International Cases to Watch before the Supreme Court

by Roger Alford

With the Supreme Court term now underway, here is a summary of the most important cases that relate to international law. A few of the cases address fairly technical issues of statutory and treaty interpretation, while others have the potential to be quite significant for our discipline. I have organized the cases according to my sense of most important to least important.

Samantar v. Yousef. This case addresses whether a former government official acting in his official capacity enjoys immunity under the FSIA. It addresses the key question of whether current or former government officials are state instrumentalities within the meaning of the FSIA. Details here and OJ discussion here and here.

Graham v. Florida/Sullivan v. Florida. Graham and Sullivan both raise the issue of juvenile life without parole for non-homicidal crimes, with Graham involving a seventeen-year-old and Sullivan involving a thirteen-year-old. The Petitioner, Respondent, and numerous amici on both sides raise international and comparative law issues. This could be the most important case since Roper on the use of constitutional comparativism. Details here and here.

Holder v. Humanitarian Law Project. Great case addressing whether the definition of “material support” for terrorists organizations is unconstitutionally vague. Plaintiffs are a group of organizations that would like to pursue peaceful assistance to terrorist groups such as the Tamil Tigers or the Partiya Karkeran Kurdistan (PKK). The statute appears to prohibit any service of any type to a terrorist organization. Details here and OJ discussion here.

Abbott v. Abbott. This case involves treaty interpretation under the Hague Convention on International Child Abduction. The question presented is whether a ne exeat clause (that is, a clause that prohibits one parent from removing a child from the country without the other parent’s consent) confers a “right of custody” within the meaning of the Hague Convention on International Child Abduction. The case includes an amicus brief filed by the Hague Conference on Private International Law. Justice Sotomayer was on the opinion below writing in dissent. Details here and OJ discussion here.

Padilla v. Kentucky. The case involves the immigration consequences of felony guilty pleas. The question presented is whether defense counsel, in order to provide the effective assistance guaranteed by the Sixth Amendment, has a duty to investigate and advise a non-citizen defendant whether the offense to which the defendant is pleading guilty will result in removal. The United States’ brief supports Kentucky, arguing that the Sixth Amendment does not require advice as to the immigration consequences unless failure to do so would result in prejudice. Details here.

Kucana v. Holder. The case involves a jurisdiction-stripping statute the precludes federal review of certain types of immigration appeals. It also involves bizarre facts: Kucana was ordered to be deported because he was late to a scheduled hearing, having slept through his alarm. In addition, under the Obama Administration, the United States has switched positions from the Bush Administration’s position and is arguing against his deportation. In other words, neither the United States nor Kucana want him deported! Details here.

http://opiniojuris.org/2009/10/06/international-cases-to-watch-before-the-supreme-court/

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