Author Archive for
David Moore

Bradley Book Symposium: David Moore comments on Treaties

by David Moore

[David Moore is Professor of Law at BYU Law]

Curtis Bradley’s “International Law in the U.S. Legal System” is a welcome and significant contribution to U.S. Foreign Relations Law.  Like Louis Henkin’s “Foreign Affairs and the United States Constitution,” it will be a resource that scholars will want to consult and cite as well as recommend to their students and have on reserve.

The portion of the book on treaties addresses a wide-range of topics from treaty creation to non-self-execution to termination.  In addition to providing a clear overview of these topics and the sometimes unsettled questions they present, the discussion reveals an unspoken theme only partially captured by the book’s title.  Given its focus, the book is appropriately titled “International Law in the U.S. Legal System,” but the treatment of international law in U.S. law reveals that the interaction between U.S. and international law is not unidirectional.  International law affects U.S. law, even U.S. constitutional law, but U.S. law also affects international law.

On the incoming side of the relationship, international law produces a range of effects on the domestic legal order.  Most passively, international law presents questions that domestic law must answer.  For example, Bradley notes that the international law of treaties recognizes that state parties may terminate their agreements under certain circumstances, such as material breach of a bilateral agreement.  The international law option to terminate raises the question of who within the domestic order can exercise that option.   Moreover, international law might go further and influence the answer to that question as the nature of international law may functionally favor a particular actor as the one best suited to exercise the termination power.  This sort of effect has arguably occurred in the context of determining the subject matter scope of the treaty power.  Bradley notes repeated historical suggestions that treaty-making might extend only to certain types of treaties or at least to matters of international concern.  International law, however, defines “treaty” very broadly by reference to the nature of the contracting parties and the obligations assumed, largely without reference to subject matter restraints.  Consistent with this approach, treaty-making has spanned a vast range of issues.  The breadth of international treaty-making is almost certainly a contributing factor to the current sense that the Constitution does not impose subject matter limitations on the treaty power.  With the Supreme Court positioned to address subject matter limitations on the treaty-making power next term in Bond v. United States, the link between international law and domestic definition of the treaty power may be broken.  At this point, however, the connection is apparent. (more…)

Online Workshop Response: The Last Word

by David Moore

[Opinio Juris Note: Thanks to everyone, especially David Moore, for participating in the online workshop this week. Here is David's last post and the last contribution to what has been a very interesting and useful workshop.]

Marty is, of course, right that the issue before the Court in Sosa was not whether all CIL qualifies as federal common law or whether the creation of CIL-based common law requires positive authorization. The issue was whether the ATS supports common law claims based on CIL. That does not mean, however, that Sosa did not address the modern position versus revisionist debate. A court’s approach to resolving the issue presented is a part of its holding just as the ultimate resolution of the issue is. And the approach the Sosa Court took in determining the import of the ATS is inconsistent with the modern position. Among other things, the Court’s pervasive search for and adherence to congressional intent would have been unnecessary if the modern position were correct, as would the Court’s efforts to conform to narrow, post-Erie notions of federal common law authority. The Court’s references to Sabbatino are not to the contrary–a citation to Sabbatino is not, as some would suggest, a cite to the modern position. Indeed, as Marty concedes in parenthetical, the Court explained (in one reference to Sabbatino) that despite Sabbatino’s creation of a common law doctrine (based on constitutional separation of powers concerns and applied to avoid application of international law), the general rule is to look for legislative authorization before creating common law. Sosa applied that general rule in the CIL context. In two other citations, the Court invoked Sabbatino to conclude that developments since the enactment of the ATS did not preclude Congress from authorizing courts to create CIL-based common law. The source of the courts’ common law authority, however, remained congressional intent. Even in its references to Sabbatino, the Court says more about the modern position versus revisionist debate than Marty lets on.

Peter acknowledges as much, but resurrects Beth’s suggestion that the debate has been about how much CIL qualifies as domestic law, that revisionism saw little or no room for CIL, and that an acknowledgement that CIL may play a robust domestic role post-Sosa marks a retreat for revisionism. Revisionist writings have not focused on how much CIL qualifies as domestic law, because revisionism is about how, not how much, CIL might become common law. Now that the Court has lent its weight to the revisionist view, it makes sense to survey what that view means for CIL’s actual role in domestic law. The change in focus results from a change in context, more than content. I suspect that Peter’s point about tone is more about context than content as well. Curt and Jack’s 1997 piece was, as Peter notes, pathbreaking. It interrupted a largely uncritical consensus in the legal academy. Having spurred serious debate and now garnered support from the Supreme Court, revisionist scholarship might be expected to take a different tone (if indeed it has), not so much as a matter of content, but as a matter of context.

As this online workshop comes to a close, I will conclude with one forward-looking thought. To my mind, Sosa does more than advance the revisionist position. The factors Sosa imposed to guide judicial incorporation of CIL (intent of the political branches, specificity, broad acceptance, practical consequences, foreign relations effect, and alternative means of enforcement) bear an unacknowledged but striking resemblance to the considerations that have guided self-execution analysis in the treaty context. The similarity suggests the emergence of a uniform doctrine governing the status of both sources of international law in federal courts. I have developed this observation in a separate piece (An Emerging Uniformity for International Law, 75 Geo. Wash. L. Rev. (forthcoming 2006)), an earlier draft of which is available here for anyone who cares to take a sneak peek.

This has been a valuable exchange. Many thanks to Peter, Marty, Roger, Beth and Julian for their insightful comments and to Opinio Juris for hosting this workshop.

Online Workshop Response: Justice Scalia and the Majority

by David Moore

The perception that Justice Scalia views the majority’s approach differently than our Article does results, at least in part, from the somewhat complicated relation between two issues that I raised in my initial post: (a) the post-Erie status of CIL in the absence of political branch authorization, and (b) the import of the Alien Tort Statute, in particular whether the ATS authorizes the application of CIL as federal common law. In answering the latter question, all nine justices relied, not on some notion that CIL is, wholesale, federal common law, but on political branch authorization—the intent of the First Congress in enacting the ATS. The justices likewise agreed on the nature of that intent–that Congress wished to provide jurisdiction to support a limited set of general law claims based on the law of nations. As our Article reports, then, Justice Scalia and the majority see the same need for political branch authorization, unanimously endorsing (for this and other reasons) the revisionist view on issue a.

Justice Scalia’s disagreement with the majority lies not with how to determine whether CIL may be applied as federal common law in ATS cases (again, issue a), but on whether the ATS authorizes the application of CIL as federal common law (issue b). As Roger indicates, Justice Scalia did not believe that the First Congress’s intent could be translated into a post-Erie world in which law of nations claims would be federal, rather than general, common law creating arising under jurisdiction, preempting state law, and potentially binding the Executive. The majority disagreed (in part based on the intent of modern Congresses), finding it possible to effect the First Congress’s intent in a post-Erie environment. Our Article, which is descriptive rather than normative, seeks neither to defend nor critique the majority’s conclusion that the intent behind the ATS provides authorization for a limited set of post-Erie common law claims derived from CIL. As a result, while Justice Scalia vociferously opposes the majority’s translation rationale, our Article reports the rationale and the resulting resolution of issue b, but remains silent on the rationale’s merits. That is where our divergence with Justice Scalia’s concurrence lies.

Online Workshop Response

by David Moore

Thanks to Beth and Julian for their insightful comments. Let me respond to a few of them. Beth suggests that the “modern position” and “revisionist” categories are exaggerated and simplistic, apparently because she perceives that no CIL qualifies as federal common law under the revisionist view while all CIL qualifies as common law under the modern position view. Some adherents to the modern position, she asserts, stake out the “middle ground,” not captured by these categories, in which CIL is a source of federal common law in appropriate cases. An “as appropriate” approach provides no theory of how or why CIL becomes federal common law, as the other approaches do, and so would not seem to qualify as a separate category (read theory), or at least as one that could support meaningful debate. More fundamentally, Beth’s argument misperceives the nature of the modern position versus revisionist debate. The debate is not about how much CIL qualifies as common law. If it were, discussing the debate in all or nothing terms would be exaggerated and simplistic. The debate is about how CIL qualifies as federal common law. The modern position asserts that CIL is, by historical pedigree or precedent, federal common law. The revisionist view (and Sosa) maintains that CIL becomes federal common law consistent with the requirements and limitations of post-Erie common law. There are, as Beth asserts, a range of situations (many detailed in the Article) in which these requirements and limitations are met and in which CIL is applicable as federal common law. This “middle ground,” however, emerges consistent with the revisionist explanation of how CIL becomes federal law. Thus, at least the middle ground Beth adopts fits comfortably within the categories on which the Article focuses. (Incidentally, the Article does discuss an intermediate position that would treat CIL as a type of general law post-Erie. Sosa’s application of a traditional conception of post-Erie common law to CIL effectively undermines the intermediate position, however.)

On this question of historical pedigree, Julian suggests that Sosa did not clearly find that CIL was general common law pre-Erie and therefore left room for courts to treat CIL as “a special kind of ‘common law.’” While the Court did not explicitly state that CIL was general common law, it certainly indicated that it believed as much. For example, in discussing the law of nations’ pre-Erie status, the Court invoked two Holmesian descriptions of the general common law. Similarly, the Court stated that the law of nations included the law merchant which was unquestionably part of the general common law. Even if one could ignore this and other evidence that the Court viewed CIL as general law, the Court’s application of a very traditional conception of post-Erie common law to contemporary CIL leaves no room for concluding that CIL should now be treated specially.

Under the traditional conception the Court applied, federal courts may develop common law based on CIL pursuant to congressional authorization. That authorization, contrary to what Julian suggests, often must be more than a jurisdictional grant. The ATS was a unique situation in which the jurisdictional grant was enacted based on certain expectations about the common law that the Court decided to translate into a post-Erie world. Nor is the authorization requirement a thin line. That line prevents judicial incorporation of CIL at will. The line is crossed when both houses of Congress and the President agree to cross it. That line is the same line that separates norms and aspirations from law. As a result, it is not surprising that, as a matter of domestic law, CIL might bind the Executive once that line is crossed, but not before.

Before I conclude, let me respond to one other comment–Beth’s suggestion that one can conclude that Sosa rejected much of Filartiga and its progeny only by misinterpreting those cases. I would suggest that one can evade Sosa’s rejection of much of the pre-Sosa case law only by ignoring those cases or the parts of those cases that were inconsistent with Sosa. That is, Beth seems to define Filartiga and its progeny only to include those cases that took a “remarkably cautious” approach to the Alien Tort Statute. While it is true that Sosa did not reject all, or perhaps even most, of what had emanated from Filartiga, the Court’s adoption of language similar to that invoked by prior courts does not mean the Court endorsed those courts’ application of that language. Indeed, the Court made clear that pre-Sosa cases had not demonstrated the caution that Sosa requires. As but one example, Filartiga and its progeny placed significant weight on the ICCPR, Universal Declaration, and Restatement in identifying actionable norms of CIL. The Court in Sosa, by contrast, stated that the ICCPR and Universal Declaration had “little utility” under Sosa’s demanding standards, and the Court found that “[e]ven the Restatement’s [norms] are only the beginning of the enquiry.”

Beth and Julian raise other interesting issues—the scope of corporate aiding and abetting liability under the ATS and whether CIL binds the Executive even in the absence of political branch incorporation. These are serious issues raised by scholars whom I respect. But to maintain the reader’s respect after so much rambling on (and since these issues were not major focuses of the Article), I will not address them here.