoriality

Paul B. Stephan (Univ. of Virginia - Law) has posted an ASIL Insight on Morrison v. Nat’l Australia Bank Ltd.: The Supreme Court Rejects Extraterritoriality.

Hollis: Treaties in the Supreme Court, 1861-1900

Duncan B. Hollis (Temple Univ. - Law) has posted Treaties in the Supreme Court, 1861-1900 (in The U.S. Supreme Court and International Law: Continuity or Change?, W. Dodge, M. Ramsey & D. Sloss eds., forthcoming). Here's the abstract:

This chapter, part of a larger book reviewing the history of the U.S. Supreme Court’s approach to international law, examines the Court’s treaty doctrine between the poles of the Civil and Spanish-American Wars. It finds that - even as the period exhibited much continuity in the Court’s approach to treaties - there were substantial areas of evolution. The chapter offers three different explanatory lenses to examine that evolution: (i) the rise of Congress’s relative power in domestic politics, (ii) U.S. foreign affairs’ increased attention to non-European treaties, and (iii) increasing jurisprudential emphasis on positivism in domestic and international circles.

In terms of the treaty doctrine itself, the Chapter reveals the Court’s continued fidelity to several treaty principles developed at the Framing, especially the ability of treaties to trump state law and the capacity of private individuals to invoke rights and receive judicial remedies pursuant to U.S. treaty obligations. At the same time, it details the origins of the Court’s adoption of a theory of equivalence between statutes and treaties that paved the way for the later-in-time rule. In addition, the Chapter reviews the Court’s often inconsistent experimentation with different methods for interpreting treaties and its elaboration in theory - if not in practice - of the concept of non-self-executing treaties. All told, therefore, this Chapter reveals a more nuanced - and important - set of treaty rulings during the post-Civil War period than previous foreign affairs law scholarship has recognized.

Weissbrodt & Nesbitt: The Role of the United States Supreme Court in Interpreting and Developing Humanitarian Law

David Weissbrodt (Univ. of Minnesota - Law) & Nathaniel H. Nesbitt (Univ. of Minnesota - Law) have posted The Role of the United States Supreme Court in Interpreting and Developing Humanitarian Law (Minnesota Law Review, forthcoming). Here's the abstract:

In the absence of a single authoritative mechanism to interpret humanitarian law, a number of treaty bodies, national courts, regional human rights courts/commissions, international tribunals, and thematic mechanisms have been called upon to address humanitarian law issues. Prime among these institutions is the United States Supreme Court. Though only in a small number of cases, the Court has relied on humanitarian law principles and treaties from the early days of the Republic to the “war on terrorism.” In what ways does the Court invoke this body of law and how competent is its analysis? Is the Court institutionally equipped to play a meaningful role in the development of humanitarian law?

This article assesses the historical, current, and potential role of the Court in interpreting and developing humanitarian law. Through a comprehensive examination of the Court’s humanitarian law jurisprudence, the article argues that while the Court has offered useful and precedential interpretations of humanitarian law, its analysis suffers from a relatively superficial engagement with the Geneva Conventions. In short, the Court is reluctant to probe too deeply into this complex body of law; its reliance on humanitarian law is often minimal and sometimes haphazard. Despite these shortcomings, the Court has an important role to play. Throughout its history, but most notably in the years after September 11, 2001, the Court has unearthed numerous substantive propositions of humanitarian law and offered novel interpretations of at least one of them. As national and international courts grapple with the implications of international terrorism, the Court will remain an important voice.

Stephan: Treaties in the Supreme Court: 1946-2000

Paul B. Stephan III (Univ. of Virginia - Law) has posted Treaties in the Supreme Court: 1946-2000. Here's the abstract:

This paper, a chapter in a forthcoming book on International Law and the Supreme Court, examines the treaty decisions of the Court during the postwar era, up until the second Bush Administration. Three patterns stand in the many (roughly 130) decisions. First, the Court acted as if the immediately preceding period – the New Deal, then the War – created a sharp break with the past, freeing the Court to address many questions as novel rather than rooted in settled practice. Second, the Court largely resisted the invocation of treaties as authority contradicting congressional statutes and executive practice regarding matters of public law, but gave greater effect to treaties that addressed what the Court perceived as matters of private interest – disputes over property ownership, contract enforcement, and liability for torts. Third, the Court did invoke treaty-based rules in cases where it perceived the desire of Congress and the President to draw on international law to fill out the meaning of particular statutes.