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XVI. International Law & Transactions

Introductory Materials

Emer de Vattel, The Law of Nations (1758) (Liberty Fund ed.). A classic work by the Swiss natural law theorist whose ideas were extremely influential for the American Founders. In this text Vattel explores the application of natural law to the conduct of states and sovereigns, including the rights and obligations of the state itself, those of the sovereign power, the nature of good government, the right of the people to secession or rebellion, and the proper relations between sovereign states, including international commerce, international legal agreements, and treaties.

Mark. W. Janis, An Introduction to International Law (4th ed., 2003) is a widely-used student text on public international law. Another useful survey is Lung-Chu Chen, An Introduction to Contemporary International Law (2d ed., 2000).

John Jackson, The World Trading System: Law and Policy of International Relations (2d. ed., 1997). One of the leading reference works on trade laws and policy.

The Authority of International Law

Symposium: May the President Violate International Law?, 80 Am. J. Int’l L. 973 (1986). In relevant part, this collection of short essays raises the question of whether international law is a part of our domestic law. One of the participants, Professor Jonathan Charnuy, maintains that international law is not binding on the Executive. Other participants include Michael Glennon and Louis Henkin.

Eric Posner & Jack Goldsmith, The Limits of International Law (2005). The authors argue that international law is really just a product of states pursuing their respective interests and does not pull states towards compliance contrary to their interests. Thus the possibilities for what international law can achieve are limited and many global problems are unsolvable.

Jeremy Rabkin, Law Without Nations: Why Constitutional Government Requires Sovereign States (2005). Professor Rabkin traces concerns over U.S. participation in international agreements and institutions such as the ICC and the Kyoto Protocol back to a central concern that motivated the Founders: the idea that only a sovereign state can make and enforce law in a reliable way and thereby protect the rights of its citizens. Rabkin cautions that we should therefore weigh the value to be derived from international agreements against the threat they pose to liberties protected by strong national authority and institutions.

Eric Posner & Cass Sunstein, Climate Change Justice, 96 Geo. L.J. 1565 (2008). The authors conclude that standard arguments from distributive and corrective justice fail to provide strong justifications for imposing special obligations for greenhouse gas reductions on the United States.

Richard Posner, Some Economics of International Law: Comment on Conference Papers, 31 J. Legal Stud. 321 (2002). Judge Posner offers economic perspectives on a wide range of issues in international law as part of a legal symposium.

The Nature and Function of International Institutions

John Harrison, International Adjudicators and Judicial Independence, 30 Harv. J.L. & Pub. Pol’y 127 (2006). An argument that that adjudicatory tribunal decisions including, for example, those of the International Court of Justice have, of their own force, no effect in domestic law, even when they are made pursuant to international agreements to which the United States is a party.

Jack Goldsmith, The Self Defeating International Criminal Court, 70 U. Chi. L. Rev. 89 (2003). Professor Goldsmith argues that the International Criminal Court is at least a partial failure as it neither facilitates self-enforcing behavior nor makes it easier for powerful nations to coerce weaker nations into action and will therefore lead to less, rather than more, punishment for human rights abuses.

John McGinnis, Medellín and the Future of International Delegation, 118 Yale L.J. 1712 (2009). In this article (written in the wake of Medellin, in which the Supreme Court announced the requirement of a clear statement in U.S. law before giving domestic effect to the decision of an international agent) Professor McGinnis considers the implications of four models - the administrative law model, the categorical constraint model, the categorical permission model, and the treaty model - for the policing of international delegations domestically and the improvement of such delegations internationally. McGinnis suggests that the treaty model - one by which the President and the Senate must authorize such delegations by treaty - may best reflect the original meaning of the Constitution, and that the Treaty Clause’s requirement that such delegations be approved by a supermajority ex ante may also help address their ex post agency costs and democratic deficit.

The Role of Foreign Law in American Domestic Jurisprudence

Frank Easterbrook, Foreign Sources and the American Constitution, 30 Harv. J.L. & Pub. Pol’y 223 (2006). In this conference address Judge Easterbrook contends that foreign laws may make strong political or moral claims that sovereigns should take into account but that the question of whether these moral norms govern is merely one of political suasion.

Anthony J. Bellia & Bradford R. Clark, The Federal Common Law, 109 Colum. L. Rev. 1 (2009). A comprehensive examination of how federal courts have treated the law of nations throughout history, concluding that, rather than viewing enforcement of the law of nations as an Article III power to fashion federal common law, courts have instead applied rules derived from the law of nations as a way to implement the political branches’ Article I and Article II powers to recognize foreign nations, conduct foreign relations, and decide questions of war and peace.

For a spirited debate between Justices Breyer and Scalia on the constitutional relevance of foreign court decisions, visit http://www.freerepublic.com/focus/news/1352357/posts.

John McGinnis & Ilya Somin, Should International Law Be Part of Our Law? in 59 Stan. L. Rev. 1175 (2007). The authors argue that, due to a lack of endorsement from democratic political processes, international law should not displace domestic law, thereby providing a new justification for “dualism” (the proposition that international and domestic law control only their respective legal spheres). They also make the case that, because American law derives from a political process and geopolitical position that is likely to benefit both Americans and foreigners more than raw international law, strict dualism is particularly suitable for the legal regime of a modern democratic superpower.

Steven G. Calabresi, “A Shining City on a Hill”:  American Exceptionalism and the Supreme Court’s Practice of Relying on Foreign Law, 86 B.U. L. Rev. 1335 (2006). Professor Calabresi brings a wide range of political science, historical, and sociological scholarship on the ideology of American exceptionalism and the centrality of the Constitution to this creed to bear on the question of the Supreme Court’s longstanding reliance on foreign law.  He concludes that “to control the meaning of the Constitution is nothing less than to control America’s exceptional mission in the world” and that scholars of the common law ought give more weight to populist tradition as opposed to Supreme Court precedent.

Nicholas Quinn Rosenkranz, Executing the Treaty Power, 118 HARV. L. REV. 1867 (2005). Professor Rosenkranz argues that, contrary to the logic of the Supreme Court's decision in Missouri v. Holland, 252 U.S. 416 (1920), the treaty power cannot expand the legislative authority of Congress beyond the limits fixed by the Constitution.

International Trade

James Bovard, The Fair Trade Fraud (1991). A vigorous attack on U.S. protectionist laws and policies.

Orrin Hatch, Better Late than Never: Implementation of the 1886 Berne Convention, 22 Cornell It’l L.J. 178 (1989). A very good overview of the Berne Convention and a critique of the moral rights theory of copyright protection.

John McGinnis, The World Trade Organization as a Structure of Liberty in 28 Harv. J.L. & Pub. Pol’y 81 (2004). Professor McGinnis that the structural similarities between the World Trade Organization (“WTO”) and the U.S. Constitution suggest that the former can become a force for limited government in our day, and that, “just as the Constitution was a great charter for economic growth in the United States by promoting a beneficial regulatory competition among states, so the WTO can be a great charter for international economic growth by promoting beneficial jurisdictional competition among nation states.”

Internet resources: Material promoting worldwide free trade can be found at the web site of the Institute for International Economics, http://www.iie.com/. The Internet Law Library is a large links page devoted to treaties and other public international law materials, http://www.lawmoose.com/internetlawlib/89.htm. The Washburn Law Library offers a “Foreign and International Law Web” at http://www.washlaw.edu/forint.

Last updated October 2011

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