Most of the discussion so far has been about the constitutional parts of Kal’s book, which is appropriate given its title. But the part I found most fascinating has nothing to do with the Constitution. In Chapter 4, Kal tries to explain why the United States began aggressively to apply its regulatory statutes extraterritorially after World War II and not before. He makes a number of important points. First, it was not simply a matter of more transborder effects because of economic interdependence. The global economy was more integrated in 1909 when the Supreme Court decided American Banana than in 1945 when the Second Circuit decided Alcoa. Kal identifies a number of other factors that explain the timing, including the rise of the regulatory state (you need regulations before you can apply them extraterritorially), the decline of formalism in legal thought, and a post-war order in which legal conflict did not lead to military conflict.

I would put more emphasis than Kal does on changes in legal thought, particularly the effect of changes in the conflict of laws, which justified departures from territoriality to judicial minds. Kal downplays the impact of American conflicts law, stating that it “simply reflected prevailing international legal concepts rather than the reverse.” (p. 100). This may be true for the nineteenth and early twentieth centuries, when the Supreme Court had a tendency to adopt and even constitutionalize international concepts of jurisdiction. But conflicts thinking remained an important influence on extraterritoriality from Alcoa to Timberlane, even as American conflicts parted ways with international law. Timberlane certainly does not illustrate the effect of international law on American conflicts—if anything, it illustrates the reverse. A decade ago, I tried to trace the impact of conflicts thinking on extraterritoriality, which those who are interested can find here.

While Kal does a good job of explaining why extraterritorial regulation based on effects did not develop earlier, he is less explicit on why it was initially only the United States that asserted it. American hegemony is not the answer. In the post-war world, the United States would have been no more inclined to go to war with Britain over an issue of extraterritorial regulation than Britain was inclined to go to war with the United States. The answer, I think, lies in a point that Kal makes at several other points in the book (pp. 95, 113-14, 229) but not in this context, the presence of foreign assets in the United States. The ability of any nation to apply its law extraterritorially depends critically on rules of personal jurisdiction and the enforcement of judgments—what I have called the “structural rules of transnational law.” Smaller countries like the U.K. had less ability to enforce antitrust judgments against foreign companies, and so were less likely to regulate them in the first place.

Of course, the United States is no longer the only big country in the regulatory game. For many years the EU has been enforcing its competition law extraterritorially, and China has blocked or conditioned three mergers involving foreign firms in just the first year of its Antimonopoly Law’s operation. The future of extraterritorial regulation is likely to look quite different from the past.

“Does the Constitution Follow the Flag?” is a fascinating book, and one of its great strengths is that it juxtaposes a number of different examples of how law and territory do not align, some of which have been largely forgotten. When most of us think about extraterritoriality, we think of issues like the extraterritorial application of antitrust law, the applicability of the Fourth Amendment to searches in Mexico, or whether detainees at Guantanamo can file habeas petitions. We are less likely to think about Status of Forces Agreements (SOFAs), consular jurisdiction, or the non-application of certain constitutional rights in Indian country.

Kal claims repeatedly in his book (and again in his post) that the primary function of all these kinds of extraterritoriality is the same—to manage legal differences. In the broadest sense, this is necessarily true. If all law and procedure were the same everywhere in the world, there would be no occasion to apply law extraterritoriality. But it seems to me that three fundamentally different phenomena are being discussed: (1) the protection of Americans abroad from foreign laws (e.g. consular jurisdiction and SOFAs); (2) the application of American laws to foreigners (e.g. extraterritorial antitrust); and (3) the limitation of U.S. government actors by the Constitution. To be sure there are relationships among these categories—in particular, (1) and (2) each raise issues (though different issues) under (3). But I am not convinced that each has the same primary function except at the very highest level of generality.

I would also take issue with the way in which the extraterritorial application of regulatory law manages legal differences. Kal claims it levels the playing field by making sure that foreign firms have to abide by the same rules as American ones (pp. 100, 228). That is not the rationale one finds articulated in U.S. cases applying antitrust or securities law extraterritorially, however, which talk much more about protecting consumers and investors than about protecting competitors. I might also point out that the Foreign Corrupt Practices Act—an example of extraterritorial regulation the book does not discuss—tips the playing field against American companies by subjecting them to restraints foreign firms did not face until some level of harmonization was achieved with the OECD Convention. My basic point here is that just as regulatory legislation can have a variety of purposes, so its extraterritorial application can have a variety of purposes. One of these might be to level the playing field for U.S. firms, but it is not the only, or even the dominant, one.

I just finished reading and absorbing Medellin today. I mentioned the case several times in my Constitutional Law I class in the fall, and students seemed quite intrigued by the interesting fact pattern and issues presented by the case.

Which leads me to the following question: Can readers think of a good place to teach Medellin in an introductory Constitutional Law class? At GW, our required, introductory Constitutional Law focuses on structural issues (federalism and separation of powers). That means that one large part of the class is spent on the Commerce Clause/Spending Clause/Tenth Amendment, and the other large part of the class tends to focus on Youngstown/war on terror cases/Chadha/executive privliege.

Where can you fit Medellin in? As part of the Youngstown discussion? Can you make the self-executing issue part of a Constitutional Law course? Have others thought of teaching Medellin in a Constitutional Law course, or have they perhaps taught Sanchez-Llamas in their classes before?

[Professor Bill Dodge teaches at Hastings College of Law and is an expert on the Alien Tort Statute]

Last September, Opinio Juris hosted an online workshop to consider the forthcoming article by Curt Bradley, Jack Goldsmith, and David Moore, “Sosa, Customary International Law, and the Continuing Relevance of Erie.”

The article has now come forth, and I have written a brief response for the Harvard Law Review Forum. In it, I argue that Sosa rejected Bradley, Goldsmith, and Moore’s position that courts must find positive authority for the incorporation of customary international law into the U.S. legal system before they may apply it in cases over which they have jurisdiction. I further argue that the author’s positive incorporation requirement lacks legitimacy because it is inconsistent with the original understanding and has no foundation in either statutory law or the Constitution, thus failing Erie’s own test of legitimacy. Finally, I defend the legitimacy of customary international law on the grounds that its requirements constrain the discretion of federal judges and that it may be overridden by Congress.

Another of the panels at the American Enterprise Institute conference last Tuesday dealt with customary international after Sosa v. Alvarez-Machain. The panel consisted of Julian Ku, David Moore, Beth Stephens, and myself, moderated by Jack Goldsmith.

Not surprisingly, the panelists had different views.Julian Ku advanced an argument that the President should exercise control over customary international law, in part because customary international law is based on state practice and because it is generally the executive who acts for the United States in establishing that practice. He suggested a rule of deference—perhaps even absolute deference—to the President’s interpretations of customary international law. One problem with this position, as Beth Stephens pointed out, is that it does not accord with what the Supreme Court actually did in Sosa. In the end, the Court agreed with the Bush Administration that brief arbitrary detentions do not violate any well-established norm of customary international law, but the Court engaged in its own analysis and showed no deference to the executive. There are at least two other objections. First, from an originalist point of view, the President had very little role to play in establishing the law of nations at the time of the Founding because that law rested on natural law rules deducible by courts rather than on state practice. Second, from a modern point of view, it is not only the practice of the United States that establishes customary international law, and unless the United States is a persistent objector during the creation of a new international law norm it will be bound by such a norm even if the President doesn’t like it.

David Moore, on the other hand, read Sosa as giving control over customary international law not to the executive but to Congress. Of course Congress has constitutional authority to “define and punish” offenses against the law of nations and is presumed also to be able to violate customary international law under the last-in-time rule. But Moore’s argument went beyond this, suggesting that the Sosa Court’s focus on congressional intent means that such intent should determine the extent to which customary international law is incorporated into the U.S. legal system more generally. Moore’s argument is original and provocative but in my view it misreads Sosa. First, it resurrects in somewhat different form the argument that the Supreme Court expressly rejected in Sosa—that Congress must expressly incorporate customary international law before courts may apply it. Second, it places too much reliance on the Sosa Court’s discussion of intent. In a case involving the interpretation of a statute, like the Alien Tort Statute, a focus on congressional intent is perfectly appropriate. That does not mean, however, that congressional intent has anything to say about the place of customary international law in the constitutional structure—its place under Article II’s take care clause, Article III’s grant of federal question jurisdiction, or Article VI’s supremacy clause, for example.

It was to those questions that I turned in my presentation, arguing that Sosa’s approach is to treat the incorporation of customary international law not in an all-or-nothing manner, but issue by issue, an interpretation I advanced in a previous article on Sosa. I argued that the original understanding was that the President is bound by customary international law under Article II, that cases arising under the law of nations are within the federal question grant of Article III, and (perhaps most controversially) that customary international law should bind the states under the supremacy clause.

Beth Stephens was the voice of reason and practicality. Among other things, she discussed Sosa’s impact on the corporate cases, arguing that the violations they allege are clearly actionable under Sosa. She also pointed out that the First Congress recognized both that private actors not acting under color of state law could violate some rules of the law of nations and that aiders and abettors of international law violations could be held liable. One such case, In re South African Apartheid Litigation, is currently pending before the Second Circuit and we will soon see if she is right.

At the American Enterprise Institute on Tuesday a panel with diverse viewpoints—Kenneth Anderson, Morton Halperin, John Hutson, and Andrew McCarthy—expressed a remarkable consensus about the need for the President to go to Congress to establish the rules for a lasting “war on terror,” including such issues as intelligence gathering, detention, rendition, and the use of force short of war.

Kenneth Anderson warned that if the Bush Administration does not institutionalize the war on terror, that war will not outlast the Administration. Morton Halperin agreed, characterizing the Administration’s unilateralism as a “fundamental political misjudgment.”

John Hutson, a retired admiral and now dean of the Franklin Pierce Law Center, warned that if we are not careful we may lose the war on terror, and cautioned that “If we lose our soul . . . we ultimately will have lost the war on terror.” War is never a solution by itself, he said, but only buys time to develop other solutions, adding “we need to figure out why they hate us.” Andrew McCarthy replied that it doesn’t matter why they hate us, because knowing would not change our strategy or objective, which is to break the ability of radical Islam to project force.

John Yoo moderated the panel. Unfortunately he remained silent on the advisability of executive unilateralism in the war on terror, but you can buy his book.

In a speech at the American Enterprise Institute on Tuesday, Justice Scalia took aim once again at the use of foreign law to interpret the Constitution. While freely admitting that 18th Century English law is relevant to that exercise, he denied that modern foreign legal materials ever are. And in response to a question from Professor Julian Ku, he extended his position to reject the relevance of international law as well.

As he did at the 2004 annual meeting of the American Society of International Law, Justice Scalia pointed out that foreign law is often invoked selectively. Yes, a great many nations do not allow the execution of minors, but a great many also criminalize abortion. Scalia also linked the use of foreign legal materials to what he called the “living Constitution paradigm.” Invoking Justice Holmes, he characterized the law of international human rights as the new “brooding omnipresence in the sky,” portending a return to what Scalia called the “bad old days before Erie.”

During a panel discussion that followed Justice Scalia’s speech, Tom Goldstein (SCOTUSblog) suggested that the current debate over the use of foreign law is a proxy for the debate over originalism. Breyer and other believers in the “living Constitution” are willing to look to foreign materials to help them fashion solutions for modern problems, while Scalia rejects such materials because he believes that all the answers must be found in the original understanding.

If Goldstein is right, a curious thing about this debate is that rejection of foreign and international law is associated with originalism. The “bad old days before Erie” included the 18th Century world of the Framers. They believed in a “brooding omnipresence in the sky” called the general common law, of which the law of nations was a part. The original understanding was that this law of nations was part of U.S. law in myriad ways, and as Professor Sarah Cleveland has shown in her thoroughly researched article “Our International Constitution”, the use of international law to interpret the Constitution stretches back to the Marshall Court.

Perhaps, then, it is really Justice Breyer who is being faithful to the original understanding of foreign and international law’s place in our constitutional system and its relevance to constitutional interpretation and Justice Scalia whose break with that tradition represents–dare I say it–“living Constitutionalism.”