DOC PREVIEW
UNCW BLA 361 - SUPREMACY AND DIPLOMACY

This preview shows page 1-2-3-4-29-30-31-32-33-60-61-62-63 out of 63 pages.

Save
View full document
View full document
Premium Document
Do you want full access? Go Premium and unlock all 63 pages.
Access to all documents
Download any document
Ad free experience
View full document
Premium Document
Do you want full access? Go Premium and unlock all 63 pages.
Access to all documents
Download any document
Ad free experience
View full document
Premium Document
Do you want full access? Go Premium and unlock all 63 pages.
Access to all documents
Download any document
Ad free experience
View full document
Premium Document
Do you want full access? Go Premium and unlock all 63 pages.
Access to all documents
Download any document
Ad free experience
View full document
Premium Document
Do you want full access? Go Premium and unlock all 63 pages.
Access to all documents
Download any document
Ad free experience
View full document
Premium Document
Do you want full access? Go Premium and unlock all 63 pages.
Access to all documents
Download any document
Ad free experience
View full document
Premium Document
Do you want full access? Go Premium and unlock all 63 pages.
Access to all documents
Download any document
Ad free experience
View full document
Premium Document
Do you want full access? Go Premium and unlock all 63 pages.
Access to all documents
Download any document
Ad free experience
View full document
Premium Document
Do you want full access? Go Premium and unlock all 63 pages.
Access to all documents
Download any document
Ad free experience
View full document
Premium Document
Do you want full access? Go Premium and unlock all 63 pages.
Access to all documents
Download any document
Ad free experience
View full document
Premium Document
Do you want full access? Go Premium and unlock all 63 pages.
Access to all documents
Download any document
Ad free experience
View full document
Premium Document
Do you want full access? Go Premium and unlock all 63 pages.
Access to all documents
Download any document
Ad free experience
View full document
Premium Document
Do you want full access? Go Premium and unlock all 63 pages.
Access to all documents
Download any document
Ad free experience
Premium Document
Do you want full access? Go Premium and unlock all 63 pages.
Access to all documents
Download any document
Ad free experience

Unformatted text preview:

HARLAN COHEN – SUPREMACY AND DIPLOMACY 11/28/2005 12:14:20 PM 101 SUPREMACY AND DIPLOMACY: THE INTERNATIONAL LAW OF THE U.S. SUPREME COURT HARLAN GRANT COHEN* In 2003-2004, a Presidential campaign year dominated by debates about international affairs and international law, the U.S. Supreme Court took an unusual number of cases of international import. The Court considered the Alien Tort Claims Act and the future of human rights suits in U.S. courts, the applicability of the Foreign Sovereign Immunity Act to claims involving Nazi-stolen artwork, the applicability of American antitrust law to foreign anticompetitive activity, and the legality of the Guantanamo detentions. A great deal of ink has been spilled analyzing the individual impacts of each of these cases. What has been less considered is how these cases fit together and what, together, these cases can tell us about the Supreme Court’s nascent theories of international law. Supremacy and Diplomacy: The International Law of the U.S. Supreme Court examines the international theory of the U.S. Supreme Court. Teasing out the various Justices’ views from the 2003-2004 Term’s international cases, the Article examines the Court’s understanding of international law and the Court’s role in the world. It looks at the varying success of particular parties in these cases, e.g., the U.S. government, foreign governments, and human rights activists, as well as how the Court approaches different fact-patterns. The article concludes that the Court has reached an unstable ad hoc compromise between redressing international wrongs and protecting American sovereignty. It argues that the Court’s fractured discourse requires both the U.S. government and international law advocates to take an active role in shaping the Court’s international law theories. The reaction to the Supreme Court’s opinion in Roper v. Simmons,1 in which Justice Anthony Kennedy referenced both foreign and international law in holding the execution of minors unconstitutional, was swift and strong. The halls of Congress seemed to shudder with anger as congressmen and senators rushed to react. In a press release issued March * Furman Fellow, New York University School of Law. J.D., New York University School of Law, 2003; M.A. History, Yale University 2000; B.A., Yale University, 1998. I must first thank Daniel Reich and Andrew Rosen for taking the time to read initial drafts of this Article. Their feedback was invaluable. Thank you also to Barry Friedman and Benedict Kingsbury for very helpful suggestions on how to improve the Article. I am further indebted to Andrew C. Rearick and the staff of the Berkeley Journal of International Law for their work in editing the Article and preparing it for publication. Most of all, thank you to Shirlee Tevet Cohen, my greatest supporter, critic, and publicist, who thankfully understands the difference between writing and being a bum. 1 125 S. Ct. 1183 (2005).HARLAN COHEN – SUPREMACY AND DIPLOMACY 11/28/2005 12:14:20 PM 102 BERKELEY JOURNAL OF INTERNATIONAL LAW (FORTHCOMING FALL 2005) 2, 2005, one day after the Roper opinion was published, Representative Tom C. Feeney (R- FL) called for the “removal of international influence in the United States court system.”2 “The Supreme Court has insulted the Constitution by overturning its own precedent to appease contemporary foreign laws, social trends, and attitudes,”3 Feeney fumed. In the Senate, Senator John Cornyn (R-TX) “r[o]se to express concern over a trend that. . .may be developing in our courts, a trend regarding the potential influence of foreign government and foreign courts in the application and enforcement of U.S. law.”4 In his view, the Court’s internationalist tendencies were endangering American sovereignty: Step by step, with every case, the American people may be losing their ability to determine what their criminal laws shall be – losing control to the control of foreign courts and foreign governments. And if this can happen with criminal law, it can also spread to other areas of our government and of sovereignty. How about economic policy? Or foreign policy? Or our decisions about security and military strategy?5 Echoing these thoughts, an editorial in the Washington Times observed that the Court’s logic is “the product of a movement that favors international law as an end in itself,” and that “it is Congress’ prerogative, not the Supreme Court’s to decide whether the United States will accede to a given treaty or body of international law.”6 Roper’s critics were not alone in observing an internationalist trend in the Court’s opinion.7 Harold Hongju Koh, Dean of Yale Law School and one of the strongest advocates of the use of foreign law and international law sources, observed that “Kennedy and Sandra Day O’Connor have joined Stephen Breyer, John Paul Stevens, Ruth Bader Ginsburg and David Souter in the ‘transnationalist’ camp of the court,”8 and called Republican-sponsored legislation prohibiting judges from citing foreign law in their 2 Supreme Court Ruling Reiterates Importance of Reaffirnation of American Independence Resolution, U.S. FED NEWS, Mar. 2, 2005. 3 Id. Representative Bob Goodlatte (R-VA) agreed: “[I]t is high time that these justices be reminded that their duty is to interpret the Constitution, not to impose the will of foreign entities on the people of the United States.” Id. 4 Sen. Cornyn Introduces Legislation to Keep Foreign Influence Out of U.S. Courts, U.S. FED NEWS, Mar. 21, 2005 5 Id.; see also Budget Hearing: Justices defend judiciary against Hill, NAT’L L. J., Apr. 18, 2005, at P14 (quoting Representative Todd Tiahrt (R-Kan.) “express[ing] concern about Roper v. Simmons,” and saying that “[i]nvoking international law went ‘beyond the rule of law’”). 6 Other Nations’ Laws, THE WASHINGTON TIMES, Mar. 13, 2005, at B02. 7 Anupam Chander, a professor of international law at the University of California, Davis, wrote of “Justice Kennedy the Internationalist,” and observed that “[c]onsidered alongside the Court’s embrace of international law in Sosa v. Alvarez-Machain, [Roper] marks a strong transnationalist turn in the court’s jurisprudence.” Anupam Chander, Justice Kennedy the Internationalist (Mar. 1, 2005), http://www.chander.com/2005/03/justice_kennedy.html. 8 Harris Meyer, Kennedy Wades Into International


View Full Document

UNCW BLA 361 - SUPREMACY AND DIPLOMACY

Documents in this Course
TWO PESOS

TWO PESOS

16 pages

Reading

Reading

13 pages

Russia

Russia

113 pages

Contracts

Contracts

55 pages

Property

Property

54 pages

Contracts

Contracts

45 pages

Load more
Download SUPREMACY AND DIPLOMACY
Our administrator received your request to download this document. We will send you the file to your email shortly.
Loading Unlocking...
Login

Join to view SUPREMACY AND DIPLOMACY and access 3M+ class-specific study document.

or
We will never post anything without your permission.
Don't have an account?
Sign Up

Join to view SUPREMACY AND DIPLOMACY 2 2 and access 3M+ class-specific study document.

or

By creating an account you agree to our Privacy Policy and Terms Of Use

Already a member?