International Courts and U.S. Federal Courts

by Tom Lee

When we talk about international law and U.S. federal courts, we do so most often in the context of national courts as an alternative to international tribunals. But it is also possible to conceive of U.S. federal law, which is now the principal business of U.S. federal courts, as a system of supra-state law supreme over state law, in which case we can generate interesting insights from the history of U.S. federal-state court relations with respect to the relationship between international courts and national courts in deciding international law cases.

In the U.S. judicial system, the usual jurisdictional “package” for deciding supra-state law (i.e., federal law as analogy to international law) is concurrent jurisdiction between the general (federal) and municipal (state) courts, with a right of removal from the municipal to the general court. For instance, both state and federal courts can usually decide most federal questions. Sometimes, the general court has exclusive jurisdiction over general law questions (e.g., patent law). A third package is concurrent jurisdiction with no right of removal from the municipal to the general court, as for instance, with certain securities claims or diversity claims against home-state defendants. Another, very rare package is general law claims that can only be litigated in municipal courts (e.g., certain low-stakes mining claims a century ago, junk-fax claims today).

Additionally, in the early years particularly, even where there seemed to be a secure right to jurisdiction, the U.S. general courts were fairly careful about claiming jurisdiction over sensitive, highly politicized issues, such as in Marbury, and crafted decisions construing laws purporting to afford such jurisdiction to be invalid or narrow. Another pragmatic institutional self-survival mechanism were doctrines of abstention that declined to hear certain sorts of cases even where jurisdiction was acknowledged. Moreover, in cases where general and municipal law issues were intertwined, the general courts developed doctrines to avoid decision of the case even though a general law question was presented where there was an “adequate and independent” municipal-law ground. Finally, the general courts typically disavowed broad general lawmaking powers, unlike their municipal counterparts with respect to municipal law. It was only in certain relatively uncontroversial areas, such as interstate boundary disputes over which the general courts’ jurisdiction was exclusive (as a constitutional matter I have speculated), that the general courts strongly embraced the right to craft rules of decision.

What is perhaps lacking in the design and performance of international tribunals today are these sorts of “plumbing” doctrines and statutory accommodations that may, from the American example, be useful and perhaps even necessary for general courts to develop institutional capital in a slow and patient process.

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