25 Jan Ku and Yoo on the Alien Tort Statute
In the department of self-promotion, I thought I would note that John Yoo and I have posted our forthcoming article from the Supreme Court Review entitled, “Beyond Formalism in Foreign Affairs: A Functional Approach to the Alien Tort Statute”.
In this article, John and I consider the U.S. Supreme Court’s recent decision interpreting the ATS to permit federal courts to continue to recognize causes of action under international law by alien plaintiffs. Rather than reinvent the formalist wheel by plumbing more of the textual, structural, or historical questions about the ATS, we take a functional approach and consider whether the Court’s interpretation of the ATS, which relies heavily on the federal courts, is the best way to achieve the purpose behind the ATS. We conclude that, from a functional perspective, the Executive Branch is best positioned to determine how and whether to adopt rules of customary international law on behalf of the U.S. We propose that treating customary international law as state common law, subject to federal preemption by the President, is the best way to maintain a judicial role in the development of customary international law while allowing the institution with the most expertise over foreign affairs, the Executive, to maintain control over national policy.