[William Dodge is a law professor at UC Hastings] I’ve not seen anyone comment yet on what I thought was one of the more notable aspects of Chief Justice Roberts’s opinion, its application of Justice Jackson’s Youngstown analysis. The question is how to read congressional silence. Although I am greatly oversimplifying, Jackson seemed to read Congress’s failure to authorize what the...
Thank you to Roger for extending my stay guest blogging, so I could step aside for a few days for all of the interesting posts on Medellin. At the request of several readers, I will re-post my first post (which had the misfortune of being posted right before Medellin was decided), and then later today add another post on...
I wanted to jump in with a quick response to Marty's awesome post about what is, without question, the most surprising (and for me, delightful) part of the Medellin opinion: Justice Stevens' concurrence. I love this concurrence, especially because I am (to put it mildly) rarely fond of Justice Stevens' forays into foreign relations law. This is, after...
Serbia announced yesterday that it would seek an ICJ advisory opinion on the legality of Kosovo's declaration of independence. This, to me, is further evidence that the Serbs have no real ability to alter the Kosovo outcome; the plan now is just to harass from a distance and hope Kosovo falls apart on its own. In order to...
There has been an interesting debate going on at Slate.com about whether Obama is padding his resume by referring to himself as a "law professor," even though he was formally a "senior lecturer" at the University of Chicago law school. I think the debate is rather silly myself, for the reasons Tim Wu discusses here. Nevertheless, the...
In the beginning of his concurrence in Medellin, Justice Stevens reads Article 94 not to require the Texas state courts to take steps to ensure that the U.S. complys with the ICJ judgment. I disagree with his interpretation of "undertakes to comply," but he's almost convinced me that it's a close question, at least with respect to whether the...
As many have noted, the Supreme Court’s decision yesterday in Medellin v. Texas raises serious questions about the binding nature of United States’s treaty commitments. The Court holds as follows: “Because none of these treaty sources creates binding federal law in the absence of implementing legislation, and because it is uncontested that no such legislation exists, we conclude that...
[Mark Weisburd is the Martha M. Brandis Professor of Law at UNC Law School.] I find it difficult to read Medellin as institutionalizing a presumption against self-execution. If that had been Roberts's intent, the form of his argument should have been, "We presume non self-execution, is there anything to overcome the presumption?" Instead, he analyzed the text, ratification hearings, and practice...
[Edward Swaine is an Associate Professor of Law at the George Washington University Law School. ] The quick scorecard on Medellin is pretty simple: Texas wins, the ICJ loses, and the President loses. I have lots of reactions to what the opinions say about the ICJ, non-self-execution, and even comparative law, but let's just focus on this bottom line. The...
There is much one could say about Medellín, but I want to focus on the meta-question of what this decision portends for the future of international courts and tribunals. While the domestic effect of ICJ decisions is now cast into serious doubt (at least in terms of direct enforcement), I think there is far more reason to be hopeful...
I wanted to react quickly to two of the other items posted earlier today. First, Paul Stephan makes the point that Justice Breyer's dissent is "very problematic." I agree. Breyer's opinion does not make a helpful contribution to untying the "Gordian knot" of non-self-execution doctrine. Second, Curt Bradley claims that the Court's decision effectively reserves "to...
Eric Posner has this post up on Medellin on Slate's new law blog Convictions, which wraps up with the following: There is an academic theory that holds that the type of litigation (sometimes called "transnational legal process") exemplified by the Medellin case would eventually bring the United States into greater and greater compliance with international law. But with the benefit of...
