Online Workshop Response: The Last Word

[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.