Draft-Do Not Cite without Permission from the Author
STARE DECISIS AND FOREIGN AFFAIRS
MICHAEL P. VAN ALSTINE
INTRODUCTION
I. THE FOUNDATIONS OF STARE DECISIS
A. Understanding the Notion of Precedent
B. The Values that Animate Stare Decisis
C. The Stare Decisis Anti-Values: The Justifications for Reexamining Precedent
D. Institutional and Instrumental Considerations
E. The Unexamined Boundaries of Stare Decisis
II. SEPARATION OF POWERS AND FOREIGN AFFAIRS
A. The Constitution’s Core Allocations of Authority in Foreign Affairs
B. Judicial Reticence, Judicial Deference
C. The Significant and Expanding Judicial Responsibilities
in Foreign Affairs Lawmaking
III. EXAMINING THE SPECIAL RELATIONSHIP BETWEEN STARE DECISIS AND FOREIGN AFFAIRS
A. The Special Responsibility of the Judicial Station
B. Destabilized Values: The Limits of Authority, Stability, and Legitimacy
1. Stability and Exogenous Force of Change: Uni-Polar Stare Decisis
in a Multi-Polar System
2. Expertise and the Risks of Error
C. Separation of Powers, Stare Decisis, and Article III International Law
1. Legitimacy and the Blurring of Law-Finding with Law-Making
2. The Uneasy Role of Congress and the Availability of Legislative Override
3. Accommodating the Executive’s Special Responsibilities in Foreign Affairs
IV. THE ARGUMENT DISTILLED: INTEGRATING STARE DECISIS AND FOREIGN AFFAIRS
A. “Special Justifications” and Article III International Law
B. Local Courts, International Obligations: The Special Demands for
Stare Decisis Modesty in the Federal Courts of Appeal
CONCLUSION
1
INTRODUCTION
The doctrine of stare decisis and law of foreign affairs seem to inhabit entirely different
jurisprudential worlds with no apparent means of communication. In matters of foreign affairs,
the Supreme Court has often cautioned about the judicial branch’s comparative lack of expertise
and inability to gauge the implications of their judgments for external relations.1 Separately, a
web of deference doctrines and related interpretive presumptions function to protect against
improvident judicial incursions into foreign affairs, especially on matters of international law.2
Together, these related considerations reflect admonitions to the courts about the unfamiliarity of
the terrain and the consequent risks of judicial leadership in the field.
Curiously, however, these concerns seemingly evaporate once a court in fact creates a
precedent. An analysis of stare decisis jurisprudence fails to uncover any sensitivity to the
special risks and “collateral consequences”3 of judicial error in foreign affairs matters. That is,
the ex ante admonitions about improvident judicial action do not even find faint echo in the stare
decisis effect of judicial precedents ex post. My goal here is to mine this curiosity.
The proper role of the judicial branch in foreign affairs has provoked substantial
scholarly debates—historical, institutional, normative—since the very founding of the country.4
See Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 386 (2000)(“We have … recognized
the limits of our own capacity to “determin[e] precisely when foreign nations will be offended by
particular acts”)(quoting Container Corp. of America v. Franchise Tax Bd., 463 U.S. 159, 194 (1983));
Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 111 (1948)(declaring
that decisions in foreign affairs are “delicate, complex, and involve large elements of prophecy … of a
kind for which the Judiciary has neither aptitude, facilities nor responsibility”).
1
2
See infra notes __-__ and accompanying text (analyzing this matter in detail).
See Sosa v. Alvarez-Machain, 542 U.S. 692, 731 (2004)(emphasizing that the “collateral
consequences” of recognizing domestically enforceable torts in violation of international law).
3
4
For an introduction to the voluminous scholarship on the specific subject of the judicial
abstention see, e.g., Thomas M. Franck, POLITICAL QUESTIONS/JUDICIAL ANSWERS: DOES THE RULE OF
LAW APPLY TO FOREIGN AFFAIRS? (1992); Michael D. Ramsey, Toward a Rule of Law in Foreign
Affairs, 106 Colum. L. Rev. 1450 (2006); Louis Henkin, Is There a Political Question Doctrine?, 85
2
In all of this, however, the relationship between foreign affairs and stare decisis has found but
little comment5 and no detailed analysis. Likewise, the Supreme Court has never seriously
examined whether the contextual and institutional premises of stare decisis hold in foreign
affairs, even for precedents that define our nation’s sovereign obligations under international
law.6 Indeed, beyond a marginal note by Justice Breyer in a dissent,7 it missed two prime
opportunities to opine on the subject in just the last few years.8
The analysis below will demonstrate that in fact a more nuanced understanding of
precedent is appropriate for certain fundamental aspects of foreign affairs law. Judicial rulings
on constitutional allocation of powers in the field are already subject to a less rigorous version of
YALE L.J. 597 (1976). Few issues have excited scholarly debates like the power of federal courts to apply
customary international law on their own initiative. See, e.g., Anthony J. Bellia, Jr. and Bradford R.
Clark, The Federal Common Law of Nations, 109 COLUM. L. REV. 1 (2009); Harold Hongju Koh, Is
International Law Really State Law?, 111 HARV. L. REV. 1824 (1998); Beth Stephens, The Law of Our
Land: Customary International Law as Federal Law After Erie, 66 FORDHAM L. REV. 393 (1997); Curtis
A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of
the Modern Position, 110 HARV. L. REV. 815 (1997).
5
See Scott & Paul B. Stephan, THE LIMITS OF LEVIATHAN: CONTRACT THEORY AND THE
ENFORCEMENT OF INTERNATIONAL LAW 143 (2006)(observing that “interstitial uses of international law”
by the judiciary, “are subject to subsequent legislative overruling, but courts also can choose to abandon
them on their own initiative in the face of reflection and experience”); Jonathan I. Charney, Judicial
Deference in Foreign Relations, in FOREIGN AFFAIRS AND THE US CONSTITUTION 106 (Louis Henkin,
Michael J. Glennon & William D. Rogers, eds. 1990)(suggesting that stare decisis need not require “that
rules of decision regarding international law in U.S. court cases are binding in all later cases”); Jenny S
Martinez, Towards an International Judicial System, 56 STAN. L. REV. 429, 486 (2003)(observing that
the difficulty of override by the political branches, which has justified a weakened form of stare decisis in
constitutional cases, may apply as well for international law cases). See also Harlan C. Cohen, Undead
Wartime Cases: Stare Decisis and the Lessons of History, 84 TUL. L. REV. 957 (2010(analyzing the
historical significance of precedents from World War II).
6
The Supreme Court has only rarely paused even to mention stare decisis in such cases. See
Clark v. Allen, 331 U.S. 503, 516 (1947)(refusing to revisit a treaty precedent because of consistent
judicial interpretation over time and the plain language of the treaty itself); The Adula, 176 U.S. 361, 371
(1900)(refusing to overrule an international law precedent simply “to conform to the opinions of foreign
writers as to what they suppose to be the existing law upon the subject”).
7
Sanchez-Llamas v. Oregon, 548 U.S. 331, 389-390 (2006)(Breyer, J., dissenting). See also infra
note 229 and accompanying text (analyzing Justice Breyer’s comments).
8
See Medellín v. Texas, 552 U.S. 491 (2008); Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006).
See infra notes 227-231 and accompanying text (analyzing the implications of these opinions).
3
stare decisis. In light of the practical impossibility of correction by the political branches, sound
reasons support this.9 The special concern here is instead the broad and expanding swath of
controversies that likewise fall within the Article III “judicial Power” but involve the courts in
the identification of rights or obligations under international law. Inquiries into such matters of
their nature inject the courts into the uncharacteristic position of defining the very content of our
nation’s formal, legal relations with foreign states. The analysis below demonstrates, moreover,
that even the basic premises of stare decisis become unreliable, and in some respects fail to
obtain at all, when courts create precedent on such matters. In this field, in short, judicial first
impressions are particularly susceptible to immediate erosion; both the likelihood and
consequence of judicial error are greater; and institutional considerations make judicial
leadership fortified by rigid stare decisis particularly problematic.
In contrast, foreign policy implications should not compromise the foundations of stare
decisis for purely domestic statutes. Where Congress takes it upon itself to define the entire
content of the law—without importing international norms—the relationship between law-maker
and law-applier is solely a domestic one. To be sure, judicial interpretation may hold
consequences for foreign relations. But fidelity to the value judgments first made by Congress
within its constitutionally delegated authority should address any concerns about independent
judicial agency in foreign affairs lawmaking. Standard approaches to precedent founded on
standard institutional relationships remain appropriate here.
Part I below first sets the context with a review of the values that animate, and the forces
that degrade, the notion of adherence to precedent.10 We also will see there that institutional
considerations are equally significant for understanding stare decisis in action. Constitutional, as
9
See infra notes __-__ and accompanying text.
10
See infra Part II.A.-C.
4
compared to statutory, precedents enjoy less respect not only because of the infeasibility of
legislative override, but also out of an appreciation of the respective constitutional stations of the
judicial branch and Congress.11 This Part will then explore the little-noted, but subtly important,
jurisdictional premises of stare decisis.12 This latter point, in particular, will return to
significance in the analysis to follow.
Part II then provides a concise review of the Constitution’s arrangement of authority over
foreign affairs.13 Here as well, Congress remains the preeminent domestic lawmaker. But from
text and structure, the Constitution also allocates special responsibilities to the executive in
managing our nation’s relations with foreign states. This enhanced executive authority provides
the backdrop for the web of admonitions mentioned above about the risks of untutored judicial
action in foreign affairs, especially on matters of international law.14 The friction arises,
however, from the expanding authority of the courts to participate in the very definition of
international law rights and obligations. I will refer to this field of foreign affairs law here as
“Article III international law.” To appreciate the significance of this friction, Part II canvasses
the multiplicity of avenues—treaties, “treaty-statutes,” delegated lawmaking authority,
“international law cum common law,”15 executive agreements, meta-norms of interpretation—by
which our legal system now channels such matters into the enforcement authority of the courts.16
11
See infra Part II.C.
12
See infra Part II.D.
13
See infra Part III.A.
14
See infra Part III.B.
15
See Sosa v. Alvarez-Machain, 542 U.S. 692 (2006)(coining this term to describe federal
common law on the foundation of international law).
16
See infra Part III.C.
5
This all provides the foundation for an analysis of proper relationship between the
doctrine of stare decisis and the Article III “judicial Power”17 in matters of foreign affairs. Part
III will explain why the judicial enforcement of Article III international law differs as a matter of
kind, not merely of degree, from the application of law with a purely domestic content.18 The
necessary consequence of precedent on Article III international law is a definition of rights or
obligations that govern in our nation’s legal relations with foreign states. Indeed, one might
view this as the “hardest” form of foreign relations law.19 The gravity of this responsibility,
properly appreciated, should alone give cause for sensitivity over cloaking such precedents with
full stare decisis effect.
But careful analysis reveals that even the values that animate stare decisis become
unstable when courts create precedents on Article III international law.20 Although validated by
domestic authorities, the origin of the legal rules in this field—the source from which they
emerge and derive their content—remains the international legal system. And unlike purely
domestic statutes, the only mechanism for authoritative judicial interpretation and clarification is
a multi-polar and cooperative system that entirely lacks hierarchical integration.
As a result, the factual and doctrinal premises of a “final” decision even by the Supreme
Court on an international law norm may be subject to almost immediate destabilization in the
very legal system from which the norm emerged and in which it continues to operate. This again
paints a contrast with law of a purely domestic origin. On those matters, all forces of legal
change (subject to prospective legislative intervention) should be endogenous to the system and
17
U.S. const., art. III, § 1.
18
See infra Part III.A.
19
See Restatement of Foreign Relations, supra note __, § 1(stating that the foreign relations law
of the United States “consists of … international law as it applies to the United States”).
20
See infra Part III.B.
6
thus within the final judicial control of the Supreme Court. Moreover, on Article III
international law, the cultural, political, legal, and linguistic differences among the law-makers
greatly increase the risk of judicial error in the first place.21 All of this combines to compromise
the “calm”22 stare decisis is designed to secure and reinforce.
An institutional perspective on stare decisis also justifies a differential treatment of
Article III international law and purely domestic foreign affairs statutes. This is the subject of
the final section of Part III.23 There, I first explain why the enforcement of Article III
international law involves a kind of problematic judicial discretion, and thus judicial leadership,
that differs in its essence from the application of purely domestic law. I then confront the most
immediate and significant institutional counter-argument: the availability of congressional
override. Consistent with its position as preeminent domestic lawmaker, Congress should have
the power to overturn a judicial precedent on Article III international law as well.24 Ultimately,
however, this argument does not convincingly address the problematic effects of judicial
leadership on the sensitive subject of international legal relations. For as I will describe in detail
below, it relies on an inversion of the Constitution’s prescribed lawmaking sequence—Congress
creates, the courts apply—for law Congress did not adopt in the first place.
Part III concludes with an analysis of the special responsibilities of the executive in
foreign affairs. We will see there that a properly calibrated notion of stare decisis must indeed
21
See infra Part III.B.2.
Stare decisis derives from the Latin maxim stare decisis et non quieta movere, that is, to “stand
by that decided and do not disturb the calm.”
22
23
See infra Part III.C.
24
Indeed, in response to Hamdan v. Rumsfeld, 548 U.S. 557 (2006), Congress did just that in the
Military Commissions Act of 2006. See §6(a)(2), Pub. L. No. 109-366, 120 Stat. 2600, 2631-32 (codified
in scattered sections of 18 and 28 U.S.C.)(defining “grave breach” of Article 3 of the Third Geneva
Convention and declaring that this definition “fully satisfy[ies]” the obligations of the United States under
the Convention).
7
afford appropriate deference to the executive branch. But it also must not result in an abdication
of the fundamental judicial “province and duty … to say what the law is.”25
In the final Part below, I distill the various themes into a summary analysis.26 I conclude
that extant stare decisis norms retain their validity for purely domestic statutes, even those with
foreign affairs effects. Matters are different, however, for Article III international law. The
message of the analysis is not that the values of stability, predictability, and judicial legitimacy
are categorically absent in this field. Rather, the special considerations that attend judicial
enforcement of Article III international law should be understood as one significant weight on
the scale—an additional “special justification” for reassessing the original and continuing
validity of a precedent. Enhanced stare decisis modesty of this type, moreover, should
strengthen the institutional position of the judiciary; for it would permit (but not require)
reexamination of a precedent as an alternative to routine ex ante deference to executive branch
policy preferences.
Finally, the argument for increased flexibility on Article III international law precedents
is especially compelling for the federal courts of appeal. These regional courts create the vast
bulk of precedents on international law matters as well. Because of this, I address their
particularly misguided, and nearly absolutely rigid, stare decisis practices in a separate section at
the end.27
Over the years, an aphorism by Justice Louis Brandeis from the early part of the last
century has become a darling of stare decisis enthusiasts. “In most matters,” he proposed, “it is
25
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
26
See Part IV.A.
27
See Part IV.B.
8
more important that the applicable rule of law be settled than that it be settled right.”28 The
analysis here suggests strongly, however, that our legal system should not view the significant
and sensitive subject of Article III international law as one of those routine “most matters.” In
any event, neither of Justice Brandeis’s alternative propositions fully holds for disputed issues in
the field. The special circumstances that obtain there decrease, perhaps substantially, the
likelihood that a first judicial impression actually will settle the matter or even be right in the
first place.
I. THE FOUNDATIONS OF STARE DECISIS
A. Understanding the Notion of Precedent
For the common law mind, steeped in the tradition of progressive advancement on the
foundation of progressively refined reason, there is a self-evident quality to the notion of
precedent. It appeals to primal desires for—and, in system of laws, justified expectations of—
rationality, regularity, and stability. Indeed, Benjamin Cardozo’s famous metaphor that judges
merely lay their “own course of bricks on the secure foundation of the courses” of their
forebears29 is now so ingrained in the common law tradition as to seem almost trite.30
But stare decisis also marches in service of loftier causes. Stripped to its essence, the
concept of precedent is a self-imposed rule of law norm for the judiciary.31 That is, by
28
Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932)(Brandeis, J., dissenting). For
recent endorsements by the Supreme Court see, e.g., John R. Sand & Gravel Co. v. U.S., 552 U.S. 130,
139 (2008); Agostini v. Felton, 521 U.S. 203, 235 (1997).
29
Benjamin Cardozo, THE NATURE OF THE JUDICIAL PROCESS 149 (1921).
30
Justice Stevens was a particular fan of this quote. See, e.g., District of Columbia v. Heller, __
U.S. __, 128 S. Ct. 2783, 2824 (2008)(Stevens, J. dissenting); Rita v. U.S., 551 U.S. 338, 360-361
(2007)(Stevens, J., concurring); Hubbard v. U.S.,, 514 U.S. 695, 711 (1995)(Stevens, J.).
See Patterson v. McLean Credit Union, 491 U.S. 164, 172 (1989)(“[I]t is indisputable that stare
decisis is a basic self-governing principle within the Judicial Branch[.]”). See also Henry Paul
Monaghan, Stare Decisis and Constitutional Adjudication, 88 COLUM. L. REV. 723, 752 (1988)(“A
31
9
constraining situational discretion, it reflects the proposition that objectively determined rules of
law bind an independent judicial branch as well. Indeed, it may be a jurisprudential imperative.
As Justice Breyer confidently declared in Randall v. Sorrell,32 “the rule of law demands that
adhering to our prior case law be the norm.”33
Self-evident propositions can be tricky things, however. The Constitution nowhere
expressly empowers the federal judiciary to endow their own opinions with a legal force that
binds subsequent appliers and enforcers. And on the foundation of Erie Railroad Co. v.
Tompkins,34 federal courts “do not possess a general power to develop and apply their own rules
of decision.”35 Stare decisis butts up against this principle as we approach its more absolute
edges. For however faithful a court may be in discerning the law established by others,
communication across time, institution, and circumstance inevitably involves uncertainty, and
thus choice. The power to interpret, in short, is infected with the temptation, and sometimes the
need, to create—a point that will return to significance in the analysis below.36 A version of
stare decisis that would consecrate every legal ruling with unyielding permanence thus would
transform the judicial law-finders into law-makers in every sense but name.
It should not surprise, therefore, that the Supreme Court has founded its modern canon
not on constitutional compulsions or even powers, but rather on prudential impulses anchored, as
general judicial adherence to constitutional precedent supports a consensus about the rule of law,
specifically the belief that all organs of government, including the Court, are bound by the law.”)
32
548 U.S. 230 (2006).
Id., at 244. See also Planned Parenthood v. Casey,505 U.S. 833, 854 (1992)(“[T]he very
concept of the rule of law underlying our own Constitution requires such continuity over time that a
respect for precedent is, by definition, indispensable.”).
33
34
304 U.S. 64 (1938).
35
City of Milwaukee v. Illinois, 451 U.S. 304, 312 (1981).
36
See infra notes __-__ and accompanying text.
10
we have seen, in the rule of law.37 As is so often the case in this area, the Court in fact has a
quotation of ancient lineage ready-made for any serious discussion of the doctrine: “[I]t is
common wisdom,” it has frequently observed, “that stare decisis is not an ‘inexorable
command.’”38 It is, rather, “a principle of policy,” not a “mechanical formula of adherence to the
latest decision.” 39
The use of the word “policy” here carries a serious risk of misdirection, however. To
some realist skeptics, the absence of an absolute formula has served merely to open the gate for
selective and subjective manipulation to suit normative predilections.40 But the Supreme Court
“time and again” has emphasized the “fundamental importance” of stare decisis for the rule of
law in our case-based system.41 And as we shall see below, this observation has teeth, for
departure from precedent is an “exceptional” circumstance founded only on a “compelling”
justification.42
37
See, e.g., Randall v. Sorrell, 548 U.S. 230, 243-244 (2006); Harris v. U.S., 536 U.S. 545,
(2002); Planned Parenthood v. Casey, 505 U.S. 833, 854 (1992); Hilton v. South Carolina Public
Railways Comm’n, 502 U.S. 197, 202 (1991); Patterson v. McLean Credit Union, 491 U.S. 164, 172
(1989); Welch v. Texas Dept. of Highways and Public Transp., 483 U.S. 468, 494 (1987).
38
Planned Parenthood v. Casey, 505 U.S. 833, 854 (1991)(quoting Burnet v. Coronado Oil & Gas
Co., 285 U.S. 393, 405-411 (1932)(Brandeis, J., dissenting)). See also, e.g., Lawrence v. Texas, 539 U.S.
558, 577 (2003)(same); Harris v. U.S., 536 U.S. 545, (2002)(same).
See also Citizens United v. Federal Election Com’n, __ U.S. __, 130 S.Ct. 876, 911-912
(2010)(quoting Helvering v. Hallock, 309 U.S. 106, 119 (1940)). See also Leegin Creative Leather
Products, Inc. v. PSKS, Inc., 577 U.S. 877, 899 (2007)(observing that “[s]tare decisis reflects a policy
judgment that in most matters it is more important that the applicable rule of law be settled than that it be
settled right”)(quoting State Oil Co. v. Khan, 522 U.S. 3, 20 (1997))(internal quotation marks omitted)).
39
40
See, e.g., Daniel A. Farber, The Rule of Law and The Law of Precedents, 90 MINN. L. REV.
1173, 1187 (2006)(asserting that stare decisis “is inherently subjective, and few judges, including
Supreme Court Justices, can resist the natural temptation to manipulate it”); Michael Stokes Paulsen,
Abrogating Stare Decisis by Statute: May Congress Remove Precedential Effect of Roe and Casey?, 109
YALE. L.J. 1535, 1598 (2000)(“The Supreme Court’s practice today is plainly one of selective stare
decisis in the first place. Precedent is followed, except when it isn’t.”).
Hilton v. South Carolina Public Railways Comm’n, 502 U.S. 197, 202 (1991). See also
Randall v. Sorrell, 548 U.S. 230, 243 (2006)(citing numerous cases)
41
42
See infra notes __-__ and accompanying text.
11
B. The Values that Animate Stare Decisis
The notion that judges should adhere to authoritative decisions of the past has a deep
lineage in our common law system.43 With over two hundred years of domestic judicial
pronouncements on the subject,44 legal scholars have had ample source material for an
examination of the foundations of stare decisis.45 A brief review will thus suffice here.
Nonetheless, a careful appreciation of the values that animate stare decisis is essential for our
subsequent analysis of the proper role of the doctrine in the field of foreign affairs.
The Supreme Court itself long ago settled on a customary formulation for the foundation
of stare decisis. The doctrine, we are told, “promotes the evenhanded, predictable, and
consistent development of legal principles.”46 Adherence to precedent likewise “fosters reliance
on judicial decisions, and contributes to the actual and perceived integrity of the judicial
The famous Kent’s Commentaries in 1832 even traced the notion of precedent to judicial
practice in the reign of Edward III in the fourteenth century. See III James Kent, Commentaries on
American Law 476-477 (2nd ed. 1832).
43
44
For an historical review of American judicial practice see Thomas R. Lee, Stare Decisis in
Historical Perspective: From the Founding Era to the Rehnquist Court, 52 VAND. L. REV. 647, 652-655
(1999).
45
See, e.g., Lee, supra note 43, at 652-655; Daniel A. Farber, The Rule of Law and The Law of
Precedents, 90 Minn. L. Rev. 1173, __-__ (2006); Stokes, supra note 40, at __-__; Deborah Hellman, The
Importance of Appearing Principled, 37 ARIZ. L. REV. 1107 1109-1121 (1995); Padden, supra note 40, at
__-__; Charles J. Cooper, Stare Decisis: Precedent and Principle in Constitutional Adjudication, 73
CORNELL L. REV. 401, __-__ (1988). CITATIONS
46
Randall v. Sorrell, 548 U.S. 230, 243 (2006)(quoting United States v. International Business
Machines Corp., 517 U.S. 843, 856 (1996)(quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991)).
12
process.”47 When carefully considered, these broad values distill around three essential, but
nonetheless interrelated, categories: stability, predictability, and legitimacy.48
The most immediate value of stare decisis is the enhancement of stability across time and
similar circumstance.49 At its most elemental, it serves the impulse that, all things equal, a legal
system is best advised to resolve matters firmly and finally than to search for normatively more
appealing solutions from case to case. In the same vein, adherence to precedent fosters the
consistent, orderly, and efficient administration of justice by discouraging successive relitigation
of issues once authoritatively resolved.50
The value of stability in the law functions in tandem with predictability. Adherence to
established precedent establishes a framework for efficient public and private planning.51 The
47
Randall, 548 U.S. at 243 (quoting United States v. International Business Machines Corp., 517
U.S. 843, 856 (1996) (quoting Payne v. Tennessee, 501 U.S. 808, 827 (1991)). See also Hilton v. South
Carolina Public Railways Comm’n, 502 U.S. 197, 202 (1991)(“Adherence to precedent promotes
stability, predictability, and respect for judicial authority”); Vasquez v. Hillery, 474 U.S. 254, 265-266
(1986)(same).
48
For similar recognition of this taxonomy see Hellman, supra note45, at 1109-111; Lee, supra
note 45, at 652-655.
49
See, e.g., CBOCS West, Inc. v. Humphries, __-__, 128 S. Ct. 1951, 1961 (2008)(observing that
“legal stability” is both the goal of “principles of stare decisis” and the foundation of the rule of law);
Thomas v. Washington Gas Light Co., 448 U.S. 261, 272 (1980)(observing that stare decisis “serves the
broader societal interests in evenhanded, consistent, and predictable application of legal rules”).
50
The standard, almost obligatory, quotation for this proposition comes from Justice Cardozo.
See Benjamin N. Cardozo, THE NATURE OF THE JUDICIAL PROCESS 149 (1921)(“The labor of judges
would be increased almost to the breaking point if every past decision could be reopened in every
case[.]”). See also Moragne v. States Marine Lines, Inc., 398 U.S. 375, 403-404 (1970)(noting that stare
decisis advances the interest of “fair and expeditious adjudication” because “the courts could not provide
expeditious resolution of disputes if every rule were fair game for de novo reconsideration in every
case”).
51
See Moragne v. States Marine Lines, Inc., 398 U.S. 375, 403 (1970)(citing as among the
“[v]ery weighty considerations” at the foundation of stare decisis “the desirability that the law furnish a
clear guide for the conduct of individuals, to enable them to plan their affairs with assurance against
untoward surprise”). See also Michael P. Van Alstine, The Costs of Legal Change, 49 UCLA L. REV.
789, 812-815 (2002)(observing that the legal certainly enhanced by adherence to precedent creates a
“framework for less costly, more accurate, and thus more effective planning for future activity”);
Easterbrook, supra note , at 430 (advancing a similar argument).
13
resulting reliance interests of those who have arranged their affairs around on established
precedent in turn make out a compelling claim for subsequent legal protection.52 particularly in
property and commercial matters.53 Not surprisingly, this is particularly true for principles
reaffirmed by “iteration and reiteration over a long period of time.”54
Finally, stare decisis serves to sustain the public’s trust in a principled, law-bound
judiciary. As the Supreme Court observed in perhaps its most sensitive of recent decisions, its
legitimacy “depends on making legally principled decisions under circumstances in which their
principled character is sufficiently plausible to be accepted by the Nation.”55 In this light,
adherence to precedent reinforces the perception that in our constitutional system federal courts
fundamentally are not lawmakers; their role is, rather, to find and apply objective rules of law
created by the political branches. In the words of Thurgood Marshall two decades ago, stare
decisis “permits society to presume that bedrock principles are founded in the law rather than in
the proclivities of individuals.”56
C. The Stare Decisis “Anti-Values”: The Justifications for Reexamining Precedent
52
The cases in which the Supreme Court has emphasized this point are legion. See, e.g., Leegin
Creative Leather Products, Inc. v. PSKS, Inc., 577 U.S. 877, 906 (2007)(“To be sure, reliance on a
judicial opinion is a significant reason to adhere to it[.]”); Payne v. Tennessee, 501 U.S. 808, 828 (1991);
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 854-855 (1992)(same).
Id., at 854 (observing that “classic case for weighing reliance heavily in favor of following the
earlier rule occurs in the commercial context”). See also Payne v. Tennessee, 501 U.S. 808, 828
(1991)(declaring that stare decisis is at its “acme” in such cases).
53
54
Randall v. Sorrell, 548 U.S. 230, 244 (2006).
55
Planned Parenthood v. Casey, 505 U.S. 833, 865 (1991).
56
Vasquez v. Hillery, 474 U.S. 254, 265 (1986). See also Payne v. Tennessee, 501 U.S. 808, 827
(1991)(declaring that in addition to predictability and reliance considerations, the doctrine of stare decisis
“contributes to the actual and perceived integrity of the judicial process”). For a broader analysis of this
factor see Hellman, supra note 45, at 1112 (sketching a “prudential conception of stare decisis” which
highlights “the importance of maintaining the public’s faith in the Court as a principle-guided
institution”).
14
Under the combined weight of these considerations, the doctrine of stare decisis
ultimately functions as a strong presumption against revisiting precedent. The Supreme Court
has variously described this presumption, but the basic thrust has been the same: Stare decisis
imposes a “severe burden” on those dissatisfied with established case law.57 Disavowal of
precedent thus is “exceptional” and requires, as the Court most recently observed, “the most
convincing of reasons.”58
Stare decisis nonetheless is a doctrine of prudence and pragmatism. Even supreme courts
are fallible. Moreover, of their nature societies, polities, and even legal structures continually
adapt and evolve. As a result, an entirely sensible decision in one age may make little or no
sense in the next. To avoid both ossification and unthinking adherence to past mistakes,
therefore, any rational doctrine of precedent must leave some room for change. To this end, the
Supreme Court has recognized what might be seen as a set of stare decisis “anti-values,” which
balance the system by permitting review and correction of the conspicuous judicial misfires of
the past.
The grounds for overruling precedent are easily stated, though their application of
necessity is highly situation-specific. A standard consideration is whether a precedent has
proven to be “unworkable” in actual practice.59 On a similar note, the Court has observed that
Thomas v. Washington Gas Light Co., 448 U.S. 261, 272 (1980)(“The doctrine of stare decisis
imposes a severe burden on the litigant who asks us to disavow one of our precedents.”).
57
Citizens United v. Federal Election Comm’n, __ U.S. __, 130 S.Ct. 876, 911-912 (2010). See
also, e.g., Randall v. Sorrell, 548 U.S. 230, 24 (2006)(“Departure from precedent is exceptional, and
requires ‘special justification.’”)(quoting Arizona v. Rumsey, 467 U.S. 203, 212 (1984)); Hilton v. South
Carolina Public Railways Comm’n, 502 U.S. 197, 202 (1991)(“[W]e will not depart from the doctrine of
stare decisis without some compelling justification.”).
58
See, e.g., Citizens United v. Federal Election Com’n, __ U.S. __, 130 S.Ct. 876, 912
(2010)(“Beyond workability, the relevant factors in deciding whether to adhere to the principle of stare
decisis include the antiquity of the precedent, the reliance interests at stake, and of course whether the
decision was well reasoned.”)(quoting Montejo v. Louisiana, 556 U.S. __, 129 S.Ct. 2079, 2088-2089
59
15
reconsideration is appropriate where the earlier decision was poorly reasoned in the first place
and thus has been “the subject of continuing controversy and confusion.”60 But when carefully
considered, each of these related ideas is simply another way of saying that a particular precedent
never succeeded in establishing the stability and predictability that would justify stare decisis in
the first place.
Of greater significance has been the force of subsequent developments on the foundation
of an earlier decision. Reevaluation of a precedent is first justified when “facts have so changed,
or come to be seen so differently, as to have robbed the old rule of significant application or
justification.”61 Thus, for example, a recent opinion relied on advances in modern scholarly and
administrative perspectives to overrule a long-standing rule of anti-trust law that established the
per se invalidity of vertical price restraints.62
But “of most relevance” has been the effect of intervening developments in the law
itself.63 The Supreme Court has thus declared that “the primary reason” for overruling precedent
is where “either the growth of judicial doctrine or further action taken by Congress … ha[s]
(2009); Planned Parenthood v. Casey, 505 U.S. 833 (1991)(stating that overruling is justified when a
decision “has proven to be intolerable simply in defying practical workability”).
60
Continental T. V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 47 (1977). See also Pearson v.
Callahan, __ U.S. __, 129 S.Ct. 808, 817 (2009)(relying on “a considerable body of new experience” to
overrule a precedent); Randall v. Sorrell, 548 U.S. 230, 244 (2006)(refusing to overrule a precedent
because “[s]ubsequent case law has not made [it] a legal anomaly or otherwise undermined its basic legal
principles”).
61
Planned Parenthood v. Casey, 505 U.S. 833, 855 (1991)(citing Burnet v. Coronado Oil & Gas
Co., 285 U.S. 393, 412 (1932)(Brandeis, J., dissenting)). See also Randall v. Sorrell, 548 U.S. 230, 244
(2006)(declining to overrule a precedent because of the absence of a showing “that circumstances have
changed so radically as to undermine [its] critical factual assumptions”).
62
See Leegin Creative Leather Products, Inc. v. PSKS, Inc., 577 U.S. 877, 899-901 (2007)
(overruling Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373 (1911)).
Leegin Creative Leather Products, Inc. v. PSKS, Inc., 577 U.S. 877, 900 (2007)(“Of most
relevance, ‘we have overruled our precedents when subsequent cases have undermined their doctrinal
underpinnings.’”)(quoting Dickerson v. United States, 530 U.S. 428, 443 (2000)).
63
16
removed or weakened the conceptual underpinnings from [a] prior decision[.]”64 Thus, for
example, in the 2007 case of Leegin Creative Leather Products, Inc. v. PSKS, Inc. the Court
chronicled how nearly one hundred years of case law developments justified overruling a
precedent.65
D. Institutional and Instrumental Considerations
An additional fixture of stare decisis jurisprudence is perhaps the most important for
understanding the doctrine in application. The Supreme Court has long held that stare decisis is
most potent in statutory cases and weakest when the Court interprets the Constitution. At is most
elemental, this distinction is founded on the availability—both formally and practically—of
alternative constitutional vehicles for error correction. Stated simply, where a court interprets a
congressional statute, the legislative branch is available to correct, update, or otherwise revise the
judicial determination.66 Thus, as the Supreme Court recently reiterated with a standard
formulation, “considerations of stare decisis weigh heavily in the area of statutory construction,
where Congress is free to change this Court’s interpretation of its legislation.”67 So strong is this
64
Patterson v. McLean Credit Union, 491 U.S. 164, 173-174 (1989). See also Planned
Parenthood v. Casey, 505 U.S. 833, 855 (1991)(observing that review of a precedent is justified “whether
related principles of law have so far developed as to have left the old rule no more than a remnant of
abandoned doctrine”); United States v. Gaudin, 515 U.S. 506, 521 (1995)(declaring that overruling of a
precedent may be justified where “subsequent decisions of this Court have eroded its “underpinnings”).
65
See Leegin Creative Leather Products, Inc. v. PSKS, Inc., 577 U.S. 877 (2007) (overruling Dr.
Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373 (1911)).
66
Some leading scholars have criticized this established Supreme Court jurisprudence. See, e.g.,
William N. Eskridge, Jr., Overruling Statutory Precedents, 76 GEO. L.J. 1361, 1398-1409 (1988)(arguing
against a heightened stare decisis for statutory cases); T. Alexander Aleinikoff, Updating Statutory
Interpretation, 87 MICH. L. REV. 20, 40-45 (1988)(advancing a similar critique). At the other end of the
spectrum, some critics have questioned the propriety of weakened stare decisis in constitutional cases.
See, e.g., Frank H. Easterbrook, Stability and Reliability in Judicial Decisions, 73 CORNELL L. REV. 422,
429-431 (1988); Henry Paul Monaghan, Stare Decisis and Constitutional Adjudication, 88 COLUM. L.
REV. 723, 742 (1988).
67
Pearson v. Callahan, __ U.S. __, 129 S.Ct. 808, 816-817 (2009)(quoting Illinois Brick Co. v.
Illinois, 431 U.S. 720, 736 (1977)). See also John R. Sand & Gravel Co. v. U.S., __ U.S. __, 128 S. Ct.
750, 757 (2008)(“[S]tare decisis in respect to statutory interpretation has ‘special force,’ for ‘Congress
17
principle that Justice Scalia not long ago referred to it as an “almost categorical rule of stare
decisis in statutory cases.”68
The institutional field is quite different in constitutional cases. Where the Supreme Court
grounds a decision in the Constitution, the only vehicles for revision or adaption are the Court
itself and the amendment procedure of Article V.69 “[C]orrection through legislative action,” as
Justice Brandeis famously observed, “is practically impossible.”70 History amply proves the
point.71 Because of this, stare decisis in constitutional cases “is at its weakest.”72 On this basis,
the Supreme Court has declared that constitutional precedents in particular in foreign affairs
“afford little precedential value for subsequent cases.”73 To be sure, here as well the requirement
of special justification remains.74 Nonetheless, it is not uncommon for the Supreme Court to
revisit even recent constitutional precedents, as its controversial decision only last year in
remains free to alter what we have done.’”)(quoting Patterson v. McLean Credit Union, 491 U.S. 164,
172-173 (1989). As well, a judicial interpretation of a dated, and especially an outdated, statute may spur
congressional action. See William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation
Decisions, 101 YALE L.J. 331 (1991)(reviewing congressional overrides from 1967 through 1990).
68
Rasul v. Bush, 542 U.S. 466, 493 (2004)(Scalia, J., dissenting). See also Eskridge, Statutory
Precedents, supra note 66, at 1364-1369 (reviewing the Supreme Court’s “super-strong presumption
against overruling statutory precedents”).
69
See U.S. CONST., art. V.
70
Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406-07 (1932)(Brandeis, J., dissenting). See
also Payne v. Tennessee, 501 U.S. 808, 828 (1991)(quoting this observation with approval); Seminole
Tribe of Florida v. Florida, 517 U.S. 44, 63 (1996).
What Justice Brandeis observed in 1932 remains true today: “In only two instances—the
Eleventh and the Sixteenth Amendments—has the process of constitutional amendment been successfully
resorted to, to nullify decisions of this Court.” Burnet v. Coronado Oil & Gas Co. 285 U.S. 393, 410 n.5
(1932)(Brandeis, J., dissenting).
71
Agostini v. Felton, 521 U.S. 203, 235 (1997)(declaring that stare decisis “is at its weakest when
we interpret the Constitution because our interpretation can be altered only by constitutional amendment
or by overruling our prior decisions”). See also Payne v. Tennessee, 501 U.S. 808, 828 (1991)(same).
72
73
See, e.g., Dames & Moore v. Regan, 453 U.S. 654, 661 (1981).
Harris v. United States, 536 U.S. 545, 556-557 (2002)(plurality opinion)(“Even in
constitutional cases, in which stare decisis concerns are less pronounced, we will not overrule a precedent
absent a ‘special justification.’”)(quoting Arizona v. Rumsey, 467 U.S. 203, 212 (1984)).
74
18
Citizens United v. Federal Election Commission amply demonstrates.75
The foundations for differential stare decisis run deeper, however, than the availability of
expedient sources for error correction. The distinction instead finds essential color and texture in
institutional considerations about the proper relationship of the judiciary with its co-equal
branches of government.
In specific, the differential force of constitutional and statutory
precedents arises from a respect for the respective constitutional allocations of authority to—and,
presumably, the derivative institutional competence of—the judicial branch and Congress. It is
thus animated not only by which institution is, but also by which properly should be, the
principal source for continued development of a given field of law.
When a court interprets a statute, it operates against the backdrop of the legislative
competence of Congress acting within constitutionally delegated lawmaking powers.
The
special force of stare decisis in such cases recognizes the primacy of Congress in Article I
lawmaking by deferring to the original lawmakers for subsequent correction, adjustment, or
modernization of their own legislative products. As the Supreme Court thus observed in Neal v.
United States, “[o]ur reluctance to overturn [statutory] precedents derives in part from
institutional concerns about the relationship of the Judiciary to Congress. Congress, not this
Court, has the responsibility for revising its statutes.”76 Indeed, concerns about intrusion into the
policymaking authority of Congress have led some jurists (most notably Justice Black77) and
Citizens United v. Federal Election Com’n, __ U.S. __, 130 S.Ct. 876, 911-912 (2010)
(overruling McConnell v. Federal Election Comm’n, 540 U.S. 93 (2003), and Austin v. Michigan
Chamber of Commerce, 494 U.S. 652 (1990)).
75
76
516 U.S. 284, 295-96 (1996). See also Patterson v. McLean Credit Union, 491 U.S. 164, 172173 (1989) (Kennedy, J.)(“Considerations of stare decisis have special force in the area of statutory
interpretation, for here, unlike in the context of constitutional interpretation, the legislative power is
implicated[.]”).
77
See Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 257-258 (1970)(Black, J.,
dissenting)(arguing that because of “the primary responsibility of the legislature in the making of laws,”
19
scholars78 to advocate a near absolute rule against revisiting statutory precedents.
For constitutional matters, in contrast, the Supreme Court “bears the ultimate obligation
for the development of the law as institutions develop.”79 From a tradition founded on no less
than Marbury v. Madison,80 the Court has assigned itself the ultimate authority on the meaning of
the Constitution.
The judicial branch, therefore, is the institution with the independence,
authority, and competence to review—and as appropriate correct and update—prior
constitutional precedents.
The role of these institutional considerations for federal common law is unclear. In this
vacuum, some scholars assume that common law decisions enjoy a “normal” level of
precedential force.81 But others have opined that decisions in this field are not different in kind
from statutory cases,82 with the result that special force of stare decisis should apply with equally
to common law precedents.83 This matter will of course assume significance below in our
analysis of judicial lawmaking in foreign affairs. It will suffice at this point to observe that the
Supreme Court seemingly has endorsed a more relaxed version of the doctrine where courts
reexamining a precedent once “is no different in effect from a judicial alteration of language that
Congress itself placed in the statute”). Cf. Rasul v. Bush, 542 U.S. 466, 493 (2004)(Scalia, J., dissenting)
(suggesting that the Court follows an “almost categorical rule of stare decisis in statutory cases”).
See Lawrence C. Marshall, “Let Congress Do It”: The Case for an Absolute Rule of Statutory
Stare Decisis, 88 MICH. L. REV. 177, 208-215 (1989).
78
79
Monroe v. Pape, 365 U.S. 167, 221 (1961).
80
5 U.S. (1 Cranch) 137, 177 (1803).
See Eskridge, Overruling Precedents, supra note __, at 1366 (“Presumably, common law
precedents would continue to enjoy the normal stare decisis presumption”); Earl Maltz, The Nature of
Precedent, 66 N.C. L. Rev. 367, 388 (1988)(“Common-law precedents provide the benchmark against
which other case law is measured.”).
81
82
See Peter Westen & Jeffrey S. Lehman, Is There Life for Erie After the Death of Diversity, 78
MICH. L. REV. 311, 332 (1980)(“The difference between ‘common law’ and ‘statutory interpretation’ is a
difference in emphasis rather than a difference in kind.”).
83
See Lawrence, supra note __, at 222 (arguing that the separation-of-power concerns that
support “an absolute rule of stare decisis in statutory cases” apply as well to federal common law
precedents).
20
develop “common law statutes” based on an implied delegation of authority by Congress.84
E. The Unexamined Boundaries of Stare Decisis
Inherent in the doctrine of binding precedent, finally, is a principle that for courts and
scholars alike apparently has seemed too elemental to require elaboration. It nonetheless is
essential for a full appreciation of the analysis below: Stare decisis is inseparably bound to, and
by, the concept of jurisdiction. I mean for this term its elemental sense of the realm of authority
within which a court has the power to declare the law. Alexander Hamilton once aptly parsed
the concept in this essential way. “[J]urisdiction,” he observed, “is composed of JUS and
DICTIO, juris dictio, or a speaking and pronouncing of the law.”85
Courts of law derive their power to issue authoritative rulings from a particular polity.
They are, in the first instance, legally constituted by such a polity.86 At a more immediate and
concrete level, this elemental source of power also defines whether a court has adjudicative
authority87—in American law idioms, subject matter and personal jurisdiction—over any
particular dispute. When so constituted and within their legal mandate, courts then exercise a
distinct function on behalf of their state: in Montesquieu’s famous allocation, the “power of
judging” over individual controversies.88 It is thus not by accident that our Constitution vests
84
See infra notes __-__ and accompanying text.
85
Alexander Hamilton, The Federalist No. 81, at 531 (Modern Library ed., 1938).
See U.S. Const., art. III, § 1 (establishing “one Supreme Court” and empowering Congress to
establish inferior courts of the United States).
86
In international law, this concept often is captured by the term “jurisdiction to adjudicate.” See
Restatement of Foreign Relations, supra note __, § 401(b)(defining “jurisdiction to adjudicate” as the
power to “subject person or things to the process of its courts or administrative tribunals …”).
87
88
Charles de Secondat, baron de Montesquieu, The Spirit of the Laws 157 (Anne M. Cohler et al.
eds. & trans., 1989) (1748)(recognizing the “power of judging” that is distinct from legislative power and
executive power).
21
“the judicial Power” of the United States in the Supreme Court (and such inferior courts as
Congress may establish from time to time).89
Embedded within this notion of a judicial power is the authority to resolve disputed
issues of law in a binding and (for the common law mind at least90) a systemically final manner.
This authority exists, however, only within the framework of the legal system from which the
declaring court derives its mandate. Although tautological, there is insight in the observation
that a court has the power to create precedent only within the legal system for which it has the
power to speak with final authority. The Supreme Court of Pennsylvania, for example, can no
more make binding pronouncements for New York courts on the law of New York than the
legislature of Pennsylvania could validly empower it to do so in the first place.91
In the federal realm, the Constitution itself recognizes this principle with a simple, but
subtly powerful, two-letter preposition: It vests in the federal Supreme Court “the judicial Power
of the United States” (not, for example, “in” the United States).92 It is for this reason that even
the Supreme Court lacks the authority to create precedent on the law of a state that is binding on
the internal organs of that state.93
89
U.S. Const., art. III, § 1 (emphasis supplied).
90
As noted below, the formal concept of stare decisis does not apply in civil law systems. See
infra notes __-__ and accompanying text.
91
Pennsylvania courts may of course resolve disputes that involve the application of New York
law. But any interpretation of New York law, although final in the individual dispute, would not be
binding on New York courts in the future. This is true notwithstanding the federal full faith and credit
clause (see U.S. CONST., art. IV, § 1), which was designed to mitigate the coordination problems
associated with a federation of numerous sovereign states. See, e.g., University of Tennessee v. Elliott,
478 U.S. 788, 798-799 (1986); Thomas v. Washington Gas Light Co., 448 U.S. 261, 271-272 (1980);
Nevada v. Hall, 440 U.S. 410, 424-425 (1979).
92
U.S. Const., art. III, § 1 (emphasis supplied).
See International Longshoremen’s Ass’n v. Davis, 476 U.S. 380, 387 (1986)(“[W]e have no
authority to review state determinations of purely state law[.]”); West v. American Tel. & Tel. Co., 311
U.S. 223, 236 (1940)(same).
93
22
This basic point about the jurisdictional premise of precedent has not figured prominently
in modern analyses of stare decisis. A careful focus on this embedded limitation nonetheless
carries insights into the values that animate the doctrine. We may properly speak of stability,
predictability, and legitimacy through precedent precisely because a superior court—and
ultimately a court of last instance—is able to speak with final authority about the law within its
defined jurisdiction. It is this final authority, in other words, that may create and reinforce the
value of “calm” at the foundation of stare decisis.94
This in turn requires fidelity in both the vertical and horizontal dimensions.95 Where a
polity constitutes inferior courts within the same jurisdiction,96 a functional concept of stare
decisis requires that they be tied into a hierarchically integrated system with opportunities for
oversight by superior courts. The great bulk of judging is done by lower courts. Vertical stare
decisis thus especially serves the core values of system stability and predictability. For by this
means, final legal determinations of superior courts take practical effect through mandatory
adherence by inferior courts throughout the system.
Horizontal stare decisis, in contrast, principally serves the value of judicial legitimacy. A
requirement that even a supreme court identify compelling grounds before reexamining its own
precedent reinforces the appearance of a principled, law-bound judiciary.97 Presumably,
moreover, the most reliable judicial expertise on the law of a particular jurisdiction, as well as on
the influence of subsequent developments, is housed in its own highest court.
94
See supra note 22 (translating the basic Latin maxim).
95
See Richard W. Murphy, Separation of Powers and the Horizontal Force of Precedent, 78
NOTRE DAME L. REV. 1075, 1085-1086 (2003)(examining these dimensions of stare decisis).
The term “jurisdiction” here does not necessarily imply a bounded geographical area. A
particular polity may choose to have more than one “supreme” court with jurisdiction delineated by
subject matter. An example is the Texas Court of Criminal Appeals. See Tex. Const. art. V, §§ 5, 6.
96
97
See supra notes __-__ and accompanying text.
23
The jurisdictional foundations of stare decisis, finally, are bound to the power of
precedent to control change. In a vertically integrated system secured by horizontal fidelity to
precedent, stability flows from the premise that all forces of legal change are endogenous to the
system.98 Rigorously followed, stare decisis prevents relitigation of precedents and thus the
corrosive effects of judicial reexamination within that system.99 Once a supreme judicial
authority has established a precedent within its jurisdictional mandate, therefore, the only source
for future legal change—save permissible, prospective overrides by the legislature or other lawmaking institution—should be that one court.100 It is for this reason that intervening
developments in the law (the stare decisis anti-value “of most relevance”101) commonly can
occur only through erosion at the edges of a precedent over a substantial period of time.102
All of this makes sense within the archetype of the modern nation-state with an
independent and hierarchically integrated judicial branch. For federal law of a purely domestic
origin, moreover, the Supreme Court will have the power to speak with finality and thus
effectively control the forces of change. As the analysis below will explore, however, matters
become considerably more opaque and complex when we reflexively extend the jurisdictional
premises of stare decisis to a multi-polar legal order. Such is the case with Article III
98
A notable exception is ruling by administrative agencies within authority delegated by
Congress. I explore this point in more detail below. See infra notes __-__ and accompanying text.
99
This of course highlights the significance of scholarly analysis; but because of stare decisis and
other cultural and traditional forces, courts in the United States generally have not accorded substantial
influence to scholarly arguments about particular precedents.
100
The one noteworthy exception is where Congress has delegated interpretive authority to an
administrative agency for a particular statutory scheme. For more on this point see infra notes __-__ and
accompanying text.
101
See supra notes 63-65 and accompanying text.
The opinion in which the “of most relevance” statement appears, Leegin Creative Leather
Products, Inc. v. PSKS, Inc., thus cited over 100 years of erosion to justify overruling a precedent. 551
U.S. 877, 900 (2007).
102
24
international law. This realm is marked by a goal of system-wide uniformity, but a reality of
multi-polar judicial authority that entirely lacks hierarchical integration.
To appreciate the implications of this fact, we must first return to the Constitution’s core
allocation of powers in foreign affairs. This foundation will permit a deeper exploration of the
special responsibilities of the judicial branch when international law rights and obligations fall
within its domestic power to declare the law (its “juris-dictio”).
II. SEPARATION OF POWERS AND FOREIGN AFFAIRS
The boundaries of the “judicial Power” of the federal courts are nowhere more elusive
and elastic than in the field of foreign affairs law. Even as a general proposition, the
Constitution does not require a “hermetic division among the Branches,”103 nor that “the three
branches of Government ‘operate with absolute independence.’”104 In the field of foreign affairs,
the Supreme Court nonetheless has sanctioned a degree of integration of the “dispersed
powers”105 of legislative, executive, and judicial that finds few parallels elsewhere in
constitutional governance. Our analysis below thus will profit from a concise review of the
Constitution’s general distribution of foreign affairs powers among the three branches of the
national government.
A. The Constitution’s Core Allocations of Authority in Foreign Affairs
The constitutional position of Congress as the preeminent domestic lawmaking institution
extends as well to foreign affairs. In addition to a general grant of authority over foreign
commerce,106 it has the specific powers “[t]o define and punish … Offences against the Law of
103
Mistretta v. United States, 488 U.S. 361, 381 (1989).
104
Morrison v. Olson, 487 U.S. 654, 693-694 (1988)(quoting United States v. Nixon, 418 U.S.
683, 707 (1974)).
105
See Mistretta v. United States, 488 U.S. 361, 381 (1989).
106
U.S. Const., art. I, § 8, cl. 3.
25
Nations”107 and to declare and regulate private conduct during war.108 Moreover, the Necessary
and Proper Clause empowers Congress has to carry into execution any of the federal powers
elsewhere vested by the Constitution.109 This includes, significantly, the exclusive authority to
transform non-self-executing treaties into domestic law,110 even beyond the otherwise applicable
limits on its Article I powers.111 The combined effect of all of these grants is that Congress has a
virtually unlimited field to regulate the domestic law incidents of foreign affairs, including
through the incorporation of international law norms into the domestic sphere.112
The challenge for the work of the judiciary matters arises from the special constitutional
delegations to the President in the field. Article III, Section 1, generally vests “[t]he executive
power” in the President, a term and clause that themselves have generated substantial scholarly
debate.113 More specifically, the Constitution designates the President as Commander-in-Chief
of the armed forces114 and confers on him or her broad authority over ambassadorial relations.115
These express delegations have led to a recognition of certain independent powers of the
107
U.S. Const. art. I, § 8, cl. 10.
See U.S. Const., art. I, § 8, cl. 11 (granting the power “[t]o declare War, grant Letters of
Marque and Reprisal, and make Rules concerning Captures on Land and Water”).
108
109
U.S. Const., art. I, § 8, cl. 18.
110
See Medellin v. Texas, 552 U.S. 491, 525-526 (2008). For more on the distinction between
self-executing and non-self-executing treaties, see infra notes __-__ and accompanying text.
111
See Missouri v. Holland, 252 U.S. 416, 432-434 (1920).
112
See Henkin, supra note __, at 66 (concluding, after reviewing Supreme Court precedent on the
foreign commerce power, that it “might be sufficient to support virtually any legislation that relates to
foreign commerce, i.e., to foreign relations”).
113
See, e.g., Curtis A. Bradley & Martin S. Flaherty, Executive Power Essentialism and Foreign
Affairs, 102 MICH. L. REV. 545 (2004); Saikrishna B. Prakash & Michael D. Ramsey, The Executive
Power over Foreign Affairs, 111 YALE L.J. 231 (2001).
U.S. CONST., art. II, § 2 (designating the President the Commander-in-Chief of the nation’s
armed forces).
114
115
U.S. CONST., art. II, § 2, cl. 2 (granting the President the powewr, with the advice and consent
of the Senate, to “appoint Ambassadors ... and Consuls”); id., § 3 (conferring authority “to receive
Ambassadors and other public Ministers”).
26
President in foreign affairs116 as well as the general authority to manage our routine external legal
relations with foreign states.117 With these independent powers as a backdrop, the Supreme
Court also has cleared nearly limitless constitutional space for congressional delegation of
lawmaking authority to the executive branch in the field.118
Of more significance for immediate purposes is the special role of the President in the
creation of domestic law founded on sovereign commitments under international law. Article II,
Section 3, empowers the President to “make Treaties” provided two-thirds of the Senators
present approve.119 Moreover, and in contrast to the “limited and qualified power” to veto
Article I legislation,120 the President retains a unilateral authority over the formal ratification of a
treaty (and thus its very legal existence for the United States) even after Senate “advice and
consent.”121 The Supreme Court also has endorsed a unilateral executive power to conclude
binding international law agreements, in some cases with domestic law effects (about which
more below122), without complying with the constitutionally prescribed procedures for the
116
Prominent among these are the powers to recognize foreign governments, see, e.g., Banco
Nacional de Cuba v. Sabbatino, 376 U.S. 398, 410 (1964) and Baker v. Carr, 369 U.S. 186, 212 (1962),
and to direct the tactical aspects of external military conflicts, see Fleming v. Page, 50 [9 How.] U.S. 603,
__ (1850) and The Prize Cases, __ U.S. __ [2 Black] 635, 668 (1863).
117
For more on this point see infra notes __-__ and accompanying text.
118
See Industrial Union Dept., AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 684
(1980)(“[I]n the area of foreign affairs, Congress ‘must often accord to the President a degree of
discretion and freedom from statutory restriction which would not be admissible were domestic affairs
alone involved.’”)(quoting United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936)).
U.S. CONST., art. II, § 2, cl. 2 (granting the President the “power, by and with the advice and
consent of the Senate, to make treaties, provided two thirds of the Senators present concur”).
119
120
I.N.S. v. Chadha, 462 U.S. 919, 947 (1983).
121
CITATIONS.
122
See infra notes __-__ and accompanying text.
27
approval of treaties.123 Finally, the position as “constitutional representative” in foreign affairs124
affords the President substantial control over acceptance of norms of customary international law
on behalf of the United States.
The legal norms created by the political branches that regulate foreign affairs, like any
other form of federal law, also may fall within the “judicial Power” of the federal courts. In
parallel with corresponding clauses for the legislative and executive powers, Article III, Section
1, “vests” the judicial Power of the United States “in one supreme Court” (and such inferior
courts as Congress may establish). With no textual differentiation, Section 2 then defines this
power to include “all cases” arising under “this Constitution, the laws of the United States, and
treaties made, or which shall be made, under their authority.”125 The inclusion of international
treaties in this fundamental list has obvious significance for our analysis below. But Article III
also expressly extends the federal judicial power to cases involving ambassadors and to similar
matters that carry special foreign affairs sensitivities.126
Article III’s description of federal judicial authority draws no distinction between foreign
affairs matters and any other category of cases. The Supremacy Clause of Article VI, with its
almost exact linguistic parallel to the core of Article III’s “judicial Power,” likewise contains no
hint of such a differentiation.127 And even the traditional concerns of federalism whither to near
See American Ins. Ass’n v. Garamendi, 539 U.S. 396, 414 (2003)(recognizing such a power).
See also Dames & Moore v. Regan, 453 U.S. 654, 679, 682-683 (1981); United States v. Belmont, 301
U.S. 324, 330-331 (1937).
123
124
United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936).
125
U.S. const., art. III, § 2.
Id. (extending the judicial power to cases affecting “ambassadors, other public ministers and
consuls,” cases of “admiralty and maritime jurisdiction,” and “controversies states or citizens and
“foreign states, citizens or subjects”).
126
See U.S. CONST., art. VI, cl. 2 (“This Constitution, and the laws of the United States which
shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of
the United States, shall be the supreme law of the land”).
127
28
complete insignificance for the work of the judiciary in the field of foreign affairs.128 Moreover,
and as underscored by their required Article VI oath “to support th[e] Constitution,”129 nothing in
the Constitution requires or permits federal judges to refuse either “to render dispositive
judgments”130 in foreign affairs disputes properly before them nor to resolve disputed issues of
law in the process.131 As the Supreme Court thus observed in a recent opinion with immediate
foreign policy implications (and in the face of a plea by the executive branch for judicial restraint
for that very reason), “Courts in the United States have the power, and ordinarily the obligation,
to decide cases and controversies properly presented to them.”132
B. Judicial Reticence, Judicial Deference
Nonetheless, judicial opinions at times have reflected a lack of judicial self-esteem in the
field of foreign affairs law. The courts of course have no authority to conduct or oversee the
foreign policy of the United States. Nonetheless, occasional judicial rhetoric has suggested that,
even for actual cases and controversies properly before them, the courts generally lack the
competence to question the judgments of the political branches in foreign affairs. Thus, as the
128
The combined effect of the structural norms and express provisions discussed immediately
above is that the Constitution vests in the national government a power to arrogate near exclusive
authority over domestic lawmaking in the field of foreign affairs. See, e.g., Zschernig v. Miller, 389 U.S.
429, 436 (1968)(“[F]oreign affairs and international relations [are] matters which the Constitution entrusts
solely to the Federal Government[.]”); Fong Yue Ting v. United States, 149 U.S. 698, 711 (1893)(making
the same point and declaring that the Constitution “speaks with no uncertain sound upon this subject”).
To emphasize the point, the Constitution also expressly prohibits the states—in contrast to the standard
model of mostly concurrent lawmaking powers—from entering into any formal foreign affairs obligations
on their own. See U.S. Const., art. I, § 10, cl. 1 (providing that “no State shall enter into any Treaty,
Alliance, or Confederation”); id. art. I, § 10, cl. 3 (prohibiting the states from concluding “ any
Agreement or Compact with a foreign Power” without the consent of Congress).
U.S. CONST., art. VI, cl. 3 (providing, inter alia that “all executive and judicial officers … shall
be bound by oath or affirmation, to support this Constitution”).
129
See Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 219 (1995)(declaring that “a ‘judicial
Power’ is one to render dispositive judgments”).
130
131
See also Ramsey, TEXT AND FOREIGN AFFAIRS, supra note __, at 323 (making a similar point
founded on Article VI’s required oath to support the Constitution).
132
W.S. Kirkpatrick & Co., Inc. v. Environmental Tectonics Corp., 493 U.S. 400, 409 (1990).
29
Supreme Court declared in Regan v. Wald in 1984—to choose just one example of the “sweeping
statements”133 to this effect—, matters relating “to the conduct of foreign relations ... are so
exclusively entrusted to the political branches of government as to be largely immune from
judicial inquiry or interference.”134
Such rhetorical flights have provoked extended and excited scholarly controversies that
continue to this day.135 Baker v. Carr put to rest the extreme notion that every case with foreign
policy implications is beyond judicial cognizance.136 Moreover, no majority opinion of the
Supreme Court has actually applied the formal doctrine to justify abstention in a foreign affairs
case,137 although of course it has recognized specific constitutional powers distinctly delegated to
other branches.138 And although the number of lower court opinions that have done so is not
133
See Baker v. Carr, 369 U.S. 186, 211 (1962).
134
468 U.S. 222, 242 (1984)(quoting Harisiades v. Shaughnessy, 342 U.S. 580, 589 (1952)). See
Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918)(“The conduct of the foreign relations of our
government is committed by the Constitution to the executive and legislative—‘the political’—
departments of the government, and the propriety of what may be done in the exercise of this political
power is not subject to judicial inquiry or decision.”)
135
For comprehensive treatments of the subject see Harold Hongju Koh, THE NATIONAL
SECURITY CONSTITUTION: SHARING POWER AFTER THE IRAN-CONTRA AFFAIR (1990); THE
CONSTITUTION AND THE CONDUCT OF AMERICAN FOREIGN POLICY (David G. Adler and Larry N.
George, eds., 1996); John Yoo, THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN
AFFAIRS AFTER 9/11 (2005).
136
369 U.S. at 211. The Court reiterated the point two years later in Banco Nacional de Cuba v.
Sabbatino, 376 U.S. 398, 423 (1964).
What Louis Henkin said in 1996 is equally true today: “There is … no Supreme Court
precedent for extraordinary abstention from judicial review in foreign affairs cases.” Louis Henkin,
FOREIGN AFFAIRS AND THE US CONSTITUTION 144 (2nd ed. 1996). But cf. Goldwater v. Carter, 444 U.S.
996, 1002-1004 (1979)(Rehnquist, J., concurring)(arguing in an opinion joined by three other justices that
the issue of termination of a treaty by the President is “nonjusticiable because it involves the authority of
the President in the conduct of our country’s foreign relations and the extent to which the Senate or the
Congress is authorized to negate the action of the President”).
137
138
See, e.g., Republic of Mexico v. Hoffman, 324 U.S. 30, 35 (1945)(conceding the power of the
President to recognize foreign governments); Ex parte Republic of Peru, 318 U.S. 578, 589
(1943)(holding that a determination by the State Department concerning foreign sovereign immunity
“must be accepted by the courts as a conclusive”); U.S. v. Palmer, 16 U.S. [3 Wheat.] 610, 634
(1818)(observing with the executive’s determination of legal status of a foreign conflict under
30
insignificant, all of these have addressed specific disputes over the constitutional allocation of
powers in the field.139
The engagements with the political question doctrine nonetheless are reflective of a
primitive judicial sense that something is qualitatively different when courts are called on to
apply foreign affairs law. Justice Sutherland’s description of foreign affairs in United States v.
Curtiss-Wright Export Corp. (on what was otherwise a judicial frolic and detour) as a “vast
external realm, with … important, complicated, delicate and manifold problems” continues to
resonate in modern opinions.140
Baker v. Carr itself sketched reasons for a special judicial modesty in foreign affairs.
Beyond formal constitutional commitments to another branch, the opinion there observed that
the resolution of issues in the field “frequently turn on standards that defy judicial application” or
“uniquely demand single-voiced statement of the Government’s views.”141 The Court elsewhere
has cited the limitations on its access to reliable information as grounds for deference to the
judgments of the political branches.142 More generally, its opinions have emphasized the
international law “transcend[s] the limits prescribed to the judicial department”). For a comprehensive
analysis of this issue from a textual perspective see Ramsey, TEXT AND FOREIGN AFFAIRS, supra note __,
at 155-173; Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111
YALE L.J. 231, 264-65 (2001).
139
See, e.g., Made in the USA Foundation v. U.S., 242 F.3d 1300 (11th Cir. 2001)(addressing the
approval of treaties by an act of Congress); Dole v. Carter, 569 F.2d 1109 (10th Cir. 1977)(addressing the
effect of an executive agreement without Senate approval). A number of courts have dismissed as
political questions challenges to the President’s right to initiate hostilities. See, e.g., DaCosta v. Laird,
471 U.S. 1146 (2nd Cir. 1973); Lowry v. Reagan, 676 F.Supp. 333 (D.D.C. 1987).
140
299 U.S. 304, 320 (1936).
Baker v. Carr, 369 U.S. 186, 211-212 (1962). See also id., at 217 (citing the influence of “an
unusual need for unquestioning adherence to a political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various departments on one question”).
141
142
This is true, as the Court found only last term, even in the measurement of individual rights.
See Holder v. Humanitarian Law Project, __ U.S. __, 130 S.Ct. 2705, 2727 (2010) (“[W]hen it comes to
collecting evidence and drawing factual inferences in [national security and foreign affairs], ‘the lack of
31
inability of courts to gauge the precise implications of their decisions for our relations with
foreign states.143
For reasons institutional and prudential, the primary beneficiary of these sentiments has
been the executive branch. Time and again federal court opinions have expressed respect for the
President’s independent authority to act in the field and for his “vast share of responsibility”144
for our nation’s relations with foreign states.145 Derivative of this has been a judicial recognition,
at least in a comparative sense, of the executive branch’s superior expertise and access to reliable
information in foreign affairs matters.146 As a practical matter, moreover, the President’s ability
to take the lead—to give solemn assurances to foreign states and pursue paths of action founded
on autonomous interpretations of the law—may work to constrain future judicial decision-
competence on the part of the courts is marked’ and respect for the Government’s conclusions is
appropriate.”)(quoting Rostker v. Goldberg, 453 U.S. 57, 65 (1981)).
143
See supra note 1 and accompanying text (citing Supreme Court observations to this effect). Of
course, concerns about offending foreign states have not led the Court to shrink from its judicial
responsibilities when it determines that the law is clear, as two recent decisions on treaty law have
demonstrated. See Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006); Medellín v. Texas, __ U.S. __, 128
S. Ct. 1346 (2008).
American Ins. Ass’n v. Garamendi, 539 U.S. 396, 414 (2003)(quoting Youngstown Sheet &
Tube Co. v. Sawyer, 343 U.S. 579, 610-611 (1952) (Frankfurter, J., concurring)).
144
See id., (declaring that “in foreign affairs the President has a degree of independent authority
to act”). See also, e.g., Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 188 (1993)(observing that the
President has “unique responsibility” for the conduct of “foreign and military affairs”); Chicago &
Southern Air Lines, Inc. v. Waterman S. S. Corp., 333 U.S. 103, 109 (1948) (“The President ... possesses
in his own right certain powers conferred by the Constitution on him as Commander-in-Chief and as the
Nation’s organ in foreign affairs”).
145
See, e.g., Abbott v. Abbott, __ U.S. __, 130 S.Ct. 1983, 1993 (2010)(following the executive’s
interpretation of a treaty with the reasoning that “[t]he Executive is well informed concerning the
diplomatic consequences resulting from this Court’s interpretation” of a treaty provions, “including the
likely reaction of other contracting states”); Chicago & Southern Air Lines, Inc. v. Waterman Steamship
Corp., 333 U.S. 103, 111 (1948)(emphasizing the President’s superior access to secret information and
observing that “[i]t would be intolerable that courts, without the relevant information, should review and
perhaps nullify actions of the Executive” taken on such information).
146
32
making. As we shall see in much more detail below,147 these sentiments also have condensed
into formal doctrines that grant deference to the executive’s views on the very content of the law.
In spite of this, the field of judicial engagement in defining our nation’s formal legal
obligations in foreign affairs, as we shall see in the next section, is considerable and expanding.
A full appreciation of the breadth of this engagement will highlight the significance of
establishing inflexible precedents where the courts unavoidably participate in a form of foreign
affairs lawmaking.
C. The Significant and Expanding Judicial Responsibilities in Foreign Affairs Lawmaking
In this section we refine our thinking to focus on those aspects of foreign affairs law that
raise special concerns for the force of stare decisis. We have noted above that constitutional
decisions on foreign affairs powers are already subject to a weakened form of stare decisis.148
On the other hand, simple domestic statutes whose content is defined entirely by Congress, even
those with foreign affairs effects, will not raise special concerns over leadership and independent
value judgments by the judiciary. To understand this point, we must first identify the special
category of controversies that likewise fall within the Article III “judicial Power” of the federal
courts, but directly or indirectly involve them in the very definition of rights or obligations under
international law.
It is no secret, even for the casual observer of public affairs, that international law and
institutions have played an increasingly prominent role in the modern law of the United States.
Treaty regimes have proliferated; international institutions have grown in both numbers and
range of authority; and reference to international law norms in domestic litigation is now
147
See infra notes __-__ and accompanying text.
148
It is this confined, though of course significant, subset of issues of which Mike Ramsey speaks
with his observation that “[f]oreign affairs law is, at its root, constitutional law.” Michael D. Ramsey,
THE CONSTITUTION’S TEXT IN FOREIGN AFFAIRS 1 (2007).
33
commonplace. Like foreign policy generally, the mandate of the judicial branch does not extend
to purely sovereign-to-sovereign legal disputes, a point Chief Justice Marshall emphasized early
in our constitutional history.149 But international law now also makes increasing claims to issues
in the domestic space. It is precisely because of this that the circumstances under which the
judiciary may resort to international norms as a rule of decision is among the most contested
issues of modern legal scholarship.150
Although they provide flavor for the sensitivity of the subject, we need not wade into
these controversies here. Our concern is instead the product of judicial action—however
domestic law has empowered the courts to resolve disputes by reference to international law
sources. Our analysis begins, in other words, with international legal norms already validated
through domestic recognition mechanisms (whether the Constitution, laws, or treaties of the
United States).
These norms share five essential characteristics: (a) they come into being through
international lawmaking processes (and thus their substance derives in whole or in part from
international law); (b) they affect legal rights or obligations; (c) they have been validated as
domestic law through domestic recognition mechanisms; (d) they fall within the authority of
domestic courts to determine through binding pronouncements; and (e) they are enforceable
through domestic legal sanctions.151 When these five characteristics concur, the Article III
See Foster v. Neilson, 27 U.S. (2 Pet.) 253, 307 (1829)(“The judiciary is not that department
of the government, to which the assertion of its interests against foreign powers is confided; and its duty
commonly is to decide upon individual rights, according to those principles which the political
departments of the nation have established.”) See also United States v. Arredondo, 31 U.S. (6 Pet.) 691,
711 (1832)(endorsing this quote from Foster v. Neilson).
149
150
See supra notes __ and __ (citing authorities).
151
I acknowledge an intellectual debt here to the thoughtful analysis by Robert Scott and Paul
Stephan of the general concept of the “formal enforcement” of international law. See Scott & Stephan,
supra note 5, at 1-16.
34
judicial power extends to the enforcement of international law rights and obligations in domestic
law and thus to the creation of precedent in the process.
The two principal types of this “Article III international law,”152 treaties and customary
international law, will be familiar.153 But what as yet has not been fully appreciated is the
multiple avenues by which our legal system now channels these forms of familiar international
law into the enforcement authority of domestic courts. My goal in the paragraphs to follow is to
canvass these avenues and in the process uncover the broad and expanding field of unavoidable
judicial involvement in foreign affairs lawmaking.
The classic example of domestic law founded on international legal obligation is a selfexecuting treaty. As the “supreme Law of the Land”154 within the enforcement authority of the
federal courts under Article III,155 it is the “obligation” of the courts to enforce such treaties as
152
Cf. John McGinnis & Ilya Somin, Should International Law be Part of Our Law?, 59 STAN. L.
REV. 1175, 1176-1177 (2007)(employing the term “domesticated international law,” but only in the
narrower sense of law “which our political branches have expressly made part of our law through the
legislative process”).
153
The available empirical evidence indicates that the Supreme Court historically has not shied
from enforcing these twin forms of international law in cases properly before it. See Ariel N. Lavinbuk,
Note, Rethinking Early Judicial Involvement in Foreign Affairs: An Empirical Study of the Supreme
Court’s Docket, 114 Yale L.J. 855, 872 (2005)(examining “every foreign affairs case on the [Supreme]
Court’s docket from 1791 to 1835” and concluding that foreign affairs matters were part of “the day-today business of the Court”). Empirical studies with a more modern focus have reached similar
conclusions, although with a less comprehensive scope. See Kimi Lynn King & James Meernik, The
Supreme Court and the Powers of the Executive: The Adjudication of Foreign Policy, 52 POL. RES. Q.
801, 802, 808-809 (1999)(surveying all Supreme Court cases in history, although employing limited
search terms—not including, for example, the words “treaty” or “law of nations”–, but generally
concluding “that the Supreme Court has often issued decisions where there are American foreign policy
concerns”); Phillip R. Trimble, A Revisionist View of Customary International Law, 33 UCLA L. REV.
665 (1986)(arriving at a similar conclusion but with a focus on a subset of 100 cases that addressed
customary international law).
154
U.S. Const. art. VI, § 2, cl. 2.
Id., art. III, § 2, cl. 1 (“The judicial Power shall extend to all Cases, in Law and Equity, arising
under … Treaties made, or which shall be made, under the[] Authority” of the United States).
155
35
preemptive federal law.156 And from sheer numbers and substantive subject matters, the scope of
this judicial obligation is broad indeed. The roll of self-executing treaties accepted by the United
States now certainly exceeds 500.157 Contrary to popular perceptions, the Bush Administration
also was particularly active on this score: In eight short years it oversaw the ratification of over
100 self-executing treaties and related protocols.158 Finally, treaties may fall within judicial
cognizance by congressional adoption of “treaty-statutes,”159 whether through formal legislative
incorporation, 160 indirect reference,161 or so-called Congressional-Executive Agreements.162
156
See, e.g., United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110 (1801)(holding that
because a treaty is the supreme law of the land “its obligation on the courts of the United States must be
admitted”); Medellin v. Texas, 552 U.S. 491, 507 (2008)(observing that self-executing treaty provisions
have the force and effect of a legislative enactment”)(quoting Whitney v. Robertson, 124 U.S. 190, 194
(1888)). A recent comprehensive study identified over ___ treaty cases decided by the Supreme Court
alone. See THE U.S. SUPREME COURT AND INTERNATIONAL LAW: CONTINUITY OR CHANGE?, appendix
__ (D. Sloss, M. Ramsey, & W. Dodge, eds., 2010).
157
Unfortunately, the State Department does not keep separate records for self-executing treaties.
My own research has confirmed that over 500 exist. See Michael P. Van Alstine, Federal Common Law
in an Age of Treaties, 89 CORNELL L. REV. 892, 921-23 (2004)(summarizing the results of this research).
An updated list is on file with the author.
158
A list of these treaties is on file with the author.
159
For a general treatment see John F. Coyle, Incorporative Statutes and the Borrowed Treaty
Rule, 50 AM. J. INT’L L. 655 (2010).
160
A prominent example is the 1970 act implementing New York Convention on Recognition and
Enforcement of Foreign Arbitral Awards. See Act of July 31, 1970, Pub. L. No. 91-368, §1, 84 Stat. 692,
692 (codified at 9 U.S.C. § 201 (2010). Other examples include the act implementing the Inter-American
Convention on International Commercial Arbitration, 9 U.S.C. § 301 (2010)); the Hague Convention on
the Civil Aspects of International Child Abduction Implementation Act, 42 U.S.C. § 11601 (2010); and
the Cape Town Treaty Implementation Act of 2004, 49 U.S.C. §44101 (2010).
161
In this vein, Congress often has expressly referred to treaties to supplement or limit its
legislation. See, e.g., Conventional forces in Europe Treaty Implementation Act of 1991, Pub. L. 102228, § 2751, 105 Stat. 1691 (1991)(declaring that “[t]he Authorities provided in this chapter shall be
exercised consistent with the obligation incurred by the United States in connection with the CFE
Treaty”); 10 U.S.C. § 802 (2009)(providing that any person “[s]ubject to any treaty or agreement to which
the United States is or may be a party” are subject to the Uniform Code of Military Justice); 16 U.S.C. §
1435(a)(requiring that regulations on national marine sanctuaries comply “with treaties, conventions, and
other agreements to which the United States is a party”); 18 U.S.C. § 957 (providing criminal sanctions
for any person who “knowingly and willfully possesses or controls any property or papers used or
designed or intended for use in violating … rights or obligations of the United States under any treaty”).
A comprehensive list of the dozens of examples of this is available from the author.
36
Customary international law is a more controversial subject.163 The Supreme Court has
endorsed federal common law-making only for certain narrow “enclaves”164 of “uniquely federal
interest.”165 One prime, though contested, example is the federal common law of foreign
affairs.166 The Court itself reinvigorated controversy on this score with its rhetoric over
“international law cum common law” in Sosa v. Alvarez-Machain.167 Again, however, we need
not here engage with the details of the basic debate.168 It will suffice at this point to observe that,
162
This form of treaty incorporation is more controversial, for in many such cases the legislation
may be so dense or the expression of congressional intent so clear as to preclude resort to the treaty for
substantive interpretive material. An example is the Berne Convention Implementation Act, which
includes a declaration that its provisions alone “satisfy the obligations of the United States” under the
Convention. See Pub. L. 100-568, §101, 102 Stat. 2853, (1988)(also providing that “no further rights or
interests shall be recognized or created for that purpose”). See also Uruguay Round Agreements Act, 19
U.S.C. § 3511 et seq. (2010); the North American Free Trade Agreement Implementation Act, 19 U.S.C.
§ 3311 et seq. (2010).
163
See supra note __ (citing some of the voluminous scholarship on this subject). See also Curtis
A. Bradley, Jack L. Goldsmith, & David H. Moore, Sosa, Customary International Law, and the
Continuing Relevance of Erie, 120 HARV. L. REV. 869 (2007); David H. Moore, An Emerging Uniformity
for International Law, 75 GEO. WASH. L. REV. 1 (2006).
164
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 426-27 (1964).
165
United States v. Standard Oil Co., 332 U.S. 301, 307 (1947). See also, e.g., Boyle v. United
Technologies, 487 U.S. 500, 504 (1988); Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630,
640 (1981).
166
See, e.g., Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640 (1981)(declaring
that federal common law governs matters “international disputes implicating ... our relations with foreign
nations”)(citing, inter alia, Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 425-27 (1964)).
167
542 U.S. 692 (2006).
168
The proper place of maritime and admiralty law in this analysis poses a special problem. The
Supreme Court has long reasoned that Article III’s express inclusion of those matters in “the judicial
Power” impliedly empowered the federal courts “to draw on the substantive law ‘inherent in the admiralty
and maritime jurisdiction,’ and to continue the development of this law within constitutional limits[.]”
Romero v. International Terminal Operating Co., 358 U.S. 354, 360-361 (1959)(quoting Crowell v.
Benson, 285 U.S. 22, 55 (1932)). In some early cases, the Court referred extensively to “the law of
nations” in fulfilling this responsibility. See Glass v. The Betsy, 3 U.S. [3 Dall.] 6, 9 (1794); Talbot v.
Jansen, 3 U.S. [3 Dall.] 133, 159 (1795)(Iredell, J.). Since the Judiciary Act of 1789, see 1 Stat. 76, § 9,
and to the present, see 28 U.S.C. § 1333 (2010), Congress also has granted to the federal district courts
original jurisdiction over “[a]ny civil case of admiralty or maritime jurisdiction.” But it also included a
savings clause that permitted such cases also to proceed in state courts under state law. Id. As a result,
maritime and admiralty law today reflects an amalgam of state and federal law. It is, to be sure, also
informed by international law, but it does not derive its content directly from that source.
37
at least in some narrow circumstances, the federal courts are empowered to enforce, if necessary
on their own authority, uniform federal solutions founded in international law.
In any event, the far more common source of authority for judicial enforcement of
customary international law is a delegation from Congress. Early in our constitutional history,
the Supreme Court endorsed the power of Congress to delegate such a discretionary authority to
the courts.169 And since then Congress has done so in great numbers. Well over one hundred
legislative provisions today grant rights or authorities, or otherwise define legal norms, through
an incorporation of “the law of nations” or “international law.”170
The judicial obligation to enforce the international legal obligations may also come
through the vehicle of so-called sole executive agreements.171 Agreements made solely on the
basis of the executive’s independent powers under the Constitution may have limited domestic
law effects.172 A much more significant field of operation for executive agreements, however,
results from delegations of authority by Congress through formal legislation. Indeed, Oona
Hathaway has estimated that between 1990 and 2000 alone the executive branch concluded over
1300 executive agreements on such delegated authority.173
169
See U.S. v. Smith, 18 U.S. 153, 158 (1820)(upholding a conviction on the basis of a
Congressional act that criminalized piracy “as defined by the law of nations” against a claim that
Congress could not leave the matter to judicial interpretation).
See, e.g., 10 U.S.C. § 821 (2010)(reserving the right of the military to try offenses that “by …
the law of war” may be tried by military commissions); 18 U.S.C. § 1651 (2010)(criminalizing piracy “as
defined by the law of nations”); 22 U.S.C. § 462 (2010)(empowering the President to detain foreign
vessels at American ports when permitted “by the law of nations”). A comprehensive list of such
incorporations of international law is on file with the author.
170
171
For a comprehensive review of the subject see Bradford R. Clark, Domesticating Sole
Executive Agreements, 93 VA. L. REV. 1573 (2007).
172
See Restatement of Foreign Relations § 303(4)(stating that the President may make a sole
executive agreement “dealing with any matter that falls within his independent powers under the
Constitution”).
173
Oona A. Hathaway, Presidential Power over International Law: Restoring the Balance, 119
YALE L.J. 140, 155-165 and n.29 (2009).
38
A final method by which federal courts recognize the international legal obligations of
the United States is an indirect one. Through a variety of interpretive presumptions, domestic
courts have given effect even to international legal norms otherwise not recognized through the
formal mechanisms discussed above. The most prominent among these is a general presumption
that in adopting domestic legislation Congress intends to abide by international law.174 A parallel
presumption operates for the protection of international norms contained in treaties175 and
executive agreements.176 Each of these meta-rules of interpretation of necessity involves a
primary judicial determination of the content of international law. That is, the presumption about
congressional intent first requires a court to identify the international legal norms with which
ambiguous legislation might conflict.
To be sure, except for “raw international law” recognized on judicial authority alone, 177
the constitutional requirement of domestic recognition creates a discrete moment for domestic
lawmaking institutions to filter the content of international norms. Nearly all such moments,
174
The rule traces its lineage to Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118
(1804). See also F. Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 164 (2004)(observing that
“principles of customary international law” reflect “law that (we must assume) Congress ordinarily seeks
to follow”). For a critical view see Curtis A. Bradley, The Charming Betsy Canon and Separation of
Powers: Rethinking the Interpretive Role of International Law, 86 GEO. L.J. 479, 517-24 (1998). See also
Ingrid Brunk Wuerth, International Law and Constitutional Interpretation: The Commander in Chief
Clause Revisited, 106 MICH. L. REV. 61 (2007)(examining whether this presumption should extend to
constitutional interpretation).
See Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 252 (1984)(“There is... a
firm and obviously sound canon of construction against finding implicit repeal of a treaty in ambiguous
congressional action.”). See also Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528,
538-539 (1995); Washington v. Wash. Commercial Passenger Fishing Vessel Ass’n, 443 U.S. 658, 690
(1979).
175
176
Weinberger v. Rossi, 456 U.S. 25, 32 (1982)(applying the presumption in favor of preexisting
executive agreements).
177
See McGinnis & Somin, supra note __, at 1176-1177 (employing this term).
39
however, are marked by a blanket assent (whether ex post or ex ante).178 The infrequency of
controversies over the influence of pre-ratification Senate treaty debates illustrates this point.179
What remains is substantial judicial discretion, and thus leadership, in the identification of our
legal obligations under international law.
III. EXAMINING THE SPECIAL RELATIONSHIP BETWEEN STARE DECISIS AND FOREIGN AFFAIRS
The striking fact from the above analyses of foreign affairs and stare decisis is how little
they seem to have in common. Accepted doctrine unthinkingly accords judicial decisions on
Article III international law the full force of stare decisis. Indeed, notwithstanding the sheer
volume of opportunities, the Supreme Court has never seriously examined the proper role of
stare decisis when a court creates a precedent in foreign affairs, even on the rules that govern our
nation’s relations with foreign states under international law.180 The sections to follow will show
that such an examination is long overdue.
Subpart A first sets the context with a review of why substantially more is at stake on
matters of Article III international law than with purely domestic law. Subpart B then
demonstrates that even the basic premises of stare decisis may become compromised when
courts create precedent on Article III international law. Subpart C will then explore the
institutional perspective, and in specific the fact and impropriety of judicial leadership in this
178
The intent of the Senate and the President, primarily as reflected in formal texts, remain
decisive on the binary question of whether a treaty is self-executing. See supra note __-__ and
accompanying text.
179
See United States v. Stuart 489 U.S. 353, 367 n. 7 (1989)(sanctioning the use of such
materials). But see United States v. Stuart 489 U.S. 353, 373-374 (1989)(Scalia, J. concurring)(rejecting
resort to such materials because “[t]he question before us in a treaty case is what the two or more
sovereigns agreed to, rather than what a single one of them, or the legislature of a single one of them,
thought it agreed to.”)
180
As noted in the introduction, the Supreme Court has only rarely paused even to mention stare
decisis in such cases. See supra note __.
40
field. I pull the threads together in Part IV with an argument for a more nuanced understanding
of stare decisis on Article III international law precedents.
A. The Special Responsibility of the Judicial Station181
The judicial enforcement of international legal norms differs, in both process and
product, in its essence from the application of purely domestic law. From their very nature, these
norms reflect formal rights or obligations under international law and thus function as elements
of that independent, external legal regime. It is in this fundamental respect, that international law
norms differ from purely domestic statutes, even those that directly regulate foreign affairs.
Nonetheless, disputes involving Article III international law also “arise under” federal law, and
thus fall to the domestic enforcement authority of federal courts.
The archetype of this duality is a self-executing treaty. A treaty is first and
fundamentally a product of international law.182 Its primary function is to create reciprocal
international legal obligations of the United States and a foreign state.183 And as elements of that
independent, external legal regime, the breach of treaty obligations may occasion international
discord, including various forms of legal sanctions and tangible retribution.184
See The Amiable Isabella, 19 U.S. (6 Wheat.) 1, 68 (1821)(observing in a treaty case that “we
feel the responsibility of our stations”).
181
182
See Vienna Convention on the Law of Treaties, supra note __, art. 26 (setting forth the core
principle that agreements between states reflect binding obligations); Restatement of Foreign Relations,
supra note __, § 321 (same); id. § 301 (defining an international agreement as one “that is intended to be
legally binding and is governed by international law”).
See Medellín v. Texas, 552 U.S. 491, 507 (2008)(declaring that that a treaty is “primarily a
compact between independent nations”)(quoting the Head Money Cases, 112 U.S. 580, 598 (1884)).
183
184
See, e.g., Vienna Convention on the Law of Treaties, supra note __, art. 60 (setting forth the
right of states to terminate a treaty for material breach by a member state). See also The Head Money
Cases, 112 U.S. 580, 598 (1884)(observing that when “the interest and the honor of the governments
which are parties to [a treaty] … its infraction becomes the subject of international negotiations and
reclamations, so far as the injured party chooses to seek redress, which may in the end be enforced by
actual war.”).
41
Under the combined force of Articles III and VI,185 the Constitution also permits “selfexecuting” treaties to fulfill the dual functions of international law obligation and judicially
enforceable domestic law.186 Even in such a case, however, the second function operates on the
foundation and against the interpretive background of the first. The Supreme Court thus long
ago declared that even the domestic law incidents of a treaty depend on the formal legal acts
required for the treaty’s entry into force under international law.187
The substantive content of a treaty likewise is found in its international law origins.
Supreme Court jurisprudence recognizes this point through a web of related interpretive
principles.188 Thus, the understandings and practices of international law, not “any artificial or
special sense impressed … by local law,” provide the interpretive background. 189 Moreover,
precisely because it reflects agreed commitments among sovereigns, the ultimate responsibility
185
See supra notes __-__ and accompanying text (explaining that treaties are the law of the land
under Article VI and fall within the judicial power of Article III).
See Zicherman v. Korean Air Lines Co., 516 U.S. 217, 226 (1996)(“[A] treaty ratified by the
United States is not only the law of this land ... but also an agreement among sovereign powers[.]”). See
also Curtis A. Bradley, Self-Execution and Treaty Duality, 2008 S. CT. REV. 131, 157-159 (emphasizing
the fundamental role of treaties as sovereign international commitments). For a comprehensive
comparative study of this subject see THE ROLE OF DOMESTIC COURTS IN TREATY ENFORCEMENT, A
COMPARATIVE STUDY (D. Sloss, ed., 2009). For an introduction into this abstract debate over dualism vs.
monism see Curtis A. Bradley, Breard, Our Dualist Constitution, and the Internationalist Conception, 51
STAN. L. REV. 529 (1999); and Melissa A. Waters, Creeping Monism: The Judicial Trend Toward
Interpretive Incorporation of Human Rights Treaties, 107 COLUM. L. REV. 628 (2007).
186
187
See Haver v. Yaker, 76 U.S. 32, 34 (1869)(holding that the force of a treaty under domestic
law depends on the formal international law act of the exchange of instruments of ratification)(citing
United States v. Arredondo, 31 U.S. (6 Peters.) 691 (1832)). See also Dooley v. United States, 182 U.S.
222, 230 (1901)(same).
Like all such inquiries, the interpretation of a treaty of course “begins with its text.” Abbott v.
Abbott, __ U.S. __, 130 S.Ct. 1983, 1990 (2010)(quoting Medellín v. Texas, 552 U.S. 491, 506 (2008)).
188
189
See Geofroy v. Riggs, 133 U.S. 258, 271 (1890). See also United States v. Percheman, 32
U.S. [7 Pet.] 51, 86-87 (1833)(interpreting a treaty against the backdrop of the “modern usage of
nations”); The Pizarro, 15 U.S. (2 Wheat.) 227, 246 (1817)(“[T]he language of the law of nations ... is
always to be consulted in the interpretation of treaties.”).
42
of a court is “to read [a] treaty in a manner ‘consistent with the shared expectations of the
contracting parties.”’190
The “shared” aspect here carries important implications for the work of federal courts.
First, and tellingly, the proper source for interpretive material is the international negotiating and
drafting records (the so-called travaux préparatoires).191 Evidence of shared original intent
likewise may be found in “the postratification understanding”192 of the treaty parties through
their subsequent course of conduct.193 Moreover, a prime aim of judicial enforcement of a treaty
is uniformity of interpretation.194
To secure this goal, the Supreme Court has consistently
emphasized that “the ‘opinions of our sister signatories’ ... are ‘entitled to considerable
weight.’”195
Although the authority on treaties is richer, the same basic considerations apply for the
judicial application of executive agreements and customary international law. Like treaties,
190
Olympic Airways v. Husain, 540 U.S. 644, 650 (2004) (quoting Air Fr. v. Saks, 470 U.S. 392,
399 (1985)). See also Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 185 (1982) (observing that
in interpreting a treaty a court’s “role is limited to giving effect to the intent of the treaty parties”).
See, e.g., Medellín v. Texas, 552 U.S. 491, 507 (2008)(“Because a treaty ratified by the United
States is ‘an agreement among sovereign powers,’ we have also considered as ‘aids to its interpretation’
the negotiation and drafting history of the treaty”)(quoting Zicherman v. Korean Airlines, 516 U.S. 217,
226 (1996)). The Senate ratification debates may become relevant, but only in quite rare circumstances.
See supra note __ and accompanying text.
191
192
Id.
O’Connor v. United States, 479 U.S. 27, 33 (1986)(“The course of conduct of parties to an
international agreement, like the course of conduct of parties to any contract, is evidence of its
meaning.”)(citing Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 259-260 (1984); and
Pigeon River Improvement, Slide & Boom Co. v. Charles W. Cox, Ltd., 291 U.S. 138, 158-161 (1934))
193
See Olympic Airways v. Husain, 540 U.S. 644, 660 (2004) (Scalia, J., dissenting)(“[I]t is
reasonable to impute to the parties an intent that their respective courts strive to interpret the treaty
consistently”); Sanchez-Llamas v. Oregon, 548 U.S. 331, 354-355 (2006)(Breyer, J., dissenting)
(observing that “uniformity is an important goal of treaty interpretation”).
194
195
Abbott v. Abbott, __ U.S. __, 130 S.Ct. 1983, 1993 (2010)(quoting El Al Israel Airlines, Ltd.
v. Tsui Yuan Tseng, 525 U.S. 155, 176 (1999)(internal quotations omitted). See also Eastern Airlines,
Inc. v. Floyd, 499 U.S. 530, 550-51 (1991)(“We must also consult the opinions of our sister signatories”
in determining the meaning of a treaty). See generally Sean D. Murphy, Supreme Court’s Use of Court
Decisions of Treaty Partners, 98 AM. J. INT’L L. 579 (2004).
43
written executive agreements may live a dual life of formal sovereign obligation under
international law196 and judicially cognizable domestic law.197 Norms of customary international
law, by standard description, arise through a near universal practice followed “from a sense of
legal obligation.”198 When they so coalesce, the norms likewise represent binding rights or
obligations under international law.199
And we have seen above, in a large variety of
circumstances such norms also may fall within the domestic enforcement authority of federal
courts.200
The essential message here is that when courts discharge their Article III duty to enforce
treaties, customary international law, or executive agreements in domestic law, they
simultaneously define the content of international law. Although independent of the political
branches, the judiciary is a formal institution of the United States. When mandate of federal
courts extends to Article III international law, therefore, they act as functional agents of the
United States in external relations. This creates the very real possibility that a misguided
domestic court could be the activating agency in a breach of our international obligations, or at
International law makes no formal distinction between types of “international agreements.”
See Vienna Convention on the Law of Treaties, Art. 2(1)(defining a “treaty” as “an international
agreement concluded between States in written form and governed by international law”).
196
See supra notes __-__ and accompanying text. See also Japan Whaling Ass’n v. American
Cetacean Soc., 478 U.S. 221, 230 (1986)(“As Baker plainly held … the courts have the authority to
construe … executive agreements[.]”)(citing Baker v. Carr, 369 U.S. 186 (1962)). See also Bank Melli
Iran v. Pahlavi, 58 F.3d 1406, 1408 (9th Cir.1995)(“Executive agreements ... are interpreted in the same
manner as treaties and reviewed by the same standard.”). See also Kwan v. U.S., 272 F.3d 1360, 1363
(3rd Cir. 2001)(same).
197
198
See Restatement (Third) of the Foreign Relations Law of the United States § 102(2)
(1987)(stating that customary international law “results from a general and consistent practice of states
followed by them from a sense of legal obligation”).
199
CITATION.
See Japan Whaling Ass’n v. American Cetacean Soc., 478 U.S. 221, 230 (1986)(“As Baker
plainly held … the courts have the authority to construe … executive agreements[.]”)(citing Baker v.
Carr, 369 U.S. 186 (1962)).
200
44
least the source for significant friction in foreign relations. I will return to this subject below;201
but international impact of judicial action is amply illustrated by the German Constitutional
Court’s near immediate reaction to the Supreme Court’s treaty decision in Sanchez-Llamas v.
Oregon.202 In any case, at stake in the judicial resolution of individual disputes is the general
reputation of the United States as a faithful partner in international relations.
This is an immense responsibility. To return to the example of a treaty, enforcement in
the courts demands judicial agency in a formal duty of “good faith” performance, which Louis
Henkin accurately described as “the most important principle of international law.”203 In the
formative years of our country, the Supreme Court was acutely aware of the sensitivity of its
position in such matters. Its analysis in the 1821 case of The Amiable Isabella is worthy of
special emphasis. There, “in delivering [its] opinion to the world,” the Court summarized the
issues at stake in treaty enforcement:
embrace principles of international law of vast importance; they embrace private
interests of no inconsiderable magnitude; and they embrace the interpretation of a
treaty which we are bound to observe with the most scrupulous good faith, and
which our Government could not violate without disgrace, and which this Court
could not disregard without betraying its duty. It need not be said, therefore, that
we feel the responsibility of our stations on this occasion.204
201
See infra notes __-__ and accompanying text.
202
Decision of the Bundesverfassungsgericht, 2 BvR 2115/01 marginal notes 19-20, 53 (Sept. 19,
2006), available at http://www.bverfg.de/entscheidungen/rk20060919_2bvr211501.html (analyzing
Sanchez-Llamas v. Oregon, 548 U.S. 331 (2006)).
203
See Louis Henkin, Constitutionalism, Democracy, and Foreign Affairs 62 (1990).
204
19 U.S. (6 Wheat.) 1, 68 (1821). See also Chew Heong v. United States, 112 U.S. 536, 540
(1884)(declaring on the interpretation of treaty provisions that “the court cannot be unmindful of the fact
that the honor of the government and people of the United States is involved in every inquiry whether
rights secured by such stipulations shall be recognized and protected”). See also Bradley, Treaty Duality,
supra note 186, at 181 (observing that “every treaty is a contract that implicates the U.S. relationship with
one or more other nations, and such a relationship inherently includes political as well as legal elements,
such as considerations of reciprocity, reputation, and national interest.”).
45
These sentiments were once reflected in prudential doctrines designed to protect against
judicial misadventures. The twin principles of “good faith” and “liberal” treaty interpretation
served to remind courts that substantially more is at stake in enforcing treaties than in applying
law of a purely domestic origin.205 But as I have explained in detail elsewhere, these venerable
doctrines quietly disappeared from judicial consciousness early in the last century.206 And as the
doctrine of stare decisis coalesced on a separate path, judicial decisions insensitive these
concerns were reinforced with full precedential effect.
Of course, the interpretation and application of legal norms is standard judicial fare. As
well, prosaic domestic statutes may directly affect foreign affairs.207 But in such cases, the
relationship between law-maker and law-applier is solely a domestic one.208 And where
Congress takes it upon itself to define the entire content of the law—without importing
international legal norms—the courts must look solely to familiar domestic sources in
interpretive inquiries.209 To be sure, judicial action here as well may hold consequences for
foreign relations. Nonetheless, with purely domestic law statutes the courts’ essential role—
subject to interpretive presumptions210—is to apply the value judgments first made by Congress
205
For a broad treatment of this subject see Van Alstine, Good Faith, supra note __.
206
See Van Alstine-Good Faith, supra note __, at 907-919.
See Restatement of Foreign Relations, supra note __, § 1(b) (including within “foreign
relations law” purely domestic law that “ has substantial significance for foreign relations … or has other
substantial international consequences”).
207
208
For administrative law of course the source of law is domestic regulatory agencies under
authority delegated by Congress.
209
The Supreme Court missed this fundamental point in Sanchez-Llamas v. Oregon. In the
process of rejecting a treaty claim there, the Court observed that “[i]t is no slight to the Convention to
deny petitioners’ claims under the same principles we would apply to an Act of Congress.” 548 U.S. 331,
360 (2006).
210
See supra notes __-__ and accompanying text.
46
within its constitutionally delegated sphere of authority. Fidelity to those value judgments
should dispel both the appearance and effect of judicial leadership.211
On Article III international law, in contrast, the necessary consequence of precedent is a
definition of rights or obligations that govern in our nation’s relations with foreign states.
Unavoidably, this involves, at a minimum, the appearance of direct judicial entanglement in
foreign affairs. The immensity of this responsibility should alone give us pause about reflexively
endowing such precedents with full stare decisis effect. But as the next sections will
demonstrate, even the premises of stare decisis are compromised when the courts are called upon
to give content to international law.
B. Destabilized Values: The Limits of Authority, Stability, and Legitimacy
1. Stability and Exogenous Forces of Change: Uni-Polar Stare Decisis
in a Multi-Polar System
An essential foundation for a rational doctrine of binding precedent, as I have explained
above, is a court of last instance with the authority to settle the law for its defined jurisdiction.212
Stare decisis then advances the values of stability and predictability by compelling lower court
fidelity in a hierarchically integrated system; and it bolsters the values of judicial legitimacy by
constraining the situational discretion of even the declaring court.
Notions of stability and legitimacy take on different dynamics, however, when domestic
courts are called upon to give content to Article III international law. The origin of the law in
such inquiries—the source from which the obligations emerge and derive their content—is the
See Japan Whaling Ass’n v. American Cetacean Soc., 478 U.S. 221, 230 (1986)(observing
that, although the application of a statute had direct foreign policy implications, “under the Constitution,
one of the Judiciary’s characteristic roles is to interpret statutes, and we cannot shirk this responsibility
merely because our decision may have significant political overtones”).
211
212
See supra notes __-__ and accompanying text.
47
international legal system.213 The problem is that no judicial authority exists today with the
power to issue final and enforceable judgments on international law. The International Court of
Justice could be in a position to fulfill this function. The United States long ago withdrew from
the compulsory jurisdiction of the ICJ,214 however, and appears prepared to do the same for any
discrete jurisdictional grants when actual controversies arise.215 In any event, Medellín v. Texas
made abundantly clear that the international system itself does not compel precedential effect for
ICJ judgments.216
All that remains to settle the law are the disparate domestic courts of the states that
comprise the international system. But these courts are not integrated in any structural way, and
certainly not hierarchically so. The process of “say[ing] what the law is” in this realm is instead
multi-centric,217 with judicial authority dispersed among the various players in the system. The
unwritten rules of customary international law, founded as they are on evidence of generalized
state practice, present this point starkly.218 With only a disaggregated judicial system, precedent
on such matters is a process, not an event. Systemic stare decisis makes no sense here. System
213
See supra Part III.A.
See Letter and Statement From U.S. Dep’t of State Concerning Termination of Acceptance of
I.C.J. Compulsory Jurisdiction (Oct. 7, 1985), reprinted in 24 I.L.M. 1742 (1985).
214
215
The United States thus promptly withdrew from an optional jurisdictional protocol to the
Vienna Convention on Consular Relations—Apr. 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820—following
an adverse decision by the ICJ. See Letter from Condoleezza Rice, Secretary of State, to Kofi A. Annan,
Secretary-General of the United Nations (Mar. 7, 2005)(giving notice of the withdrawal).
216
552 U.S. at 522-523.
I use this term in contradistinction to “polycentric” law. See Randy E. Barnett, THE
STRUCTURE OF LIBERTY: JUSTICE AND THE RULE OF LAW 238-97 (1998)(describing a polycentric
constitutional system). International law is not a law-less cloud of facts merely awaiting some
indiscriminate form of seeding. It remains in its essence state-centered and requires consent as reflected
in the sovereign conduct of states. The determination of international law thus proceeds on the
foundation of accepted legal rules and through formalized judicial processes.
217
218
See supra notes __-__ and accompanying text (describing the process for the creation of
customary international law).
48
cohesion instead exists only through cooperation driven by good faith adherence to the rule of
law among the participants.
The United States Supreme Court is, therefore, only one player in a multi-polar field that
admits of no binding precedent. To be sure, the Court remains supreme in its own realm and
thus may create domestic precedent in cases and controversies properly before it. In matters of
international law, however, it lacks the legal authority, practical ability, and even definitive
expertise to secure compliance beyond its domestic mandate.219 Thus, courts and similar
institutions in other states are free to reexamine, undermine, and even flatly reject a “final”
decision by our Supreme Court. In short, such a final decision will not control in the very system
that provides the content for the law and in which sanctions would be assessed.
The result is that judicial precedent cannot bring the systemic “calm” stare decisis is
designed to secure. In this multi-polar system, a judgment by any one court cannot control future
developments in the system. In other words, contrary to the jurisdictional premises of stare
decisis, an international law decision by a domestic court is subject to immediate and potentially
corrosive forces of change exogenous to our domestic system.
Moreover, the vast majority of states that comprise the international system do not follow
stare decisis in any event.220 There, precisely because of a deeper fidelity to the role of judges as
law-finders, not law-makers, even a final decision by a supreme court does not formally bind
lower courts. Of course, prudential considerations continue to hold some sway, as comparative
219
See supra notes __-__ and accompanying text.
220
See John Henry Merryman, THE CIVIL LAW TRADITION: AN INTRODUCTION TO THE LEGAL
SYSTEMS OF WESTERN EUROPE AND LATIN AMERICA 29 (2d ed. 1987). The International Court of
Justice likewise does not follow a formal doctrine of precedent. See Statute of ICJ, supra note __, art. 59
(“The decision of the Court has no binding force except between the parties and in respect of that
particular case.”).
49
studies of judicial practice have demonstrated.221 Nonetheless, this elevation of the law over an
initial judicial impression of it demonstrates, first, that immediate adherence to precedent is
neither axiomatic nor “indispensible” to the rule of law.222 Moreover, the willingness to reassess
initial impressions based on better quality information highlights the inability of a domestic
judicial precedent to impose stability in the content of international law.
In any event, careful reflection reveals that at least in part existing stare decisis doctrine
already recognizes—although the courts themselves have not—that evolving evidence of
international law may immediately undermine a precedent. We have seen on treaty law, for
example, that courts should examine the “course of conduct” of the treaty parties as well as the
views of “sister state” courts.223 Even a Supreme Court treaty decision will not control future
developments on either of these important interpretive sources.224
All of this demonstrates that the foundations of judicial decisions on international legal
norms are particularly susceptible to immediate erosion. Even on existing jurisprudence, this
fact should justify a more nuanced approach to stare decisis on such matters. Recall that a
221
See Merryman, supra note 220, at 47. For a comprehensive treatment of the subject see
INTERPRETING PRECEDENTS: A COMPARATIVE STUDY (D. Neil MacCormick & Robert S. Summers, eds.,
1997).
222
See Planned Parenthood v. Casey, 505 U.S. 833, 854 (1992).
223
See supra notes __-__ and accompanying text. The Supreme Court has on occasion also cited
subsequent developments in other maritime nations as grounds to overrule admiralty precedents. See
United States v. Reliable Transfer Co., 421 U.S. 397, 397-398 (1975)(observing in connection with the
overruling of an earlier admiralty rule that “[t]he courts of every major maritime nation except ours have
long since abandoned th[e] rule”); Moragne v. States Marine Lines, Inc., 398 U.S. 375, 388-389
(1970)(citing subsequent judicial and legislative developments in England as a ground for overruling a
long-standing rule of admiralty law).
224
A particularly spirited exchange between the majority and (interestingly) Justice Scalia in
Olympic Airways v. Husain demonstrates the difficulty of reconciling conflicting trends in foreign court
treaty interpretations. Olympic Airways v. Husain, 540 U.S. 644, 658-667 (2004)(Scalia, J.,
dissenting)(criticizing the majority for its “sudden insularity” in “fail[ing] to give any serious
consideration to how the courts of our treaty partners have resolved the legal issues before us”); 540 U.S.
644, 655 n.9 (rejecting this characterization).
50
principal factor in reevaluating a precedent is whether subsequent developments have
undermined its factual or doctrinal foundations.225 What courts and scholars have not fully
appreciated is that on matters of international law change of this nature is baked into the system.
In addition, the private reliance interests that counsel fidelity to precedent226 become less
convincing as divergences create jurisdictional uncertainty (as well as the opportunity for forum
shopping).
Of course, even a purely domestic law precedent may be subject to subsequence legal and
societal developments. But stare decisis works as a serious constraint on such domestic
developments and, except at the margins and over significant time, almost completely prevents
them within the judicial system. This reinforces the propriety of existing stare decisis norms for
purely domestic statutes. In international law matters, in contrast, exogenous forces of change
may have an immediate and direct influence on precedent. And the absence of an integrated
judicial system, a principal source of such change actually may be later courts called upon to
address the same subject.
Unfortunately, the Supreme Court recently missed two prime opportunities to recognize
this point. In Sanchez-Llamas v. Oregon in 2006,227 the Court examined the force of subsequent
ICJ rulings on an original treaty interpretation decision. Regrettably, however, the majority’s
opinion there focused only on the direct precedential effect of the ICJ rulings.228 Only Justice
Breyer in dissent recognized (properly, although only briefly) that the ICJ decisions in fact
225
See supra notes __-__ and accompanying text.
226
See supra notes __-__ and accompanying text.
227
548 U.S. 331 (2006).
228
Id., at 353-357 (observing that ICJ decisions are entitled only to “respectful consideration”).
51
reflected the kind of subsequent developments that are relevant for stare decisis analysis.229 Four
years later, the Court returned to the same subject in Medellín v. Texas after a definitive holding
of the ICJ.230 But the Court there again analyzed only the binding effect of the ICJ’s holding;231
no justice saw it as an additional, subsequent fact that would permit the Supreme Court itself to
reexamine its original analysis.
The point here is not that the conclusions in Sanchez-Llamas and Medellín necessarily are
wrongheaded. It is that the Court missed serious opportunities to refine our understanding of
stare decisis in relation to the international legal obligations of the United States. This is
especially regrettable for the stare decisis practice of the federal courts of appeal. I will have
much more to say about this below.232 The point of emphasis at this stage is that nearly all final
declarations of international law in this country come from the federal courts of appeal;233 but the
rigid stare decisis rules that obtain in those courts almost entirely prohibit consideration of the
exogenous forces that may continually undermine precedent on such matters.
2. Expertise and the Risks of Error
The task of a federal court in interpreting even a purely domestic statute is not an easy
one. Language often is ambiguous and lawmaker intent unclear. Congress also may default to
empty linguistic compromises to conceal an inability to make difficult political choices.234 Some
implications of legislation may not be foreseeable in any event. As a result, even though
548 U.S. 331, 389-390 (Breyer, J., dissenting)(observing that although the Court’s earlier
decision is “entitled to full stare decisis effect,” the later decisions of the ICJ “amount to a ‘significant …
subsequent development’ of the law sufficient to lead to a reconsideration of past precedent”)(quoting
Agostini v. Felton, 521 U.S. 203, 236 (1997)).
229
230
552 U.S. 491 (2008).
231
Id., at 507.
232
See infra Part IV.B.
233
See infra notes __-__ and accompanying text.
234
See, e.g., Lawrence, supra note __, at 201-203.
52
lawmaker and law-applier share a common legal, political, and linguistic culture, the proper
judicial role in statutory interpretation has spawned spirited scholarly debates.235
The judicial responsibility to declare the law is substantially more difficult when the
subject is Article III international law. Of their nature, international law norms result from
processes and substantive compromises that cross legal, political, and cultural divides.
Specialized international practices, usages, and conventions also provide a frame for specialized
understandings. Even common legal concepts often require translation—linguistic, cultural, and
otherwise. For any particular domestic court, therefore, the legal product of an international
lawmaking process is quite literally foreign.
This is true even for conventional law in the form of treaties and executive agreements.
As I have analyzed elsewhere,236 the negotiation and drafting process for treaties—in particular
the inability of a majority to impose its will on dissenters—contrasts starkly from that for
domestic statutes. With the overlay of heterogeneity among the negotiators, the result is often
broad linguistic compromises of complicated, multilateral origins.237 Participant diversity
likewise often requires multiple, equally authoritative, language texts.238 Treaties may also
contain “false friends,” both linguistic and conceptual, and otherwise may settle only
uncomfortably in our own distinctive legal culture. Even plain meanings thus may not be plain.
235
For an introduction into the voluminous literature see Eskridge and Baer, supra note __;
William N. Eskridge, Jr., All About Words: Early Understandings of the “Judicial Power” in Statutory
Interpretation, 1776-1806, 101 COLUM. L. REV. 990 (2001); John F. Manning, Deriving Rules of
Statutory Interpretation from the Constitution, 101 COLUM. L. REV. 1648 (2001); Cass R. Sunstein,
Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 405 (1989).
236
See Van Alstine, Treaty Good Faith, supra note __, at 1923-1924.
237
See also Bradley, Treaty Duality, supra note 186, at 132 (examining the same subject).
238
See generally Dinah Shelton, Reconciliable Differences? The Interpretation of Multilingual
Treaties, 20 HASTINGS INT'L & COMP. L. REV. 611 (1997).
53
Customary international law is fraught with the bulk of these challenges and more. These
rules arise through a cooperative, multiplayer process whose results are not distilled in any
authoritative compilation. When enforcement falls to our domestic courts,239 therefore, they
must examine a fluid process with multiple players from widely divergent cultural, legal,
political, and linguistic traditions. This diversity may obscure the significance of any particular
state action, expression, or practice. Strikingly uneven levels of development and international
participation further complicate the picture. Simply gathering reliable information thus
represents an enormous undertaking for the courts. But they, too, approach the problem
schooled in our distinctive legal system and with our own distinctive cultural assumptions. All
of these challenges are magnified for the federal courts of appeal.240
The special challenges courts face when they inquire into foreign affairs already have
found expression in some Supreme Court opinions. In specific, we have seen that concerns
about access to reliable information, judicial expertise, and the uncertain implications have
informed analyses of foreign affairs abstention doctrines.241 Ultimately, these considerations
reflect ex ante admonitions to the courts about the unfamiliarity of the territory and thus about
the risks of improvident action. Combined with the special challenges described immediately
above, the message is that the risks of error in first judicial impressions of international law are
simply greater.
239
See supra notes __-__ and accompanying text.
240
For more on this point see infra notes __-__ and accompanying text.
241
See supra notes __-__ and accompanying text. See also Ramsey, TEXT AND FOREIGN
AFFAIRS, supra note __, at 327 (“observing that “it is surely true that, especially in international matters,
courts sometimes lack access to factual information needed to resolve cases”); Charney, supra note __, at
102-106 (examining as factors in political question analysis in foreign affairs, inter alia, “expertise in the
law,” “access to facts,” “international law is alien,” “important and uncertain effects,” and the need for a
“sole voice.”).
54
These combined considerations retain their force even after a court has created a
precedent in the field. That is, the insights about the need for ex ante judicial modesty in foreign
affairs do not lose relevance once a court has taken a stab at resolving a particular issue. A
generic notion of stare decisis, for all of its important functions in a rule-bound system, thus runs
contrary to the array of prudential cautions against ill-advised judicial precedents on international
law—unless we are comfortable with the conceit that judges nearly always get it right the first
time.
There is every reason to believe, however, that judicial misjudgments are more common
in the identification of the international law. This is no slight. The unfamiliar and unstable
terrain simply makes the judicial task more challenging in this field. There is, in short, an
increased likelihood that a particular precedent will not be “well reasoned”242 in the first place.
This does not mean that courts should abdicate their responsibility to resolve disputes properly
before them. It is, however, further evidence that rigid stare decisis norms are inappropriate
when courts in fact do so and in the process create precedent in the unfamiliar realm of
international law.
C. Separation of Powers, Stare Decisis, and Article III International Law
A deeper appreciation of the relationship between precedent and separation of powers
also compels a reassessment of stare decisis on Article III international law. In foreign affairs
matters, and particular on international law, the Supreme Court has repeatedly cautioned that the
judiciary should be “particularly wary of impinging on the discretion of the Legislative and
242
See supra notes __-__ and accompanying text (examining this accepted ground for overruling
a precedent).
55
Executive Branches.”243 To carry forward a theme from above, this concern founded in
separation of powers relationships between the judiciary and the political branches does not
dissolve merely because a court in fact creates a precedent.
1. Legitimacy and the Blurring of Law-Finding with Law-Making
In our constitutional system, the federal judicial branch, “purposefully insulated from
democratic pressures,”244 fundamentally is not a lawmaker. This general premise finds special
emphasis in foreign affairs. The occasional statements that the actions of the political branches
in this field are “largely immune from judicial inquiry or interference,”245 though jolting out of
context, merely reflect a basic principle: that the province of the judicial branch does not extend
to supervising foreign relations unhinged from Article III cases and controversies.246 As we have
seen, however, the Article III cases and controversies that in fact require judicial engagement
with international legal relations are broad and numerous indeed.
The position of the judiciary in such engagements differs from that for purely domestic
law as a matter of kind, not merely of degree. This point is woven among much of the analysis
above. Here I explore the institutional implications. Recall, first, that the result of judicial
decisions on Article III international law is a formal definition—not merely by implication or
243
Sosa v. Alvarez-Machain, 542 U.S. at 727. See also Sabbatino, 376 U.S. at 427-428
(highlighting the need for a particular judicial action in the field of foreign affairs “to reflect the proper
distribution of functions between the judicial and political branches of the Government on matters bearing
upon foreign affairs”).
244
Boyle v. United Technologies Corp., 487 U.S. 500, 518 (1988).
245
Regan v. Wald, 468 U.S. 222, 242 (1984)(quoting Harisiades v. Shaughnessy, 342 U.S. 580,
589 (1952)).
See, e.g., Barker v. Harvey, 181 U.S. 481, 488 (1901)(noting that the Supreme Court “has no
power” to enforce international treaty obligations denounced by the United States); The Head Money
Cases, 112 U.S. 580, 580 (1884)(observing that where a treaty does not of its own force create judicially
enforceable domestic law, “its infraction becomes the subject of international negotiations and
reclamations ... [and] with all this the judicial courts have nothing to do and can give no redress.”); United
States v. Ferreira, 54 U.S. 40, 48 (1851)(declaring that whether the United States had complied with its
executory promises under a treaty “is a question … with which the judicial branch has no concern”).
246
56
practical effect—of the rights or obligations that govern in our nation’s legal relations with
foreign states. At its most consequential, this will involve the identification of sovereign
obligations of the United States, whether to other states or to individuals.247 International law
may also address relations between private parties; but even here judicial action is premised on
the right or obligation of the United States to enforce norms that arise out of legal relations with
or among other sovereign states.
This functional agency alone is uncharacteristic of the judicial station in our
constitutional system. It becomes especially problematic in light of the nature and extent of the
value judgments that inhere in the identification of Article III international law. Even as a
general matter, uncertainty in the articulation of legal rules often requires value judgments as
courts fulfill their duty to “expound and interpret” the law.248 As Jerome Frank observed over a
half century ago, the risk in such cases is that “interpretation is inescapably a kind of
legislation.”249 But the problem is particularly acute in the fluid world of international law. The
Supreme Court stated this point directly in Sosa v. Alvarez-Machain: “A judge deciding in
reliance on an international norm,” it declared, “will find a substantial element of discretionary
judgment in the decision.”250 By whatever term one prefers, discretion in the identification of
binding legal norms is lawmaking.
Concerns about freelance lawmaking will be starkest for the identification of customary
international law. For common lawmaking of this type, modern realism has long dispatched the
fiction of “finding” the law. Instead, as the Court aptly observed in Sosa, in most such matters
247
See Restatement of Foreign Relations, supra note __, § 101 (stating this proposition).
248
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
249
Jerome Frank, Words and Music: Some Remarks on Statutory Interpretation, 47 COLUM. L.
REV. 1259, 1269 (1947).
250
542 U.S. 692, 726 (2004).
57
“there is a general understanding that the law is not so much found or discovered as it is either
made or created.”251 On such matters, the absence of an authoritative text, the complicated and
unfamiliar lawmaking processes, and the linguistic, cultural, and legal differences among the
participants252 combine to increase substantially the “open texture”253 of international law. In
many cases, the ambiguous mixture of law and policy that pervades international relations will
leave doubt over the very existence of legal rules. The disordered, fluid process for addressing
the consequent doubts through judicial interpretation only adds to the indeterminacy.254 Even the
evidentiary standards are unclear, for international law sanctions resort to “any relevant material
or source” in identifying the content of the law.255
Judicial action in this field is also subject to special sensitivities not present for purely
domestic law, whether statutes or rare federal common lawmaking. Concerns about the
democracy deficit that surround judicial discretion in general are pronounced in the international
realm.256 Moreover, unlike purely domestic law, episodic and interstitial judicial lawmaking on
international law does not unfold within a cohesive legal system familiar to the courts. This
Id., at 729. See also id. (observing that “we now tend to understand common law not as a
discoverable reflection of universal reason but, in a positivistic way, as a product of human choice.”)
251
252
See supra notes __-__ and accompanying text.
253
The famous scholar of jurisprudence H.L.A. Hart employed this term to describe the
indeterminacy in the law. See H.L.A. Hart, THE CONCEPT OF LAW 124-25 (1961.
Cf. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 434-435 (1964)(describing as “quite
unpersuasive” the argument that the Court should recognize a rule of international law on the act of state
doctrine merely because “United States courts could make a significant contribution to the growth of
international law”).
254
255
See Restatement of Foreign Relations, supra note __, § 113 (stating that in such inquiries
“courts may in their discretion consider any relevant material or source, including expert testimony[.]”).
256
See, e.g., McGinnis & Somin, supra note __, at 1193-1224 (examining the democracy deficit
in the creation and identification of customary international law).
58
further highlights the inability of judicial lawmaking to provide the “flexibility, completeness,
and comprehensive coherence” 257 especially important in delicate matters of foreign relations.
To be sure, the Constitution expressly contemplates judicial enforcement of treaties.258
On this basis, federal courts properly have applied treaties throughout constitutional history.
And of course a treaty’s text provides a substantially more secure foundation for faithful
interpretation. Nonetheless, the identification of treaty obligations also raises concerns about the
nature and extent of independent judicial value judgments. The special legal, cultural, and
linguistic challenges that complicate the interpretation of treaties also increase the open texture
of the law, and thus the space, and sometimes the need, for judicial discretion. Moreover, the
evolving, cooperative process of treaty interpretation in the international realm259 means that
courts contribute to the content of law whenever they purport to interpret it. This impact on the
judgment of future decision-makers highlights a phenomenon Frederick Schauer has termed “the
forward-looking aspect of precedent.”260 In this respect, judge-found law for treaties may
function as a close cousin of judge-made law.
The consequences of precedent on international law, as we have seen, also can be
substantially more significant than domestic law. The Supreme Court itself has highlighted the
“risks of adverse foreign policy consequences” that attend judicial forays into international
law.261 Of course, not all matters of international law will touch the “national nerves” to the
257
See Henkin, Foreign Affairs and the Constitution, supra note __, at 140 (also observing that
“[j]udge-made law, the courts must recognize, can serve foreign policy only interstitially, grossly, and
spasmodically”).
258
See U.S. const., art. III, § 1.
259
See supra notes __-__ and accompanying text.
260
Frederick Schauer, Precedent, 39 STAN. L. REV. 571, 572-573 (1987).
261
Sosa v. Alvarez-Machain, 542 U.S. 692, 727-728 (2004).
59
same extent.262 Nonetheless, even judicial interpretations of purely private law treaties can
trigger significant international friction. The recurrent controversies over the proper scope of
custodial rights under the Hague Child Abduction Treaty provide a good example. Although the
litigants are private parties, perceived judicial infidelity to this treaty’s obligations have led to
recriminations at the highest levels of government.263 And as the Supreme Court long ago
observed, “experience has shown that international controversies of the gravest moment … may
arise from real or imagined wrongs to [another nation’s] subjects inflicted, or permitted, by a
government.”264
The message here is not that judicial precedent on international law matters is in a formal
sense “illegitimate,” as Justice Scalia asserted in Sosa v. Alvarez-Machain.265 Courts can, do,
and should decide such matters, even (when properly authorized) on customary international law.
Increase indeterminacy, however, involves increased discretion. The concern, then, is with the
appearance and effect of judicial leadership in the very definition of legal relations with foreign
states. An overwhelming international consensus on a particular issue (say, on genocide266) may
diminish the appearance of judicial innovation.267 But as the courts participate in the
See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428 (1964)(“It is also evident that
some aspects of international law touch much more sharply on national nerves than do others[.]”)
262
See, e.g., Abbott v. Abbott, __ U.S. __, 130 S.Ct. 1983, 1993 (2010)(highlighting “the
diplomatic consequences resulting from this Court’s interpretation of ‘rights of custody,’” under the
Convention, “including the likely reaction of other contracting states and the impact on the State
Department’s ability to reclaim children abducted from this country”). See also Van Alstine, Good Faith,
at 1927 and n. 302 (noting the controversies over allegations that German courts have failed to enforce the
Convention in good faith).
263
264
Hines v. Davidowitz, 312 U.S. 52, 64 (1941).
265
542 U.S. at 750-751 (Scalia, J. concurring in part and concurring in judgment).
266
See Kadic v. Karădzíc, 70 F.3d 232, 239-241 (2nd Cir. 1995).
See Sabbatino, 376 U.S. at 428 )“It should be apparent that the greater the degree of
codification or consensus concerning a particular area of international law, the more appropriate it is for
the judiciary to render decisions regarding it[.]”).
267
60
identification of the law itself, they extend to the edges of the legitimate judicial function. In
this, there is a greater risk of undermining the perception of a principled, law-bound judiciary.268
In this field of unclear guideposts, finally, the implications of a precedent may be
particularly difficult to gauge, although the consequences may be particularly serious. And
unlike the Supreme Court, the federal courts of appeal cannot duck the sensitivity of this subject,
a point I will address in much more detail below.269 Here again, the Supreme Court has
addressed the risks of judicial leadership with an ex ante admonition about improvident
interference in sensitive matters of foreign relations.270 And here again, the insights of this
admonition do not disappear simply because a court in fact has created a precedent.
2. The Uneasy Role of Congress and the Availability of Legislative Override
A careful appreciation of the constitutional relationship between the Judicial Branch and
Congress also counsels for a reassessment of stare decisis on Article III international law. The
same does not apply, however, for purely domestic statutes. This point will appear to some
counterintuitive. As we have seen, the availability of congressional override has led to a “superstrong” version of stare decisis for statutory interpretation precedents.271 Nonetheless, careful
reflection reveals that this analogy is not only inapt. Indeed, a proper respect for Congress’s
268
See supra notes __-__ and accompanying text (analyzing this value of the stare decisis
doctrine). See also Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428 (1964)(emphasizing that by
requiring strong evidence of international law, “the courts can then focus on the application of an agreed
principle to circumstances of fact rather than on the sensitive task of establishing a principle not
inconsistent … with international justice”).
269
See infra Part III.D.2.
See Sosa, 542 U.S. at 727 (stating that because of the “risks of adverse foreign policy
consequences,” attempts by courts to create remedies for international law violations “should be
undertaken, if at all, with great caution”); id. at 726 (observing that on customary international law “the
general practice has been to look for legislative guidance before exercising innovative authority over
substantive law”).
270
271
See supra notes __-__ and accompanying text.
61
preeminent role as constitutional lawmaker provides further support for judicial modesty on the
force of international law precedents.
Recall, first, that the justification for the potent version of stare decisis in statutory
matters—as contrasted with constitutional interpretation—is found in the instrumental point that
“Congress is free to change [a court’s] interpretation of its legislation.”272 One might reason
from this that similar sentiments should apply for Article III international law. Indeed, it is
certainly correct that, for purposes of domestic law, Congress has the authority to modify or
nullify a judicial decision that recognizes a norm of customary international law.273
The matter is more complicated for a pure interpretation of a treaty. To be sure, Congress
may by statute fully abrogate a treaty.274 In the Military Commissions Act in 2006,275 Congress
also intervened to change domestic law in response to the Supreme Court’s interpretation of the
Geneva Conventions in Hamdan v. Rumsfeld.276 Congress may not, however, strip vested treaty
rights277 or otherwise retroactively overrule a final judgment recognizing them.278 More
272
Pearson v. Callahan, __ U.S. __, 129 S.Ct. 808, 816-817 (2009)(quoting Illinois Brick Co. v.
Illinois, 431 U.S. 720, 736 (1977)). See also supra notes __-__ and accompanying text.
See Sosa v. Alvarez-Machain, 542 U.S. 692, 731 (2004)(declaring that Congress “may modify
or cancel any judicial decision so far as it rests on recognizing an international norm as such”). See also
Restatement of Foreign Relations, supra note __, § 115(1)(a)(stating that “[a]n act of Congress supersedes
an earlier rule of international law … as law of the United States”).
273
274
See La Abra Silver Mining Co. v. United States, 175 U.S. 423, 460 (1899); Head Money
Cases, 112 U.S. 580, 599 (1884).
275
Military Commissions Act of 2006, §6(a)(2), Pub. L. No. 109-366, 120 Stat. 2600, 2631-32
(codified in scattered sections of 18 and 28 U.S.C.)(defining “grave breach” of Article 3 of the Third
Geneva Convention and declaring that this definition “fully satisfy[ies]” the obligations of the United
States under the Convention).
276
548 U.S. 557 (2006).
See Jones v. Meehan, 175 U.S. 1, 32 (1899)(observing that “Congress has no constitutional
power to settle the rights under a treaty, or to affect titles already granted by the treaty itself”). See also
Wilson v. Wall, 73 U.S. [6 Wall.] 83, 89 (1867)(same).
277
278
See Plaut v. Spendthrift Farm, 514 U.S. 211, 217-18 (1995)(holding that Congress may not
retroactively overturn a final judgment of an Article III court).
62
generally, one may well construct a compelling argument that Congress does not have the power
to undertake the purely judicial task of interpreting a specific treaty provision, even under the
Necessary and Proper Clause.279 That is, it is at least open to doubt whether Congress may
compel the courts to interpret a treaty provision in a certain way if it otherwise leaves the treaty
fully in effect.280
In any event, the animating force for the differential treatment of constitutional and
statutory precedents is not found in the simple availability of congressional override. As
analyzed above, the special force of stare decisis on statutory matters instead arises from a
deeper deference to the policymaking authority of Congress within the realm of its own
legislative products.281 Where Congress itself provides the content of the law, the proper role of
the judiciary thus is to implement the value choices made by the people’s representatives there.
And once a court has faithfully done so, it is entirely appropriate to defer to Congress for
subsequent correction of the law of its own creation.
279
U.S. Const., art. I, § 8, cl. 18. See generally Gary Lawson & Patricia B. Granger, The
“Proper” Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 DUKE L.J.
267, 271-72 (1993) (discussing the “propriety” requirements of the Necessary and Proper Clause).
280
The distinction here is between abrogating a treaty and compelling the courts to interpret it in a
particular way. The former is clearly a legislative power; the latter partakes much more of a judicial
power reserved to Article III courts. As the Supreme Court observed in Plaut v. Spendthrift Farms—
quoting “the great constitutional scholar” Thomas Cooley—, Congress may not “indirectly control the
action of the courts, by requiring of them a construction of the law according to its own views.” 514 U.S.
at 225 (quoting Thomas McIntyre Cooley, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH
REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION 94-95 (1868)). Cooley
elsewhere observed that a legislature may not “compel the courts for the future to adopt a particular
construction of a law which the legislature permits to remain in force.” Cooley, supra, at 94. The
Supreme Court, however, elsewhere has indicated otherwise. See Chew Heong v. U.S. 112 U.S. 536,
562-563 (1884)(observing that “Congress may, as with an ordinary statute, modify [a treaty’s] provisions,
or supersede them altogether.”); United States v. Stuart, 489 U.S. 353, 375 (1989)(Scalia, J.,
concurring)(“[I]f Congress does not like the interpretation that a treaty has been given by the courts or by
the President, it may abrogate or amend it as a matter of internal law by simply enacting inconsistent
legislation.”).
281
See supra notes __-__ and accompanying text.
63
On this score, precedents on Article III international law differ fundamentally from those
on purely domestic statutes. Congress is the original source of law neither for customary
international law nor for treaties. The point is particularly stark for CIL. The courts create
precedent on such matters—whether through blanket delegation or on their own authority282—
based on their own assessments about the content and even the existence of the law.283 To the
extent they are able to cite value judgments in the creation of this law, the source is not
Congress, but rather the complicated, fluid, and multi-polar lawmaking processes examined
above that are external to our polity.284
Though different in nuance, the same principle applies for Article II treaties. Here, the
value judgments distilled into law are not made solely within our domestic legal order, but rather
through negotiation with foreign treaty partners.285 Moreover, the Senate—not Congress as a
whole—is the formal source of legislative branch approval. And the Senate, even in cooperation
with the President,286 does not have the power to override a judicial treaty precedent.287
282
See supra notes __-__ and accompanying text.
283
See supra notes __-__ and accompanying text.
284
See supra notes __-__ and accompanying text.
285
The same is true for those aspects of Congressional-Executive agreements that concern us
here. Recall that the special concerns about stare decisis arise where Congress incorporates the substance
of a treaty into domestic law through an Article I process. See supra notes __-__ and accompanying text.
286
Professor John Yoo has advanced the extreme (and in my view misguided) opinion that the
President has a “unilateral” power to interpret and reinterpret treaties. John Yoo, Politics as Law?: The
Anti-Ballistic Missile Treaty, the Separation of Powers, and Treaty Interpretation, 89 CAL. L. REV. 851,
868 (2001). But see Michael P. Van Alstine, The Judicial Power and Treaty Delegation, 90 CAL. L. REV.
1263, 1275-80 (2002).
See Fourteen Diamond Rings v. United States, 183 U.S. 176, 180 (1901) (“The meaning of the
treaty cannot be controlled by subsequent explanations of some of those who may have voted to ratify
it.”).
287
64
All of this substantially complicates the dialogue between lawmaker and law-interpreter
that William Eskridge has highlighted for domestic statutory interpretation.288 On international
law matters, the lawmaking process commonly is unstructured, multi-polar, and considerably
more opaque. It likewise involves a continuing and fluid relationship with foreign sovereigns
managed by the executive branch. The interpretive process itself is a multi-polar enterprise that
includes cooperation among systemically unrelated domestic courts.289
The instrumental argument that correction of judicial precedents should be left to
Congress as the original source of law thus loses its essential justification in this context. A
skeptic will respond to this substantive point with the formal argument that Congress nonetheless
is available to do so.290 On Article III international law, this formalistic point is unconvincing for
a variety of interrelated reasons.
The first is a reminder of that the subject of precedent on such matters is particularly
significant and sensitive: a declaration of the rights or obligations that govern our nation’s legal
relations with foreign states.291 When we add the courts’ comparative lack comparative
competence,292 judicial leadership fortified by stare decisis is problematic in the first place.
More important, the formal argument relies on an inversion of the lawmaking sequence—
Congress creates, the courts construe—prescribed by the Constitution. Where the courts first
declare the law, the burden falls on Congress to overcome the Constitution’s procedural hurdles
288
See Eskridge, Overriding Statutory Decisions, supra note __, at 353-390.
289
See supra notes __-__ and accompanying text.
290
William Eskridge has observed that Congress often is attentive to judicial decisions, although
many actual “overrides” involve a change in the law by a modern Congress, not correction of judicial
error. See Eskridge, Overriding Statutory Decisions, supra note __, at 335-353 (reviewing congressional
overrides from 1967 through 1990).
291
See supra notes __-__ and accompanying text.
292
See supra notes __-__ and accompanying text.
65
for the creation of federal statutory law.293 These “complex set of procedures that Congress and
the President must follow to enact ‘Laws of the United States’”294 are substantial, timeconsuming, and politically costly. And this is amid the crowded agenda that generally strains the
attention of our legislative lawmakers.
It is correct that on customary international law, the Constitution expressly authorizes
action by Congress as a whole.295 This, however, only serves to reinforce the point. Of its
nature, a precedent on such a matter involves judicial leadership in identifying the very existence
of the law.296 A robust version of stare decisis for judicial precedents imposes on Congress the
burden of overcoming the Constitution’s substantial procedural hurdles simply to assert its
rightful place as the preeminent lawmaker.
The lawmaking sequence for Article II treaties, to be sure, involves original approval by
the President and Senate. Even here, however, to say that Congress formally is available to
correct misguided judicial precedents does not mean that we should prefer such a constitutional
arrangement. The interpretation of a treaty in its essence is a judicial act.297 Congress may by
statute fully abrogate a treaty; but it is an entirely different thing to leave a treaty in place and
content ourselves with legislative processes for correction of judicial interpretive precedents.
See Clinton v. New York ,524 U.S. 417, 439-440 (1998)(declaring that “the power to enact
statutes may only ‘be exercised in accord with a single, finely wrought and exhaustively considered,
procedure’”)(quoting INS v. Chadha, 462 U.S. 919, 951 (1983)).
293
294
Wyeth v. Levine, __ U.S. __, 129 S. Ct. 1187, 1206-1207 (2009).
295
See supra notes __-__ and accompanying text (examining the constitutional provisions that
empower Congress to act on matters of international law).
296
See supra notes __-__ and accompanying text.
See, e.g., Jones v. Meehan, 175 U.S. 1, 32 (1899)(“The construction of treaties is the peculiar
province of the judiciary[.”); Kolovrat v. Oregon, 366 U.S. 187, 194 (1961)(stating that “courts interpret
treaties for themselves”).
297
66
Moreover, the general obstacles for the creation of federal law are amplified on matters
of international law. For domestic law purposes, a judicial precedent in the field represents a
formal declaration of the state of international law. Any congressional attempt to convey
displeasure with such a precedent runs into the dense web of clear statement rules that protects
international law from implicit legislative override.298 Even the limited openings the Supreme
Court has made for informal expressions of congressional preferences in statutory interpretation
inquiries,299 therefore, presumably would not apply for an international law precedent. To the
contrary, congressional inaction may be seen as supportive, as the Court indicated in Sosa v.
Alvarez-Machain.300
Finally, no effective mechanism exists to return to the lawmaking source to correct
judicial decisions on international law. The creation or revision of CIL, treaties, or executive
agreements requires the cooperation of sovereign entities beyond the reach of our polity. This
cooperation, moreover, is purely discretionary. As a result, the readjustment of a bi-lateral treaty
or executive agreement can be delicate, and is practically impossible for multilateral treaties and
customary international law.
In short, the institutional relationship between Congress and the courts also counsels for
judicial modesty on the force of international law precedents. In practical effect, unthinking
298
See supra notes __-__ and accompanying text.
299
Existing jurisprudence points in opposite directions on the influence of informal expressions of
intent by a subsequent Congress. See Food and Drug Admin. v. Brown & Williamson Tobacco Corp.,
529 U.S. 120, 143 (2000)(observing that “[o]ver time … subsequent acts can shape or focus th[e]
meanings” of provisions in an earlier act because “[t]he ‘classic judicial task of reconciling many laws
enacted over time, and getting them to ‘make sense’ in combination, necessarily assumes that the
implications of a statute may be altered by the implications of a later statute’”)(quoting United States v.
Fausto, 484 U.S. 439, 453 (1988)). But see United States v. Price, 361 U.S. 304, 313 (1960)“[T]he views
of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one”); Consumer
Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 117-18 (1980)(same).
300
542 U.S. at 730-731 (citing congressional inaction in the face of lower court opinions that
found a delegation of authority to hear tort claims in violation of international law).
67
adherence to stare decisis locks in problematic judicial leadership against both judicial
reexamination and—even if available in principle— subsequent congressional override. And as
we have seen, in the unfamiliar terrain of international law both the consequences and the
likelihood of judicial error are substantially greater in the first place.
3. Accommodating the Executive’s Special Responsibilities in Foreign Affairs
A coherent doctrine of stare decisis should also accommodate, but not be overawed by,
the special responsibilities of the executive branch in foreign affairs. We have noted above the
executive branch’s comparative institutional advantages counsel for a general judicial modesty in
foreign affairs matters. These expressions of respect for the executive branch’s superior
expertise also have condensed into formal doctrines with a direct impact on the province of the
courts.
There is little evidence that the Supreme Court defers to executive views on
constitutional allocations of power in foreign affairs, as recent opinions on the subject amply
demonstrate.301 But on subconstitutional foreign affairs law, modern doctrine holds that,
although not conclusive, executive branch views on the interpretation of treaties are entitled to
“great weight.”302 Similar sentiments should apply, although the quality of precedent is less
301
See supra notes __-__ and accompanying text.
302
See, e.g., Abbott v. Abbott, __ U.S. __, 130 S.Ct. 1983, 1993 (2010); Medellin v. Texas, 552
U.S. 491, 513 (2008). See also Restatement of Foreign Relations, supra note __, § 326(2)(stating that
courts “will give great weight” to executive treaty interpretations). The historical foundations for this
approach are suspect, to say the least. See David Sloss, Judicial Deference to Executive Branch Treaty
Interpretations: A Historical Perspective, 62 N.Y.U. ANN. SURV. AM. L. 497 (2007) (demonstrating that
in the first fifty years of the Constitution the Supreme Court afforded little or no deference to executive
branch treaty interpretations); Robert Chesney, Disaggregating Deference: The Judicial Power and
Executive Treaty Interpretations, 92 IOWA L. REV. 1723 (2007)(reviewing the rise of such deference in
the early twentieth century).
68
impressive, on the interpretation of customary rules of international law303 and presumably sole
executive agreements with foreign states as well.304
The sum of these doctrines is substantial deference to executive branch views on the very
content of international law. Scholars have even variously described the proposition as “superdeference”305 and as reflective of a constitutional scheme of “shared” interpretive authority.306
The historical record of actual outcomes is uneven, although the weight of evidence points to
considerable deference to executive views, in particular on the interpretation of treaties.307
Even with these cautions, judicial precedent on international law has a potential for
continuing tensions not present in purely domestic law. The President does not have the
authority to override or disregard a final judicial declaration on binding norms of international
303
See Restatement of Foreign Relations, supra note __, § 112, cmt. c (stating that courts will
give “substantial respect” to the views of the executive branch on questions of international law).
Substantial scholarly controversy exists over whether the President is bound by customary international
law at all. For an introduction to the debates compare Michael J. Glennon, Raising The Paquete Habana:
Is Violation of Customary International Law by the Executive Unconstitutional?, 80 Nw. U. L. Rev. 321,
325 (1985) and Jordan J. Paust, The President Is Bound by International Law, 81 Am. J. Int’l L. 377, 378
(1987) with Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common
Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815, 844-846 (1997)(arguing that customary
international law is not part of the federal common law and thus does not bind the president) and Arthur
M. Weisburd, The Executive Branch and International Law, 41 VAND. L. REV. 1205, 1207 (1988). See
also Louis Henkin, The President and International Law, 80 AM. J. INT’L L. 930, 936 (1986)(arguing that
the President may disregard customary international law for purposes of United States law only within his
exclusive constitutional powers).
304
Restatement of Foreign Relations, supra note __, § 326(2)(extending the deference doctrine to
all “international agreements” concluded by the executive branch). See also Air Canada v. U.S. Dept. of
Transp., 843 F.2d 1483, 1486-1487 (D.C. Cir. 1988)(observing that an executive branch interpretation of
an executive agreement is likewise entitled to deference).
305
See William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court
Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 GEO. L.J. 1083, 1100-1102
(2008). See also id., at 1098 (referring to “super-strong deference” in foreign affairs matters generally).
306
See Michael Stokes Paulsen, The Constitutional Power to Interpret International Law, 118
YALE L.J. 1762, 1793-1794 (2009).
307
See David J. Bederman, Revivalist Canons and Treaty Interpretation, 41 UCLA L. REV. 953,
1015 (1994)(canvassing the treaty interpretation cases of the Rehnquist Court at the time and concluding
that “in all but one the holding followed the express wishes of the executive branch of the government”).
MORE CITATIONS
69
law.308 This alone carries important “collateral consequences” for the prerogatives of the
executive in foreign relations.309 Adjustment at the international level also is difficult and often
impossible. The executive branch cannot compel a renegotiation of a treaty or executive
agreement, and certainly cannot alone change customary international law. The executive
nonetheless has a continuing obligation to manage our relations with foreign states within the
bounds of the law. The consequence of all of this is that a judicial ruling on our nation’s
obligations under international law (or reciprocal obligations of foreign states) carries special
risks of compromising the need for a “single-voiced statement” in foreign affairs.310
But here again, we return to a familiar theme: The concerns that animate ex ante
deference to the executive on matters of international law do not evaporate once a court in fact
creates a precedent. Indeed, the executive’s continuing conduct of foreign relations—practical
performance of treaty obligations,311 state practice on customary international law312—may have
a direct influence on the content of the law notwithstanding a “final” international law precedent.
The theme here as well is that exogenous forces of change, in this case arising from legitimate
executive branch actions in the external realm, may rapidly erode the foundations of a precedent.
See Hayburn’s Case, 2 U.S. (2 Dall.) 409 (1792) (observing that “by the Constitution”
executive officers are not “authorized to sit as a court of errors on … judicial acts or opinions”)(quoting
the Court of Appeals); Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113
(1948)(declaring the judgments within the authority of federal courts “may not lawfully be revised,
overturned or refused faith and credit by another Department of Government”).
308
See Sosa v. Alvarez-Machain, 542 U.S. 692, 731 (2004)(emphasizing that the “collateral
consequences” of recognizing domestically enforceable torts in violation of international law “should
make courts particularly wary of impinging on the discretion of the Legislative and Executive Branches in
managing foreign affairs”); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 432-433 (1964)(noting
that “[w]hen articulating principles of international law in its relations with other states, the Executive
Branch speaks not only as an interpreter of generally accepted and traditional rules, as would the courts,
but also as an advocate of standards it believes desirable for the community of nations and protective of
national concerns.”)
309
310
See Baker v. Carr, 369 U.S. 186, 211-212 (1962).
311
See supra notes __-__ and accompanying text.
312
See supra notes __-__ and accompanying text.
70
A rigid version of stare decisis precludes ex post consideration of all of these distinctive factors
in foreign affairs.
There is nothing unusual or particularly problematic about judicial flexibility in a field
special executive authority. The Supreme Court’s analysis in Brand X Internet Services313
illustrates the point. At issue there was the status of an administrative agency’s interpretation of
a statute subsequent to a contrary interpretation by a federal court of appeals.314 The Supreme
Court held, in application of the Chevron doctrine,315 that stare decisis principles do not preclude
recognition of a subsequent agency interpretation if reasonable and within the scope of its
delegated authority.316
A similar perspective should inform judicial precedents on Article III international law.
Some scholars have advocated a robust version of the Chevron doctrine for foreign affairs
matters in general.317 Whatever the merit of this broad proposition, nothing in the judicial station
in general or in the values served by stare decisis precludes recognition of continuing executive
influence in a particular field of law. And in no field is executive authority more pervasive than
in foreign affairs.
313
National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967
314
Id., at 982.
(2005).
315
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See
also Brand X, 545 U.S. at 980 (observing that “[i]n Chevron, this Court held that ambiguities in statutes
within an agency’s jurisdiction to administer are delegations of authority to the agency to fill the statutory
gap in reasonable fashion”).
Id., at 983 (holding that “[n]either Chevron nor the doctrine of stare decisis” “preclude[s]
agencies from revising unwise judicial constructions of ambiguous statutes”).
316
317
Eric A. Posner & Cass R. Sunstein, Chevronizing Foreign Relations Law, 116 YALE L.J. 1170
(2007); Curtis A. Bradley, Chevron Deference and Foreign Affairs, 86 VA. L. REV. 649 (2000). But see
Derek Jinks & Neal Kumar Katyal, Disregarding Foreign Relations Law, 116 YALE L.J. 1230
(2007)(broadly rejecting enhanced judicial deference in foreign affairs).
71
This is not a plea for judicial abdication, however. To the contrary, the very existence of
stare decisis may fuel a pernicious feed-back loop on foreign affairs matters. Precisely because
of inflated concerns over the lock-in effect of precedent, the courts may simply defer to
executive desires as a matter of routine. The executive, however, is a political branch and thus
subject to shifting political preferences. The strikingly different views of the Clinton and
subsequent Bush administrations on the executive branch’s power to compel compliance with a
non-self-executing treaty amply prove this point.318 Unthinking acceptance of executive
preferences also tilts the lawmaking field decisively against Congress; for any attempt, even by
majorities in both houses, to displace a particular act of instinctive judicial deference would face
an expected presidential veto and the near impossibility of an override by the required two-thirds
majority.
The “province and duty of the judicial department to say what the law is”319, in short,
extends as well to Article III international law. The proper response to unease over trenching on
presidential prerogatives in foreign affairs is not to surrender this essential judicial function to
the executive branch. On the other hand, the sheer volume of cases in the lower federal courts
commonly will not permit consideration of executive views at all. The solution, as I will explain
in the final section below, is a more accommodating understanding of stare decisis. This
318
Reasoning that the treaty at issue, the Vienna Convention on Consular Relations, was not selfexecuting, the Clinton administration informed the Supreme Court that the executive branch did not have
the authority to compel domestic enforcement. See Brief for the United States as Amicus Curiae, at 51,
Breard v. Greene, Nos. 97-1390, 97-8214, 118 S.Ct. 1352 (1998). Ironically, the George W. Bush
administration took the directly contrary view. See Brief for the United States as Amicus Curiae
Supporting Respondent, at 51-53, Medellín v. Dretke, No. 04-5928 (2006)(asserting that the decision to
enforce international law obligations declared by the International Court of Justice is within the unilateral
discretion of the executive).
319
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
72
flexibility is fully consistent with the values that animate the doctrine, but also is appropriately
sensitive to the judiciary’s special institutional station for Article III international law.
IV. THE ARGUMENT DISTILLED: INTEGRATING STARE DECISIS AND FOREIGN AFFAIRS
A. “Special Justifications” and Article III International Law
Stare decisis does not admit of clean categories. It is a prudential doctrine animated by
pragmatic impulses about stability and system integrity. The force of a given precedent
ultimately involves weighing these systemic values against situation-specific counter-values
founded in its original and continuing validity. In the end, the doctrine functions as a simple
preference for finality. As I will explore below, however, the courts should relax that preference
where other recognized contextual or institutional values undermine its premises in a particular
field of endeavor or otherwise counsel for judicial modesty in the first place.
The analysis above does not call into question the stare decisis principles that now obtain
for purely domestic statutes.320 Where a statute defines the entire content of the law, any
implications for foreign affairs result from the value judgments first made by Congress within its
constitutionally delegated authority. In such a case, interpretation by the courts will involve
traditional domestic source materials and relationships. Moreover, as a matter of purely
domestic law, all forces of legal change should be endogenous to the system and thus within the
final judicial authority of the Supreme Court. Finally, fidelity to congressional values judgments
should avoid the fact and appearance of independent judicial agency in foreign affairs
lawmaking.
On matters of Article III international law, in contrast, the special considerations
examined above argue for a more nuanced understanding of stare decisis. The message from the
320
See supra notes __-__ and accompanying text.
73
analysis above is not that the basic values of stare decisis are categorically absent when courts
rule on such matters. Here as well, the benefits of stability, predictability, and judicial
legitimacy will support a prima facie respect for precedent. The message is instead that in
Article III international law the justifications for adhering to initial judicial impressions are
inherently weaker and the potential reasons for reexamination inherently stronger. On such
matters, we have seen that judicial rulings are particularly susceptible to rapid erosion; that both
the likelihood and the consequence of judicial error are greater; and that institutional
considerations make fortified judicial leadership particularly problematic.
The special considerations examined above are by no means an all-purpose trump card.
They should instead be understood as one significant weight on the scale—one additional
argument in the nature of a stare decisis anti-value. To use the vernacular of the doctrine, they
may contribute to a “special justification” for reexamining a precedent.321 But to carry the
message into practical operation, the courts should explicitly recognize the force of these special
considerations for precedents in this field.
Careful reflection reveals that this perspective is consistent with many general threads
that already exist in stare decisis doctrine. Extant jurisprudence recognizes that subsequent
factual and legal events may undermine a precedent.322 In Article III international law, this
phenomenon is simply more immediate and consequential. In a separate vein, some persuasive
observations of the Supreme Court suggest that a less rigorous standard should apply when the
See Randall v. Sorrell, 548 U.S. 230, 24 (2006)(“Departure from precedent is exceptional, and
requires ‘special justification.’”)(quoting Arizona v. Rumsey, 467 U.S. 203, 212 (1984)). See also supra
notes __-__ and accompanying text (examining this point in more detail).
321
322
See supra notes __-__ and accompanying text.
74
courts take the lead in lawmaking, such as on “judge-made” procedural rules.323 The Court
likewise has declared that stare decisis is “not as significant” for federal common law created on
the basis of an implied statutory delegation (such as in the Sherman Act).324
The lock-in effects of precedent also are particularly problematic for Article III
international law. Judicial error involves enlarging,325 or impermissibly narrowing,326 the rights
or obligations that govern our nation’s legal relations with foreign states. And as we have seen,
the practical hurdles to an override by the political branches are considerable. The one
recognized categorical distinction in stare decisis jurisprudence justifies a weaker version for
constitutional matters precisely because of the difficulty of override by other constitutional
institutions.327 A more relaxed understanding of precedent on Article III international law would
accommodate these special institutional considerations. It would enable (but not require) the
courts to reexamine the propriety of their initial leadership and to consider even informal
expressions of intent by Congress and the President in the future.
323
See, e.g., Pearson v. Callahan, __ U.S. __, 129 S.Ct. 808, 816-817 (2009)(rejecting application
of “the general presumption that legislative changes should be left to Congress” with respect to “judge
made” procedural rules); Morse v. Frederick, 551 U.S. 393, (2007)(Breyer, J., concurring in part and
dissenting in part)(observing that in the case of “a judge-made procedural rule, stare decisis concerns
supporting preservation … are weak”); Payne v. Tennessee, 501 U.S. 808, 828 (1991)(contrasting the
strong stare decisis effect for property and contract rights with cases “involving procedural and
evidentiary rules” where “the opposite is true”).
324
Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877, 899 (2007)(stating that
“stare decisis is not as significant” for the Sherman Act because “[f]rom the beginning the Court has
treated the Sherman Act as a common-law statute”). As William Eskridge has explained, the rationale for
this approach is that where Congress has delegated lawmaking discretion through such statutes, the courts
“should also be given leeway to experiment and overrule prior interpretations in a common law fashion.”
See Eskridge, Overruling Precedents, supra note __, at 1377-1378.
325
See Sanchez-Llamas, 548 U.S. at 346 (observing that to create a particular remedy beyond a
convention’s terms “would in effect be supplementing those terms by enlarging the obligations of the
United States under the Convention”).
326
See Van Alstine, Good Faith, supra note __, at 925-928.
327
See also Martinez, supra note __, at 486 (suggesting a similar point).
75
Of course, not all matters of international law are infected with uncertainty. One might
think here of an unambiguous provision in a bilateral treaty that finds consistent support in
secondary interpretive materials. In such cases, the values of stability and predictability will
continue to counsel for adherence to precedent. In additional, not all judicial decisions in the
field will tread on the prerogatives of the political branches equally.328 As well, a consensus may
coalesce even on delicate and ambiguous issues through the accumulation of experience and
consistent judicial interpretation over time.
This suggests as a guide the civil law notion of jurisprudence constant (or its German
cousin, ständige Rechtsprechung). The idea here is that, even without a formal doctrine of stare
decisis, courts should defer to a rule of law that they have consistently accepted and applied in
prior cases, absent compelling reasons to the contrary.329 The parallel to our own notion of stare
decisis is apparent; but the significant difference is that respect for precedent does not attach to
the first judicial intuition on a subject; rather, it arises from reaffirmed insights and experience
over time. And, significantly, it is decisively informed by a respect for the lawmaking
prerogatives of the legislature, and thus by the principle that judges fundamentally are lawfinders, not lawmakers.330
Similar sentiments are appropriate for our own federal courts on Article III international
law. The spirit of precedent should remain. It simply must be calibrated to the special
328
See supra notes __-__ and accompanying text.
329
See In re Whitaker Const. Co., Inc., 439 F.3d 212, 224 n.12 (5th Cir. 2006)(describing this rule
in Louisiana civil law); Songbyrd, Inc. v. Bearsville Records, Inc., 104 F.3d 773, 776 (5th Cir. 1997)
(same).
330
See Zenon Bankowski, et al, Rationales for Precedent, __ in INTERPRETING PRECEDENTS,
supra note __.
76
contextual and institutional considerations that obtain in the field.331 Control over the force of a
particular precedent, however, would remain with the issuing court. In other words, the
flexibility I advocate here only affects horizontal stare decisis. Vertical stare decisis would
continue to preclude “overruling” of a precedent by a lower court to the full extent of existing
law.332 This dimension thus preserves the values of stability and predictability advanced in
particular by a hierarchically integrated judicial system.
Finally, an enhanced openness to reexamining precedent on Article III international law
should actually strengthen the institutional position of the judiciary. A nuanced form of stare
decisis frees the courts from the binary trap of extreme deference to the executive ex ante or
inflexible precedent ex post. The executive branch indeed has special responsibilities in foreign
affairs; and Congress remains the preeminent lawmaking institution in this field as well. With
this backdrop, courts may be pushed to an extreme form of deference out of fear for the
consequences of rigid precedent. But it is no affront to the executive branch to demand
consistency across administrations when the subject is judicially enforceable law. The first to
weigh in should not have the final word on the very content of the law.
Modesty and flexibility in this sense thus are empowering. An express recognition of the
special considerations that affect the authority of precedents on Article III international law
would empower the courts to make independent decisions through a flexibility that permits (but
does not require) reexamination of the foundations and consequences of its actions in such an
331
Of course, the flexibility I advocate here would not affect the normal res judicata principles
that apply to a final decision in a specific case.
See Agostini v. Felton, 521 U.S. 203, 237 (1997)(“If a precedent of this Court has direct
application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of
Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling
its own decisions.”)(quoting Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484
(1989)).
332
77
important field. In short, the flexibility advocated here reserves to the courts their field of
institutional expertise, leaves room for appropriate executive branch influence, and does not
force on the legislative branch a task of interpretation for which it is ill-suited.
B. Local Courts, International Obligations: The Special Demands for
Stare Decisis Modesty in the Federal Courts of Appeal
It is a curious fact the Framers structured the Constitution precisely to protect against
divergent interpretations of our nation’s international legal obligations by the separate state
courts,333 but that the vast bulk of this work is now done by independent and geographically
dispersed federal courts. The Supreme Court itself has repeatedly emphasized the demand for
national uniformity in this field.334 But as Justice Scalia caustically observed in 2004 with
specific reference to international law, “the lower federal courts [are] the principal actors; we
review but a tiny fraction of their decisions.”335 The facts amply bear this out. Over 99% of the
appellate treaty cases in the last decade came from the federal circuit courts.336 A broader study
by David Sloss found a similar percentage in the period from 1970 through 2006. 337
The leading case on this point is Martin v. Hunter’s Lessee. 14 U.S. 304 (1816). There, the
Supreme Court emphatically declared that its treaty interpretation decisions are binding on state courts.
Id., at 347-60.
333
334
See, e.g., Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 448 (1979)(observing that
“federal uniformity is essential” in foreign commerce); Hines v. Davidowitz, 312 U.S. 52, 63
(1941)(declaring that national interests “imperatively require[] that federal power in the field affecting
foreign relations be left entirely free from local interference”)(quoting The Chinese Exclusion Cases, 130
U.S. 581, 606 (1889)).
335
Sosa v. Alvarez-Machain, 542 U.S. 692, 750-751 (2004) (Scalia, J., concurring).
336
A search of the Westlaw database reveals 1374 court of appeals decisions that formally
involved the interpretation of treaties in the last decade and only six such Supreme Court opinions.
337
This survey revealed only thirty-eight Supreme Court treaty cases between 1970 and 2006.
During the same time period, over 3,200 lower court opinions referenced treaties. See David Sloss,
United States, in THE ROLE OF DOMESTIC COURTS, supra note 186, at 515-517.
78
This principal cause for this is that, unlike in the Supreme Court, in most matters litigants
have an appeal as of right to the federal circuits.338 The original conception was strikingly
different, however. In the founding era, international law matters with relevance to national
authority (especially, treaties) were under the mandatory, final control of the Supreme Court.339
Through a series of statutes between 1868 and 1925,340 however, the unifying force of this
control declined dramatically. Upon the creation of the Circuit Courts of Appeal in 1891,
Congress removed the right of direct appeal from district courts to the Supreme Court on treaty
issues.341 Then, the Judiciary Act of 1925 eliminated even appeals as of right from the circuit
courts and state courts in favor of discretionary review via a writ of certiorari for all but the rare
constitutional challenges to treaties.342 Today, effectively all cases are subject only to
discretionary review by the Supreme Court.343 The practical effect of all of these developments
338
See 28 U.S.C. § 1291 (so providing except for matters within the jurisdiction of the Federal
Court of Appeals and the rare case in which “direct review may be had in the Supreme Court”).
339
Until 1875, the federal district courts did not have general federal question jurisdiction. See
Act of Mar. 3, 1875, ch. 127, § 1, 18 Stat. 470 (1875). Until that point, state courts did the bulk of the
work on treaty matters and related federal matters. The Judiciary Act of 1789 thus provided for a direct
appeal as of right to the Supreme Court from final state court judgments. See Ch 20, § 25, 1 Stat. 85-86.
The same act granted final control to the Supreme Court on nearly all matters relating to foreign
ambassadors or public ministers and admiralty, the other principal international law issues of the day. See
id., §§ 9, 13.
340
See Judiciary Act of 1869, 16 Stat. 44 (1869); Judiciary Act of 1891, 26 Stat. 826 (1891);
Judiciary Act of 1914, 38 Stat. 790 (1914); Judiciary Act 1916, 39 Stat. 726 (1916); Judiciary Act of
1925, 43 Stat. 936 (1925).
341
Judiciary Act of 1891, Mar. 13, 1891, ch. 127, § 5, 26 Stat. 826, 827-828.
342
See Act of Feb. 13, 1925, ch. 229, §§ 237, 240, 43 Stat. 936, 937-939. For a comprehensive
review of the growth of discretionary Supreme Court review since this act see Edward A. Hartnett,
Questioning Certiorari: Some Reflections Seventy-Five Years After the Judges' Bill, 100 COLUM. L. REV.
1643, 1649-1704 (2000).
343
See 28 U.S.C.A. § 1254 (2009).
79
is that the independent, geographically dispersed courts of appeal provide the final judicial voice
on nearly all matters of international law.344
Few would argue that these regional appellate courts (with only exceedingly rare leveling
by the Supreme Court) represent an effective system for ensuring uniform fidelity to the
international legal obligations of the United States. The problem is even more acute than this,
however. Nearly all of the precedents in the federal circuit courts come from individual, local
panels—not the regional court as a whole. The cause of this is the law-of-the-circuit doctrine.345
Under this doctrine, which controls in every federal circuit,346 a precedent created by a single
three-judge panel is absolutely binding on all subsequent panels in the circuit. In the rare case
that a subsequent panel misses the message, later panels are obligated to follow the earlier
precedent.347
344
To be sure, a split in the circuits is a ground for discretionary Supreme Court review. See Sup.
Ct. R. 17. But the evidence noted above amply demonstrates that even on the important subject of
international treaty obligations the Court grants certiorari on only about 1% of the cases. See supra notes
__ and __.
345
For a general analysis of appellate stare decisis doctrine see Amy Coney Barrett, Statutory
Stare Decisis in the Courts of Appeals, 73 GEO. WASH. L. REV. 317 (2005).
The Fifth Circuit’s recent summary aptly captures the general approach. See United States v.
Jasso, 587 F.3d 706, 709 (5th Cir. 2009)(“One panel of this Court may not overrule the decision of a prior
panel in the absence of en banc consideration or a superseding Supreme Court decision.”). See also
Peralta v. Holder, 567 F.3d 31, 35 (1st Cir. 2009); United States v. Jass, 569 F.3d 47, 58 (2d Cir. 2009);
Interfaith Community Organization v. Honeywell Intern, Inc., 426 F. 3d. 694, 704-5 (3rd Cir., 2005),
Jones v. Calvert Group, Ltd., 551 F.3d 297, 303 (4th Cir. 2009); Bonner v. Perry, 564 F.3d 424, 430 (6th
Cir. 2009); Matter of Skupniewitz, 73 F.3d 702, 705 (7th Cir. 1996); United States v. Zuniga, 579 F.3d
845, 848 (8th Cir. 2009); In re Findley v. Findley, 593 F.3d 1048, 1050 (9th Cir. 2010); Mendiola v.
Holder, 585 F.3d 1303, 1310 (10th Cir. 2009); United States v. Sneed, 600 F.3d 1326, 1332 (11th Cir.
2010); Rasul v. Myers, 563 F.3d 527, 529 (D.C. Cir. 2009).
346
347
See Rayan v. Johnson, 115 F. 3d. 193, 198-99 (3rd Cir. 1997), McMellon v. United States, 387
F. 3d. 329, 334 (4th Cir. 2004), Darrah v. City of Oak Park, 255 F. 3d. 301, 310 (6th Cir. 2001).
80
This doctrine is severe indeed. It prohibits reexamination of the first panel precedent
even in light of subsequent insights and analyses of other circuits.348 The 11th Circuit recently
declared this point bluntly: “The fact that other circuits disagree with [our] analysis is
irrelevant.”349 All that remains is en banc review; but even this rare option is “not favored and
ordinarily will not be ordered.”350
To present the point starkly, consider a hypothetical involving the Ninth Circuit. A panel
majority may create a precedent on the international legal obligations of the United States that is
then binding on the entire circuit. This means that a decision of two judges would control a
circuit of over 60 million people, nearly 20% of the country’s entire population. The precedent
would be impervious to subsequent review within the circuit as well as subsequent insights from
other circuits. The law-of-the-circuit doctrine thus effectively precludes resolution of intercircuit conflicts except for rare en banc review and in the 1% of cases the Supreme Court decides
to hear. The result is a very real possibility of a localized patchwork of judicial declarations on
the rights or obligations of the United States under international law. To put it mildly, such a
system is discordant with the “‘concern for uniformity in this country’s dealings with foreign
348
See United States v. Thompson, 234 F.3d 74, 78 n.5 (1st Cir. 2000); United States v. Napoli,
179 F.3d 1, 16 n.16 (2nd Cir. 1999); E.I. Dupont De Nemours & Co. v. United States, 460 F.3d 515, 542
n.32 (3rd Cir. 2006); Columbus-America Discovery Group v. Atlantic Mut. Ins. Co., 203 F.3d 291, 304305 (4th Cir. 2000); Garcia v. United States, 22 F.3d 609, 612 n.11 (5th Cir. 1994); In re Yates, 287 F.3d
521, 525–26 (6th Cir. 2001); United States v. Coffey, 350 Fed. App’x 85, 2009 WL 3575686, *1 (8th Cir.
2009) (per curiam); Bell v. Hill, 190 F.3d 1089 (9th Cir. 1999); United States v. Splawn, 963 F.2d 295,
295–96 (10th Cir. 1992). Only the Seventh Circuit has suggested a bit more flexibility. See United States
v. Carlos-Colmenares, 253 F.3d 276, 277–78 (7th Cir. 2001)(overruling a circuit precedent, after
circulating the opinion to all active members of the court, on the basis that all other circuits had arrived at
a contrary conclusion).
349
In re USA, __ F.3d __, 2010 WL 4238003 at *6 (11th Cir. 2010)(quoting EEOC v. W & O,
Inc., 213 F.3d 600, 623 n. 15 (11th Cir.2000)).
350
Fed. R. App. P. 35(a).
81
nations’ that animated the Constitution’s exclusive allocation of the foreign relations power to
the national government in the first place.”351
The rigid stare decisis practice of the courts of appeals also precludes consideration of
the exogenous forces of change that are of special significance for international law
precedents.352 The overlay of decisions of other courts of appeal may make these forces even
more potent. In spite of this, the law-of-the circuit principle operates as a near absolute bar to
examination of such subsequent developments in the law—the factor the Supreme Court deems
“of most relevance”353 for reexamining a precedent.
Moreover, the great bulk of the lower court precedent is generated without the expertise
and even beyond the attention of national institutions. It is no slight to observe that, with their
large, mandatory dockets, these courts may lack the necessary resources, expertise, and
international perspectives to appreciate fully their special responsibilities on Article III
international law matters. Unlike the Supreme Court, the sheer volume of cases in the circuit
courts constrains access to executive branch expertise, except in rare issues of national
significance. Our litigant-driven, adversarial system further limits the availability of reliable
evidence, both factual and legal. And unlike the certiorari filter for the Supreme Court, the
federal courts of appeal may not defer decisions to await further information, better lawyers, or
increased attention by national experts.
351
American Ins. Ass'n v. Garamendi, 539 U.S. 396, 413 (2003)(quoting Banco Nacional de
Cuba v. Sabbatino, 376 U.S. 398, 427 n. 25 (1964)).
352
See supra notes __-__ and accompanying text.
353
Leegin Creative Leather Products, Inc. v. PSKS, Inc., 577 U.S. 877, 900 (2007).
82
Unfortunately, ample evidence suggests that the courts of appeals are not fully sensitive
to the “responsibility of [their] stations”354 on such matters. As I have explained elsewhere, it is
not uncommon for lower courts to retreat to familiar local (often idiosyncratic) interpretive
techniques and substantive concepts to apply international treaties.355 This categorical error has
led to the misguided observation by some circuit courts that “[t]reaties are construed in much the
same manner as statutes.”356 Another example comes from the widespread failure to observe the
Supreme Court’s mandate to consider the judicial opinions of treaty partners.357 Of the nearly
1400 appellate treaty cases in the last decade, only twelve even mentioned the views of “sister
state” courts.358
Nonetheless, the regional consequences of a panel precedent on Article III international
law are equally as significant as a Supreme Court decision. Whether it recognizes359 or rejects360
a binding norm of international law, an appellate court is formally participating in a definition of
international law. For this reason, the constitutions of some countries have reserved the power to
make binding declarations on such subjects to a supreme court. A special jurisdictional
Cf. The Amiable Isabella, 19 U.S. (6 Wheat.) 1, 68 (1821)(highlighting “the responsibility of
our stations” in the enforcement of treaties).
354
355
See Van Alstine, Treaty Good Faith, supra note __, at 1936-1942.
Kahn Lucas Lancaster, Inc. v. Lark Int’l Ltd., 186 F.3d 210, 215 (2d Cir. 1999). See also
Sacirbey v. Guccione, 589 F.3d 52, 66 (2nd Cir. 2009)(approving this statement); Collins v. Nat’l Transp.
Safety Bd., 351 F.3d 1246, 1251 (D.C. Cir. 2003)(declaring that similar principles apply for interpreting
treaties and statutes).
356
357
See supra notes __-__ and accompanying text.
358
The results of a corresponding search of the Westlaw database are available from the author.
359
See, e.g., Doe v. Rafael Saravia, 348 F.Supp.2d 1112, 1156-1157 (E.D. Cal. 2004)(concluding
that complicity in an assassination was a crime against humanity in violation of customary international
law).
360
See, e.g., Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2nd Cir. 2010)(holding that
corporations may not be held liable for human rights violations under customary international law).
83
provision in the German Grundgesetz, for example, requires that in the case of doubt, lower
courts must refer issues of customary international law to the German Constitutional Court.361
In short, the case for judicial modesty on the force of stare decisis in the federal courts of
appeal on Article III international law is even more compelling.362 For such matters, the courts
of appeal should explicitly relax the law-of-the-circuit doctrine363 to permit later panels to
consider compelling developments in knowledge, judicial analysis (including extra-circuit
precedent), and executive branch insights.364 Because the courts of appeal would themselves
control the reexamination of precedent, the essential benefits of vertical stare decisis would
remain.365 Nonetheless, through such a move to relax horizontal stare decisis, the courts of
appeal would enhance the quality of their precedents and at the same time limit the fact and
appearance of inappropriate judicial leadership in the identification of Article III international
law.
CONCLUSION
[to come]
361
See The Basic Law of the Federal Republic of Germany, art 100(2)(providing that if doubt
arises over “whether a rule of international law is part of federal law and whether it directly creates rights
and obligations for individuals,” a lower court must refer the matter to the Federal Constitutional
Court)(translation by author).
362
State supreme courts should adopt the same policy for the rare case that they create
international law precedents. See, e.g., State v. Sanchez-Llamas, 108 P.3d 573 (Ore. 2005)(applying a
treaty in a criminal proceeding), aff’d, 548 U.S. 331 (2006).
363
Although less desirable, an alternative would be a more accommodating approach to en banc
review.
364
The First Circuit has left the door ajar, albeit only slightly. See United States v. Chhien, 266
F.3d 1, 11 (1st Cir. 2001)(indicating that a panel precedent may also yield “in extremely rare
circumstances, where non-controlling but persuasive case law suggests such a course”).
365
Again, consistent with the vertical values of stability and efficiency, the district courts would
remain bound by the first panel precedent.
84