[Zachary Clopton is the Public Law Fellow at the University of Chicago Law School.]
For decades, scholars and practitioners of international law in the United States have focused on the federal courts. The combination of diversity, alienage, federal question, and Alien Tort Statute (ATS) jurisdiction largely justified this focus. But in the wake of decisions such as
Morrison and
Kiobel, some of these scholars and practitioners have turned to state courts and state law to vindicate international norms (
1,
2). To give one example,
New York state courts are adjudicating foreign-law claims against the Bank of China arising from its alleged facilitation of Hamas and Palestine Islamic Jihad attacks in Israel.
The attention to states may prove to be a positive development, but notably it has tended to rely on judicially created rights—common law claims under state or foreign law, or customary international law. What about state political branches? Is there is a role for governors and state legislatures, and should internationalists spend some of their energy lobbying these state-level political actors?
From a policy perspective, as well as from a doctrinal and constitutional one, international litigation in U.S. courts raises both horizontal (separation of powers) and vertical (federalism) questions. Although some judges and scholars object to international law in all of its forms, and others applaud any expanded role for international law, acknowledging the
independent horizontal and vertical dimensions opens up more nuanced options.
