International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Summer 2011 Issue
 

In Review:
New Publications on International and Comparative Law

 

International Law in the U.S. Supreme Court: Continuity and Change
Edited by David L. Sloss, Michael D. Ramsey, and William S. Dodge. Cambridge University Press. 2011

 

International Law in the U.S. Supreme Court: Continuity and ChangeReviewed By: James G. Apple, Editor-in-Chief, International Judicial Monitor and President, International Judicial Academy

The first decade of the new century (and the new millennium) in the United States was characterized by strong attacks against the judiciary, especially the federal judiciary, and including the Supreme Court of the United States, for relying on, or even citing “foreign law” by which was meant international law as well as the laws of other countries. These attacks were launched primarily by factions who characterize themselves as conservatives and who argue that “foreign law” is somehow “un-American.” Some members of these factions, such as John Bolton, former U.S. Ambassador to the United Nations (by recess appointment) in the Bush II administration, have asserted and argued that there is no such thing as international law.

Conservative law makers in Congress have introduced and supported legislation that would make an impeachable offense of a federal judge citing such foreign law. Several states (e.g. Oklahoma) have actually adopted a law by which any court opinion that relied on foreign law would be considered null and void and of no effect. Other states are considering the same kind of legislation.

These actions are based in part on the idea that there is something called “American law,” which is pure and free of foreign contamination. Organizations have been created that call for “American Law for American Courts” (see, e.g. <http://publicpolicyalliance.org/)>. 

This movement has provoked controversy, debate and analysis about the deleterious effects of such statutes on international relations and international commerce. One commentator stated:

If such laws are upheld, they could have far-reaching and unforeseen implications for international commerce. Most prominently, the laws cast doubt on the enforceability of choice-of-law provisions that incorporate foreign laws and agreements to resolve disputes in foreign venues or forums.

The controversy has also generated scholarly inquiry into the role that international law has played in the development of U.S. jurisprudence, particularly in the federal arena. One such scholarly inquiry is America and the Law of Nations 1776 -1939 by Professor Mark Weston Janis of the University of Connecticut Law School and Oxford University, published in 2010 (and reviewed in the Winter 2010 edition of the International Judicial Monitor).

The latest scholarly effort in the field is this book by three law professors from three California law schools. It is both more restrictive and more comprehensive than the one authored by Professor Janis: more restrictive in that it deals only with Supreme Court decisions; more comprehensive because it examines many more cases.

In the “Introduction” Professor David L. Sloss of Santa Clara University School of Law, Professor Michael D. Ramsey of the University of San Diego School of Law, and Professor William Dodge of the University of California, Hastings College of Law, announce the scope of their effort: “This volume seeks to provide a complete account of international law in the Supreme Court’s decisions from the Founding to the present.” It should be noted here that they succeed admirably in their goal. They also make clear how much of a role international law has  played in the development of an “American” jurisprudence: “Even in its earliest decisions in the 1790s, the Supreme Court has used international law to help resolve some of the major controversies on its docket, and there is no doubt that it will continue to do so in the future.”

There are some significant characteristics of this book that should be noted at the outset. First, it is a compilation of discussion and opinions, not just from the California professors, but a very select group of 17 other outstanding scholars from 10 different geographical areas of the U.S. The essays from these scholars cover specific eras in United States history, proceeding chronologically from the founding of the nation through the first decade of the 21st century.

There is also some logic to the multiple discussions for each era of American history – there are four commentaries in each section dealing with a different era. The four parts feature treaties and the Supreme Court, customary international law and the Supreme Court, international law as an interpretive tool and the Supreme Court, and a final historical comment on international law for the particular era. There are two exceptions to this structure, the first and the last parts. The first part consists of a single essay by the three editors on the era from the founding of the nation to the Civil War. The last part on the current era is divided into five discrete parts dealing with different issues.

The last section of Part II on the era from the Civil War to the end of the 19th Century, titled “A Society History of International Law: Historical Commentary 1861 - 1900” and written by Professor John Fabian Witt of Yale Law School, has an interesting comment on international law as part of the legal heritage of the United States:

[T]he great contribution of the chapters here is to answer beyond doubt the tacit (and sometimes express) historical claim by recent critics of internationalism in American law that engagement with international law is somehow foreign to American legal discourse, that it is a recent and aberrant development. International law (and before that the law of nations) has deep roots in American political and legal discourse, inside as well as outside of the Supreme Court. It is simply preposterous to suggest otherwise, and we can thank these chapters for pounding the final nail in the coffin in which claims to the contrary are properly interred.

Part III essays cover the period from the beginning of the 20th Century to World War II. Part IV presents four essays on the period from World War II to the new millennium. Included in Part V, divided into six major subparts, are essays that review Supreme Court decisions on international law in a variety of subjects in the 21st Century.

This book is definitely the product of scholarly minds. It is not an easy read, since the discussions are technical in both tone and content. The aim of the book is “to assist judges, lawyers and scholars in the difficult task of gleaning lessons from the past by presenting a comprehensive account of the Supreme Court’s use of international law in its decisions.” It admirably succeeds in this objective.

After perusing the different parts as noted above, this reviewer came to five conclusions about it:

1. As with Professor Janis’ book mentioned earlier, it proves conclusively that international law has played a significant role in providing ideas and legal principles for America’s founders. For that reason, in any attempt to determine the “original intent” of the founding fathers in drafting the Constitution of the U.S. and early statutes passed by the Congress, international law must be taken into consideration.

2. It shows clearly how international law influenced the development of American jurisprudence not only in the beginning of the American republic but throughout its history up to and including the presidency of Barack Obama.

3. It is an indispensable reference work on the subject of international law and the Supreme Court, because of the comprehensive coverage of that subject over a period of 224 years and because it has filled most if not all remaining gaps on that subject.

4. It should cause state and federal judges in all parts of the United States to look to, be inspired by and use international law in appropriate cases in every jurisdiction.

5. To the extent that American law is influential in other countries, it provides solid proof that American jurisprudence as developed by the Supreme Court is not hostile to international law, and that the United State remains joined with other countries of the world that promote and pronounce international law in their own jurisdictions.

ASIl & International Judicial AcademyInternational Judicial Monitor
© 2011 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
IJM welcomes comments, suggestions, and submissions.
Please contact the IJM editor at ijaworld@verizon.net.