Monday, February 27, 2006

Thoughts from the Symposium

Several chapter members went to the Federalist Society Student Symposium at Columbia University this weekend. I highly recommend that everyone attend next year. The speakers and discussion were thoughtful and engaging....if only school were like this all the time!

Over the course of the week, it struck me that the panelists who favored extensive application of international law focused exclusively on the most formal aspects of the law: treaties, accords, etc. They argued that the US has an obligation to adhere to these agreements because we believe in the rule of law. You sign a contract, you honor it. That's a great argument to make to Federalists.

But rule of law depends on law being knowable, procedural, and definite. No wonder that the internationalists talk only of treaties and accords. In the case of agreements negotiated by our elected officials, I am very persuaded by their claims that strict adherence is both a legal obligation and good policy. We follow legitimate law partially because it's the right thing to do, regardless of whether anyone will enforce it against us; we also do it because honoring our agreements bolsters our reputation in the long run. The same arguments apply to nations as well as individuals--but only with respect to defined obligations voluntarily undertaken.

Their argument doesn't hold for custom, the court of opinion, the law of nations, or haphazard judicial consideration of foreign law in interpreting our Constitution. The part of international law that stirs controversy isn't usually treaties. I think what we're usually arguing about is the piecemeal importation of ill-defined customary law that we don't get a chance to vote on. It's the customary fluff that lacks institutions to legitimately create or enforce it. By applying that part of international law here, we undermine the procedural safeguards that allow us to protect ourselves. Americans haven't had clear input into it. We don't trust it or respect it, and we have no reason to do so.

So although the rule-of-law argument is alluring, I think the argument only goes so far. It just doesn't extend to the gritty issues.

It was a great conference. I hope you all attend next year.


D said...

Can anyone name a Supreme Court case where the Court stated it was bound by international law, other than cases involving treaties, other international agreements, etc.?

The only such cases I can think of are where justices such as Scalia relied on Blackstone.

If no such cases exist, then what is the big "controversy" that the Federalists are always so excited about?

-Dave Lane

D said...

Jim --

Note the first sentence from the Paquete quote:

"International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction AS OFTEN AS QUESTIONS OF RIGHT DEPENDING UPON IT ARE DULY PRESENTED FOR THEIR DETERMINATION." (emphasis added)

Sosa was about the Alien Tort Statute (ATS), which gives district courts “original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations . . . ." So, since the ATS is a statute that grants a right dependent upon international law, the Court looked to international law.

Thus, Sosa fits squarely within one of the categories of cases where reliance on international law is not controversial (as perhaps evidenced by Justice Scalia's concurrence in the case).

Rather than quoting cases like Sosa, where everyone on the Court agrees that international law is properly relied upon, opponents of the Court citing to international law often refer to cases like Roper v. Simmons, where the Court did not in fact rely on international law as binding.

-Dave Lane

D said...

Oops -- make that "J. Li."

D said...

Yeah, I have no idea where I got "Jim." Odd, I admit.

Charles Iragui said...


Maybe you're right that there is AS YET little to point to. That is far from saying that Justice Breyer's suggestions will certainly have no impact on potential future jurisprudence.

Also, in Roper v Simmons Justice Kennedy's counting up of countries to see the global trend on juvenile death penalty mirrors the counting of states already (stupidly in my mind) used in 8th Amendment cases. That cases is just a step away from making foreign law binding on the US Supreme Court in the interpreting of our Constitution.

As for Blackstone, you know that he was a reference for the writers of the Constitution, a great difference with legal regimes of today.